Conner v. State
| Decision Date | 20 May 1993 |
| Docket Number | No. 21A01-9205-CR-126,21A01-9205-CR-126 |
| Citation | 613 N.E.2d 484 |
| Parties | James D. CONNER, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff. |
| Court | Indiana Appellate Court |
Susan K. Carpenter, Public Defender, Teresa D. Harper, Greg Lewis, Deputy Public Defenders, Indianapolis, for appellant-defendant.
Pamela Carter, Atty. Gen., Louis E. Ransdell, Deputy Atty. Gen., Office of Atty. Gen., Indianapolis, for appellee-plaintiff.
James D. Conner appeals his conviction after a jury trial of distributing a substance represented to be a controlled substance, a class C felony. Conner received an enhanced six (6) year sentence. Conner raises twelve (12) issues which we restate and consolidate into nine (9). We remand for a new sentencing hearing. In all other respects, we affirm.
The facts in the light most favorable to the verdict indicate that Conner sold sixteen (16) bags of moist plant material that he represented to be marijuana to a confidential police informant for $1,600.00. The police detective involved field tested the substance because "[i]t sure didn't look like marijuana...." The drug analyst from the State Police Laboratory tested two (2) samples from the plant material and concluded that no marijuana was present in either of the samples.
Additional facts are supplied as necessary.
Conner asserts that his conviction must be reversed because the statutory scheme under which he was convicted is defective. We agree with Conner that the statutory scheme does contain a defect; but, the defect is hypertechnical in nature such that it does not affect the validity of the statute. Several of the issues raised by Conner relate to the defect. We combine our discussion of Conner's first three (3) issues which he states as follows:
Conner's conviction for distributing a substance represented to be a controlled substance must be reversed because the statutory definition of "distribute" requires the delivery of a "controlled substance," which means that the statute does not define a crime?
Conner's conviction for a common law crime violates his right to be free from cruel and unusual punishment guaranteed by the eighth amendment of the United States Constitution and Article 1, Section 16 of the Indiana State Constitution?
Conner's conviction should be reversed because the trial judge intentionally misstated the law in his charge to the jury in four separate instances?
The offense with which Conner was charged is defined by Ind.Code 35-48-4-4.6(a) which reads, in pertinent part, as follows:
A person who knowingly or intentionally:
* * * * * *
(4) distributes;
* * * * * *
a substance described in section 4.5 of this chapter commits a Class C felony.
The "substance described in section 4.5" is defined as:
... any substance, other than a controlled substance or a drug for which a prescription is required under federal or state law, that:
(1) is expressly or impliedly represented to be a controlled substance;
(2) is distributed under circumstances that would lead a reasonable person to believe that the substance is a controlled substance; or
(3) by overall dosage unit appearance, including shape, color, size, markings, or lack of markings, taste, consistency, or any other identifying physical characteristic of the substance, would lead a reasonable person to believe the substance is a controlled substance;
I.C. 35-48-4-4.5. (Emphasis added.)
On its face, there is nothing defective with I.C. 35-48-4-4.6. The defect in the statutory scheme becomes apparent upon an examination of the relevant statutory definitions of the terms used in the statute. "Distribute" is defined in I.C. 35-48-1-14 as "to deliver ... a controlled substance." (Emphasis added.) "Delivery" is defined in I.C. 35-48-1-11(1) as "an actual or constructive transfer from one (1) person to another of a controlled substance,...." (Emphasis added.)
As set out above, I.C. 35-48-4-4.6 requires proof that the defendant distributed any substance, other than a controlled substance. However, the statutory definition of the term "distribute" relates only to the delivery of "controlled substances." Thus, the sections are inconsistent.
Penal statutes should be interpreted in order to give efficient operation to the expressed intent of the legislature. Barger v. State (1992), Ind., 587 N.E.2d 1304. While penal statutes are to be strictly construed against the State, a penal statute will not be construed so narrowly as to exclude cases fairly covered by the statute. Id. The construction of a penal statute should not wantonly narrow, limit, or emasculate the application of the statute; the statute should not be rendered ineffective, absurd, or nugatory. Id. If possible, a penal statute should be allowed to perform its intended mission as shown by the existing evils intended to be remedied. Id.
