Saxton v. Com.

• Decision Date: 17 June 2010
• Docket Number: No. 2008-SC-000899-DG.,2008-SC-000899-DG.
• Parties: Orlando SAXTON, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
• Court: United States State Supreme Court — District of Kentucky

315 S.W.3d 293

Orlando SAXTON, Appellant, v. COMMONWEALTH of Kentucky, Appellee.

No. 2008-SC-000899-DG.

Supreme Court of Kentucky.

June 17, 2010.

Jamesa J. Drake, Assistant Public Advocate, Department of Public Advocacy, Frankfort, KY, Counsel for Appellant.

Jack Conway, Attorney General, David Wayne Barr, Assistant Attorney General, Office of Attorney General, Office of Criminal Appeals, Frankfort, KY, Counsel for Appellee.

Opinion of the Court by Justice ABRAMSON.

Pursuant to Kentucky Revised Statute (KRS) 218A.1411, any one who unlawfully traffics in a controlled substance within one thousand (1,000) yards of a school is guilty of a Class D felony unless the provisions of KRS Chapter 218A otherwise provide a more severe penalty for the offense. Following his conviction for selling marijuana within 1,000 yards of Graves County High School, Appellant Orlando Saxton challenges that conviction on the ground that the Commonwealth was required to prove that he knew he was trafficking within the prohibited proximity to a school. He also alleges that his conviction was tainted by palpable error because police entrapped him by arranging for the drug transaction to occur at a specific location near the school. Finding no error on either ground, we affirm his conviction.

RELEVANT FACTS

Saxton was indicted by the Graves County Grand Jury on three counts of first-degree trafficking in a controlled substance and one count of trafficking in a controlled substance within 1,000 yards of a school. He was convicted on all four counts following a jury trial and sentenced to five years on each of the first-degree trafficking charges and one year on the charge of trafficking within 1,000 yards of a school, with all sentences to run consecutively for a total of sixteen years. The first-degree trafficking charges arose from sales of cocaine on January 25, 2006 and are not pertinent to this appeal.

The violation of KRS 218A.1411, a statute entitled "Trafficking in controlled substance in or near school-Penalty", involved a January 7, 2006 sale of marijuana to Saxton's aunt, Anna Saxton, and her fiancé, Henry Island. After agreeing to work as informants for the Pennyrile Narcotics Task Force, Ms. Saxton and Island arranged for Orlando Saxton to meet them at a Days Inn Motel, a location within 1,000 yards of Graves County High School. In a videotaped transaction, Saxton sold the informants 8.3 grams of marijuana. Saxton was convicted as noted and appealed to the Court of Appeals.

The Court of Appeals rejected Saxton's argument that Kentucky law imparted a mens rea requirement to KRS 218A.1411, i.e., that the Commonwealth was required to prove that he "knowingly" trafficked within 1,000 yards of a school. That Court also rejected Saxton's arguments that his conviction was tainted by police entrapment constituting palpable error and that he was impermissibly denied the opportunity to impeach Henry Island. This Court granted discretionary review as to the alleged mens rea requirement in KRS 218A.1411 and the entrapment issue.

ANALYSIS

I. KRS 218A.1411 Does Not Require Proof That a Defendant Knew He Was Trafficking Illegal Drugs Within 1,000 Yards of a School.

Kentucky has codified criminal offenses involving trafficking and possession of controlled substances in KRS Chapter 218A entitled simply "Controlled Substances." Trafficking in the first-degree, second-degree and third-degree all require that a person "knowingly and unlawfully" traffic in the particular controlled substances covered by that specific offense. See KRS 218A.1412, .1413, and .1414. Similarly, KRS 218A.1421 prohibits "knowingly and unlawfully" trafficking in marijuana and provides penalties ranging from a Class A misdemeanor to a Class B felony contingent upon the quantity of marijuana and whether it is a first or subsequent offense. But for KRS 218A.1411 regarding trafficking in proximity to a school, Saxton would have been charged with a Class A misdemeanor due to the fact he sold less than 8 ounces of marijuana and it was his first offense. He challenges his Class D felony conviction pursuant to KRS 218A.1411, maintaining that various provisions in KRS Chapter 501 of the Kentucky Penal Code and, by analogy, United States Supreme Court case law, require the Commonwealth to prove he knew he was conducting the drug transaction within 1,000 yards of a school. We begin not with Saxton's extra-statutory language arguments but with the plain language of the statute.

