State v. Prosper

• Decision Date: 25 October 1996
• Docket Number: No. 72476,72476
• Citation: 926 P.2d 231,260 Kan. 743
• Parties: STATE of Kansas, Appellee, v. Michael PROSPER, Appellant.
• Court: Kansas Supreme Court

Page 231

926 P.2d 231

260 Kan. 743

STATE of Kansas, Appellee, v. Michael PROSPER, Appellant.

No. 72476.

Supreme Court of Kansas.

Oct. 25, 1996.

Syllabus by the Court

In a criminal case wherein defendant was convicted of one count of the sale of cocaine within 1,000 feet of a school, the record is examined and it is held: (1) The Court of Appeals correctly decided the issues raised on appeal; (2) the Court of Appeals' opinion is adopted and affirmed as modified and (3) the judgment of the district court is affirmed.

Jean K. Gilles Phillips, Special Appellate Defender, argued the cause, and Jessica R. Kunen, Chief Appellate Defender, was with her on the brief, for appellant.

Joe E. Lee, Assistant County Attorney, argued the cause, and Rodney H. Symmonds, County Attorney, and Carla J. Stovall, Attorney General, were with him on the brief, for appellee.

ALLEGRUCCI, Justice:

Michael Prosper was convicted by a jury of one count of sale of cocaine within 1,000 feet of a school. He was sentenced to 73 months' imprisonment. The Court of Appeals affirmed Prosper's conviction. State v. Prosper, 21 Kan.App.2d 956, 910 P.2d 859 (1996). This court granted Prosper's petition for review.

Gregory Senigaur entered into an agreement with the State to set up three prosecutable drug buys in exchange for his being charged with possession of marijuana and possession of cocaine rather than possession of controlled substances with intent to sell within 1,000 feet of a school. On January 11, 1994, a police officer gave Senigaur $20 for the purpose of buying cocaine from Michael Prosper. Without making any prior arrangements with Prosper, Senigaur went to the defendant's apartment. Senigaur told the person who let him in that he wanted "to buy a 20." In other words, he wanted to buy $20 worth of rock cocaine. Prosper came out of the bathroom; then he and Senigaur went back into the bathroom, talked briefly, and exchanged the $20 for rock cocaine. After being in the apartment approximately 5 minutes, Senigaur left and met the police at a prearranged spot.

The proximity of Prosper's apartment to a school was the subject of the testimony of Pamela Dunham, a cartographer with the Lyon County Appraiser's office. Approximately 2 months before trial, she prepared a map, which was marked as an exhibit and admitted into evidence. It showed what properties were within a circle with a 1,000-foot radius centered on 1001 Commercial Street in Emporia. The Alternative School is located at 1001 Commercial. Prosper's apartment at 824 Mechanic Street was within the circle. A straight line from the southeast corner of the building at 1001 Commercial to the southeast corner of the building at 824 Mechanic measured 865 feet. Dunham testified that the measurement was accurate to within 50 feet. She also testified that pedestrian routes between the school and Prosper's apartment exceeded 1,000 feet.

Prosper appealed his conviction, contending that (1) the evidence of prior drug transactions between the witness and himself was inadmissible; (2) the jury should have been instructed on the lesser included offense of sale of cocaine; (3) the sale of cocaine within 1,000 feet of a school is a specific intent crime; (4) there was insufficient evidence that the transaction occurred within 1,000 feet of a school; and (5) K.S.A.1993 Supp. 65-4127a(d) is unconstitutionally vague.

The Court of Appeals affirmed Prosper's conviction, rejecting all of his contentions. As to Prosper's contention that the sale of cocaine within 1,000 feet of a school is a specific intent crime, the court noted that it already had been considered and rejected in State v. Swafford, 20 Kan.App.2d 563, 567, 890 P.2d 368, rev. denied 257 Kan. 1095 (1995). In Swafford, the Court of Appeals considered federal case law interpreting the federal "schoolyard statute." The Court of Appeals stated:

"In United States v. Falu, 776 F.2d 46 (2d Cir.1985), the court held that the schoolyard statute did not require proof that a drug trafficker had knowledge of the proximity of a school and concluded that a knowledge requirement would be contrary to the purpose of the statute disclosed by the legislative history. The court held that 'a requirement that the dealer know that a sale is geographically within the prohibited area would undercut this unambiguous legislative design.' The court concluded that although 'some schools are not clearly recognizable as such from all points within the 1,000-foot radius, Congress evidently intended that dealers ... bear the burden of ascertaining where schools are located and removing their operations from those areas or else face enhanced penalties.' 776 F.2d at 50.

