Polk v. State
| Citation | 683 N.E.2d 567 |
| Decision Date | 23 July 1997 |
| Docket Number | No. 79S00-9612-CR-748,79S00-9612-CR-748 |
| Parties | Ronnie E. POLK, Appellant, v. STATE of Indiana, Appellee. |
| Court | Supreme Court of Indiana |
Harold E. Amstutz, Lafayette, for Appellant.
Pamela Carter, Attorney General, Andrew L. Hedges, Deputy Attorney General, Indianapolis, for Appellee.
Defendant Ronnie E. Polk was convicted of possession of at least three grams of cocaine within 1000 feet of school property, a Class A felony, 1 and of possession of a controlled substance within 1000 feet of school property, a Class C felony. 2 The jury also found Polk to be a habitual offender. The trial court imposed concurrent sentences of thirty years and four years respectively on the possession charges. The cocaine conviction was enhanced by thirty years for the habitual offender finding. Because ten years of the sentence was suspended, Polk received a total term of fifty years imprisonment. In this direct appeal, Polk presents two issues for our review:
I. Does the enhancement for possession within 1000 feet of school property apply to an occupant of a moving vehicle in that zone?
II. Was there sufficient evidence that Polk possessed cocaine?
We affirm.
In the early morning hours of July 5, 1995, the defendant was a passenger in a moving vehicle that was stopped by police for a traffic violation in Lafayette, Indiana. Lafayette Police Officer Brian Hayworth obtained the driver's consent to search the car and found drug paraphernalia in a "black zipper type pouch" that was lying on the dashboard. Based on his experience, Hayworth believed the items in the pouch were used for smoking crack cocaine. Polk denied ownership of the paraphernalia and maintained that he did not smoke cocaine. One of the other officers on the scene asked Polk if he would submit to a drug test, and Polk said he would. Hayworth obtained Polk's consent to search a "fanny pack" Polk had been wearing around his waist. A pipe and a "beige like rock substance" that later tested positive for cocaine were found in the fanny pack. Polk was arrested and patted down for weapons. During this search, several tablets were found in a pocket of Polk's pants that later proved to be a Schedule IV controlled substance (diazepam). Hayworth also felt a fist-sized item in the rear crotch of Polk's pants. Believing that the item was not a weapon, Hayworth did not attempt to remove it. The defendant was handcuffed and then placed in the rear seat of Hayworth's police car. He was left alone there for four to five minutes. It is undisputed that these events took place less than 1000 feet from Highland Christian School in Lafayette.
Officer Hayworth next drove Polk to a nearby hospital for a drug test and accompanied Polk into a hospital bathroom to monitor Polk as he gave a urine sample. At that point, Hayworth determined that the fist-sized item was no longer in Polk's pants or anywhere on his person. After releasing Polk to the custody of the Tippecanoe County Jail, Hayworth checked the rear seat cushion of his police car for the missing object. A plastic bag containing several rock substances that were subsequently determined to be crack cocaine was found under the rear seat cushion. The bag was approximately the same size as the item Hayworth had felt earlier in Polk's pants. Hayworth testified that (1) he had a steady practice of checking at the beginning of each shift for items or contraband under the rear seat cushion of his police vehicle; (2) he had done so on the night of Polk's arrest; and (3) he had found nothing. Between this initial search by Hayworth and the time Polk was placed in the back seat, no other suspects or police officers had been in the rear seat area. By design the rear doors of Hayworth's police vehicle were locked at all other times because the car was used to transport prisoners. Hayworth testified that the rear seat area where the cocaine was found was not accessible from the front seat or the outside unless the officer opened the rear doors himself.
A jury convicted Polk and he appeals. We have jurisdiction under Indiana Appellate Rule 4(A)(7). 3
Polk challenges the enhancement of both of his convictions for possession within 1000 feet of a school. Possession of cocaine is ordinarily a Class D felony, but possession of three grams or more of cocaine within 1000 feet of school property is a Class A felony. IND.CODE § 35-48-4-6 (Supp.1995). 4 Possession of a Schedule IV controlled substance is also ordinarily a Class D felony, but it is elevated to a Class C felony if the possession occurs within 1000 feet of school property. IND.CODE § 35-48-4-7 (Supp.1995). The jury found that both of these enhancements were supported by the evidence.
