Robert A. Baker v. State of Indiana , 2012 Ind. App. LEXIS 169 ( 2012 )

FOR PUBLICATION
FILED
Apr 11 2012, 9:11 am
CLERK
of the supreme court,
court of appeals and
tax court
ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
LEANNA WEISSMANN GREGORY F. ZOELLER
Lawrenceburg, Indiana Attorney General of Indiana
JOSEPH Y. HO
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
ROBERT A. BAKER, )
)
Appellant-Defendant, )
)
vs. ) No. 40A05-1109-CR-503
)
STATE OF INDIANA, )
)
Appellee-Plaintiff. )
APPEAL FROM THE JENNINGS CIRCUIT COURT
The Honorable Jon Webster, Judge
Cause No. 40C01-0906-FB-219
April 11, 2012
OPINION - FOR PUBLICATION
BROWN, Judge
Robert A. Baker appeals his convictions and sentence for possession of
methamphetamine within one thousand feet of a school as a class B felony, 1 possession
of a controlled substance within one thousand feet of a school as a class C felony,2 and
possession of marijuana with prior conviction as a class D felony.3 Baker raises two
issues, one of which we find dispositive and restate as whether the evidence is sufficient
to sustain his convictions for possession of methamphetamine as a class B felony and
possession of a controlled substance as a class C felony. We reverse and remand.
The relevant facts follow. On May 14, 2009, Tommy Harper, Baker’s next door
neighbor in an apartment building at the Ivy Park Apartments, called the police to report
a chemical odor coming from Baker’s apartment. North Vernon Police Officer Craig
Kipper responded to the report and entered Harper’s apartment. The front door of
Harper’s residence was open and a fan was inside the door blowing air out of the
apartment, and Harper stated that he was having trouble breathing inside the apartment.
Officer Kipper smelled a “strong . . . chemical odor inside the apartment” and after
“about a half hour [his] nose and throat were burning.” Transcript at 40. Harper
informed Officer Kipper that “this usually happens two or three times a month,” that he
“gets the same odor in his apartment,” and that “[t]here’s always constant traffic in and
out of [Baker’s] apartment, all times of day, all times of night.” Id. Harper also stated
1
Ind. Code § 35-48-4-6.1 (Supp. 2006).
2
Ind. Code § 35-48-4-7 (2004) (subsequently amended by Pub. L. No. 138-2011, § 14 (eff. Jul. 1,
2011), Pub. L. No. 182-2011, § 14 (eff. Jul. 1, 2011)).
3
Ind. Code § 35-48-4-11 (2004) (subsequently amended by Pub. L. No. 138-2011, § 14 (eff. Jul.
1, 2011), Pub. L. No. 182-2011, § 14 (eff. Jul. 1, 2011)).
2
that “every time that this would [happen] they would run that garbage disposal for maybe
two hours at a time and this was like after midnight . . . .” Id. at 108-109.
Officer Kipper contacted other officers and learned that the Sheriff’s Department
had completed controlled buys involving Baker during the previous months. After North
Vernon Police Officer Matthew Staples verified that the chemical odor in the apartment
was consistent with the manufacturing of methamphetamine, officers performed a
protective sweep of Baker’s apartment while another officer obtained a search warrant for
the residence. Baker and a woman were in the apartment and were secured by police.
Marijuana, a bottle containing pills including Zolpiden, and a coffee filter containing
methamphetamine residue were discovered in the apartment. Baker claimed ownership
of the marijuana.
On June 30, 2009, the State charged Baker with: Count I, possession of
methamphetamine within one thousand feet of a school as a class B felony; Count II,
possession of a controlled substance, specifically Lortab as a Schedule III controlled
substance and Zolpiden as a Schedule IV controlled substance, within one thousand feet
of a school as a class C felony; and Count III, possession of marijuana with prior
conviction as a class D felony. At a bench trial, the court, upon request by the State,
struck Lortab from the charging information in Count II. The State presented the
testimony of Officer Kipper that Baker’s apartment was located approximately six
hundred feet from the Early Training Center (the “ETC”).4 The court found Baker guilty
4
In response to the State’s question: “Is that the Education Training Center?” Officer Kipper
replied “Or Early Training Center yes.” Transcript at 43. The State then asked “The ETC?” and the
Officer replied “Yes.” Id.
