ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Jeffrey L. Sanford Gregory F. Zoeller
South Bend, Indiana Attorney General of Indiana
Thomas D. Perkins
Deputy Attorney General
Indianapolis, Indiana
______________________________________________________________________________
In the FILED
Indiana Supreme Court Feb 23 2010, 10:14 am
_________________________________ CLERK
of the supreme court,
court of appeals and
tax court
No. 71S03-0907-CR-333
REYNALDO A. GRIFFIN, Appellant (Defendant below),
v.
STATE OF INDIANA, Appellee (Plaintiff below).
_________________________________
Appeal from the St. Joseph Superior Court, No. 71D08-0606-FB-71
The Honorable R.W. Chamblee, Jr., Judge
_________________________________
On Transfer from the Indiana Court of Appeals, No. 71A03-0805-CR-260
_________________________________
February 23, 2010
Dickson, Justice.
For persons charged with committing certain drug offenses in, on, or within 1,000 feet of
school property, a public park, a family housing complex, or a youth program center, the result-
ing penalty enhancement is precluded if both (a) the defendant was in, on, or within the pro-
scribed area only "briefly," and (b) no member of a designated class of young people was within
the designated area at the time of the offense. Indiana Code § 35-48-4-16(b). We granted trans-
fer in this case and in Gallagher v. State, also decided today, to address the meaning and applica-
tion of the statutory term "briefly."
The State charged the defendant with Possession of Cocaine Within 1,000 Feet of School
Property, a class B felony.1 Only one witness testified at trial: State's witness South Bend Police
Officer Keith Walker. He stated that at approximately 2:15 in the morning on June 25, 2006 (a
Saturday), he observed for about five minutes the defendant pushing a moped down the middle
of Campeau Street. Because of the increased frequency of reported moped thefts in the spring
and summer, Officer Walker approached the defendant to determine if the moped was stolen by
checking the vehicle identification number (VIN). Observing the defendant "getting more and
more irate," the officer "patted him down" and put him in the officer's vehicle "for my safety."
Tr. at 125. While "waiting on dispatch" to answer regarding the VIN, the officer went to the
moped to move it off the road and observed under it a plastic bag containing a white cake rock-
like substance that was determined to be 0.77 grams of cocaine. Id. at 126–27. The officer's
stop of the defendant on Campeau Street occurred immediately adjacent to a chain link fence
surrounding Perley Elementary School. The defense evoked testimony on cross-examination
that no children were seen at that time on or near the school property. While the officer testified
that Campeau Street was in a residential neighborhood primarily consisting of single family
dwellings, there was no evidence regarding the proximity of "a public park, a family housing
complex, or a youth program center."2 The parties' closing statements included arguments about
whether the evidence called for application of the statutory defense. The jury was advised of the
elements required for conviction of Possession of Cocaine as a class D felony and that the jury
should find the defendant guilty of Possession of Cocaine as a class B felony if "the State has
further proved beyond a reasonable doubt that the [d]efendant knowingly possessed cocaine
within 1000 feet of school property, and you do not find that the defense set out below applies to
this case." Appellant's App'x at 23. The jury instruction also stated:
It is a defense to the element of being "within 1000 feet of school property" that a per-
son:
A. Was briefly within 1000 feet of school property, and
B. No person under eighteen (18) years of age at least three (3) years junior to the
defendant, Reynaldo Griffin, was in, on or within 1000 feet of the school property.
Id. The jury found the defendant guilty of the class B felony, and the trial court entered judg-
ment accordingly. The Court of Appeals affirmed. Griffin v. State, 905 N.E.2d 521, 525 (Ind.
Ct. App. 2009). We granted transfer.
1
Ind. Code § 35-48-4-6(b)(2).
2
Ind. Code § 35-48-4-16(b).
2
In the sole issue presented in his appeal, the defendant contends that his class B felony
conviction is not supported by sufficient evidence because the State failed to rebut the statutory
defense that the defendant was only briefly near school property with no children present. The
defendant requests that his class B conviction be set aside and replaced with a conviction for
Possession of Cocaine as a class D felony.
