Schnitz v. State

• Decision Date: 19 May 1995
• Docket Number: No. 34A02-9403-CR-146,34A02-9403-CR-146
• Parties: Kenneth SCHNITZ, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
• Court: Indiana Appellate Court

Page 717

650 N.E.2d 717

Kenneth SCHNITZ, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.

No. 34A02-9403-CR-146.

Court of Appeals of Indiana,

Second District.

May 19, 1995.

John Pinnow, Sp. Asst. to State Public Defender, Greenwood, IN, for appellant.

Pamela Carter, Atty. Gen. of Ind., Jodi Kathryn Rowe, Deputy Atty. Gen., Indianapolis, IN, for appellee.

OPINION

KIRSCH, Judge.

STATEMENT OF THE CASE

Kenneth Schnitz appeals his conviction for Dealing in Cocaine, ¹ a Class A felony. He raises five issues, which we restate and consolidate as:

1) Whether there was sufficient evidence to convict him;

2) Whether the trial court erred when it admitted into evidence an aerial photomap;

3) Whether the prosecutor committed misconduct in his closing argument;

4) Whether the enhancement provision of IC 35-48-4-1 is unconstitutional.

We affirm.

FACTS AND PROCEDURAL HISTORY

The facts most favorable to the verdict show that in August of 1989, Gary Blakley met Schnitz. Blakley worked as a confidential informant for the Kokomo Police Department. On August 14, Blakley went to Schnitz' apartment which lies 246 feet from Kokomo High School. Blakley told Schnitz that he wanted to purchase cocaine. Schnitz answered that he could procure the drug and proceeded to call a drug source. Schnitz then told Blakley that one-quarter ounce of cocaine would cost $450.00. Blakley then left Schnitz' residence, telling him that he needed to check with "[his] man" and that he would soon contact Schnitz. Blakley left, in fact, to meet with officer Jack Adams of the Kokomo Police Department, who would help Blakley prepare for the transaction.

Blakley then returned to Schnitz' apartment where David Bousum awaited Blakley. Bousum told Blakley that he could procure one-quarter ounce of cocaine for $450.00. Blakley gave Bousum the $450.00, and Bousum left Schnitz' residence to obtain cocaine. Bousum returned one to two hours later with a cellophane bag containing cocaine. After he and Schnitz injected themselves with some of the cocaine, Bousum gave the bag to Blakley. Before Blakley left Schnitz' residence, Schnitz told Blakley that he would call Blakley the next day to arrange a deal if Blakley did not contact him first.

Additional facts will be supplied as necessary.

DISCUSSION AND DECISION

I. Sufficiency of the Evidence

Schnitz argues the evidence was insufficient to convict him in two ways. First, he contends the evidence does not show that he aided, induced, or caused Bousum to deliver drugs to Blakley. Second, he argues that the State did not present sufficient evidence to show that Schnitz knew that the delivery occurred within 1,000 feet of a school.

Schnitz was convicted of Dealing in Cocaine, a Class A felony. IC 35-48-4-1 (1990 Supp.) provides:

"(a) A person who:

(1) knowingly or intentionally:

. . . . .

(C) delivers[ ] ...

cocaine ...

. . . . .

commits dealing in cocaine ... a Class B felony, except as provided in subsection (b).

(b) The offense is a Class A felony if[ ]

. . . . .

(3) the person:

. . . . .

(A) delivered ... the drug ... within one thousand (1000) feet of school property...."

Because Schnitz was convicted under an accomplice theory of liability, the State needed to satisfy the requirements of IC 35-41-2-4 (1988 Ed.), which provides:

"A person who knowingly or intentionally aids, induces, or causes another person to commit an offense commits that offense, even if the other person:

(1) Has not been prosecuted for the offense;

(2) Has not been convicted of the offense; or

(3) Has been acquitted of the offense."

When sufficiency of the evidence is challenged, we do not reweigh the evidence or judge the credibility of the witnesses; rather, we look to the evidence most favorable to the State with all reasonable inferences therefrom. Lilly v. State (1987), Ind., 506 N.E.2d 23, 24. If there is substantial evidence of probative value from which the trier of fact might reasonably infer guilt beyond a reasonable doubt, the verdict will not be disturbed. Id. A conviction may be supported by circumstantial evidence alone. Sayles v. State (1987), Ind.App., 513 N.E.2d 183, 186, trans. denied.