3
on each count. Following a hearing, the court sentenced Baker to twenty years for his
conviction under Count I, eight years for his conviction under Count II, and two years for
his conviction under Count III, and ordered that the sentences be served consecutively.
The issue is whether the evidence is sufficient to sustain Baker’s enhanced
convictions under Counts I and II. When reviewing the sufficiency of the evidence to
support a conviction, we must consider only the probative evidence and reasonable
inferences supporting the verdict. Drane v. State, 867 N.E.2d 144, 146 (Ind. 2007). We
do not assess witness credibility or reweigh the evidence. Id. We consider conflicting
evidence most favorably to the trial court’s ruling. Id. We affirm the conviction unless
“no reasonable fact-finder could find the elements of the crime proven beyond a
reasonable doubt.” Id. (quoting Jenkins v. State, 726 N.E.2d 268, 270 (Ind. 2000)). It is
not necessary that the evidence overcome every reasonable hypothesis of innocence. Id.
at 147. The evidence is sufficient if an inference may reasonably be drawn from it to
support the verdict. Id.Baker argues that the State did not present sufficient evidence to support the
enhancements under Counts I and II for being within 1,000 feet of school property. He
argues that the school enhancement law is meant to protect those under eighteen rather
than those seeking education and is written in such a way as to place the focus on
protecting children, not the school. He asserts that the State sought a class B Felony
conviction rather than a class D Felony conviction and that “[i]n essence, the State
wanted Baker kept in jail for twenty years rather than three.” Appellant’s Brief at 9.
Baker further asserts that the State failed to present accurate and reliable information to
4
prove beyond a reasonable doubt that the school near Baker’s apartment qualified as an
educational facility serving those under the age of eighteen. Baker argues that the only
evidence concerning the nature of the ETC came in through Officer Kipper who “did not
explain whether the services were offered to children, or just to adults,” that “[f]rom his
testimony, the ETC Learning Center appears to be a building geared toward adult
education,” and “[t]he State presented no evidence that the center enrolled or taught
anyone under the age of eighteen.” Id. Baker also maintains that “[t]he State may
counter that the words ‘high school’ imply a place for teens,” that such implication
should not be enough to meet the State’s burden of proof, and that “[t]his is especially so
given that many adults without educations later go back to get their GEDs” and “[j]ust
because high school level courses are being offered does not prove that those under
eighteen are taking them.” Id. at 9-10. Baker argues that he cannot be punished more
harshly for possessing drugs if he did so near an adult facility and requests that his
convictions under Counts I and II be reduced to class D felonies.
The State maintains that the evidence supports the school zone enhancement, that
Baker’s argument fails because he waived it by failing to raise it during trial, that the
State demonstrated that the ETC was a school, that the trial court “could take judicial
notice that ETC was a school,” and that Baker nevertheless violated the charged statutes
by possessing the methamphetamine and controlled substances in a family housing
complex. Appellee’s Brief at 8. The State asserts that Officer Kipper’s testimony
allowed the trial court to correctly conclude that the ETC was a school for high-school-
aged students, the majority of whom are younger than eighteen. The State argues that
5
“[t]he ETC is located at the same site of the Jennings County Education Center, a school
listed on the Jennings County School Corporation’s website,” that “[t]he two appear to be
the same facility, or at least located on the same property owned or rented by the
Jennings County School Corporation,” that “[i]t is generally known that the two are one
and the same,” and that “[a]s such, the trial court can take judicial notice that the ETC . . .
was a school.” Id. at 9. The State also argues that the evidence that Baker’s apartment
was located in an “apartment complex” is sufficient to prove that Baker possessed the
contraband within 1,000 feet of a “family housing complex.” Id. at 10.
