Harrison v. State
| Decision Date | 26 February 2009 |
| Docket Number | No. 49A04-0807-CR-423.,49A04-0807-CR-423. |
| Citation | 901 N.E.2d 635 |
| Parties | Kenneth HARRISON, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff. |
| Court | Indiana Appellate Court |
David A. Happe, Lockwood Williams & Happe, Anderson, IN, Attorney for Appellant.
Gregory F. Zoeller, Attorney General of Indiana, Monika Prekopa Talbot, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.
Kenneth Harrison appeals his convictions for class A felony dealing in cocaine within 1000 feet of a public park and class B felony possession of cocaine within 1000 feet of a public park. We reverse in part, vacate in part, and remand with instructions.
We address the following issues:
I. Whether the evidence is sufficient to support the enhancement of the felony level for both convictions;
II. Whether Harrison's convictions violate double jeopardy principles; and
III. Whether the prosecutor committed misconduct warranting reversal of Harrison's convictions.
The facts most favorable to the verdict show that on March 18, 2008, Indianapolis Police Officer Ethan McGivern participated in an undercover drug investigation conducted in response to complaints that a woman named Kim was dealing crack cocaine near the Wheeler Mission, located on the 200 block of North Delaware Street in Indianapolis. At about 7:40 p.m., Officer McGivern, wearing an audio transmitter/recorder, jeans, a t-shirt, and a hooded sweatshirt, approached a group of men standing in the foyer of the Wheeler Mission and asked whether anyone had seen Kim. One of the men, later identified as Harrison, asked Officer McGivern why he wanted to see Kim. Officer McGivern answered that he wanted to see "if she out[,]" i.e., was she out selling drugs. Tr. at 38. Officer McGivern explained that he "was looking for a 20," that is, $20 worth of crack cocaine. Id. Harrison said that he could help Officer McGivern with that.
Officer McGivern and Harrison walked north to the 300 block of North Delaware Street. The night was rainy and windy. Officer McGivern gave Harrison $20 in exchange for two plastic bags of crack cocaine. The transaction occurred 703 feet from University Park, a public park, at approximately 8:05 p.m. Officer Jeffrey Sequin observed the transaction from an unmarked vehicle.
After buying the crack, Officer McGivern continued to walk north. He informed his backup via his transmitter that the deal was done and provided a description of the dealer: a black male with facial hair, black pants, black sweatshirt, and a blue or gray hat. In the meantime, Officer Sequin continued to watch Harrison, who was also walking northbound at somewhat of a distance behind Officer McGivern. Officer Sequin observed another black male walking northbound behind Harrison, and the man caught up with Harrison and began walking with him.
Two officers in an unmarked car pulled up beside the men. Harrison started to run away, and the other man lay down on the ground. The two officers got out of their car and yelled, "Stop, police!" Id. at 101, 103. Harrison continued to run, and one of the officers saw him throw a clear plastic baggie. Eventually, Harrison encountered another officer and surrendered. He was patted down, and police found marijuana and the marked bills Officer McGivern had used to purchase the crack cocaine. The other man was searched, and police found a pipe used to smoke crack cocaine. No cocaine was recovered from either man. At 8:10 p.m., Officer McGivern was driven past the men, and he identified Harrison as the individual who sold him the crack cocaine. Police also found an empty plastic bag in the area through which Harrison had run, but no cocaine or other narcotics were found inside.
The State initially charged Harrison with six counts but dismissed Counts I and II, leaving the remaining counts to go to trial: Count III, class A misdemeanor possession of marijuana; Count IV, class A misdemeanor resisting law enforcement; Count V, class A felony dealing in cocaine within 1000 feet of a public park; and Count VI, class B felony possession of cocaine within 1000 feet of a public park. Appellant's App. at 44, 83. A jury found Harrison guilty as charged. Id. at 79-82. The trial court sentenced Harrison to forty-five years in the Department of Correction. Harrison appeals his convictions for Count V, class A felony dealing in cocaine within 1000 feet of a public park, and Count VI, class B felony possession of cocaine within 1000 feet of a public park.