In Barger, the State could not prove which of two (2) classes of child molesting the defendant had committed because the State could not prove the victim was either eleven (11) or twelve (12) years old at the time of the offense. Barger argued that a strict construction of the statutory scheme prohibiting child molesting required his acquittal because the State could not prove that he committed either class of child molesting. Id. at 1306. Our supreme court affirmed Barger's conviction holding that such a construction of the child molesting statutes was "absurd;" that it was "inconceivable that the legislature intended" a defendant's acquittal of Class D child molesting where the State could not prove that the victim was at least twelve (12) years old. Id. at 1307.
In Berry v. State (1990), Ind.App., 561 N.E.2d 832, Berry was convicted of the attempted delivery of marijuana within one thousand (1000) feet of school property. Berry argued that a strict construction of the statute under which he was charged, Ind.Code 35-48-4-10(b)(2)(B), excluded the possibility of a conviction for the attempted delivery of marijuana because the statute required the State to prove that Berry had "delivered" (past tense) marijuana within one thousand (1000) feet of a school. Id. at 836. We affirmed Berry's conviction holding that his construction of the statute "amount[ed] to a construction so narrow that it exclud[ed] a case fairly covered by the statute." Id. at 836.
One can always wish that statutes were drafted better. Barger, 587 N.E.2d 1304. However, Conner's construction of the statutory scheme under scrutiny renders the statute ineffective, nugatory, or absurd. We hold that the present statutory scheme, which was clearly intended to prohibit the distribution of noncontrolled substances represented to be controlled substances, does not require proof of a distribution of a controlled substance.
In the case at bar, Conner delivered sixteen bags of noncontrolled plant material he represented to be marijuana in exchange for $1,600.00. His case is fairly covered by the statute.
Moreover, we find no error resulting from the trial court's deletion of the word "controlled" before the word "substance" in the challenged jury instructions. As noted above, it is inconceivable that the legislature intended proof of the distribution of a controlled substance in a prosecution for the distribution of a noncontrolled substance represented to be a controlled substance. Therefore, the trial court's instructions could not have prejudiced Conner and we find no reversible error. See Boyd v. State (1991), Ind., 564 N.E.2d 519, 523.
We reject Conner's statutory construction which renders the statutory scheme ineffective, nugatory, and absurd. As Conner's case is fairly covered by the statute, we hold his conviction is valid and that he was not convicted of a common law crime. Moreover, we find no reversible error in the instruction of the jury.
Whether Conner's conviction violates his right to equal protection because he could have been charged and convicted of a lesser felony under a different statute prohibiting the precise conduct for which he was convicted?
As noted above, Conner was charged and convicted of distributing a substance represented to be a controlled substance as a class C felony under I.C. 35-48-4-4.6. Conner argues his constitutional rights have been violated because he could have been charged and convicted of delivering a substance represented to be a controlled substance as a Class D felony under I.C. 35-48-4-4.5. For the purposes of this opinion, we accept Conner's assertion that under the facts of this case and the relevant statutory definitions, he could have been prosecuted under either statute for the precise complained of conduct. Conner argues that his right to equal protection under law was violated because the prosecutor was afforded the discretion to choose whether to charge Conner's conduct as a class C or a class D felony. Conner asserts this is a question of first impression in Indiana.
Conner is mistaken: this question has beensettled in Indiana. The fact that one crime carries a more severe penalty than a different crime prohibiting identical conduct is irrelevant to the constitutionality of the statutory scheme. Comer v. State (1982), Ind.App., 428 N.E.2d 48, trans. denied. Overlapping statutes which carry differing penalties do not violate equal protection absent a showing that the two statutes are utilized to treat different recognizable classes of defendants differently. Id. In Comer, we found no constitutional infirmity in Comer's conviction of Reckless Homicide as a class C felony even though he could have been prosecuted for Criminal Recklessness as a class D felony for the identical conduct. Id.
Conner has not asserted that he is a member of a recognizable or suspect class. Nor has he asserted that the State charged him with the more serious felony to treat him differently than anyone else. Therefore, we find no equal protection violation.
Whether Conner's rights to due process have been...
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