In his reply brief, Baker argues that he did not waive his sufficiency argument by
failing to raise it at trial, that it is well-settled that sufficiency of the evidence may be
raised for the first time on appeal, and that he had no obligation to disprove the State’s
allegations. Baker argues that the ETC is affiliated with Ivy Tech Community College
and that this court has held that the term “school property” does not include a college or
university. Appellant’s Reply Brief at 3. Baker argues that it would not have been
proper for the court to take judicial notice of “something that is not legally true,” that
“[t]he bottom line is that the Record is vague as to the nature of the ETC Learning
Center,” and that this court should not uphold the increased sentencing based on
“conjecture and speculative internet searches.”5 Id. at 4-5. Baker further argues that the
5
A footnote in the facts section of the State’s brief states:
The Ivy Tech website refers to the ETC Learning Center as the North Vernon Education
& Training Center; the center is located at 1200 W O & M Avenue, North Vernon, IN
47265. Ivy Tech Community College,
http://www.ivytech.edu/columbus/contact/index.html (last visited Feb. 29, 2012).
This is the same location of the Jennings County Education Center, a school listed on the
Jennings County School Corporation’s website. Jennings County Education Center—
6
State did not charge him with possession within 1,000 feet of a family housing complex
and thus that basis cannot now be used to support an enhancement.
Ind. Code § 35-48-4-6.1 (Supp. 2006), pursuant to which Baker was convicted
under Count I, provides in pertinent part:
(a) A person who, without a valid prescription or order of a practitioner
acting in the course of the practitioner’s professional practice,
knowingly or intentionally possesses methamphetamine (pure or
adulterated) commits possession of methamphetamine, a Class D
felony, except as provided in subsection (b).
(b) The offense is: . . .
(2) a Class B felony if the person in possession of the
methamphetamine possesses less than three (3) grams of pure
or adulterated methamphetamine:
(A) on a school bus; or
(B) in, on, or within one thousand (1,000) feet of:
(i) school property;
(ii) a public park;
(iii) a family housing complex; or
(iv) a youth program center . . . .
(Emphasis added).
Home, http://www.jcsc.org/education/school/school.php?sectionid=84& (last visited Feb.
29, 2012).
Appellee’s Brief at 4 n.2.
The State does not point to the record to show, nor has our review revealed, that any such
evidence was presented at trial.
7
Ind. Code § 35-48-4-7(a) (2004) (subsequently amended by Pub. L. No. 138-2011,
§ 14 (eff. Jul. 1, 2011), Pub. L. No. 182-2011, § 14 (eff. Jul. 1, 2011)), pursuant to which
Baker was convicted under Count II, provides:
A person who, without a valid prescription or order of a practitioner
acting in the course of his professional practice, knowingly or intentionally
possesses a controlled substance (pure or adulterated) classified in schedule
I, II, III, or IV, except marijuana, or hashish, commits possession of a
controlled substance, a Class D felony. However, the offense is a Class C
felony if the person in possession of the controlled substance possesses the
controlled substance:
(1) on a school bus; or
(2) in, on, or within one thousand (1,000) feet of:
(A) school property;
(B) a public park;
(C) a family housing complex; or
(D) a youth program center.
(Emphasis added).6
In Count I, the State alleged on or about May 14, 2009, Baker “did knowingly or
intentionally possess methamphetamine in an amount less than three grams, in, on, or
within one thousand feet of school property, to-wit: ETC Learning Center . . . .”
Appellant’s Appendix at 14. In Count II, the State alleged on or about May 14, 2009,
Baker “did knowingly or intentionally possess . . . Zolpiden, a controlled substance listed
in Schedule IV, without a valid prescription or order of a practitioner acting in the course
6
The statute as amended also excludes “salvia, or a synthetic cannabinoid” from the controlled
substances governed by the statute. See Ind. Code § 35-48-4-7(a) (Supp. 2011); see also Pub. L. No. 138-
2011, § 14 (eff. Jul. 1, 2011), Pub. L. No. 182-2011, § 14 (eff. Jul. 1, 2011).
8
of his/her professional practice, in, on, or within one thousand feet of school property, to-
wit: ETC Learning Center.” Id. at 15. Accordingly, in order to obtain the enhancements
from a class D felony to a class B felony under Count I and from a class D felony to a
class C felony under Count II, the State needed to prove that Baker possessed the
methamphetamine and controlled substance identified in those counts within 1,000 feet of
“school property” and that the “ETC Learning Center” constituted school property. Id.
