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Court rejects man's explanation of 'briefly'

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A man charged with a drug dealing offense near a school wasn’t entitled to a jury instruction stating he was only “briefly” within 1,000 feet of school property because the drug transaction was short in time even though it happened at his house, the Indiana Court of Appeals ruled today.

Clarence Seeley Jr. appealed his conviction of dealing in a schedule III controlled substance as a Class A felony since he was within 1,000 feet of a school when dealing, and the finding he is an habitual offender. Seeley sold pills containing hydroquinone during a controlled drug buy from his home that lasted between five and 10 minutes. His property is 545 feet from a church’s school property and his front door is around 800 feet from the front door of the school.

The state proffered a jury instruction that said it’s a defense that the defendant was briefly in, on, or within 1,000 feet of school property and no one under the age of 18 was in, on, or within 1,000 of the school property at the time of the offense. The court refused the instruction on the basis that because Seeley lived where the drug buy happened, he was there for more than just a mere passing.

Seeley believed the jury instruction should have been allowed and the term briefly should have reflected the time of the drug buy, not how long he was within 1,000 feet the school. Thus, the statutory defense would be available to him, and he was entitled to have the jury instructed accordingly.

Citing Griffin v. State, 925 N.E.2d 344, 347, 349-50 (Ind. 2010), Judge Edward Najam wrote in Clarence Seeley, Jr. v. State of Indiana, No. 21A05-1003-CR-167, that the “briefly” language relates to Seeley’s presence in the prescribed zone, not the length of the transaction.

“To be sure, in some scenarios the defendant’s presence in the proscribed zone will be coextensive with the illegal transaction,” he wrote. “But that is not the case here, where Seeley lived within 1,000 feet of school property.”

Seeley also argued because of his extended stay in the proscribed zone that he is entitled to the statutory defense. He claimed the length of the transaction is what matters here because when taking in context his total stay in the proscribed zone, the time spent on the illegal transaction only minimally increased the risk to children.

“Applying ‘briefly’ in the manner asserted by Seeley would wholly negate that prong of the statutory defense. When a defendant lives in the proscribed zone and he has turned his home into a place where controlled substances may be illegally purchased, he cannot be in the proscribed zone only ‘briefly,’” wrote the judge.

The Court of Appeals also upheld that the state’s evidence of the testimony of the county surveyor regarding the distance between Seeley’s property and the school’s property was sufficient for the jury to find the property was school property. The judges reversed the habitual offender finding as his previous convictions were insufficient as a matter of law for him to be found to be a habitual offender. They remanded for re-sentencing.
 

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  1. Call it unauthorized law if you must, a regulatory wrong, but it was fraud and theft well beyond that, a seeming crime! "In three specific cases, the hearing officer found that Westerfield did little to no work for her clients but only issued a partial refund or no refund at all." That is theft by deception, folks. "In its decision to suspend Westerfield, the Supreme Court noted that she already had a long disciplinary history dating back to 1996 and had previously been suspended in 2004 and indefinitely suspended in 2005. She was reinstated in 2009 after finally giving the commission a response to the grievance for which she was suspended in 2004." WOW -- was the Indiana Supreme Court complicit in her fraud? Talk about being on notice of a real bad actor .... "Further, the justices noted that during her testimony, Westerfield was “disingenuous and evasive” about her relationship with Tope and attempted to distance herself from him. They also wrote that other aggravating factors existed in Westerfield’s case, such as her lack of remorse." WOW, and yet she only got 18 months on the bench, and if she shows up and cries for them in a year and a half, and pays money to JLAP for group therapy ... back in to ride roughshod over hapless clients (or are they "marks") once again! Aint Hoosier lawyering a great money making adventure!!! Just live for the bucks, even if filthy lucre, and come out a-ok. ME on the other hand??? Lifetime banishment for blowing the whistle on unconstitutional governance. Yes, had I ripped off clients or had ANY disciplinary history for doing that I would have fared better, most likely, as that it would have revealed me motivated by Mammon and not Faith. Check it out if you doubt my reading of this, compare and contrast the above 18 months with my lifetime banishment from court, see appendix for Bar Examiners report which the ISC adopted without substantive review: https://www.scribd.com/doc/299040839/2016Petitionforcert-to-SCOTUS

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