Berry v. State
| Decision Date | 31 October 1990 |
| Docket Number | No. 67A01-9004-CR-171,67A01-9004-CR-171 |
| Citation | 561 N.E.2d 832 |
| Parties | 63 Ed. Law Rep. 605 Jerry BERRY, Defendant-Appellant, v. STATE of Indiana, Plaintiff-Appellee. |
| Court | Indiana Appellate Court |
Philip R. Melangton, Jr., Indianapolis, for defendant-appellant.
Linley E. Pearson, Atty. Gen., Geoff Davis, Deputy Atty. Gen., Office of Atty. Gen., Indianapolis, for plaintiff-appellee.
Defendant-appellant, Jerry Berry (Berry), appeals his conviction and eight-year sentence for attempted dealing in marijuana on school property, a Class C felony. 1 In his appeal, Berry raises the following issues which we have restated:
I. Whether there was sufficient evidence to support his conviction.
II. Whether an actual delivery is required to establish the crime of attempted dealing in marijuana on school property.
III. Whether he was subjected to an unreasonable search and seizure.
IV. Whether a proper chain of custody was established for the admission into evidence of the marijuana seized from him.
V. Whether he received ineffective assistance of counsel.
VI. Whether the trial court erred in enhancing the presumptive sentence.
We affirm Berry's conviction and sentence.
We adopt the State's statement of the facts:
On the afternoon of October 6, 1989, two students at South Putnam High School, Steve Goodpaster and Timothy Swanson, decided to arrange to buy marijuana from another student, the nineteen-year old Defendant, Jerry Berry, and then report the Defendant to the school principal. Goodpaster and Swanson had heard from other students that the Defendant was selling marijuana cigarettes, "joints," for two dollars each. As Swanson watched, Goodpaster approached After Goodpaster left the Defendant, Swanson approached the Defendant and the two walked into the restroom where Swanson asked the Defendant if he was selling marijuana and asked him for some. The Defendant denied to Swanson that he had any marijuana and responded that he sold only tobacco products. A loud argument between the two ensued during which Swanson told the Defendant he had seen him sell marijuana in the hallway of the school. A teacher, Carl Coons, heard the argument and entered the restroom to find the two in a face-to-face confrontation. Coons separated the two and took them to the office of the principal, Kenneth Tilford, after Swanson told Coons that the Defendant had marijuana in his possession. Once in Tilford's office, Coons reported what he had heard, and Swanson verified the report. Though the Defendant denied possessing any marijuana, Tilford asked the Defendant to remove his jacket, which he did. Searching through the jacket pocket, Tilford discovered two one-dollar bills and three cassette tape cases, one of which contained eight hand-rolled marijuana cigarettes. Police were summoned and the Defendant was arrested. The Defendant was advised of his right to remain silent and made an oral and a written statement admitting that he had been selling marijuana at school for several weeks. The Defendant admitted that Tilford had found the two dollars Goodpaster had given him for the sale of marijuana and the marijuana which he intended to give to Goodpaster.
the Defendant in the hallway of the school by the water fountain and discussed the sale of a joint with him. Goodpaster gave the Defendant two one-dollar bills, and the Defendant told Goodpaster he had some marijuana and would give it to him during the seventh school hour, the next class period.
Appellee's Brief at 3-5 (record citations omitted).
As a result of these events, Berry was charged and later convicted of attempted dealing in marijuana on school property, a Class C felony. The trial court, having found aggravating factors existed, enhanced the presumptive five-year sentence by three years. In addition, the trial court ordered Berry to pay a fine of $10,000. Berry appeals both his conviction and his sentence.
Berry asserts initially that there was insufficient evidence to support his conviction. In order to establish an attempted crime, the State must prove that a defendant acted with the specific intent of the substantive crime and that he engaged in overt conduct that constitutes a substantial step toward the commission of that crime. IND.CODE 35-41-5-1(a); Ward v. State (1988), Ind., 528 N.E.2d 52. The trier of fact is responsible for considering the particular circumstances of a case to determine whether a substantial step toward the commission of a crime has occurred. Jones v. State (1988), Ind., 523 N.E.2d 750. A defendant's conduct that goes beyond mere preparation is sufficient conduct to constitute a substantial step toward the commission of a crime. Houston v. State (1988), Ind.App., 528 N.E.2d 818.
