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COA: State must prove violation of statute

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The Indiana Court of Appeals addressed for the first time today whether under Indiana Code Section 35-48-4-16(b) a defendant only has the burden of placing the issue in question where the state's evidence hasn't done so.

In Kenneth Harrison v. State of Indiana, No. 49A04-0807-CR-423, Kenneth Harrison appealed his convictions for Class A felony dealing in cocaine within 1,000 feet of a public park and Class B felony possession of cocaine within 1,000 feet of a public park, arguing the enhancement statute for dealing or possession of drugs near a park constitutes a mitigating factor that reduces culpability so he doesn't have the burden of proof.

The Court of Appeals examined Adkins v. State, 887 N.E.2d 934, 938 (Ind. 2008), and found the statute in question in the instant case doesn't excuse a defendant from culpability but operates only to reduce the level of culpability when certain factors are present, wrote Judge Terry Crone. A defendant has only the burden of placing the issue in question and then the state must prove beyond a reasonable doubt that a defendant was either within 1,000 feet of a public park more than "briefly," or people under the age of 18 were within 1,000 feet of the park.

The state failed to carry its burden in the instant case. The record shows Harrison was briefly within 1,000 feet of the park when he actually sold the cocaine to an undercover officer while walking, and the state failed to show Harrison was constantly within 1,000 feet of the park during the entire sale. There was also no evidence to show people under the age of 18 near the park at the time of the sale, given it was a dark, rainy, and windy night, wrote the judge.

The appellate court reversed his conviction for Class A felony dealing in cocaine and remanded with instructions to reduce the conviction to a Class B felony and re-sentence him on that count. The Court of Appeals also remanded to the trial court to vacate Harrison's conviction of possession of cocaine on double jeopardy principles because the same cocaine was used to support both convictions.

The Court of Appeals also addressed Harrison's argument that the prosecutor committed misconduct during his closing argument by making a statement that shifted the burden of proof to Harrison. Harrison had testified a couple gave him a ride downtown so he could by marijuana and someone else must have sold the undercover officer the cocaine. The couple didn't show up for trial. The appellate court determined the prosecutor's comments were improper but don't warrant a reversal Harrison's conviction.

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  1. So if I am reading it right, only if and when African American college students agree to receive checks labeling them as "Negroes" do they receive aid from the UNCF or the Quaker's Educational Fund? In other words, to borrow from the Indiana Appellate Court, "the [nonprofit] supposed to be [their] advocate, refers to [students] in a racially offensive manner. While there is no evidence that [the nonprofits] intended harm to [African American students], the harm was nonetheless inflicted. [Black students are] presented to [academia and future employers] in a racially offensive manner. For these reasons, [such] performance [is] deficient and also prejudice[ial]." Maybe even DEPLORABLE???

  2. I'm the poor soul who spent over 10 years in prison with many many other prisoners trying to kill me for being charged with a sex offense THAT I DID NOT COMMIT i was in jail for a battery charge for helping a friend leave a boyfriend who beat her I've been saying for over 28 years that i did not and would never hurt a child like that mine or anybody's child but NOBODY wants to believe that i might not be guilty of this horrible crime or think that when i say that ALL the paperwork concerning my conviction has strangely DISAPPEARED or even when the long beach judge re-sentenced me over 14 months on a already filed plea bargain out of another districts court then had it filed under a fake name so i could not find while trying to fight my conviction on appeal in a nut shell people are ALWAYS quick to believe the worst about some one well I DID NOT HURT ANY CHILD EVER IN MY LIFE AND HAVE SAID THIS FOR ALMOST 30 YEARS please if anybody can me get some kind of justice it would be greatly appreciated respectfully written wrongly accused Brian Valenti

  3. A high ranking Indiana supreme Court operative caught red handed leading a group using the uber offensive N word! She must denounce or be denounced! (Or not since she is an insider ... rules do not apply to them). Evidence here: http://m.indianacompanies.us/friends-educational-fund-for-negroes.364110.company.v2#top_info

  4. A high ranking bureaucrat with Ind sup court is heading up an organization celebrating the formal N word!!! She must resign and denounce! http://m.indianacompanies.us/friends-educational-fund-for-negroes.364110.company.v2#top_info

  5. ND2019, don't try to confuse the Left with facts. Their ideologies trump facts, trump due process, trump court rules, even trump federal statutes. I hold the proof if interested. Facts matter only to those who are not on an agenda-first mission.

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