"The legislative history cited by Swafford reveals that, like the federal schoolyard statute on which it was modeled, 65-4127a(c) was intended to create drug-free school zones. It was designed to protect young people from drug use and the violence and other negative influences that accompany drug dealing. Children are exposed to these negative influences when drug deals are conducted near schools regardless of whether the dealers know they are within 1,000 feet of a school.

"Requiring proof that Swafford knew a school was within 1,000 feet could impose an onerous burden on police and prosecutors, which would be contrary to the clear purpose of the statute. Swafford's knowledge of the proximity of a school is not an essential element of the crime of selling cocaine within 1,000 feet of a school under 65-4127a(c)." 20 Kan.App.2d at 566-67, 890 P.2d 368.

In his petition for review, Prosper argued that Swafford was wrongly decided. His position is that the Swafford interpretation of the statute makes the sale of drugs within 1,000 feet of a school a strict liability crime. As the Court of Appeals stated, however, the question is "whether the legislature intended to require proof of knowledge of the proximity of a school in addition to proof of intent to sell cocaine to establish a violation of 65-4127a(c)." (Emphasis added.) 20 Kan.App.2d at 566, 890 P.2d 368.

Prosper also argues that the district court should have given his requested instruction on the lesser included offense of sale of cocaine because there was evidence that pedestrian routes between his apartment and the nearby school covered more than 1,000 feet. The Court of Appeals correctly treated this question as a matter of statutory interpretation. 21 Kan.App.2d at 959-60, 910 P.2d 859. The question really is whether K.S.A.1993 Supp. 65-4127a(d) prohibits drug sales within 1,000 feet of a school as the crow flies or by pedestrian route. The statute provided, in part:

"Notwithstanding any other provision of law, upon conviction of any person for a first offense pursuant to subsection (b), such person shall be guilty of a drug severity level 2 felony if such person is 18 or more years of age and the substances involved were possessed with intent to sell, deliver or distribute; sold or offered for sale in or on, or within 1,000 feet of any school property upon which is located a structure used by a unified school district or an accredited nonpublic school for student instruction or attendance or extracurricular activities of pupils enrolled in kindergarten or any of the grades one through 12." K.S.A.1993 Supp. 65-4127a(d).

Noting that the statute was based on a federal model, 21 U.S.C. § 860 (1994), the Court of Appeals consulted case law from federal courts, which have faced this issue many times. 21 Kan.App.2d at 960, 910 P.2d 859. According to the Court of Appeals, "federal courts have consistently held that the phrase 'within 1,000 feet' of a school requires measurement in a straight line from the school property and not according to some pedestrian route. [Citations omitted.]" 21 Kan.App.2d at 960, 910 P.2d 859. The Court of Appeals concluded that the legislature's purpose in protecting children from drug use and drug dealing "are achieved by giving effect to the plain meaning of 'within 1,000 feet,' just as the federal courts have done." 21 Kan.App.2d at 961, 910 P.2d 859. Prosper offers no authority to support his contention that the distance should be measured by pedestrian routes from the school.

The Court of Appeals introduced Prosper's claim of insufficient evidence as follows:

"Prosper argues there was insufficient evidence to support the verdict because (1) there was no testimony that any property was 'school property'; (2) there was no evidence that he sold cocaine within 1,000 feet of a school, as measured by pedestrian route; and (3) there was no evidence he knew he was selling cocaine within 1,000 feet of a school." 21 Kan.App.2d at 961, 910 P.2d 859.

In light of conclusions it had reached in the previous issues, the Court of Appeals declined to "address Prosper's second and third claims of insufficiency of evidence." 21 Kan.App.2d at 963, 910 P.2d 859.

The first claim of insufficiency of evidence is predicated on a statutory requirement that "school property" within the meaning of K.S.A.1993 Supp. 65-4127a(d) is school-district owned. Here, "the school property in question was leased by Unified School District No. 253 for instruction of students primarily in the 9th through 12th grades." 21 Kan.App.2d at 962, 910 P.2d 859. The Court of Appeals rejected Prosper's argument:

"K.S.A.1993 Supp. 65-4127a(d) requires that the structure or property be used by a unified school district or accredited nonpublic school. The statute contains no ownership requirement. Had the legislature intended to adopt an ownership requirement, it could easily have done so. It is not the function of the court to rewrite a statute under the guise of interpretation. Pestock v. State Farm Auto. Ins. Co., 9 Kan.App.2d 188, 189, 674 P.2d 1062 (1984).

"Moreover, the legislature intended for the statute to protect children from the negative effects of drug use and drug dealing. Swafford, 20 Kan.App.2d at 567, 890 P.2d 368. Children are...