concurring in part, dissenting in part.
I agree with the Majority's determination regarding the allocation of the burden of proof concerning the defense set out in Ind.Code Ann. § 35-48-4-16(b) (West, PREMISE through 2008 2nd Regular Sess.). I cannot, however, agree that under these cireumstances, a reasonable juror could conclude that Griffin's presence within 1000 feet of a school was anything other than "brief," within the meaning of 1.C. § 35-48-4-16(b). See Drane v. State, 867 N.E.2d 144 (Ind.2007).
I feel compelled to preface my comments on this case by noting another on which I served as a panel member. In Polk v. State, 822 N.E.2d 239 (Ind.Ct.App.2005), trams. denied, the defendant was a passenger in a moving vehicle that was stopped in the early morning hours by police for a traffic violation and discovered to be in possession of cocaine and a schedule IV controlled substance. The former offense was enhanced to a class A felony because the stop happened to occur in front of a school. Upon direct appeal to the Supreme Court, Polk challenged the school-zone enhancement of his possession conviction, arguing that the legislature did not intend the enhancement to apply to a passenger in a moving vehicle that is by happenstance stopped by police for a traffic violation within the 1000-foot *526zone. Polk v. State, 683 N.E.2d 567 (Ind.1997). Polk argued that the enhancement so applied did not advance the statute's underlying objective of protecting school children from the effects of drugs, and produced absurd and unintended results. The Supreme Court rejected that argument, stating:
Polk maintains that if we rule against his position police will wait to pull over suspected possessors of drugs until their cars are within 1000 feet of a school. However, the enhancement is triggered by possession within the zone, whether or not the defendant is pulled over within the zone. It is the act of entering the zone, and not the police action of pulling the defendant over, that triggers the enhancement. Nothing forces drug offenders to drive within the drug-free zone created by the legislature. To the contrary, they pass there at their own peril and in jeopardy of their own penal interests.
Id. at 571-72. In a special concurrence, Justice Sullivan characterized the school-zone enhancement as a "strict liability offense." Id. at 578. This comment can be construed as referring not only to the defendant's knowledge that he was within 1000 feet of a school at the time of the offense, which knowledge Polk clearly possessed, but also the circumstances under which the drugs were discovered there, i.e., a traffic stop that occurred, by chance, while the defendant was driving past a school.
The case subsequently came before this court upon petition for post-conviction relief. Pope argued that the circumstances of his case fit within the "briefly and without children present" exception set out in 1.C. § 35-48-4-16. This court determined that the issue of whether the offense was properly enhanced was res judicata. The majority opinion, in which I fully concurred, noted that I.C. § 35-48-4-16 is an ameliorative statute that did not become effective until after Polk was sentenced. Thus, it was unavailable to him. Although one could find support in the Supreme Court's opinion to reject Griffin's argument here, that decision predated the effective date of .C. § 35-48-4-16. Indeed, that provision was not even mentioned. Thus, I do not find my position here to be in conflict with my vote in Polk v. State, 822 N.E.2d 239.
Turning now to the instant case, the salient facts are that Griffin was walking a moped past a school when he was stopped by police. Although the term "briefly", as used in I.C. § 35-48-4-16(b)(1), clearly imparts a temporal connotation, the time span itself is not the only element in this equation. Whether a particular time interval is "brief" is also a function of surrounding cireumstances, including the defendant's intentions to be or remain near the school zone for any period of time, however short.
Officer Walker's estimate of the time interval involved here, i.e., five minutes, is probably accurate. First, five minutes is an objectively short span of time. Second, traveling on foot to, past, and 1000 feet beyond a school zone can hardly take much less than five minutes when pushing a moped. Third, there is no indication that, had he not been stopped, Griffin would have been within the proscribed 1000-foot zone any longer than it took him to traverse the necessary distance to get beyond it. Considering the very short time span and the fact that Griffin was moving steadily past the school zone as quickly as circumstances would permit until he was stopped, I would conclude that the jury's determination that Griffin was within the forbidden zone more than "briefly" was unreasonable.
*527Although I agree that the State bore the burden of rebutting the defense set out in 1.C. § 35-48-4-16(b), upon my conclusion that it failed to do so, I would reduce the possession offense to a class D felony and remand for sentencing on that offense.