Whitt v. State

645 N.E.2d 677

Ind. Ct. App.

1995

Check Treatment

Terrence L. WHITT, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.

No. 02A03-9407-CR-249

Court of Appeals of Indiana, Third District

Jan. 19, 1995

644 N.E.2d 677

from the rule or rules published [in the Indiana Register].‘” Marcia J. Oddi, Environmental Rulemaking in Indiana: The Impact of the Substantial Difference Requirement on Public Input, 24 Ind.L.Rev. 845, 859 (1991). Those factors are: 1) the extent to which those persons who are affected by the adopted rule should have understood from the published version that their interests would be affected; 2) the extent to which the subject matter of the adopted rule, or the issues determined in the rule, differ from the published version, and 3) the extent to which the effects of the adopted rule differ from the effects which would have occurred had the proposed rule been adopted.

Here, neither AMP nor the Board seriously contend that any party affected by the rule was unaware that it would be affected; nor do the parties claim that the subject matter of the Final Rule somehow differed from the Proposed Rule. The nexus of the debate seems to center upon the discordant effects created by the Final Rule, as opposed to the effects of the Proposed Rule. AMP contends that the Proposed Rule, unlike the Final Rule, carried with it no fee differentiation, and that the effects upon the dischargers differed drastically because privately-owned dischargers would now be forced to “subsidize” the NPDES program through larger fees. The Board alleges that the Final Rule did not change the effects at all; the only change was the municipal exemption.

We realize that the language of I.C. 4-22-2-32(b) is nearly identical with that of the statute at issue. However, while those factors may serve as a useful guide in the analysis of the Final Rule at issue, the “substantial difference” language of subsection (b) is rendered insignificant due to the peculiar facts at hand.

Indeed, AMP‘s argument must fail in light of its concession, at oral argument, that it was aware of, and had an opportunity to comment upon, the suggested changes to the Proposed Rule. AMP conceded that the municipal exemption in the Final Rule was a direct result of comments made to the Proposed Rule. Essentially, AMP argues that the Final Rule should be declared invalid because the Board actually took into account public comments and debate elicited through proper administrative procedures. Under these facts, that the effects of the Proposed Rule might differ in some respects from those of the Final Rule are of no consequence, because the parties are in no worse condition than they would have been had the Proposed Rule been adopted without changes.

We reverse the summary judgment granted in favor of AMP. We further reverse and vacate the injunction entered against the Board. The cause is remanded for further proceedings not inconsistent with this opinion.

SHARPNACK, C.J., and KIRSCH, J. concur.

Michelle M. Fennessy, Deputy Public Defender, Fort Wayne, for appellant.

OPINION

STATON, Judge.

Terrence Whitt (“Whitt“) was convicted for possession of cocaine within 1000 feet of school property, a class B felony¹, failure to pay the Controlled Substance Excise Tax, a class D felony², and resisting a law enforcement officer, a class A misdemeanor³. Whitt raises two issues on appeal which we restate as follows:

Whether the evidence was sufficient to support the conviction for possession within 1000 feet of school property.
Whether the Controlled Substance Excise Tax (“CSET“) is unconstitutional.

We affirm in part, reverse in part, and remand.

The facts most favorable to the judgment are as follows. Police, suspecting drug activity, approached Whitt in the vicinity of Irwin Elementary School (“Irwin“). Whitt fled from them and quickly discarded a plastic bag containing cocaine. Police apprehended Whitt soon thereafter.

Though Whitt stipulated before trial that Irwin was school property, as defined by statute, the State failed to put this stipulation before the jury and, indeed, put forth no evidence that Irwin was school property. Despite this, Whitt was convicted of possession of cocaine within 1000 feet of school property, in addition to failure to pay the CSET and resisting a law enforcement officer. This appeal ensued.

I.

Sufficiency of Evidence

Whitt claims that the evidence was insufficient to support the conviction. Specifically, Whitt argues that the State offered no evidence that Irwin was school property.

We first note that the State has failed to file an appellee‘s brief. As such, Whitt must only show prima facie error to win reversal.

Delval v. PPG Industries, Inc. (1992), Ind. App., 590 N.E.2d 1078, 1080, trans. denied. However, this lower standard is for the benefit of this court, not the appellant, and we choose to decide the case on the merits. Id.

