Anderson v. StateAnderson v. State
- Reporters:
- , ,
- Before:
- Staton
OPINION
STATON, Judge.Dаniel Anderson (“Anderson“) was convict, ed for possession of cocaine within 1000 feet of school property, a class B felоny 1 , failure to pay the Controlled Substance Excise Tax, a class D felony 2 , and resisting a law enforcement officer, a class A misdemeanor 3 . Anderson raises two issues on appeal which we restate as follows:
I. Whether the evidence was sufficient to supрort the conviction for possession within 1000 feet of school property.
II Whether conviction for failure to pay the Controlled Substance Excise Tax (“CSET“) and for possession of cocaine constitutes double jeopardy.
We affirm.
The facts most favorablе to the judgment are as follows. Police, suspecting drug activity, approached Anderson at the intersection of Winter and Oxford streets (“intersection“) in the vicinity of Irwin Elementary School *1062 (“Irwin“). Anderson fled, but was caught after less than a block of flight. Police searched Andеrson and found cocaine on him.
After a jury trial, Anderson was convicted of possession of cocaine within 1000 feet of school property, failure to pay the CSET and resisting a law enforcement officer. This appeal ensued.
I.
Sufficiency of Evidence
Anderson argues the evidеnce was insufficient to support his conviction for possession of cocaine. Specifically, he argues that the Statе failed to prove that he was within one thousand feet of Irwin.
Our test for sufficiency of the evidence requires that we neither weigh the еvidence nor resolve questions of credibility. We look only to the evidence of probative value and the reasonable inferences to be drawn therefrom which support the verdict. Jones v. State (1992), Ind., 589 N.E.2d 241, 242.
The jury heard evidence that the intersection at whiсh the police approached Anderson was six-hundred and ninety (690) feet from the front steps of Irwin. After a brief chase, police apprehended Anderson and found cocaine on him. This is sufficient evidence to support the conviction. There is no requirement that police apprehend Anderson within one thousand feet of school property; it is sufficient that the jury heard evidenсe from which they could reasonably infer that Anderson possessed the drug within one thousand feet of Irwin.
IL.
Controlled Substance Excise Tax
Anderson next argues that convictiоn for failure to pay the CSET 4 and for possession of cocaine violates the double jeopardy clause of the Fifth Amendmеnt 5 . He claims that he suffered unconstitutional multiple punishments.
Anderson argues that the penalty for failure to pay the CSET is a prohibited аdditional punishment for the drug possession offense. Anderson cites Department of Revenue of Montana v. Kurth Ranch (1994), 511 U.S. -, -, 114 S.Ct. 1937, 1945, 128 L.Ed.2d 767, for the proposition that punishment for drug possession and for failing to pay the drug tax based upon the same conduct violates double jeoрardy. Anderson‘s argument is ineffectual as Kurth Ranch held that Montana could collect the tax either contemporaneous with, or in lieu of, the criminal punishment. Id., 511 U.S. at -, 114 S.Ct. at 1945. The tax in Kurth Ranch was unconstitutional as applied to the Kurths only because it was a second punishmеnt. Id. at -, 114 S.Ct. at 1948. Since Anderson was convicted of failure to pay the CSET contemporaneous with his conviction for the underlying drug charge, the double jeopardy clause is not implicated. Clifft v. Indiana Department of State Revenue (1994), Ind.Tax, 641 N.E.2d 682, 693; Missouri v. Hunter (1988), 459 U.S. 359, 366, 103 S.Ct. 673, 678, 74 L.Ed.2d 535.
Further, with cumulative sentences imрosed in one trial, the double jeopardy clause only prohibits the sentencing court from prescribing greater punishment than the legislature intended. Hunter, supra, 459 U.S. at 366, 108 S.Ct. at 678. Where the legislature intends to impose cumulative pun *1063 ishment for the same act, the double jJeopar-dy clause is not implicated. Id, at 368, 108 S.Ct. at 679; Walker v. State (1991), Ind. App., 582 N.E.2d 877, 881.
The general assembly meant the CSET and underlying drug offenses to work independently. This is evidenced in several provisions of the act. First, an arrest or criminal cоnviction is not needed for the tax to become due. I1.C. § 6-7-8-8; CHfft, supra. Second, the tax raises revenue for drug abuse prevention prоgrams. I1.C. § 6-7-3-16. Third, paying the tax does not confer immunity from criminal prosecution.
We, therefore, conclude the legislature intended to impose the tax in addition to the punishment for the underlying drug offense. It follows, then, that the State can prosecute for failure to pay the tax without foregoing contemporaneous prosecution for the underlying offense. We construe statutes to prevent absurdity and to give effect to the legislature‘s probable intent. Baker v. State (1985), Ind.App., 483 N.E.2d 772, 774, trans. denied. The legislature did nоt intend the State to choose between enforcing the CSET or the criminal drug laws. If this were so, enforcing the CSET would reduce the sanction for some drug offenders. This is an absurd construction of legislative intent as, whatever else might be said about it, the CSET is clearly not meant to rеduce the penalty for drug crimes. Anderson makes no argument to the contrary. Thus, contemporaneous punishment for failing to pаy the CSET and the underlying drug offense does not violate double jeopardy. See Clifft, supra; Kurth Ranch, supra.
Finally, the State argues that the CSET is nоt a punishment at all and thus cannot implicate the double jeopardy clause. This argument runs contrary to the holding in Clifft and would allow the State to prosecute a defendant for failing to pay the tax after obtaining a conviction for the underlying drug offense. We nеed not address this argument as, even assuming Clifft correct, there was no second punishment which implicates the double jeopardy сlause. See Whitt v. State (1995), Ind.App., 645 N.E.2d 677 (accepting Clift as correct does not aid defendant).
The evidence was sufficient to support the conviction and there was no violation of the double jeopardy clause.
Affirmed.
HOFFMAN and RUCKER, JJ., concur.
Notes
.
. LC. § 6-7-3-11.
. I1.C. § 35-44-3-3.
.
. The Fifth Amendment states that “[n]o person shall ... be subject for the same offense to be twice put in jeopardy of life or limb.”