Where evidence shows that an accomplice acted in concert with those who physically committed the elements of the crime, the evidence is sufficient to support a conviction on an accessory theory. Taylor v. State (1991), Ind., 578 N.E.2d 664, 666. The State is not required to show that the accomplice personally participated in the commission of each element of the offense. Fox v. State (1986), Ind., 497 N.E.2d 221, 227. Mere presence at the scene of a crime is not sufficient to support a conviction based on an accessory theory, but such presence may be considered in determining guilt. Weyls v. State (1992), Ind.App., 598 N.E.2d 610, 614-15, trans. denied.

"Other factors from which the trier of fact may infer the defendant participated in the crime include 1) failure to oppose a crime, 2) companionship with one engaged in criminal activity, and 3) course of conduct before, during and after the occurrence of the crime."

Id. at 615. Moreover, a fact-finder may consider affirmative conduct from which reasonable inferences of a common design or purpose to effect the commission of a crime may be drawn in determining whether a person aids another to commit an offense. Rivera v. State (1991), Ind.App., 575 N.E.2d 1072, 1074, trans. denied.

Here, Schnitz took several affirmative steps that show he knowingly or intentionally aided Bousum to commit the offense of dealing in cocaine. When asked by Blakley if he could procure cocaine, Schnitz said that he could. Schnitz then telephoned a source. He arranged for Bousum to meet Blakley at his own apartment where the transaction was consummated. Furthermore, Schnitz failed to oppose the execution of the transaction between Bousum and Blakley. Schnitz acted in concert with Bousum and Blakley and took affirmative steps to both initiate and consummate the deal. The State presented sufficient evidence to show that Schnitz intentionally or knowingly aided Bousum to commit the offense of dealing cocaine.

Schnitz next argues that the State did not present sufficient evidence to show that Schnitz knew the delivery of cocaine occurred within 1,000 feet of a school. The State responds by contending that Indiana law does not require the showing of such knowledge. We agree with the State.

In making his argument, Schnitz asks us to revisit our decision in Williford v. State (1991), Ind.App., 571 N.E.2d 310, trans. denied, 577 N.E.2d 963 (DeBruler, J., dissenting). In Williford, we held that the State need not prove any mens rea to increase a dealing offense from a Class B felony to a Class A felony, saying:

"[The defendant] 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 whose hands it may eventually come to rest. Nor does the fact that the transaction occurred at a time and place where minors are unlikely to be present ensure that narcotics will find their way out of the drug-free zone before they find their way into the bookbags, lockers and pockets of our schoolchildren. The intent of the legislature is clear: those who choose to deal drugs in the vicinity of schools do so at their own peril."

Id. at 313.

The same reasoning applies here. The State was not required to show that Schnitz knew he was within 1000 feet of the school when the drug transaction occurred.

II. Admission of Photomap

Schnitz claims the trial court committed prejudicial error when it admitted an aerial photomap showing the area surrounding Schnitz' residence, including Kokomo High School.

A trial court has wide discretion in determining the admissibility of photographic evidence and the exercise of that discretion will not be disturbed absent a showing of abuse of that discretion. Mitchell v. State (1990), Ind., 557 N.E.2d 660, 665. Photographs which demonstrate a witness's testimony are generally admissible. Id. Photographs of a crime scene are relevant if they aid the trier of fact in orienting itself to the circumstances surrounding the crime. Baskin v. State (1989), Ind., 546 N.E.2d 1191, 1192 cert. denied, 506 U.S. 904, 113 S.Ct. 296, 121 L.Ed.2d 220 (1992). A proper foundation is laid for photographs if there is testimony from a reliable source that the photographs are accurate representations of the things the photographs are intended to portray. Broadus v. State (1986), Ind., 487 N.E.2d 1298, 1306.

At trial, Lawrence Lambert, an engineer for the city of Kokomo, testified that Schnitz' residence was 246 feet from Kokomo High School. He based his testimony on an aerial photomap which was kept in the official city records. The map provided the basis for Lambert's testimony regarding the distance from Schnitz' residence to Kokomo High School.

Schnitz correctly notes that Lambert did not physically measure the distance nor did he have personal knowledge about the preparation or verification of the map. Lambert did testify, however, that he measured the map with his engineer's scale, that the map had a scale of one inch equaling fifty feet, and that he physically observed the area he measured and believed his physical observations to confirm the 246 foot measurement he got from the map. Through Lambert's testimony, the State laid a sufficient foundation for the accuracy of the map. The trial court did not err when it admitted the photomap into evidence.

III. Prosecutorial Misconduct in Closing Argument ²

Schnitz argues the prosecutor committed misconduct by exhorting the jury to convict Schnitz as part of the war on drugs so that a message might be sent to all those engaged in the trafficking of narcotics.

The right to a fair trial prevents the prosecutor from urging the jury to decide the case upon improper and irrelevant reasons. Fleenor v....