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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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  3. The practitioners and judges who hail E-filing as the Saviour of the West need to contain their respective excitements. E-filing is federal court requires the practitioner to cram his motion practice into pigeonholes created by IT people. Compound motions or those seeking alternative relief are effectively barred, unless the practitioner wants to receive a tart note from some functionary admonishing about the "problem". E-filing is just another method by which courts and judges transfer their burden to practitioners, who are the really the only powerless components of the system. Of COURSE it is easier for the court to require all of its imput to conform to certain formats, but this imposition does NOT improve the quality of the practice of law and does NOT improve the ability of the practitioner to advocate for his client or to fashion pleadings that exactly conform to his client's best interests. And we should be very wary of the disingenuous pablum about the costs. The courts will find a way to stick it to the practitioner. Lake County is a VERY good example of this rapaciousness. Any one who does not believe this is invited to review the various special fees that system imposes upon practitioners- as practitioners- and upon each case ON TOP of the court costs normal in every case manually filed. Jurisprudence according to Aldous Huxley.

  4. Any attorneys who practice in federal court should be able to say the same as I can ... efiling is great. I have been doing it in fed court since it started way back. Pacer has its drawbacks, but the ability to hit an e-docket and pull up anything and everything onscreen is a huge plus for a litigator, eps the sole practitioner, who lacks a filing clerk and the paralegal support of large firms. Were I an Indiana attorney I would welcome this great step forward.

  5. Can we get full disclosure on lobbyist's payments to legislatures such as Mr Buck? AS long as there are idiots that are disrespectful of neighbors and intent on shooting fireworks every night, some kind of regulations are needed.

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