Lead Opinion
Appellant Aaron Walker contends that to sustain a conviction for dealing in cocaine within 1,000 feet of a school, as a class A felony, Ind.Code Ann. § 85-48-4-1 (West Supp.1995), the State must prove that the defendant had actual knowledge that the sale was occurring within 1,000 feet of a school. We hold that the Code creates a strict Hability enhancement and that such proof is unneе-essary.
The State charged Walker with dealing in cocaine after he sold the drug to an undercover police officer, Ernie Witten. Armed with a $20 bill to make a purchase and a microphone taped to his chest, Witten drove to the parking lot of an Indianapolis apartment complex near Public School No. 114. He noticed a group of young men sitting under a shade tree. One of these motioned to Witten, a sign the officer interpreted as asking what the officer wanted. Witten held up one finger, intending to indicate that he wanted one rock of cocaine. The young man made another motion that Witten construed as an instruction to pull around. The officer did so.
Once Witten had parked his truck, Walker approached and asked what he was looking for. Witten replied he wanted "a twenty," which is street slang for $20 worth of crack cocaine. Walker reached into his pocket, took out a plastic bag containing "several rocky hard white substances" (R. 140) and handed one to Witten. Witten gave Walker the marked $20 bill and the transaction was over.
Walker was eventually arrested and charged. A jury found him guilty of dealing in сocaine as a class A felony and determined that he was an habitual offender. Ind.Code Ann. § 35-50-2-8 (West Supp.1995). The trial judge gave him the presumptive sentence for dealing, thirty years, and added thirty years for the habitual offender finding.
The statute under which Walker was convicted declares: "(a) A person who: (1)
Walker does not dispute the evidence offered at trial that the transaction occurred 542 feet from the school. The statute does not contain any express requirement that a defendant know that a transaction is occurring within 1,000 feet of a school, but Walker argues that permitting enhancement of the crime to a class A felony without such proof violates the due process requirement that a conviction rest on proof of each element of the crime. He relies principally on In re Winship,
Whilе Walker's argument is difficult to assess in its summary form, we perceive the question to be whether we should interpret the statute as requiring separate proof of scienter with respect to an element for which the legislature has not specifically required proof of knowledge. We have encountered this question in a variety of settings, including statutes we concluded were meant to establish strict Hability for so-called "white collar" crimes. Enservco, Inc. v. Indiana Securities Div.,
As we observed in State v. Keihn,
Our assessment of these factors makes it difficult to conclude that the General Assembly intended to require separate proof the defendant knew that the dealing occurred near a school but failed to articulate its intent. Moreover, we can imagine an altogether rational reason the legislature might decide to write a statute with a strict Hability punishment provision. As Judge Staton wrote for the Court of Appeals, "A dealer's lack of knowledge of his proximity to the schools does not make the illegal drug any less harmful to the youth in whose hands it
Accordingly, we hold that the conviction was not deficient for failure to prove that Walker knew he was within 1,000 feet of a school when he committed the crime.
Walker also argues that the evidence of dealing was insufficient because he did not have the $20 bill given to him by Witten in his possession at the time of his arrest. In light of officer Witten's testimony about exchanging the $20 bill with Walker in return for cocaine, the absence of the currency as an exhibit was simply a matter for the jury to weigh as finders of fact, rather than a matter for us to assess as an appellate court. See Tiller v. State,
Accordingly, we affirm the judgment of the trial court.
Notes
. Conversely, Indiana courts have required proof of mental culpability in a number of less than "white collar" crimes where statutes did expressly provide that element. See, e.g., Snider v. State,
. These factors are:
1) the legislative history, title or context of a criminal statute;
2) similar or related statutes;
3) the severity of punishment (greater penalties favor culpable mental state requirement);
4) the danger to the public of prohibited conduct (greater danger disfavors need for culpable mental state requirement);
5) the defendant's opportunity to ascertain the ° operative facts and avoid the prohibited conduct;
6) the prosecutor's difficulty in proving the defendant's mental state; and
7) the number of expected prosecutions (greater numbers suggest that crime does not require culpablе mental state).
Keihn,
Dissenting Opinion
dissenting.
The issue in this case is not whether the Dealing in Cocaine statute contains an intent requirement. It plainly does. Rather, the issue is whether the "knowingly or intentionally" language already present in the statute requires that the State prove that appellant knew his proximity to the school when he was dealing the cocaine. Thus, the question facing this Court is the scope, nоt the existence, of scienter.
The first guide in determining the seope of scienter is the language of the Dealing in Cocaine statute itself. As always, the statutory language is the primary guide in determining the Legislature's intent. State ex rel Roberts v. Graham et al.,
(a) A person who knowingly or intention, ally ... delivers ... coсaine or a narcotic drug, pure or adulterated, classified in schedule I or II ...: commits dealing in cocaine or a narcotic drug, a Class B felony, exeept as provided in subsection (b.)
Subsection (b) further provides that
[tlhe offense is a Class A felony if the amount of the drug involved weighs three (3) grams or more; the person delivered; or financed the delivery of the drug to a person under eighteen (18) years of age at least three (8) years junior to the person; or the person delivered or financed the delivery of the drug in or on school property or within one thousand (1,000) feet of school property or on a school bus.