Our standard of review for claims of insufficient evidence is well established. This court will not reweigh the evidence or judge the credibility of the witnesses. Alfaro v. State (1985), Ind., 478 N.E.2d 670. We will consider only the evidence most favorable to the State, together with all reasonable and logical inferences to be drawn therefrom. Id. If there is substantial evidence of probative value to support the jury's conclusion, the verdict will not be disturbed. Id.
Most of Berry's argument on this point consists of nothing more than a presentation of his version of the facts which conflict with the version provided by the State's witnesses at trial. In light of our standard of review, we decline Berry's invitation to reweigh the evidence and to accept his version of the facts. The evidence most favorable to the State reveals that when Berry was approached by his fellow student, Goodpaster, Berry told Goodpaster that he had some marijuana and would give it to him at the end of the next school hour. Berry took two dollars from Goodpaster and later admitted that the two dollars was payment for a marijuana cigarette. Berry also admitted in a written statement that he "started to sell a joint at the water fountain." Record at 242. There was sufficient evidence to support the jury's conclusion that Berry took a substantial step toward selling marijuana on school property.
Berry argues in the alternative that even if his conduct amounted to a substantial step toward dealing in marijuana, his conduct also evidenced the defense of abandonment under IND.CODE 35-41-3-10. Berry bases his argument on the events that occurred with Swanson in the restroom. The attempted sale of marijuana was to Goodpaster, not Swanson. Berry's actions toward Swanson are irrelevant. There was no abandonment.
Berry next contends that IND.CODE 35-48-4-10, which defines the underlying offense of dealing in marijuana, applies only to completed crimes and not to inchoate crimes, including attempts. Berry bases his argument on IND.CODE 35-48-4-10(b)(2)(B) which provides:
(b) The offense is:
(2) a Class C felony if:
(B) the person:
(i) delivered; or
(ii) financed the delivery of;
marijuana, ... in or on school property or within one thousand (1,000) feet of school property or on a school bus.
According to Berry, the statute does not apply to inchoate crimes because the word "delivered" appears in the past tense. Berry claims the verb tense contemplates a completion of the crime. We see no merit in Berry's argument.
We note the general rule that penal statutes are to be strictly construed against the State. Alvers v. State (1986), Ind.App., 489 N.E.2d 83, 89, trans. denied. This rule, however, is subject to the premise that the statute will not be construed so narrowly as to exclude cases fairly covered by it. Id. The statute should be interpreted to give efficient operation to the legislative intent. McAnalley v. State (1987), Ind., 514 N.E.2d 831.
Berry's interpretation of IND.CODE 35-48-4-10, amounts to a construction so narrow that it excludes a case fairly covered by the statute. The legislative intent behind the statutes defining drug offenses was to increase the severity of drug offenses occurring on school property. In addition to the enhancement of the crime found in IND.CODE 35-48-4-10, IND.CODE 35-48-4-6(b) elevates possession of cocaine or a narcotic drug from a Class D felony to a Class A or B felony if the possession is in or on school property, and IND.CODE 35-48-4-7(a) elevates possession of a scheduled controlled substance from a Class D felony to a Class C felony if the substance is possessed in or on school property. In furtherance of this legislative intent, we hold that IND.CODE 35-48-4-10 applies to inchoate crimes, including attempts.
Berry next maintains that the principal's search of his jacket was an unreasonable search and seizure in violation of the rights guaranteed him under the fourth amendment to the United States Constitution. 2 The State responds that Berry has waived this claim of error by failing to object at trial to the legality of the search, or to the admissibility of the fruits of that search. While it is true that the failure to make a timely objection at trial will result in waiver of an issue on appeal, Bozeman v. State (1988), Ind., 526 N.E.2d 1173, we will address the merits of Berry's argument because it is necessary to our disposition of his claim of ineffective assistance of counsel.
In New Jersey v. T.L.O., supra n. 2, the United States Supreme Court held that a school official's search of a student is not subject to the fourth amendment warrant requirement and does not require the same degree of suspicion that constitutes probable cause. "Rather, the legality of a search of a student should depend simply on the reasonableness, under all the circumstances, of the search." 469 U.S. at 341, 105 S.Ct. at 742, 83 L.Ed.2d at 734. In determining whether a particular search is reasonable, two inquiries must be made. First, whether the search was justified at its inception and, second, whether the search as executed was reasonably related in scope to the circumstances which...
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