*1 Carter, General, Attorney Pamela Jodi Ka- Rowe, General, thryn Deputy Attorney WALKER, Appellant In- Aaron (Defendant dianapolis, Appellee. Below), SHEPARD, Chief Justice. Indiana, Appellee STATE Appellant Aaron Walker contends that Below). (Plaintiff sustain a conviction for in cocaine No. 49S00-9404-CR-337. 1,000 school, within as a class A (West felony, Ann. Ind.Code 85-48-4-1 Supreme Cоurt of Indiana. Supp.1995), the State must that the June 1996. defendant had actual that the sale occurring was feet of a school. Rehearing Denied Oct. We hold that the Code creates a strict Habili- ty proof enhancement and that such is unnee- essary. charged State Walker with
cocaine after he sold the to an under- officer, police cover Ernie Witten. Armed purchase with a bill to make a $20 and chest, microphone taped to his Witten drove parking Indianapolis apart- lot of an complex ment near Public School No. 114. group young sitting He noticed a men shade tree. One of these motioned Witten, sign interpreted the officer asking what the officer wanted. Witten held up finger, intending one indicate he young wanted one rock of cocaine. The man made another motion that Witten construed pull as an instruction to around. The officer did so. truck, parked
Once Witten had Walker approached looking and asked what he was replied twenty," for. Witten he wanted "a slang which is street worth of crack $20 pоcket, cocaine. Walker reached into his plastic bag containing out a took "several (R. 140) rocky hard white substances" gave handed one to Witten. Witten Walker the marked bill transaction was $20 over. eventually arrested
Walker was charged. jury guilty A him found in cocaine as a class A and determined that he an habitual offender. Ind.Code (West Supp.1995). Ann. judge gave presumptive trial him the sen- dealing, thirty years, tence for and added thirty years finding. for the habitual offender Bechler, Kay Indianapolis, Appel- A. which was con- The statute under Walker "(a) lant. who: victed declares: *2 244 (C)
Knowingly
intentionally
giving jury
requiring
...
Delivers
instruction
or
erred
case).1
cocaine,
dealing in
franchise fraud
... cocaine ... commits
felony."
§Ann.
B
Ind.Code
Class
Keihn,
As we observed in
v.
542
State
(West Supp.1995). The statute elevates the
(Ind.1989),
N.E.2d 963
Professors LaFave
felony if
person
a class A
the
offense to
accurately
question
describe this
Scott
drug in
...
or on school
"Delivered
legislature
impose
"whether
meant
(1,000)
property
one thousand
or within
or,
hand,
liability
fault
without
on the other
propеrty
of school
or on a school bus."
Id.
fault,
really
require
though
meant to
it failed
dispute
does not
the evidence
Walker
spell
clearly."
(quoting
it out
Id. at 967
1
offered at trial that the transaction occurred
Scott,
Wayne
Jr.,
R. LaFave and Austin W.
542 feet from the school. The statute does
Criminal
3.8 at 342-44
Substantive
Law
any express requirement
not contain
that a
(1986)).
approval
We noted with
the seven
defendant know that a transaction
occur
suggested
factors LaFave and Scott have
be
school,
ring
but Walker
deciding
question.2
balanced
this
One of
argues
permitting
enhancement of the
factors,
severity
punishment,
these
proof
crime to a class A
without such
suggests
legislature might
have in
process requirement
violates the due
that a
tended to
of mental state for
proof
conviction rest on
of each element of
the enhancement of
in cocaine.
.Oth
principally
the crime. He relies
on In re
Winship,
factors,
397 U.S.
particularly
great danger
er
of
prohibited
great
conduct and the
number
proposition.
L.Ed.2d 368
this
expeсted prosecutions,
suggest
of
argument
While Walker's
is difficult
Assembly likely
General
did intend to create
form,
summary
perceive
assess in its
we
Hability
a strict
enhancement.
question
interpret
to be whether we should
requiring separate proof
the statute as
of
Our assessment of these factors makes it
scienter with
to an
for which
difficult to conclude that the General Assem-
specifically required
has not
bly
require separate proof
intended to
proof
knowledge.
of
We have encountered
defendant knew that
occurred
question
variety
settings,
this
in a
includ
near
school but failed to articulate its in-
ing statutes we concluded
were meant
imagine
altogeth-
tent.
we can
an
Hability
establish strict
for so-called "white
legislature might
er rational reason the
de-
Enservco,
collar" crimes.
Inc. v. Indiana
Hability
cide to write a statute with a strict
Div.,
(Ind.1998)
Securities
This fact
statutes
requirements,
a school"
as a material
even where
85-41-2-2(d).
Because the
its
element under
terms does not contain them.
provided
not
otherwise in the
Legislature has
Vidеo,
-,
X-Citement
115 S.Ct.
U.S.
85-41-2-2(d)
§as
Dealing in Cocaine statute
opinion,
at 468
In the same
only
can
explicitly requires, one
conclude
penalties
Court noted
the harsh
for vio
"knowingly" requires
term
the State
lating
required
18 U.S.C. 2252
the statute
beyond
a reasonable doubt that the
be
construed
have the broad scienter re
have
defendant did
fact
-,
quirement.
Id. at
at 469.
S.Ct.
proximity to the school.
