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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. What is this, the Ind Supreme Court thinking that there is a separation of powers and limited enumerated powers as delegated by a dusty old document? Such eighteen century thinking, so rare and unwanted by the elites in this modern age. Dictate to us, dictate over us, the massess are chanting! George Soros agrees. Time to change with times Ind Supreme Court, says all President Snows. Rule by executive decree is the new black.

  2. I made the same argument before a commission of the Indiana Supreme Court and then to the fedeal district and federal appellate courts. Fell flat. So very glad to read that some judges still beleive that evidentiary foundations matter.

  3. KUDOS to the Indiana Supreme Court for realizing that some bureacracies need to go to the stake. Recall what RWR said: "No government ever voluntarily reduces itself in size. Government programs, once launched, never disappear. Actually, a government bureau is the nearest thing to eternal life we'll ever see on this earth!" NOW ... what next to this rare and inspiring chopping block? Well, the Commission on Gender and Race (but not religion!?!) is way overdue. And some other Board's could be cut with a positive for State and the reputation of the Indiana judiciary.

  4. During a visit where an informant with police wears audio and video, does the video necessary have to show hand to hand transaction of money and narcotics?

  5. I will agree with that as soon as law schools stop lying to prospective students about salaries and employment opportunities in the legal profession. There is no defense to the fraudulent numbers first year salaries they post to mislead people into going to law school.

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