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 , 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.