States,
See also Morissette v. United
Additionally,
lenity requires
rule of
(1952);
Our reluctance to follow the most statutes with no intent at all or grammatical reading explicitly knowledge of the statute is state that lack of is not heightened by interpreting proximity element.6 our cases crim- a defense to the felony years Class A and 10 for a Class B Also, several states have explicit provisions alleged at the time of the crime. See Ind.Code schoolyard stating their statutes defen- (West 1986). § § Ann. 35-50-2-4 and dant's lack of to a school not a defense. See Utah Code Ann. Only (Supp.1995). 5. See 21 U.S.C.S. 58-37-8(5)(d) (1996) and N.J.Rev.Stat. separate but related offense 21 U.S.C.S. (1995), § 2C:35-7 and Wash.Rev.Code § 841 contains an intent (Supp.1996). § 69.50.435 several separateness 841 and 860 of- schoolyard require- statutes contain no mens rea discerning fenses, however, makes Con- 893.13(1)(c) (1994) gressional intent that much easier. ment at all. See Fla.Stat. ch. "knowingly intentionally" phrase only completely those criminal statutes that statute, element, logical Indiana's in Cocaine as well lack an intеnt I fear that the any language manifesting majority's as the lack of conclusion of the contrary purpose, plau- it causes to be more Keihn test to other criminal statutes could sibly target drug involving interpretations read trade lead strip that would our children near schools rather than to create a criminal require- statutes their schools, drug short, free zone around our state's majority's ments. use of the opens possible Keihn test a Pandora's Box of purpose target however. Its rather would reinterpretations those who sell children of criminal statutes still, and, recruit may plainly worse them as distributors Legislature's contradict ex- drugs. language actually intent, illicit pressed The intent cleаrly no matter how articu- legislative used the statute indicates a lated. punish schoolyard pusher intent to more sufficiency When asked to determine the harshly than those who sell to adults in their trial, produced the evidence this Court apartments merely happen and homes that weighs neither the evidence nor resolves be within a zone. The cоuld have questions credibility, only but looks reasonably believed that dealers who evidence reasonable inferences *5 enough, sell to adults are bad who but those support therefrom which the verdict. Case playgrounds lurk in the of our nation's school (Ind.1984). v. prey upon children are worse Nevertheless, prove when the State fails to statute, By reading this still. of the statute, all the elements of a criminal greater by particular harm created this form case, present cannot In conviction stand. drug trafficking greater moral prosecution showing made no at trial that culpability trafficking of one in such involved appellant his knew distance from the school. Legislature led the only proof addressing the "within 1000 greater level of for the feet of a school" element of the statute was felony conviction than a Class B conviction testimony Detective Witten's that he Dealing I Cocaine statute. colleagues measured the distance from the reading therefore believe that this of the buy site of the controlled to the front of сlearly requires statute the State to Therefore, Public School even the evi- by showing appellant that evil intent dence most favorable to the verdict and the knew that he 1000 feet pro- reasonable inferences therefrom fail to a school when he was cocaine. probative vide evidence from a reason- which mаjority adop- relies on this Court's requisite able trier of fact could infer the tion of LaFave and Seott's seven factor test beyond a scienter reasonable doubt. justify interpretation State v. Keihn to its I would remand this cause to the trial Dealing in Cocaine statute. See State appellant court for sentenced the Class Keihn, That felony Dealing in Cocaine. case, however, dealt the a with statute
had no intent Given Justice, SULLIVAN, dissenting. Dealing in Cocaine statute does contain an requirement, use of the Keihn test to legislature While our could write a statute interpret Legislature a statute which the making drugs it a crime to deal within one requirement has included an intent is dubi- thousand school whethеr the dealer at ous best. knew he was within one thousand feet of a not, majority opinion gives agree I no school or with Justice DeBruler did not write Indiana guidance applying the Keihn test. With- way. particular, 35-48-4-1 that I Code principle stating out when the Keikn test applied limiting majority wrong will be its think the is not to take into interplay and Va.Code Ann. 18.2-255.2 Either statute and its with Ind.Cоde 35-41- 2-2(d). approach clarify R ambiguity would inherent in phrasing of Indiana's in Cocaine analysis account in its Indiana Code 35-
41-2-2(d) provides: which defining
Unless the statute the offense
provides otherwise, if a kind of culpability required for the commission of the of-
fense, required respect it is with every
material element of the conduct. statute issue here "know-
ing or culpability intentional" for the commis-
sion of the offense and does provide not
any degree lesser
to the "one thousand feet of a school" ele-
ment.
Finally, agree I with Justice DeBruler that Rehnquist's
Chief analysis Justice
scienter in a federal criminal provides guidance
statute useful here:
Our reluctance to follow the most
grammatical reading of the statute
heightened by our cases interpreting crim-
inal statutes to include broadly applicable requirements, even where the its terms does not contain them. *6 Video, Inc., United States v. X-Citement -, 464, 468, 130 LEd.2d added). (emphasis reasons,
For these I dissent.
Roy TIBBS, Appellant, W.
HUBER, NICHOLS, INC., HUNT & Company, Inc.,
Grunau Appellees.
No. 32S01-9505-CV-00603.
Supreme Court of Indiana.
July