Two Indiana Supreme Court justices objected to affirming a man’s drug sentence for possession within 1,000 feet of
a “youth program center” because the church that ran the programs wasn’t easily identifiable as regularly
running programs for kids.
Justices Theodore Boehm and Robert Rucker dissented from the majority in Walker Whatley v. State of Indiana, No. 49S02-0908-CR-379, because they didn’t believe a casual observer would know that the church ran youth-oriented programs. The dissenting justices agreed with the majority that there are many buildings that are easily identifiable as regular providers of programs or services for children.
“But the statute under the majority’s rationale here looks only to the activities conducted in the structure to determine whether it is a youth program center, and not to whether a casual observer could readily discern that the structure provides those services,” wrote Justice Boehm. “This reasoning would make a youth program center of every residence housing a Cub Scout weekly meeting.”
The majority held that it didn’t matter that the programs offered by Robinson Community Church were of religious content or that the church has other uses for the building. The statute doesn’t explicitly or implicitly place any limitations on the content of programs offered or why children are present, wrote Justice Frank Sullivan for the majority.
Walker Whatley was arrested in his home on a warrant in an unrelated case when police discovered he had a little over 3 grams of cocaine in his pocket. Because he lived nearly 800 feet from Robinson Community Church, the charge was elevated a Class A felony, of which he was convicted.
The Indiana Court of Appeals overturned his conviction on the grounds the church didn’t qualify as a “youth program center” under Indiana Code Section 35-48-4-6 because its youth programs didn’t change its status as a church. They ordered that the conviction be entered as a Class C felony and that he be sentenced accordingly.
Whatley argued that the statute is unconstitutionally vague as it applies to him because there was nothing about the church, such as signage, indicating that it’s a protected area. But the majority found Whatley could have observed the church’s status by seeing young people enter and exit the building on a regular basis; he also could have asked if it offered youth programs on a regular basis. Just as was the case in Walker v. State, 668 N.E.2d 243 (Ind. 1996), it doesn’t matter that Whatley was unaware of the existence of the youth program center. The statute isn’t vague as applied to the facts of Whatley’s case, wrote Justice Sullivan.
But that’s one reason why Justices Boehm and Rucker dissented – the enhancement doesn’t list church or any other term that might more plainly include Robinson Community Church. Due process requires that a criminal statute give everyone reasonable notice of what is prohibited, Justice Boehm wrote. Justice Rucker concurred that Whatley’s enhanced sentence should be set aside.