Ind.Code Ann. § 35-48-4-1 (West Supp. 1994) (emphasis added). Given this language, we are confronted with the question of which parts of the statute the "knowingly and intentionally" language is suрposed to modify. The Legislature, however, has provided yet another guide. In addition to the Dealing in Cocaine statute's own language, the Legislature has included a rule of interpretation in for its penal laws:
Unless the statute defining the offense provides otherwise, if a kind of culpability is required for the commission of the offense, it is required with respect to every material element of the prohibited conduct. ~
Ind.Code Ann. § 35-41-2-2(d) (West 1986) (emphasis added). The majority concedes that the "within 1000 feet of a school" requirement is an element of the crime. It does not address, however, the application of § 35-41-2-2(d) to the interpretation of the Dealing in Cocaine statute at all. Although the Legislature does not define the term "material element" in the Code, proof of dealing cocaine "within 1000 feet of a school" changes what would be a Class B felony with a minimum sentence of six years to a Class A felony with a minimum sentence of 20 years.
Additionally, the rule of lenity requires that criminal statutes be strictly construed against the State. Bond v. State,
The rulings of the federal courts and the acts of other states undermine the majority's position. The issue of the seope of scienter in a criminal statute has faced the United States Supreme Court as well. In United States v. X-Citement Video, Inc. et al.,
Our reluctance to simply follow the most grammatical reading of the statute is heightened by our cases interpreting criminal statutes to include broadly applicable scienter requirements, even where the statute by its terms does not contain them.
X-Citement Video, 513 U.S. at -,
Both Congress and some states have successfully passed anti-drug laws intended to protect children from the drug trade by creating a drug free zone around schools. The Federal Schoolyard statute, 21 U.S.C.S. § 860 (Supp.1995), for instance, completely lacks an intent provision for its proximity element and thus burdens the drug dealer with ascertaining his proximity to the protected zone.
The majority relies on this Court's adoption of LaFave and Seott's seven factor test in State v. Keihn to justify its interpretation of the Dealing in Cocaine statute. See State v. Keihn,
Moreover, the majority opinion gives no guidance for applying the Keihn test. Without a principle stating when the Keikn test will be applied or limiting its аpplication to only those criminal statutes that completely lack an intent element, I fear that the logical conclusion of the majority's application of the Keihn test to other criminal statutes could lead to interpretations that would strip our criminal statutes of their intent requirements. In short, the majority's use of the Keihn test opens a Pandora's Box of possible reinterpretations of criminal statutes that may plainly contradict the Legislature's expressed intent, no matter how clearly articulated.
When asked to determine the sufficiency of the evidence produced at trial, this Court neither weighs the evidence nor resolves questions of credibility, but looks only to the evidence and the reasonable inferences therefrоm which support the verdict. Case v. State,
I would remand this cause to the trial court for appellant to sentenced for the Class B felony of Dealing in Cocaine.
. Additionally, the majority's characterization of the Dealing in Cocaine statute as a "strict liability" statute is wrong. Criminal strict liability refers only to those penal statutes containing no intent requirement at all. See Kimball v. State,
. The harshness of the penalty is even more stark when one considers that the sentencing statutes imposed a presumptive sentence of 30 years for a
. See 21 U.S.C.S. § 860 (Supp.1995). Only the separate but related offense under 21 U.S.C.S. § 841 (1984) contains an intent requirement. The separateness of the § 841 and § 860 offenses, however, makes the discerning of Congressional intent that much easier.
. Also, several states have explicit provisions in their schoolyard statutes stating that a defendant's lack of knowledge of his proximity tо a school is not a defense. See Utah Code Ann. § 58-37-8(5)(d) (1996) and N.J.Rev.Stat. § 2C:35-7 (1995), and Wash.Rev.Code § 69.50.435 (Supp.1996). Moreover, several schoolyard statutes contain no mens rea requirement at all. See Fla.Stat. ch. 893.13(1)(c) (1994)
Dissenting Opinion
dissenting.
While our legislature could write a statute making it a crime to deal drugs within one thousand feet of a school whether the dealer knew he was within one thousand feet of a school or not, I agree with Justice DeBruler that the legislature did not write Indiana Code § 35-48-4-1 that way. In particular, I think the majority is wrong not to take into
Unless the statute defining the offense provides otherwisе, if a kind of culpability is required for the commission of the offense, it is required with respect to every material element of the prohibited conduct.
The statute at issue here requires "knowing or intentional" culpability for the commission of the offense and does not provide for any lesser degree of culpability with respect to the "one thousand feet of a school" еlement.
Finally, I agree with Justice DeBruler that Chief Justice Rehnquist's analysis of the scienter requirement in a federal criminal statute provides useful guidance here:
Our reluctance to simply follow the most grammatical reading of the statute is heightened by our cases interpreting criminal statutes to include broadly applicable scienter requirements, even where the statute by its terms does not contain them.
United States v. X-Citement Video, Inc.,
For these reasons, I dissent.