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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. It appears the police and prosecutors are allowed to change the rules halfway through the game to suit themselves. I am surprised that the congress has not yet eliminated the right to a trial in cases involving any type of forensic evidence. That would suit their foolish law and order police state views. I say we eliminate the statute of limitations for crimes committed by members of congress and other government employees. Of course they would never do that. They are all corrupt cowards!!!

  2. Poor Judge Brown probably thought that by slavishly serving the godz of the age her violations of 18th century concepts like due process and the rule of law would be overlooked. Mayhaps she was merely a Judge ahead of her time?

  3. in a lawyer discipline case Judge Brown, now removed, was presiding over a hearing about a lawyer accused of the supposedly heinous ethical violation of saying the words "Illegal immigrant." (IN re Barker) http://www.in.gov/judiciary/files/order-discipline-2013-55S00-1008-DI-429.pdf .... I wonder if when we compare the egregious violations of due process by Judge Brown, to her chiding of another lawyer for politically incorrectness, if there are any conclusions to be drawn about what kind of person, what kind of judge, what kind of apparatchik, is busy implementing the agenda of political correctness and making off-limits legit advocacy about an adverse party in a suit whose illegal alien status is relevant? I am just asking the question, the reader can make own conclsuion. Oh wait-- did I use the wrong adjective-- let me rephrase that, um undocumented alien?

  4. of course the bigger questions of whether or not the people want to pay for ANY bussing is off limits, due to the Supreme Court protecting the people from DEMOCRACY. Several decades hence from desegregation and bussing plans and we STILL need to be taking all this taxpayer money to combat mostly-imagined "discrimination" in the most obviously failed social program of the postwar period.

  5. You can put your photos anywhere you like... When someone steals it they know it doesn't belong to them. And, a man getting a divorce is automatically not a nice guy...? That's ridiculous. Since when is need of money a conflict of interest? That would mean that no one should have a job unless they are already financially solvent without a job... A photographer is also under no obligation to use a watermark (again, people know when a photo doesn't belong to them) or provide contact information. Hey, he didn't make it easy for me to pay him so I'll just take it! Well heck, might as well walk out of the grocery store with a cart full of food because the lines are too long and you don't find that convenient. "Only in Indiana." Oh, now you're passing judgement on an entire state... What state do you live in? I need to characterize everyone in your state as ignorant and opinionated. And the final bit of ignorance; assuming a photo anyone would want is lucky and then how much does your camera have to cost to make it a good photo, in your obviously relevant opinion?

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