In response, the State argues that the evidence was sufficient to prove the defendant pos-
sessed cocaine within 1,000 feet of school property, that Officer Walker stated that children were
likely present in the homes surrounding the school, and that the jury's rejection of the defense
should not be re-weighed on appeal. The State also contends that it is the defendant's burden to
establish the defense, not the State's burden to rebut it.
The statutory definition for Possession of Cocaine or Narcotic Drug classifies the offense
as a class D felony, with three exceptions, each providing greater penal consequences: (1) it is a
class C felony if the amount of the drug weighs three grams or more, or if the person is also in
possession of a firearm; (2) it is a class B felony if the amount is less than three grams and the
possession occurs on a school bus or "in, on, or within one thousand (1,000) feet of" school
property, a public park, a family housing complex, or a youth program center; and (3) it is a class
A felony if the amount of the drug weighs at least three grams and the possession occurs at a lo-
cation designated for the class B felony. Ind. Code § 35-48-4-6.
As to offenses requiring proof of delivery, financing the delivery, or possession of co-
caine and other specified drugs within one thousand feet of school property, a public park, a fam-
ily housing complex, or a youth program center, the legislature has provided that the person
charged may assert the following defense to the enhancement from a class D to a class B felony:
(1) a person was briefly in, on, or within one thousand (1,000) feet of school property, a
public park, a family housing complex, or a youth program center; and
(2) no person under eighteen (18) years of age at least three (3) years junior to the person
was in, on, or within one thousand (1,000) feet of the school property, public park, family
housing complex, or youth program center at the time of the offense.
3
Ind. Code § 35-48-4-16(b).3
As to whether the burden to prove the statutory defense falls upon the defendant, we find
helpful the analysis in Harrison v. State, 901 N.E.2d 635 (Ind. Ct. App. 2009), trans. denied, a
closely analogous case that draws upon Adkins v. State, 887 N.E.2d 934 (Ind. 2008), in which
this Court recently addressed the burden of proof with respect to mitigating factors in contrast to
affirmative defenses. The facts in Harrison differ from the present case only in that there, (a) the
defendant was charged with dealing, not possession of, cocaine, and thus involved more severe
penal consequences, and (b) the enhancing factor was the commission of the offense within
1,000 feet of a public park, not a school. Addressing a claim that the State failed to disprove on-
ly brief presence and the absence of children, the court held:
Accordingly, we conclude that Indiana Code Section 35-48-4-16(b) constitutes a mitigat-
ing factor that reduces culpability, and therefore the defendant does not have the burden
of proof but "only the burden of placing the issue in question where the State's evidence
has not done so." See Adkins, 887 N.E.2d at 938. Once at issue, the State must rebut the
defense by proving beyond a reasonable doubt either that the defendant was within 1000
feet of a public park more than "briefly" or persons under the age of eighteen at least
three years junior to the defendant were within 1000 feet of the public park (because both
factors are required to effectuate the mitigation).
Harrison, 901 N.E.2d at 642. Finding that the State failed to prove that Harrison was within the
proscribed zone more than for a brief time or that persons under eighteen years of age were
present, the court reversed Harrison's conviction for dealing in cocaine as a class A felony and
remanded with instructions to reduce the conviction to a class B felony and to resentence him
accordingly.
In the present case, the Court of Appeals applied the Harrison analysis as to the State
having the burden to rebut the defense, but concluded that "Officer Walker's approximate five-
minute observation of Griffin's walk down Campeau Street was sufficient to show that he was
not 'briefly' within 1,000 feet of the school," and thus "the State's evidence was sufficient to rebut
Griffin's defense." Griffin, 905 N.E.2d at 525. We agree that Harrison and Adkins provide the
3
Although labeled a "defense" by the statute, Section 16(b) does not provide a general defense to
Possession of Cocaine or Narcotic Drug regardless whether charged as a class B or a class D felony. This
"defense" rather operates to preclude, under limited circumstances, the enhancement from a class D to a
class B felony that would ordinarily result from commission of the crime within the proscribed zone.
4
proper analysis but disagree with the Court of Appeals in its consideration of the evidence.
The defendant was observed at about 2:15 in the morning pushing a moped for five mi-
nutes until Officer Walker stopped him adjacent to a school. The officer "didn't actually see any
children on the school property or near the school property" and "didn't see anybody walking to
and from school." Tr. at 132, 133.4 The State argues that the evidence regarding the absence of
children is merely speculative and does not warrant application of the defense, citing Stringer v.
