Walker v. State, 49S00-9404-CR-337

Docket NºNo. 49S00-9404-CR-337
Citation668 N.E.2d 243
Case DateJune 25, 1996
CourtSupreme Court of Indiana

Page 243

668 N.E.2d 243
111 Ed. Law Rep. 961
Aaron WALKER, Appellant (Defendant Below),
STATE of Indiana, Appellee (Plaintiff Below).
No. 49S00-9404-CR-337.
Supreme Court of Indiana.
June 25, 1996.

Kay A. Beehler, Indianapolis, for Appellant.

Pamela Carter, Attorney General, Jodi Kathryn Rowe, Deputy Attorney General, Indianapolis, for Appellee.

SHEPARD, Chief Justice.

Appellant Aaron Walker contends that to sustain a conviction for dealing in cocaine within 1,000 feet of a school, as a class A felony, Ind.Code Ann. § 35-48-4-1 (West Supp.1995), the State must prove that the defendant had actual knowledge that the sale was occurring within 1,000 feet of a school. We hold that the Code creates a strict liability enhancement and that such proof is unnecessary.

The State charged Walker with dealing in cocaine after he sold the drug to an undercover police officer, Ernie Witten. Armed with a $20 bill to make a purchase and a microphone taped to his chest, Witten drove to the parking lot of an Indianapolis apartment complex near Public School No. 114. He noticed a group of young men sitting under a shade tree. One of these motioned to Witten, a sign the officer interpreted as asking what the officer wanted. Witten held up one finger, intending to indicate that he wanted one rock of cocaine. The young man made another motion that Witten construed as an instruction to pull around. The officer did so.

Once Witten had parked his truck, Walker approached and asked what he was looking for. Witten replied he wanted "a twenty," which is street slang for $20 worth of crack cocaine. Walker reached into his pocket, took out a plastic bag containing "several rocky hard white substances" (R. 140) and handed one to Witten. Witten gave Walker the marked $20 bill and the transaction was over.

Walker was eventually arrested and charged. A jury found him guilty of dealing in cocaine as a class A felony and determined that he was an habitual offender. Ind.Code Ann. § 35-50-2-8 (West Supp.1995). The trial judge gave him the presumptive sentence for dealing, thirty years, and added thirty years for the habitual offender finding.

The statute under which Walker was convicted declares: "(a) A person who: (1)

Page 244

Knowingly or intentionally ... (C) Delivers ... cocaine ... commits dealing in cocaine, a Class B felony." Ind.Code Ann. § 35-48-4-1 (West Supp.1995). The statute elevates the offense to a class A felony if the person "Delivered ... the drug in or on school property or within one thousand (1,000) feet of school property or on a school bus." Id.

Walker does not dispute the evidence offered at trial that the transaction occurred 542 feet from the school. The statute does not contain any express requirement that a defendant know that a transaction is occurring within 1,000 feet of a school, but Walker argues that permitting enhancement of the crime to a class A felony without such proof violates the due process requirement that a conviction rest on proof of each element of the crime. He relies principally on In re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970) for this proposition.

While Walker's argument is difficult to assess in its summary form, we perceive the question to be whether we should interpret the statute as requiring separate proof of scienter with respect to an element for which the legislature has not specifically required proof of knowledge. We have encountered this question in a variety of settings, including statutes we concluded were meant to establish strict liability for so-called "white collar" crimes. Enservco, Inc. v. Indiana Securities Div., 623 N.E.2d 416 (Ind.1993) (declining to read scienter requirement into franchise fraud statute); accord Hacienda Mexican Rest. of Kalamazoo Corp. v. Hacienda Franchise Group, Inc., 641 N.E.2d 1036 (Ind.Ct.App.1994) (holding trial court erred in giving jury instruction requiring scienter in franchise fraud case). 1

As we observed in State v. Keihn, 542 N.E.2d 963 (Ind.1989), Professors LaFave and Scott accurately describe this question as "whether the legislature meant to impose liability without fault or, on the other hand, really meant to require fault, though it failed to spell it out clearly." Id. at 967 (quoting 1 Wayne R. LaFave and Austin W. Scott, Jr., Substantive Criminal Law § 3.8 at 342-44 (1986)). We noted with approval the seven factors LaFave and Scott have suggested be balanced in deciding this question. 2 One of these factors, the severity of the punishment, suggests that the legislature might have intended to require proof of mental state for the enhancement of dealing in cocaine. Other factors, particularly the great danger of the prohibited conduct and the great number of expected prosecutions, suggest that the General Assembly likely did intend to create a strict liability enhancement.

Our assessment of these factors makes it difficult to conclude that the General Assembly intended to require separate proof the defendant knew that the dealing occurred near a school but failed to articulate its intent. Moreover, we can imagine an altogether rational reason the legislature might decide to write a statute with a strict liability punishment provision. As Judge Staton wrote for the Court of Appeals, "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

Page 245

may eventually come to rest." Williford v. State, 571 N.E.2d 310, 313 (Ind.Ct.App.1991).

Accordingly, we hold that the conviction was not deficient for failure to prove that Walker knew he was within 1,000 feet of a school when he committed the crime.

Walker also argues that the evidence of dealing was insufficient because he did not have the $20 bill given to him by Witten in his possession at the time of his arrest. In light of officer Witten's testimony about exchanging the $20 bill with Walker in return for cocaine, the absence of the currency as an exhibit was simply a matter for the jury to weigh as finders of fact, rather than a matter for us to assess as an appellate court. See Tiller v. State, 541 N.E.2d 885 (Ind.1989).

Accordingly, we affirm the judgment of the trial court.

DICKSON and SELBY, JJ., concur.

DeBRULER and SULLIVAN, JJ., dissent with separate opinions.

DeBRULER, Justice, dissenting.

The issue in this case is not whether the Dealing in Cocaine statute contains an intent requirement. It plainly does. Rather, the issue is whether the "knowingly or intentionally" language already present in the statute requires that the State prove that appellant knew his proximity to the school when he was dealing the cocaine. Thus, the question facing this Court is the scope, not the existence, of scienter. 3

The first guide in determining the scope of scienter is the language of the Dealing in Cocaine statute itself. As always, the statutory language is the primary guide in determining the Legislature's intent. State ex rel Roberts v. Graham et al., 231 Ind. 680, 110 N.E.2d 855 (1953). The pertinent language of the Dealing in Cocaine statute reads as follows:

(a) A person who knowingly or intentionally ... delivers ... cocaine or a narcotic drug, pure or adulterated, classified in schedule I or II ...: commits dealing in cocaine or a narcotic drug, a Class B felony, except as provided in subsection (b.)

Subsection (b) further provides that

[t]he offense is a Class A felony if the amount of the drug involved weighs three (3) grams or more; the person delivered; or financed the delivery of the drug to a person under eighteen (18) years of age at least three (3) years junior to the person; or...

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