Steelman v. State

• Decision Date: 28 October 1992
• Docket Number: No. 89A01-9109-CR-0287,89A01-9109-CR-0287
• Citation: 602 N.E.2d 152
• Parties: 78 Ed. Law Rep. 446 Monte STEELMAN, Appellant-Defendant v. STATE of Indiana, Appellee-Plaintiff.
• Court: Indiana Appellate Court

Page 152

602 N.E.2d 152

78 Ed. Law Rep. 446

Monte STEELMAN, Appellant-Defendant v. STATE of Indiana, Appellee-Plaintiff.

No. 89A01-9109-CR-0287.

Court of Appeals of Indiana,

First District.

Oct. 28, 1992.

Jodie English, Richmond, for appellant-defendant.

Linley E. Pearson, Atty. Gen. of Indiana and Richard C. Webster, Deputy Atty. Gen., Office of Atty. Gen., Indianapolis, for appellee-plaintiff.

BAKER, Judge.

Defendant-appellant Monte Steelman was convicted of dealing in marijuana within 1,000 feet of school property, a Class C felony, ¹ and was adjudicated an habitual offender. The court sentenced him to the presumptive term of four years' imprisonment for the dealing in marijuana conviction, and enhanced the sentence by the minimum term of 20 years' imprisonment for the habitual offender adjudication. Steelman now appeals his conviction and sentence. He raises five issues for our review, which we restate as:

I. Whether the state had to prove Steelman both delivered and knew he delivered marijuana within 1,000 feet of school property.

II. Whether the prosecutor committed misconduct during voir dire and opening and closing statements.

III. Whether the evidence was sufficient to support his habitual offender adjudication.

IV. Whether the sentence was manifestly unreasonable and disproportionate to the crime.

FACTS

On November 26, 1990, Steelman offered to sell six marijuana joints for $4 a piece to a confidential informant, Joseph Moore. Officer Branum of the Richmond Police Department gave Moore $24 to make the buy and agreed to pay him $25. The officers fitted Moore with a listening device, a tape recorder, and a microphone. They followed Moore in a separate car as Moore drove to Steelman's residence, a second story apartment on 11th Street in Richmond, Indiana, to make the buy.

Upon arriving at Steelman's apartment, Moore followed Steelman and Steelman's wife into the kitchen. Moore paid Steelman $24 and Steelman's wife handed Moore a plastic sandwich bag with six marijuana joints inside. Moore and Steelman discussed the possibility of purchasing an ounce of marijuana for $200, but Steelman said he would have to go somewhere to get the ounce. After staying 20 to 30 minutes, Moore left. He took the plastic bag with six joints to the police department, and a chemical analysis revealed the joints contained marijuana and weighed 2.4 grams. The Wayne County Surveyor measured the distance from the front of Steelman's residence to the nearby Vaile Elementary School property. The surveyor concluded the distance was 959 feet, accurate to within three one-hundredths of a foot.

Following a jury trial, Steelman was convicted of dealing in marijuana within 1,000 feet of school property, a Class C felony, and he was adjudicated an habitual offender. Steelman now appeals both his conviction and enhanced sentence.

DISCUSSION AND DECISION

I

Proximity To School Property

(A) Knowledge

Steelman first challenges the State's failure to prove he knew he was within 1,000 feet of school property when he sold marijuana to Moore. The statute under which he was convicted, IND.CODE 35-48-4-10, provides, in relevant part:

(a) A person who:

(1) knowingly or intentionally:

(A) manufactures;

(B) finances the manufacture of;

(C) delivers; or

(D) finances the delivery of;

marijuana, hash oil, or hashish, pure or adulterated; or

(2) possesses, with intent to:

(A) manufacture;

(B) finance the manufacture of;

(C) deliver; or

(D) finance the delivery of;

marijuana, hash oil, or hashish, pure or adulterated;

commits dealing in marijuana, hash oil, or hashish, a Class A misdemeanor, except as provided in subsection (b).

(b) The offense is:

....

(2) a Class C felony if:

....

(B) the person;

(i) delivered; or

(ii) financed the delivery of;

marijuana, hash oil or hashish in or on school property or within one thousand (1,000) feet of school property or on a school bus.

Steelman acknowledges this court has ruled that the State does not have to prove as an element of the crime that the defendant knew he was within 1,000 feet of school property. Nonetheless, he argues the facts in this case are distinguishable from our previous cases because here, the drug transaction did not take place with the school in plain view. See, e.g., Reynolds-Herr v. State (1991), Ind.App., 582 N.E.2d 833 (transaction took place across the street from elementary school); Berry v. State (1990), Ind.App., 561 N.E.2d 832 (defendant was inside the school attempting to deal marijuana); Crocker v. State (1990), Ind.App., 563 N.E.2d 617, trans. denied (defendant admitted his house, where the deal took place, was across the street from a school).