State, 853 N.E.2d 543 (Ind. Ct. App. 2006).
In Stringer, the court viewed the evidence as establishing only that "it is unknown wheth-
er anyone under the age of eighteen" was in the proscribed zone when Stringer was arrested and
concluded that this was insufficient to require the giving of an instruction on the statutory de-
fense. Id. at 549. Similarly, in Jackson v. State, 890 N.E.2d 11 (Ind. Ct. App. 2008), the court
approved the refusal to give an instruction on the statutory defense because "there was no evi-
dence regarding whether there were any children under the age of eighteen at the school." Id. at
20. In both Stringer and Jackson, there was an absence of any evidence or reasonable inferences
to establish the lack of children in the proscribed zones.5
In contrast to Stringer and Jackson, where the evidence was inconclusive regarding the
presence of children, in the present case, Officer Walker's testimony affirmatively represented
that he saw no children at or near the school property, and thus was sufficient to raise an issue as
to the defense's second prong—the absence of children—and thus to require the State to rebut the
defense. Officer Walker further testified, however, that the defendant was pushing the moped
down a street in a residential neighborhood primarily consisting of single family dwellings.
4
The evidence also includes the following related but confusing exchange:
Q [on cross-examination:] You didn't see any school children out anywhere that evening or the
early hours of the morning, is that correct?
A [by Officer Walker:] No.
Tr. at 132. The question was initially posed in the negative, but the opposite positive question, "is that
correct?" was appended to it. It is unclear whether Officer Walker's negative answer was intended to de-
ny the initial negative assertion or the appended positive inquiry.
5
Both Stringer and Jackson focus upon the adequacy of the defendant's evidence to require the
trial court to give a jury instruction on the statutory defense. We do not read them to place upon a defen-
dant the ultimate burden of proving the elements of the statutory defense. Such construction is contrary to
Adkins and Harrison, as discussed above.
5
When asked, "To your knowledge are there any families with children in the area?" he answered
"Probably." Tr. at 122. Despite its obligation to rebut the defense beyond a reasonable doubt,
see Adkins, 887 N.E.2d at 938, the State presented no further relevant evidence to disprove that
"no person under eighteen (18) years of age at least three (3) years junior to [the defendant] was
in, on, or within one thousand (1,000) feet of the school property." Ind. Code § 35-48-4-
16(b)(2). There was no evidence as to the location of the residential homes along the street so as
to place them, or any inferred child occupants, within 1,000 feet of the school.6 We thus find
that the evidence was insufficient to rebut the absence-of-children prong of the statutory defense.
While the evidence was insufficient to rebut the absence-of-children prong of the de-
fense, adequate rebuttal of the first prong—proving that the defendant's presence within the pro-
scribed zone was more than "briefly"—would have defeated the defense, which requires the exis-
tence of both prongs. Ind. Code § 35-48-4-16(b).
The term "briefly" is not defined by statute, nor by caselaw. In Harrison, the Court of
Appeals declined to "precisely determine the duration of a 'brief' period of time," but concluded
that the defendant's walking 297 feet into a proscribed zone, delivering cocaine, and then walk-
ing away was insufficient to prove that the defendant was within the proscribed zone "for more
than a brief time." 901 N.E.2d at 643. Common usage dictionaries typically define the adjective
6
There is no issue as to whether the defendant's cocaine possession was within 1,000 feet of a
"family housing complex," one aspect of the statutory defense, because the charged offense referred only
to proximity to a school, not a "family housing complex." Furthermore, the evidence does not show the
presence of any such complex as then defined by statute. As of the date of the charged offense, June 25,
2006, the phrase "family housing complex" was defined as follows:
"Family housing complex" means a building or series of buildings:
(1) that is owned by a governmental unit or political subdivision;
(2) that contains at least twelve (12) dwelling units; and
(3) where children are domiciled or are likely to be domiciled.
