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 seope 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., 281 Ind. 680, 110 N.E.2d 855 (1958). The pertinent language of the Dealing in Cocaine statute reads as follows:
(a) A person who knowingly or intention, ally ... 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, exeept as provided in subsection (b.)
Subsection (b) further provides that
[tlhe 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 (8) years junior to the person; or the person delivered or financed the delivery of the drug in or on school property or within one thousand (1,000) feet of school property or on a school bus.
Ind.Code Ann. § 35-48-4-1 (West Supp. 1994) (emphasis added). Given this language, we are confronted with the question of which parts of the statute the "knowingly and intentionally" language is supposed to modify. The Legislature, however, has provided yet another guide. In addition to the Dealing in Cocaine statute's own language, the Legislature has included a rule of interpretation in for its penal laws:
Unless the statute defining the offense provides otherwise, if a kind of culpability is required for the commission of the offense, it is required with respect to every material element of the prohibited conduct. ~
Ind.Code Ann. § 35-41-2-2(d) (West 1986) (emphasis added). The majority concedes that the "within 1000 feet of a school" requirement is an element of the crime. It does not address, however, the application of § 35-41-2-2(d) to the interpretation of the Dealing in Cocaine statute at all. Although the Legislature does not define the term "material element" in the Code, proof of dealing cocaine "within 1000 feet of a school" changes what would be a Class B felony with a minimum sentence of six years to a Class A felony with a minimum sentence of 20 years.4 *246This fact surely qualifies the "within 1000 feet of a school" requirement as a material element under § 85-41-2-2(d). Because the Legislature has not provided otherwise in the Dealing in Cocaine statute as § 85-41-2-2(d) explicitly requires, one can only conclude that the term "knowingly" requires the State to prove beyond a reasonable doubt that the defendant did in fact have knowledge of his proximity to the school.
Additionally, the rule of lenity requires that criminal statutes be strictly construed against the State. Bond v. State, 515 N.E.2d 856, 857 (Ind.1987). Here again, one is led to the conclusion that the express use of term "knowingly" in the dealing in cocaine statute requires that the State to show that the defendant knew his proximity to the school in order to be guilty of the Class A felony of dealing in cocaine.
The rulings of the federal courts and the acts of other states undermine the majority's position. The issue of the seope of scienter in a criminal statute has faced the United States Supreme Court as well. In United States v. X-Citement Video, Inc. et al., 518 U.S. 64, 115 S.Ct. 464, 180 LEd2d 372 (1994), the Court held that guilt under the Protection of Children Against Sexual Exploitation Act of 1977, 18 U.S.C. § 2252, required proof of an accused's knowledge of a performer's age, even though the most natural grammatical reading of the statute seemed to limit the application of that statute's knowledge requirement to only some of its other subsections. In explaining its interpretation, the Court held that the background presumption of evil intent is a fundamental principle of the criminal law and should therefore be used to resolve any questions concerning the seope of scienter:
Our reluctance to simply follow the most grammatical reading of the statute is heightened by our cases interpreting criminal statutes to include broadly applicable scienter requirements, even where the statute by its terms does not contain them.
X-Citement Video, 513 U.S. at -, 115 S.Ct. at 468 (1994). In the same opinion, the Court noted that the harsh penalties for violating 18 U.S.C. § 2252 required the statute be construed to have the broad scienter requirement. Id. at -, 115 S.Ct. at 469. See also Morissette v. United States, 342 U.S. 246, 72 S.Ct. 240, 96 L.Ed. 288 (1952); Staples v. United States, 511 U.S. 600, 114 S.Ct. 1793, 128 L.Ed.2d 608 (1994).