In this case, Steelman argues it is not obvious to a lay person that his apartment is within 1,000 feet of school property. The Vaile Elementary School is two streets away from his apartment, and the school property cannot be seen from the street on which his apartment building is located. He relies further on the fact that it took an expert surveyor to determine his apartment building is within 959 feet of the southern and westernmost corner of the school property.

Steelman further urges this court to reconsider our opinion in Williford v. State (1991), Ind.App., 571 N.E.2d 310, trans. denied, 577 N.E.2d 963 (DeBruler, J., dissenting). In that case, Williford sold a quarter ounce of marijuana to an undercover police officer in the Four Crowns Tavern in Auburn, Indiana. Following a jury trial, he was convicted of selling marijuana within 1,000 feet of school property.

Although there was no evidence Williford knew the McIntosh Elementary School was within 1,000 feet of the tavern, we affirmed his conviction. We held that the statute does not require the State to prove the defendant knew he was within the legislatively mandated "drug-free zone" which surrounds our 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." Id. at 313. As we said in Williford, we say again today: "[T]hose who choose to deal drugs in the vicinity of our schools do so at their own peril." Id. at 313. The State did not have to prove Steelman knew he was within 1,000 feet of the Vaile Elementary School when he delivered marijuana to Moore.

(B) School Property Defined

Steelman also argues IND.CODE 35-48-4-10(b)(2)(B) is impermissibly ambiguous because the statutory definition of school property, codified at IND.CODE 35-41-1-24.7, is so broad that it could encompass any building rented by a school or the farthest reaches of the grounds adjacent to such a building.

A statute will be found unconstitutionally vague only if individuals of ordinary intelligence would find it does not adequately inform them of the proscribed conduct. State v. Downey (1985), Ind., 476 N.E.2d 121, 122. The defendant is not free, however, to devise a hypothetical situation which might demonstrate vagueness. Mallory v. State (1990), Ind.App., 563 N.E.2d 640, 644, trans. denied. A statute will be found void for vagueness only if it is vague as applied to the precise circumstances of the case. Id. In this case, Steelman does not question that the Vaile Elementary School is school property under IND.CODE 35-41-1-24.7, he challenges the statute simply by questioning whether a building rented by a school would be considered school property. As applied to him the statute is not vague. Steelman's vagueness challenge is therefore without merit.

(C) Measurement

Steelman complains next that the statute is impermissibly silent on how the 1,000-foot distance is to be calculated, and he challenges the technique the State used to measure the distance from his apartment to the school property. He recognizes that surveyors measure distances based on "line of sight" calculations. Appellant's Brief at 19. Because one would not walk in a straight line from the elementary school to his apartment, however, Steelman argues the "line of sight" measurement is irrational. He tells us that neither defendants nor school children walk through obstacles such as buildings, homes, fences, concrete barriers, creeks, or the like. Steelman complains further that he was on the second floor of his apartment building, so, at the very least, the surveyor should have measured the distance to the second floor, not the ground level.

When the legislature created the 1,000-foot drug-free zone surrounding our schools, it made no allowance for barriers such as buildings or homes or fences or concrete barriers or creeks. Rather, the legislative intent is plain: to punish those who deal drugs within 1,000 feet of school property. The surveyor's line-of-sight technique to determine the 1,000-foot perimeter around the school property conforms to the legislative intent. There was no error.

Next, the State had to prove Steelman delivered marijuana within 1,000 feet of school property. IND.CODE 35-48-4-10(b)(2)(B). In this case, the delivery took place inside of Steelman's second floor apartment. We agree with Steelman, therefore, that the State had to prove the delivery in Steelman's second floor apartment was within 1,000 feet of the elementary school. Contrary to Steelman's assertions, however, the State met its burden of proof.

The surveyor's "line of sight" measurement ran between a point on the far side of Steelman's apartment building to a point on the southwest corner of the school lot. That distance was 959 feet. The surveyor did not need to do a line-of-sight measurement from the school property to where Steelman delivered the marijuana in his second floor apartment because, mathematically, no matter where in his apartment the delivery took place, Steelman had to be within the 1,000-foot zone. Because the surveyor's measurement was sufficient to prove the delivery in Steelman's second floor apartment took place within 1,000 feet of school property, there was no error.

(D)...