Our test for sufficiency of the evidence requires that we neither weigh the evidence 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 State offered no evidence that Irwin was school property under the statutory definition.⁴ The police officers who testified referred to Irwin as a school, but did not testify to the property limits or indicate that the property fits within the statutory definition. The State was required to either present the stipulation or to prove this element independently, but failed to do so.

The evidence was insufficient to establish that Irwin was school property. As such, we reverse Whitt‘s conviction for possession of cocaine within 1000 feet of school property.⁵

II.

Constitutionality of Substance Tax

Whitt next argues that the CSET⁶ is unconstitutional. Whitt cites

Dep‘t of Revenue of Montana v. Kurth Ranch et al., (1994), 511 U.S. 767, 114 S.Ct. 1937, 128 L.Ed.2d 767, as the basis for his claim without offer-ing a supporting argument. We will not construct an argument for Whitt, thus he can secure reversal only if Kurth Ranch is in his favor and directly on point.

Kurth Ranch held that Montana‘s Dangerous Drug Tax (“DDT“)⁷ was a “punishment” and the double jeopardy clause forbade imposing this punishment in a proceeding subsequent to the underlying drug prosecution. . Recently the Indiana Tax Court, considering , held the CSET is constitutional though it is also “punishment” and implicates the double jeopardy clause. . This conclusion, however, does not aid Whitt as his prosecution for failure to pay the CSET was contemporaneous with his prosecution for the underlying drug offense. Therefore, Whitt‘s conviction did not violate the double jeopardy clause and is affirmed.

We reverse Whitt‘s conviction for possession of cocaine within 1000 feet of school property and remand for resentencing for failure to pay the CSET and resisting a law enforcement officer.

HOFFMAN, J., concurs.

GARRARD, J., concurs in part and dissents in part and files separate opinion.

GARRARD, Judge, concurring in part and dissenting in part.

I respectfully dissent as to part I of the majority opinion. The state and the defendant stipulated in open court that Irwin was a school within the meaning of the statute. (R.126) The stipulation was binding upon Whitt and obviated the necessity of proof of that point. Thus, while it is certainly good practice to advise the jury of the stipulation, properly speaking, there is no such thing as introducing it into evidence for the jury is not empowered to weigh or disregard it. It operates to establish the facts stipulated as a matter of law for the case at hand. See, e.g.,

Clark v. State (1990) Ind., 562 N.E.2d 11, 17, cert. den. ; . Accordingly, the conviction for the class B possession felony should be affirmed.

In addition, I disagree with n. 5 and believe that

O‘Grady v. State (1985), Ind.App., 481 N.E.2d 115, trans. den., should be disapproved concerning the unavailability of the lesser offense of “simple” possession. Possession of cocaine is inherently included in the offense of possession of cocaine within 1000 feet of school property. As such, it cannot be excluded as a lesser offense by any means of drafting the information. An information charging the class B felony in fact must, and does, charge all the elements of simple possession.

I concur in part II of the majority opinion.

I would therefore affirm the convictions.

Notes

Ind.Code § 35-48-4-6 (1993).

I.C. § 6-7-3-11.

I.C. § 35-44-3-3.

The statute defines “school property” as follows:

A building or other structure owned or rented by: (A) school corporation; (B) An entity that is required to be licensed under [statutory citation]; (C) A private school...; or (D) A federal, state, local, or nonprofit program or service operated to serve, assist or benefit children who are at least three (3) years of age and not yet enrolled in kindergarten....

I.C. § 35-41-1-24.7(1).

We cannot reduce the conviction to the lesser included offense of possession because the language of the information almost exactly tracks the statutory language of the greater offense. There is no variance to indicate that the prosecutor intended to charge Whitt with simple possession. See, , reh. denied, trans. denied (overturned possession-with-intent-to-deal conviction, cannot enter conviction for possession). The State is limited to the crime charged and we cannot enter a lesser conviction. Id. In addition, reversing Whitt‘s possession conviction does not affect his conviction for failure to pay the CSET. The latter conviction does not require a contemporaneous drug conviction but only a “violation” of state or federal drugs law. I.C. § 6-7-3-5.

I.C. § 6-7-3-1, et seq. The CSET imposes a tax on the delivery, possession, or manufacture of controlled substances in violation of federal or state law. I.C. § 6-7-3-5. The tax is due when the illegal action occurs, I.C. § 6-7-3-7, the taxpayer is not required to reveal their identity, and the department of state revenue cannot reveal related information to initiate a prosecution, except for failure to pay. I.C. § 6-7-3-9. See also .

For a synopsis of the DDT see , and .