Both Congress and some states have successfully passed anti-drug laws intended to protect children from the drug trade by creating a drug free zone around schools. The Federal Schoolyard statute, 21 U.S.C.S. § 860 (Supp.1995), for instance, completely lacks an intent provision for its proximity element and thus burdens the drug dealer with ascertaining his proximity to the protected zone.5 See United States v. Holland, 810 F.2d 1215 (D.C.Cir.1987), cert. denied, 481 U.S. 1057, 107 S.Ct. 2199, 95 L.Ed.2d 854 (1987) (Federal Schoolyard statute satisfies Due Process even though proof of defendant's knowledge of his proximity to a school is not required) and United States v. Falu, 776 F.2d 46, 48-50 (1985) (Federal School yard statute will not be read to require proof of knowledge of proximity to a school for a conviction under the statute). Congress cere-ated the drug free zones believing that the mere presence of drug dealing around children was a negative influence on them, even if no one tried to directly sell to the children themselves or recruit them as couriers. Holland at 1219. Other states have also modeled their statutes after the Federal Schoolyard Statute and have either drafted their statutes with no intent requirement at all or explicitly state that lack of knowledge is not a defense to the proximity element.6
*247The "knowingly or intentionally" phrase in Indiana's Dealing in Cocaine statute, as well as the lack of any language manifesting a contrary purpose, causes it to be more plausibly read to target the drug trade involving children near schools rather than to create a drug free zone around our state's schools, however. Its purpose is rather to target those who would sell to school age children and, worse still, recruit them as distributors of illicit drugs. The intent language actually used in the statute indicates a legislative intent to punish the schoolyard pusher more harshly than those who sell to adults in their apartments and homes that merely happen to be within a zone. The legislature could have reasonably believed that drug dealers who sell to adults are bad enough, but those who lurk in the playgrounds of our nation's school to prey upon school age children are worse still. By this reading of the statute, the greater harm created by this particular form of drug trafficking and the greater moral culpability of one involved in such trafficking led the Legislature to require proof of a greater level of knowledge for the Class A felony conviction than a Class B conviction under the Dealing in Cocaine statute. I therefore believe that this reading of the statute clearly requires the State to prove that evil intent by showing that appellant knew that he was dealing within 1000 feet of a school when he was dealing cocaine.
The majority relies on this Court's adoption of LaFave and Seott's seven factor test in State v. Keihn to justify its interpretation of the Dealing in Cocaine statute. See State v. Keihn, 542 N.E.2d 9683 (Ind.1989). That case, however, dealt with the a statute that had no intent requirement. Given that the Dealing in Cocaine statute does contain an intent requirement, use of the Keihn test to interpret a statute in which the Legislature has included an intent requirement is dubious at best.
Moreover, the majority opinion gives no guidance for applying the Keihn test. Without a principle stating when the Keikn test will be applied or limiting its application to only those criminal statutes that completely lack an intent element, I fear that the logical conclusion of the majority's application of the Keihn test to other criminal statutes could lead to interpretations that would strip our criminal statutes of their intent requirements. In short, the majority's use of the Keihn test opens a Pandora's Box of possible reinterpretations of criminal statutes that may plainly contradict the Legislature's expressed intent, no matter how clearly articulated.
When asked to determine the sufficiency of the evidence produced at trial, this Court neither weighs the evidence nor resolves questions of credibility, but looks only to the evidence and the reasonable inferences therefrom which support the verdict. Case v. State, 458 N.E.2d 228, 226 (Ind.1984). Nevertheless, when the State fails to prove all the elements of a criminal statute, the conviction cannot stand. In the present case, the prosecution made no showing at trial that appellant knew his distance from the school. The only proof addressing the "within 1000 feet of a school" element of the statute was Detective Witten's testimony that he and his colleagues measured the distance from the site of the controlled buy to the front of Public School 114. Therefore, even the evidence most favorable to the verdict and the reasonable inferences therefrom fail to provide probative evidence from which a reasonable trier of fact could infer the requisite scienter beyond a reasonable doubt.
I would remand this cause to the trial court for appellant to sentenced for the Class B felony of Dealing in Cocaine.
. Additionally, the majority's characterization of the Dealing in Cocaine statute as a "strict liability" statute is wrong. Criminal strict liability refers only to those penal statutes containing no intent requirement at all. See Kimball v. State, 474 N.E.2d 982, 985 (Ind.1985). The Dealing in Cocaine statute does require a showing of criminal intent-the only issue is how much intent must be proved by the State to gain a Class A felony conviction.
. The harshness of the penalty is even more stark when one considers that the sentencing statutes imposed a presumptive sentence of 30 years for a *246Class A felony and 10 years for a Class B felony at the time of the alleged crime. See Ind.Code Ann. § 35-50-2-4 and § 35-50-2-5 (West 1986).
. See 21 U.S.C.S. § 860 (Supp.1995). Only the separate but related offense under 21 U.S.C.S. § 841 (1984) contains an intent requirement. The separateness of the § 841 and § 860 offenses, however, makes the discerning of Congressional intent that much easier.
. Also, several states have explicit provisions in their schoolyard statutes stating that a defendant's lack of knowledge of his proximity to a school is not a defense. See Utah Code Ann. § 58-37-8(5)(d) (1996) and N.J.Rev.Stat. § 2C:35-7 (1995), and Wash.Rev.Code § 69.50.435 (Supp.1996). Moreover, several schoolyard statutes contain no mens rea requirement at all. See Fla.Stat. ch. 893.13(1)(c) (1994) *247and Va.Code Ann. § 18.2-255.2 (1988). Either approach would clarify the ambiguity inherent in the phrasing of Indiana's Dealing in Cocaine statute and its interplay with Ind.Code § 35-41-2-2(d). R