concurring in part and dissenting in part.
I respectfully dissent as to part I of the majority opinion. The state and the defendant stipulated in open court that Irwin was a school within the meaning of the statute. (R.126) The stipulation was binding upon Whitt and obviated the necessity of proof of that point. Thus, while it is certainly good practice to advise the jury of the stipulation, properly speaking, there is no such thing as introducing it into evidence for the jury is not empowered to weigh or disregard it. It operates to establish the facts stipulated as a matter of law for the case at hand. See, e.g., Clark v. State (1990) Ind., 562 N.E.2d 11, 17, cert. den. 502 U.S. 961, 112 S.Ct. 425, 116 L.Ed.2d 445; Faught v. State (1974), 162 Ind.App. 436, 319 N.E.2d 843. Accordingly, the conviction for the class B possession felony should be affirmed.
In addition, I disagree with n. 5 and believe that O’Grady v. State (1985), Ind.App., 481 N.E.2d 115, trans. den., should be disapproved concerning the unavailability of the lesser offense of “simple” possession. Possession of cocaine is inherently included in the offense of possession of cocaine within 1000 feet of school property. As such, it cannot be excluded as a lesser offense by any means of drafting the information. An information charging the class B felony in fact must, and does, charge all the elements of-simple possession.
I concur in part II of the majority opinion.
I would therefore affirm the convictions.