Ind. Code § 35-41-1-24.7 (Supp. 2006) provides:
“School property” means the following:
(1) A building or other structure owned or rented by:
(A) a school corporation;
(B) an entity that is required to be licensed under IC 12-
17.2 or IC 31-27;
(C) a private school that is not supported and maintained
by funds realized from the imposition of a tax on
property, income, or sales; or
(D) a federal, state, local, or nonprofit program or service
operated to serve, assist, or otherwise benefit children
who are at least three (3) years of age and not yet
enrolled in kindergarten, including the following:
(i) A Head Start program under 42 U.S.C.
9831 et seq.
(ii) A special education preschool program.
(iii) A developmental child care program for
preschool children.
(2) The grounds adjacent to and owned or rented in common with a
building or other structure described in subdivision (1).
9
In Pridgeon v. State, this court held, in interpreting a prior version of Ind. Code §
35-41-1-24.7, that “[t]he words ‘school property’ do not include a college or university.”
569 N.E.2d 722, 724 (Ind. Ct. App. 1991), trans. denied. In support of this holding, the
court in Pridgeon observed that “[o]ver and again, our courts have strictly construed
criminal statutes defining offenses to avoid the creation of penalties by construction,” that
“[c]riminal statutes must be strictly construed against the State, and they may not be
enlarged beyond the fair meaning of the language used,” and that “[a]lthough the word
‘school’ has numerous meanings, this court excluded colleges and universities from the
‘common usage’ of this term in Lawrence v. Cain (1969), 144 Ind. App. 210, 245 N.E.2d
663.” Id. at 723. See Lawrence, 144 Ind. App. at 216, 245 N.E.2d at 666 (providing that
“[i]n the ordinary accept[ance] of its meaning, a school is a place where instruction is
imparted to the young” and that “[i]t is an institution of learning of a lower grade, below
a college or a university; a place of primary instruction”). This court further noted that
the legislature’s decision was “to afford special protection to children from the perils of
drug trafficking” and found that to include colleges would result in an interpretation
broader than intended by the legislature. Pridgeon, 569 N.E.2d at 724. See also
Reynolds/Herr v. State, 582 N.E.2d 833, 838-839 (Ind. Ct. App. 1991) (noting, in finding
the statute constitutional, that the legislative intent behind the statute enhancing the
offense for dealing cocaine was similar to Congress’ intent in enacting 21 U.S.C. §
845(a), the federal enhancement statute, that the Indiana legislature in drafting the
enhancement provisions intended to afford special protection to children from the perils
of drug trafficking and to provide harsher penalties for those culprits determined to
10
peddle drugs on or near school property, and that increased penalties for drug offenders
who commit their offenses near school property is rationally related to this purpose).
In this case, the only evidence presented at trial on this issue consisted of the
following exchange during the questioning of Officer Kipper by the prosecutor:
Q. Now what other buildings are around Ivy Park?
A. There’s Early Training Center.
Q. Is that the Education Training Center?
A. Or Early Training Center yes.
Q. The ETC?
A. Yes.
Q. And that’s located where it used to be the old nursing home out there
is that correct?
A. Yes.
Q. Where is that located in relation to Ivy Park?
A. It’d be to the north or to the east of Ivy Park approximately 600 feet
from [] Baker’s apartment to the center of the building.
Q. And you measured that off is that correct?
A. Yes.
Q. What happens at the ETC?
A. They have continuing education classes for students who wish to
pursue their high school education to get their diplomas and also I
believe they have Ivy Tech classes for continuing education for
college credits.
Q. So that’s right next door?
A. Yes.
11
Q. The properties are right next to each other correct?
A. Yes.
Q. Certainly less than 1000 feet?
A. Yes.
Transcript at 43-44.
