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Judges uphold drug possession conviction, reverse habitual offender enhancement

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A man who was arrested and charged with Class B felony possession of cocaine because he was within 1,000 feet of a family housing complex in Elkhart had his conviction upheld by the Indiana Court of Appeals Friday. But the judges reversed a habitual offender enhancement because the state didn’t prove that John F. Harris III had more than one dealing offense.

In John F. Harris, III v. State of Indiana, 20A03-1205-CR-210, Officer James Wrathell saw Harris walking down the middle of the street in the middle of the night and approached Harris. After Wrathell ordered Harris to put his hands on his head, Harris fled into a nearby apartment complex, where Wrathell caught him.

Harris had $680 in cash, several bags of marijuana and a bag of individually packaged rocks of cocaine on him. He was charged with possession of cocaine, enhanced to a Class B felony because he was within 1,000 feet of a family housing complex. The state also charged him with being a habitual offender.

At trial, the officer said he did not see any children during the incident, but workers at the apartment complex testified that most of the families that live in the complex are young mothers with children. The trial court found Harris guilty as charged and sentenced him to an aggregate term of 43 years.

The Court of Appeals, citing Griffin v. State, 925 N.E.2d 334, 337 (Ind. 2010), upheld the enhanced conviction. The judges felt “bound” by statements in Griffin to mean the evidence from the apartment complex employees could support the enhancement.

“We acknowledge that this interpretation of the defense seems inconsistent with its purpose, which is ‘to excuse a defendant from the required enhancement when his presence in the proscribed zone only minimally increases the risk to children,’” Judge Terry Crone wrote. “If the defense can be defeated merely because unseen children are present in a nearby residence, the enhancement becomes similar to a strict liability offense. The enhancement loses some of its value as a deterrent if it applies to offenders who are unaware that a child happens to be present in a nearby residence. Although the statutory defense as written is clearly available for persons charged with possession or dealing within 1000 feet of a family housing complex, as a practical matter, the defense will likely be difficult to establish.”

Harris previously pleaded guilty in 2003 to possession of cocaine or narcotic drug. The state also relied on a document titled “Bail Review Pretrial Release Report” that indicates Harris has a 1997 conviction of “Manufacture/Delivery of a Controlled Substance” from Illinois to support the habitual offender enhancement. But the record is silent as to which drug Harris manufactured and not all manufacturing offenses fall within the sections of Indiana Code 35-50-2-8(b)(3)(C), so the state did not prove Harris has more than one dealing conviction under that statute.
 


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  1. It appears the police and prosecutors are allowed to change the rules halfway through the game to suit themselves. I am surprised that the congress has not yet eliminated the right to a trial in cases involving any type of forensic evidence. That would suit their foolish law and order police state views. I say we eliminate the statute of limitations for crimes committed by members of congress and other government employees. Of course they would never do that. They are all corrupt cowards!!!

  2. Poor Judge Brown probably thought that by slavishly serving the godz of the age her violations of 18th century concepts like due process and the rule of law would be overlooked. Mayhaps she was merely a Judge ahead of her time?

  3. in a lawyer discipline case Judge Brown, now removed, was presiding over a hearing about a lawyer accused of the supposedly heinous ethical violation of saying the words "Illegal immigrant." (IN re Barker) http://www.in.gov/judiciary/files/order-discipline-2013-55S00-1008-DI-429.pdf .... I wonder if when we compare the egregious violations of due process by Judge Brown, to her chiding of another lawyer for politically incorrectness, if there are any conclusions to be drawn about what kind of person, what kind of judge, what kind of apparatchik, is busy implementing the agenda of political correctness and making off-limits legit advocacy about an adverse party in a suit whose illegal alien status is relevant? I am just asking the question, the reader can make own conclsuion. Oh wait-- did I use the wrong adjective-- let me rephrase that, um undocumented alien?

  4. of course the bigger questions of whether or not the people want to pay for ANY bussing is off limits, due to the Supreme Court protecting the people from DEMOCRACY. Several decades hence from desegregation and bussing plans and we STILL need to be taking all this taxpayer money to combat mostly-imagined "discrimination" in the most obviously failed social program of the postwar period.

  5. You can put your photos anywhere you like... When someone steals it they know it doesn't belong to them. And, a man getting a divorce is automatically not a nice guy...? That's ridiculous. Since when is need of money a conflict of interest? That would mean that no one should have a job unless they are already financially solvent without a job... A photographer is also under no obligation to use a watermark (again, people know when a photo doesn't belong to them) or provide contact information. Hey, he didn't make it easy for me to pay him so I'll just take it! Well heck, might as well walk out of the grocery store with a cart full of food because the lines are too long and you don't find that convenient. "Only in Indiana." Oh, now you're passing judgement on an entire state... What state do you live in? I need to characterize everyone in your state as ignorant and opinionated. And the final bit of ignorance; assuming a photo anyone would want is lucky and then how much does your camera have to cost to make it a good photo, in your obviously relevant opinion?

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