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High court defines 'briefly'

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In two cases involving a statutory defense to possession or dealing of drugs within 1,000 feet of a school, the Indiana Supreme Court defined the term "briefly" and ruled on whether the defendants were briefly near schools when they committed their crimes.

The high court granted transfer to Reynaldo A. Griffin v. State of Indiana, No. 71S03-0907-CR-333, and Stephan M. Gallagher v. State of Indiana, No. 15S04-0909-CR-405, to address the meaning and application of the statutory term "briefly." Reynaldo Griffin was convicted of Class B felony possession of cocaine with 1,000 feet of school property. Stephan Gallagher was convicted of Class A felony dealing in a schedule II controlled substance within 1,000 feet of school property.

Griffin was stopped around 2 a.m. June 25, 2006, by police while he was pushing a moped along a street adjacent to school property because the officer thought the moped could be stolen. The officer estimated Griffin had been walking by the school for nearly five minutes when he stopped him. The officer found cocaine under the moped.

Gallagher met with a law enforcement agent Nov. 29, 2005, at an arranged meeting site behind a pharmacy that was near a school to sell pills. The meeting happened in the middle of the night and he was near the school for approximately 20 minutes.

Both Griffin and Gallagher asserted the statutory defense for their respective charges that their sentences shouldn't be enhanced because they were only briefly within 1,000 feet of the schools and no children were around at the time of the crimes. Gallagher also argued he was near the school at the request of the law enforcement agent.

In Griffin, the justices decided "briefly" implies a relative comparison and isn't the mere abstract passage of a discrete period of time. When a defendant's presence in the proscribed area is primarily for a purpose other than the illegal activity, the risk to children is smaller and briefly could encompass a greater duration of time, wrote Justice Brent Dickson. But when the defendant is in the area to engage in drug activity, especially if the activity is visible to children, even a relatively short intrusion in the area would be more than brief and shouldn't excuse the defendant from the enhancement.

"We therefore understand 'briefly,' as used in the statutory enhancement defense, to mean a period of time no longer than reasonably necessary for a defendant's intrusion into the proscribed zone principally for conduct unrelated to unlawful drug activities, provided that the defendant's activities related to the charged offense are not visible," wrote the justice.

The high court overturned Griffin's Class B felony conviction because the state didn't prove his presence within 1,000 feet of the school lasted longer than reasonably necessary to push the moped down the street, nor did the state prove there were any children present. The justices remanded for the trial court to impose the conviction and sentence as Class D felony possession of cocaine.

But the justices upheld Gallagher's conviction because he was behind the pharmacy near the school to sell drugs, even if no children were present. They also rejected Gallagher's argument that the state failed to rebut the statutory defense applicable to his charge that he went behind the pharmacy at the request of a law enforcement agent. The evidence was inconsistent as to who selected the location, and the Supreme Court declined to reweigh the evidence. The high court also affirmed Gallagher's sentence.

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