Harrison asserts that the State failed to introduce sufficient evidence to sustain his convictions. We employ the following standard of review:
When reviewing the sufficiency of the evidence to support a conviction, appellate courts must consider only the probative evidence and reasonable inferences supporting the verdict. It is the fact-finder's role, not that of appellate courts, to assess witness credibility and weigh the evidence to determine whether it is sufficient to support a conviction. To preserve this structure, when appellate courts are confronted with conflicting evidence, they must consider it most favorably to the [verdict]. Appellate courts affirm the conviction unless no reasonable fact-finder could find the elements of the crime proven beyond a reasonable doubt. It is therefore not necessary that the evidence overcome every reasonable hypothesis of innocence. The evidence is sufficient if an inference may reasonably be drawn from it to support the verdict.
Drane v. State, 867 N.E.2d 144, 146 (Ind. 2007) (citations, quotation marks, brackets, and footnote omitted).
Harrison was convicted of class A felony dealing in cocaine within 1000 feet of a public park and class B felony possession of cocaine within 1000 feet of a public park. Dealing in cocaine is defined in Indiana Code Section 35-48-4-1(a), which provides in relevant part that a person who knowingly or intentionally delivers cocaine commits dealing in cocaine, a class B felony. However, the offense is a class A felony, as it is here, if the person delivered the drug in, on, or within 1000 feet of a public park. Ind.Code § 35-48-4-1(b)(3)(B).1 Possession of cocaine has a similar enhancement. Indiana Code Section 35-48-4-6(a) provides in relevant part that a person who knowingly or intentionally possesses cocaine commits possession of cocaine, a class D felony. The offense is a class B felony if the person possesses less than three grams of cocaine in, on, or within 1000 feet of a public park. Ind.Code § 35-48-4-6(b)(2)(B).
Indiana Code Section 35-48-4-16 provides,
(1) delivery of cocaine, a narcotic drug, methamphetamine, or a controlled substance;
(2) financing the delivery of cocaine, a narcotic drug, methamphetamine, or a controlled substance; or
(3) possession of cocaine, narcotic drug, methamphetamine, or controlled substance; within one thousand (1,000) feet of school property, a public park, a family housing complex, or a youth program center, the person charged may assert the defense in subsection (b) or (c).
(1) a person was briefly in, on, or within one thousand (1,000) feet of school property, a public park, a family housing complex, or a youth program center; and
(2) no person under eighteen (18) years of age at least three (3) years junior to the person was in, on, or within one thousand (1,000) feet of the school property, public park, family housing complex, or youth program center at the time of the offense.
(Emphasis added.)
Specifically, Harrison asserts that the State's evidence was insufficient to disprove that he was briefly within 1000 feet of a public park, here University Park, and that no persons under the age of eighteen were present.2 As a threshold matter, we observe that the parties set forth in their briefs different burdens of proof, and therefore we must resolve which burden of proof is applicable.
The parties do agree that generally, a defendant bears the initial burden to prove any affirmative defense by a preponderance of evidence. See Adkins v. State, 887 N.E.2d 934, 938 (Ind.2008) (). If the defendant meets this burden, the State is required to rebut the defense. Wallace v. State, 498 N.E.2d 961, 964 (Ind.1986). Harrison argues, however, that Indiana Code Section 35-48-4-16(b) actually contains mitigating factors that merely reduce, not excuse, a defendant's culpability, and that therefore the defendant has only the burden of placing the issue in question where the State's evidence has not done so. Our review of Indiana case law shows that we have not previously addressed this argument. Further, we note that, in its appellee's brief, the State did not respond to this argument. "An appellee's failure to respond to an issue raised by an appellant is akin to failure to file a brief." Newman v. State, 719 N.E.2d 832, 838 (Ind.Ct.App.1999), trans. Denied. In such instances, the appellant will prevail if he establishes prima facie error, that is, "error that is evident at first sight, on first appearance, or on the face of it." Atchley v. State, 730 N.E.2d 758, 766 (Ind.Ct.App.2000), trans. denied. Thus, we avoid the improper burden of having to act as an advocate. Gardner v. State, 591 N.E.2d 592, 593 (Ind.Ct.App. 1992).
Harrison asserts that Section 35-48-4-16(b) is analogous to the defenses of sudden heat, which reduces a defendant's culpability from murder to voluntary manslaughter, and an unloaded firearm, which reduces class D felony pointing a firearm pursuant to Indiana Code Section 35-47-4-3 to a class A misdemeanor. Recently, in Adkins, 887 N.E.2d at 934,...
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