Ind. Code § 35-41-1-10.5 (1996). This definition was subsequently modified by amendments effective
June 30, 2006, and January 1, 2009. In its present form, the definition states:
"Family housing complex" means a building or series of buildings:
(1) that contains at least twelve (12) dwelling units:
(A) where children are domiciled or are likely to be domiciled; and
(B) that are owned by a governmental unit or political subdivision;
(2) that is operated as a hotel or motel (as described in IC 22-11-18-1);
(3) that is operated as an apartment complex; or
(4) that contains subsidized housing.
Ind. Code § 35-41-1-10.5.
6
"brief" to mean short in duration, length, or extent; succinct; concise; abrupt; or curt.7 These de-
finitions, like the word "briefly" itself, imply a relative comparison, not the mere abstract passage
of a discrete period of time.
Chosen by the legislature to serve as one element of the statutory defense, the word
"briefly" is not free from ambiguity. If intended only to refer to some abstract passage of time,
the legislature easily could have chosen to phrase the defense in terms of a specific duration of
intrusion into the proscribed zone, e.g., "forty-five seconds," "five minutes," "fifteen minutes,"
"one hour," etc. As a qualification of the defense applicable when a defendant is in the pro-
scribed zone no more than "briefly," the word implies that such duration must be determined in
relation to other considerations, not merely an abstract, temporal component.
The criminal offenses to which the defense applies enhance a defendant's penal conse-
quences for illegal drug activity committed near areas where children are likely to be present.
The statutory defense operates to excuse a defendant from the required enhancement when his
presence in the proscribed zone only minimally increases the risk to children. The "briefly" re-
quirement should be interpreted in a manner consistent with this purpose. Thus, when a defen-
dant's presence in the proscribed zone is primarily for a purpose other than illicit drug activity,
the risk to children is smaller and the word "briefly" could encompass a greater duration of time.
One example of this would be the traversing within a proscribed area without tarrying but while
in concealed, illegal possession of drugs. On the other hand, when the principal purpose of a de-
fendant's presence in the zone is to actively engage in criminal drug activity, especially if such
activity is visible to any children, even a relatively short intrusion into the proscribed zone would
be more than "brief" and thus should not excuse the defendant from the enhancement.
We therefore understand "briefly," as used in the statutory enhancement defense, to mean
a period of time no longer than reasonably necessary for a defendant's intrusion into the pro-
scribed zone principally for conduct unrelated to unlawful drug activities, provided that the de-
7
See, e.g., The American Heritage Dictionary 208 (2d coll. ed. 1985); The Random House Col-
lege Dictionary 168 (rev. ed. 1984); Webster's Ninth New Collegiate Dictionary 179 (1987).
7
fendant's activities related to the charged offense are not visible.8
We conclude that the statutory "defense" provided by Indiana Code § 35-48-4-16(b) is
not an affirmative defense but a mitigating factor that reduces culpability. Therefore, the evi-
dence at trial was sufficient to raise the defense for the defendant, but it was insufficient to satis-
fy the State's burden to rebut the defense beyond a reasonable doubt. The State has not proven
that the defendant's presence within 1,000 feet of the school lasted longer than reasonably neces-
sary to push the moped down the street nor that his criminal activities while there would have
been visible to any children if present. Nor has the State proven the presence of persons (a) un-
der eighteen years of age at least three years junior to the defendant and (b) who were within
1,000 feet of the school property.
We reverse the defendant's conviction of Possession of Cocaine Within 1,000 Feet of
School Property, a class B felony, and remand to the trial court for entry of a conviction for Pos-
session of Cocaine, a class D felony, and for resentencing accordingly.
Shepard, C.J., and Sullivan, Boehm, and Rucker, JJ., concur.
8
This construction is not impaired by the final subsection of the statute creating the defense:
The defense under this section applies only to the element of the offense that requires proof
that the delivery, financing of the delivery, or possession of cocaine, a narcotic drug, methamphe-
tamine, or a controlled substance occurred in, on, or within one thousand (1,000) feet of school
property, a public park, a family housing complex, or a youth program center.
Ind. Code § 35-48-4-16(d). We find this qualification to limit the defense to the proximity element of the
covered offenses. It does not apply the defense to the elements of delivery, financing of delivery, or pos-
session of drugs. Operating to limit the defense to the proximity element, this subsection thus renders the
defense not applicable to a covered drug offense for which there is no element requiring that it occur
within 1,000 feet of a proscribed zone.
8