KRS 218A.1411 provides:

Any person who unlawfully traffics in a controlled substance classified in Schedules I, II, III, IV or V, or a controlled substance analogue in any building used primarily for classroom instruction in a school or on any premises located within one thousand (1,000) yards of any school building used primarily for classroom instruction shall be guilty of a Class D felony, unless a more severe penalty is set forth in this chapter, in which case the higher penalty shall apply. The measurement shall be taken in a straight line from the nearest wall of the school to the place of violation.

Clearly, the statute contains no requirement that the person who is unlawfully trafficking "know" that he is doing so within 1,000 yards of a school. In this regard, our statute is like its federal counterpart, formerly codified at 21 U.S.C. § 845a and entitled "Distribution in or near schools",¹ which similarly provides more severe penalties for "distributing a controlled substance" near a school but contains no reference to a mens rea on the part of the defendant as to the proximity of the school. Before turning to instructive federal precedent addressing that particular statute, it is also noteworthy that KRS 218A.1411 simply refers to one who "unlawfully" traffics. As noted above, all of the other trafficking statutes in KRS Chapter 218A employ two adverbs to modify "traffics", i.e., "knowingly and unlawfully." KRS 218A.1411 departs from that form in what appears to be a very deliberate choice of language.

As for the federal statute prohibiting distribution of drugs in or near schools, several United States Courts of Appeal have upheld the federal statute against challenges that it violates due process because it provides extra punishment without regard for whether the actor knew of either the existence of the statute or his proximity to a school. In United States v. Holland, 810 F.2d 1215, 1222-23 (D.C.Cir. 1987), the District of Columbia Circuit Court of Appeals readily rejected the ignorance of the law argument:

Generally, as Holland concedes, ignorance of the law does not serve as an excuse for criminal conduct. The narrow exception to this rule is found where legislation criminalizes "wholly passive" conduct by a person who is "unaware of any wrongdoing." Lambert v. California, 355 U.S. 225, 228 78 S.Ct. 240, 2 L.Ed.2d 228 ... (1957). Lambert itself emphasizes the narrowness of this exception: "There is wide latitude in the lawmakers to declare an offense and to exclude elements of knowledge and diligence from its definition.... The rule that `ignorance of the law will not excuse'... is deep in our law...." Id. (citations omitted). Due process does not require the prosecution to prove that a drug trafficker had actual knowledge of section 845a.

As to the argument that section 845a was constitutionally infirm because it did not require proof that the drug trafficker had knowledge of his proximity to the school, the Holland Court noted that Second Circuit cases rejecting the argument, including U.S. v. Falu, 776 F.2d 46 (2nd Cir.1985), were fully reconcilable with the United States Supreme Court decision in Liparota v. United States, 471 U.S. 419, 105 S.Ct. 2084, 85 L.Ed.2d 434 (1985), a case Saxton relies on in this Court. The Holland Court noted that

Liparota was concerned with a food stamp statute which provided "that `whoever knowingly uses, transfers, acquires, alters, or possesses coupons or authorization cards in any manner not authorized by the statute or the regulations' is subject to a fine and imprisonment."... The Supreme Court held that in order to violate this statute, the government must prove that the accused knew that his or her use, transfer, acquisition, alteration or possession was unauthorized.... The Court emphasized in reaching this result that this construction is particularly appropriate where... to interpret the statute otherwise would be to criminalize a broad range of apparently innocent conduct ... and that requiring mens rea here is in keeping with our longstanding recognition that "ambiguity concerning the ambit of criminal statutes should be resolved in favor of lenity" ... Although the rule of lenity is not to be applied where to do so would conflict with the implied or expressed intent of Congress, it provides a time-honored interpretive guideline when the congressional purpose is unclear.

The rationale of Liparota does not apply to the present case. Section 845a does not criminalize a broad range of apparently innocent conduct. Nor would it be appropriate to apply the rule of lenity here, where the application of it would "undercut the unambiguous legislative design" of this section.

810 F.2d at 1223 (citations omitted). The Holland Court's discussion of legislative intent with regard to the federal statute is particularly noteworthy because Kentucky's own drug trafficking statutes are modeled on federal law.²

It is easily concluded here that Congress' heightened interest in protecting children from both the indirect and the direct perils of drug traffic amply supports its decision not to require a showing of mens rea of the proximity of a school. A reasonable person would know that drug trafficking is subject to stringent public regulation because it can seriously threaten the community's health and safety, particularly as it relates to the community's heightened concern for the health, safety and welfare of its children. And because

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