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. I have an open CHINS case I failed a urine screen I have since got clean completed IOP classes now in after care passed home inspection my x sister in law has my children I still don't even have unsupervised when I have been clean for over 4 months my x sister wants to keep the lids for good n has my case working with her I just discovered n have proof that at one of my hearing dcs case worker stated in court to the judge that a screen was dirty which caused me not to have unsupervised this was at the beginning two weeks after my initial screen I thought the weed could have still been in my system was upset because they were suppose to check levels n see if it was going down since this was only a few weeks after initial instead they said dirty I recently requested all of my screens from redwood because I take prescriptions that will show up n I was having my doctor look at levels to verify that matched what I was prescripted because dcs case worker accused me of abuseing when I got my screens I found out that screen I took that dcs case worker stated in court to judge that caused me to not get granted unsupervised was actually negative what can I do about this this is a serious issue saying a parent failed a screen in court to judge when they didn't please advise

  2. I have a degree at law, recent MS in regulatory studies. Licensed in KS, admitted b4 S& 7th circuit, but not to Indiana bar due to political correctness. Blacklisted, nearly unemployable due to hostile state action. Big Idea: Headwinds can overcome, esp for those not within the contours of the bell curve, the Lego Movie happiness set forth above. That said, even without the blacklisting for holding ideas unacceptable to the Glorious State, I think the idea presented above that a law degree open many vistas other than being a galley slave to elitist lawyers is pretty much laughable. (Did the law professors of Indiana pay for this to be published?)

  3. Paul Hartman of Burbank, Oh who is helping Sister Fuller with this Con Artist Kevin Bart McCarthy scares Sister Joseph Therese, Patricia Ann Fuller very much that McCarthy will try and hurt Patricia Ann Fuller and Paul Hartman of Burbank, Oh or any member of his family. Sister is very, very scared, (YES, I AM) This McCarthy guy is a real, real CON MAN and crook. I try to totall flatter Kevin Bart McCARTHY to keep him from hurting my best friends in this world which are Carolyn Rose and Paul Hartman. I Live in total fear of this man Kevin Bart McCarthy and try to praise him as a good man to keep us ALL from his bad deeds. This man could easy have some one cause us a very bad disability. You have to PRAISAE in order TO PROTECT yourself. He lies and makes up stories about people and then tries to steal if THEY OWN THRU THE COURTS A SPECIAL DEVOTION TO PROTECT, EX> Our Lady of America DEVOTION. EVERYONE who reads this, PLEASE BE CAREFUL of Kevin Bart McCarthy of Indianapolis, IN My Phone No. IS 419-435-3838.

  4. Joe, you might want to do some reading on the fate of Hoosier whistleblowers before you get your expectations raised up.

  5. I had a hospital and dcs caseworker falsify reports that my child was born with drugs in her system. I filed a complaint with the Indiana department of health....and they found that the hospital falsified drug screens in their investigation. Then I filed a complaint with human health services in Washington DC...dcs drug Testing is unregulated and is indicating false positives...they are currently being investigated by human health services. Then I located an attorney and signed contracts one month ago to sue dcs and Anderson community hospital. Once the suit is filed I am taking out a loan against the suit and paying a law firm to file a writ of mandamus challenging the courts jurisdiction to invoke chins case against me. I also forwarded evidence to a u.s. senator who contacted hhs to push an investigation faster. Once the lawsuit is filed local news stations will be running coverage on the situation. Easy day....people will be losing their jobs soon...and judge pancol...who has attempted to cover up what has happened will also be in trouble. The drug testing is a kids for cash and federal funding situation.