Polk maintains that the legislature did not intend the enhancement to apply to a passenger in a moving vehicle that is stopped by police for a traffic violation within the 1000-foot zone. Polk claims not to challenge the enhancement's purpose or constitutionality. Rather, he argues that the enhancement as applied here does not advance the statute's underlying objective of protecting school children from the effects of drugs, and produces absurd and unintended results. Polk essentially asks us to construe the school-zone enhancement to apply only to cases of drug possession in which the possessor distributed the illegal substance near school property. Polk contends this is a reasonable limitation that must be read into the enhancement for it to be consistent with due process of law, although he provides no authority for this proposition other than simply citing the Fifth and Fourteenth Amendments to the United States Constitution. Polk argues that possible consequences of a literal application of the statute include enabling police to determine the class of felony for which the defendant may be prosecuted by initiating traffic stops near school property, and prosecution of drug possessors who happen to be passengers on aircraft flying over school property. Finally, Polk maintains that the enhancement does not reasonably inform average people that they will be subject to such severe consequences for possessing drugs while stopped for a traffic violation in a school zone.
The State responds that our recent decision in Walker v. State, 668 N.E.2d 243 (Ind.1996), reh'g denied resolves this issue conclusively against Polk. Walker addressed whether the school-zone enhancement of the dealing in cocaine statute, Indiana Code § 35-48-4-1(b)(3), required proof of any mens rea to obtain a conviction. We held that the school-zone element of that offense was a strict-liability enhancement requiring no proof that the defendant knew he was dealing cocaine within 1000 feet of a school. We agree with Polk that Walker does not speak directly to his point today. He does not contend that the statute requires intent. Rather, he argues that it should not be literally applied to facts such as presented here. However, for the reasons set forth below, we reject Polk's arguments to restrict the application of the enhancement.
Other cases, like Walker, provide useful background but are not dispositive of Polk's contentions. In Morse v. State, 593 N.E.2d 194 (Ind.1992), reh'g denied, we upheld application of the school-zone enhancement against constitutional attack. There, the defendant, without specifying the source of the constitutional challenge, contended that applying the enhancement to a conviction for dealing in cocaine was "unconstitutional" absent some showing that children were present at the time the transaction took place. Id. at 197. We concluded that because children were often present on school grounds even when school was not in session, the General Assembly was justified in not requiring "the difficult proof as to whether children were actually present at the time a drug transaction occurred." Id.
In Reynolds/Herr v. State, 582 N.E.2d 833 (Ind.Ct.App.1991), defendant Herr was convicted of dealing and possession of cocaine, both within 1000 feet of school property. She had sold cocaine to a police informant inside her trailer home, which was located less than 300 feet from an elementary school. Herr challenged the constitutionality of the school-zone enhancement on equal protection grounds. Drawing on federal case law construing a similar federal statute, the Court of Appeals upheld application of the enhancement and ruled that it was neither overbroad nor underinclusive. The enhancement was not overbroad because "[t]he consequences of such transactions inevitably flow from inside the dwellings onto the streets and contribute directly to the violent and dangerous criminal milieu [the legislature] sought to eliminate in the proximity of schools." Id. at 839 (internal quotation marks and citation omitted). And nothing required the legislature to apply the enhancement to all drug transactions taking place around children; thus it was not underinclusive. The court also concluded that the enhancement's increased penalties for drug offenders was rationally related to the legitimate legislative goal of protecting children from the perils of drug trafficking.
Williford v. State, 571 N.E.2d 310 (Ind.Ct.App.1991), trans. denied by Williford v. State, 577 N.E.2d 963 (Ind.1991) addressed the issue we eventually conclusively resolved in Walker: whether the defendant must know he or she was within 1000 feet of school property to be convicted under the enhancement. There the defendant sold marijuana to an undercover police officer in a tavern that was located near an elementary school. In reaching the same result as Walker, the Court of Appeals reasoned that the defendant's argument
ignores the legislative intent to create a "drug-free zone" around the schools. 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...
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