The State elicited testimony from Officer Kipper that the ETC had “continuing
education classes for students who wish to pursue their high school education to get their
diplomas.” Id. at 44. However, the State does not point to any evidence presented at trial
which shows that the ETC was a building or other structure owned or rented by a school
corporation or other type of entity or organization described under Ind. Code § 35-41-1-
24.7. Moreover, the State does not point to evidence which indicates that the students
enrolled in any program at the ETC, including those seeking their high school diplomas,
were school-age children and not adults or college-age individuals.
In light of this court’s holdings and observations that the words “school property”
do not include a college or university, see Pridgeon, 569 N.E.2d at 724, that we strictly
construe criminal statutes defining offenses to avoid the creation of penalties by
construction and strictly construe criminal statutes against the State, see id., and that the
legislative intent was “to afford special protection to children from the perils of drug
trafficking,” id., we conclude that the evidence presented by the State does not, standing
alone, show that the ETC constituted “school property” as contemplated by the Indiana
legislature for the purpose of enhancement, or prove beyond a reasonable doubt that
Baker committed the possession offenses charged in Counts I and II within 1,000 feet of
12
school property. Cf. French v. State, 778 N.E.2d 816, 823 (Ind. 2002) (holding that the
evidence was sufficient to show that a preschool was “school property” for purposes of
an enhancement, where the director of the preschool testified that the school was a
private school and did not receive state funding, that the children at the school range in
age from twenty months to six years, that the children learn their numbers and alphabet,
sing songs, go on field trips, and play, and that the building in which the school is located
is owned by the parish); Dixon v. State, 712 N.E.2d 1086, 1093 (Ind. Ct. App. 1999)
(holding that the evidence was sufficient to show that a school was “school property” for
purposes of an enhancement where the State elicited testimony from an associate
superintendent that the property was owned by the school corporation and that the school
district had constructed a middle school on the land); Bailey v. State, 603 N.E.2d 1376,
1380 (Ind. Ct. App. 1992) (holding that the evidence was sufficient to support an
enhancement where the evidence showed that the center was used as a classroom site for
a remedial program for students who failed to succeed in a regular education setting, that
classes were conducted for grades 7 through 12 at the center, that student access to other
parts of the center was unrestricted, and that a certified teacher taught the curriculum
which was consistent with the regularly scheduled classes).
Further, we do not find the State’s arguments as to waiver, judicial notice, or the
fact that Baker’s apartment building may have constituted a family housing complex to
have merit. The State does not point to authority for the proposition that a defendant
must object at trial to the State’s introduction of evidence as to one or more elements of
an offense in order to preserve the argument on appeal that the evidence was insufficient
13
to support an element of the offense or sustain the defendant’s conviction. See Powers v.
State, 540 N.E.2d 1225, 1227 (Ind. 1989) (“This Court has held many times that the
burden of proving all elements of a charged crime beyond a reasonable doubt rests with
the State and the raising of an affirmative defense does not relieve the State of such
burden.”), reh’g denied. Further, the State does not point to the transcript or record to
show that the trial court took judicial notice, or that it requested the court to take such
notice, of the fact that the ETC constituted “school property.” In addition, the State’s
charging information in Counts I and II specifically alleged that Baker committed the
possession offenses “in, on, or within one thousand feet of school property, to-wit: ETC
Learning Center,” see Appellant’s Appendix at 14-15, and not within 1,000 feet of a
family housing complex, and the State does not point to the record to show that it
advanced this basis for the enhancement at trial.
Based upon the evidence presented at Baker’s trial and the charging information,
we conclude that the evidence is insufficient to permit a trier of fact to conclude beyond a
reasonable doubt that Baker committed the enhanced possession offenses charged under
Counts I and II within 1,000 feet of school property. Accordingly, we reverse Baker’s
convictions under Counts I and II and remand with instructions to reduce Baker’s
convictions under those counts to class D felonies and to resentence him accordingly.7
Reversed and remanded.
BAKER, J., and KIRSCH, J., concur.
7
Baker also argues that his sentence is inappropriate in light of the nature of the offenses and his
character. However, because we remand with instruction to reduce Baker’s convictions under Counts I
and II to class D felonies and for resentencing, we need not address this argument.
14