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Court rejects man's explanation of 'briefly'

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A man charged with a drug dealing offense near a school wasn’t entitled to a jury instruction stating he was only “briefly” within 1,000 feet of school property because the drug transaction was short in time even though it happened at his house, the Indiana Court of Appeals ruled today.

Clarence Seeley Jr. appealed his conviction of dealing in a schedule III controlled substance as a Class A felony since he was within 1,000 feet of a school when dealing, and the finding he is an habitual offender. Seeley sold pills containing hydroquinone during a controlled drug buy from his home that lasted between five and 10 minutes. His property is 545 feet from a church’s school property and his front door is around 800 feet from the front door of the school.

The state proffered a jury instruction that said it’s a defense that the defendant was briefly in, on, or within 1,000 feet of school property and no one under the age of 18 was in, on, or within 1,000 of the school property at the time of the offense. The court refused the instruction on the basis that because Seeley lived where the drug buy happened, he was there for more than just a mere passing.

Seeley believed the jury instruction should have been allowed and the term briefly should have reflected the time of the drug buy, not how long he was within 1,000 feet the school. Thus, the statutory defense would be available to him, and he was entitled to have the jury instructed accordingly.

Citing Griffin v. State, 925 N.E.2d 344, 347, 349-50 (Ind. 2010), Judge Edward Najam wrote in Clarence Seeley, Jr. v. State of Indiana, No. 21A05-1003-CR-167, that the “briefly” language relates to Seeley’s presence in the prescribed zone, not the length of the transaction.

“To be sure, in some scenarios the defendant’s presence in the proscribed zone will be coextensive with the illegal transaction,” he wrote. “But that is not the case here, where Seeley lived within 1,000 feet of school property.”

Seeley also argued because of his extended stay in the proscribed zone that he is entitled to the statutory defense. He claimed the length of the transaction is what matters here because when taking in context his total stay in the proscribed zone, the time spent on the illegal transaction only minimally increased the risk to children.

“Applying ‘briefly’ in the manner asserted by Seeley would wholly negate that prong of the statutory defense. When a defendant lives in the proscribed zone and he has turned his home into a place where controlled substances may be illegally purchased, he cannot be in the proscribed zone only ‘briefly,’” wrote the judge.

The Court of Appeals also upheld that the state’s evidence of the testimony of the county surveyor regarding the distance between Seeley’s property and the school’s property was sufficient for the jury to find the property was school property. The judges reversed the habitual offender finding as his previous convictions were insufficient as a matter of law for him to be found to be a habitual offender. They remanded for re-sentencing.
 

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  1. Indiana's seatbelt law is not punishable as a crime. It is an infraction. Apparently some of our Circuit judges have deemed settled law inapplicable if it fails to fit their litmus test of political correctness. Extrapolating to redefine terms of behavior in a violation of immigration law to the entire body of criminal law leaves a smorgasbord of opportunity for judicial mischief.

  2. I wonder if $10 diversions for failure to wear seat belts are considered moral turpitude in federal immigration law like they are under Indiana law? Anyone know?

  3. What a fine article, thank you! I can testify firsthand and by detailed legal reports (at end of this note) as to the dire consequences of rejecting this truth from the fine article above: "The inclusion and expansion of this right [to jury] in Indiana’s Constitution is a clear reflection of our state’s intention to emphasize the importance of every Hoosier’s right to make their case in front of a jury of their peers." Over $20? Every Hoosier? Well then how about when your very vocation is on the line? How about instead of a jury of peers, one faces a bevy of political appointees, mini-czars, who care less about due process of the law than the real czars did? Instead of trial by jury, trial by ideological ordeal run by Orwellian agents? Well that is built into more than a few administrative law committees of the Ind S.Ct., and it is now being weaponized, as is revealed in articles posted at this ezine, to root out post moderns heresies like refusal to stand and pledge allegiance to all things politically correct. My career was burned at the stake for not so saluting, but I think I was just one of the early logs. Due, at least in part, to the removal of the jury from bar admission and bar discipline cases, many more fires will soon be lit. Perhaps one awaits you, dear heretic? Oh, at that Ind. article 12 plank about a remedy at law for every damage done ... ah, well, the founders evidently meant only for those damages done not by the government itself, rabid statists that they were. (Yes, that was sarcasm.) My written reports available here: Denied petition for cert (this time around): http://tinyurl.com/zdmawmw Denied petition for cert (from the 2009 denial and five year banishment): http://tinyurl.com/zcypybh Related, not written by me: Amicus brief: http://tinyurl.com/hvh7qgp

  4. Justice has finally been served. So glad that Dr. Ley can finally sleep peacefully at night knowing the truth has finally come to the surface.

  5. While this right is guaranteed by our Constitution, it has in recent years been hampered by insurance companies, i.e.; the practice of the plaintiff's own insurance company intervening in an action and filing a lien against any proceeds paid to their insured. In essence, causing an additional financial hurdle for a plaintiff to overcome at trial in terms of overall award. In a very real sense an injured party in exercise of their right to trial by jury may be the only party in a cause that would end up with zero compensation.

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