A TTORNEY FOR A PPELLANT A TTORNEYS FOR A PPELLEE

Leanna Weissmann Gregory F. Zoeller Lawrenceburg
, Indiana Attorney General of Indiana

Ian McLean Deputy Attorney General Indianapolis, Indiana

_________________________ _____________________________________________________ 

# In the 

# Indiana Supreme Court

_________________________________ No. 15S04

- 0909

- CR

- 405

S TEPH A N M

. G ALLAGHER , Appellant (Defendant below),

v.

S TATE O F I NDIANA , Appellee (Plaintiff below)

.

_________________________________ Appeal from the Dearborn Circuit Court, No. 15C01

- 0511

- FA

- 14

The Honorable James D . Humphrey, Judge

_________________________________ On Transfer from the Indiana Court of Appeals, No. 15A04

- 0806

- CR

- 326

_________________________________

February 23, 2010
Dickson, Justice.

We granted transfer in this case and in Griffin v. State , also decided today, to address the meaning and application to be given to the statutory provisions that preclude, in limited circum stances, th e penalty enhancement that ordinarily results from drug offenses committed within 1,000 feet of school property, a public park, a family housing complex, or a youth program ce nter

.

Appealing his conviction and sentence for Dealing in a Schedule II C ont rolled Su b stance
W ithin One Thousand Feet of School Property, a class A felony, the defendant claims error s r e-2

lated to (1) the adequacy of the State's rebuttal of the statutory defense concerning the location of the drug sale, (2) the admissibility of a di gital recording, (3) the correctness of an instruction r egarding aiding and inducing, and (4) the appropriateness of the sentence. The Court of A p peals addressed and rejected the defendant ' s claims with respect to issues (2) and (3)
, and, as to issue (1), it reversed and remanded with instructions to enter a conviction for the offense as a class B felony and to resentence the defendant accordingly and thus did not address issue (4)

. Gallag h er v. State , 906 N.E.2d 272, 277 (Ind. Ct. App. 2009). We granted transfer to consider issue (1) and

now su m marily affirm the Court of Appeals as to issues (2) and (3). 1 Addressing issues (1) and (4) below, we affirm the defendant's conviction and se n tence.

1. Statutory Defenses

The defendant contends that he ra ised, and the State failed to adequately rebut
, two stat utory defenses . Seeking to reduce his conviction from a class A felony to a class B felony, he a rgues that the State failed to rebut: ( a ) that he was within 1 , 000 feet of school property only
"briefl y " at a time when no children were present; and (b) that his presence within the proscribed

zone resulted from the request or sugge s tion of law enforcement.

In response, the State contends that there was sufficient evidence to establish beyond a

reason able doubt: (a) that the defendant was within the proscribed zone for twenty m i nutes for the purpose of retrieving, dividing, and delivering a controlled substance ; and (b) that the defe ndant selected the meeting place thus placing himself in the proscribe d zone.

The offense of Dealing in a Schedule I, II, or II I Controlled Substance is classifie d as a class B felony. But if the offense is committed by delivery or financing of the del i very of the
controlled substance (a) to certain persons under eigh teen years of age, (b) on a school bus, or (c) within one thousand feet of school property, a public park, a family housing complex, or a youth program center, then the offense is a class A felony with substantially greater penal cons equences. Ind. Code § 35

- 48

- 4

- 2.

1 Ind. Appellate Rule 58(A)(2).3

As to offenses requiring proof of delivery, financing the delivery, or possession of a co ntrolled substance within one thousand feet of school property, a public park, a family housing complex, or a youth program center, the legislature has provided : (b) It is a defense for a person charged under this chapter . . . that: (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, pu blic park, family housing complex, or youth program center at the time of the o ffense. (c ) It is a defense for a person charged under this chapter . . . that a person was in, on, or within one thousand (1,000) feet of school property, a public park, a family housing complex, or a youth program center at the request or suggestion of a law enfo rcement
o f ficer or an agent of a law enforcement officer. Ind. Code § 35

- 48

- 4

- 16

. Once the defendant raises either of these two defenses and supporting evidence is presented , the burden passes to the State to disprove beyond a reaso n able doubt at leas t one element of the defense

. See Harrison v. State , 901 N.E.2d 635, 642 (Ind. Ct. App. 2009), trans. denied (as to the Section 16(b) defense for "briefly" in the proscribed zone with the absence of children); Bell v. State , 881 N.E.2d 1080, 1086 (Ind. Ct. App. 2008), trans. denied (as

to the Section 16(c) defense for presence at the request or suggestion of law enforcement ). The
State correctly acknowledges its burden of proof. Appe l lee's Br. at 10.

In the appellate review of claims that the State ha s failed to present sufficient ev i dence to rebut a defense, the same standard applies as to other challenges to the sufficiency of ev i dence.
See Dockery v. State , 644 N.E.2d 573, 578 (Ind. 1994). A conviction must be a f firmed "if the probative evidence a nd reasonable inferences drawn from the evidence could have allowed a re asonable trier of fact to find the defendant guilty beyond a reasonable doubt." McH e nry v. State , 820 N.E.2d 124, 126 (Ind. 2005) ( quoting Tobar v. State , 740 N.E.2d 109, 112 (Ind. 20 00) )

. Thus, here we must ev a luate whether there is sufficient evidence from which the jury could have found that the State rebutted both of the claimed defenses beyond a reasonable doubt. The d efense under Ind iana Code § 35

- 48

- 4

- 16(b) contains two compon ents , "briefly" and the absence of children, both of which must exist for the defense to apply. This defense is defeated if the State disproves either component beyond a reasonable doubt. Separate and independent from this Se ction 16(b) defense is the on e under Section 16(c) , which will apply unless the State di s proves4

beyond a reasonable doubt that the defendant was within the proscribed 1
, 000 feet "at the request or suggestion" of a law enforc e ment officer or agent.

The evidence establishes tha t i n the summer of 2005, Dearborn County She riff Depar tment Detective Shane McHenry began having conversations with Danny Goodpaster, an a cquaintance from high school and prior employment, regarding the selling of illegal drugs in the

area. Goodpaster eve ntually agreed to attempt a drug buy from the defendant, and o n November 29, 2005, he called the defendant and inquired about purchasing drugs. The defendant and Goodpaster agreed to meet behind a particular pharmacy in Aurora, Indiana, where the defendan t would be in a green Ford Thunderbird with two females . Goodpaster then called Detective McHenry, who picked up Goodpaster, equipped him with a recording device and money, searched him, and then drove him to the vicinity of the pharmacy

. Goodpaster e x it ed and walked to the Thunderbird parked behind the pharmacy and got into the back seat with the defendant. Goodpaster gave the money to the defendant
, and the defendant handed the money to one of the
women who left the car and walked to some nearby apartm ents. After a lapse of time, she r eturned and displayed ten pills in cellophane wrapping. After a di s cussion of how the pills were to be divided, the woman kept four pills and handed six pills to the defendant, who handed them to Goodpaster . Goodpaster then exited the car and rejoined Det ective McHenry. Among the tr ial evidence was the recording made by the device provided to Goo d paster. Our review of the recording discloses that it lasted twenty

- two minutes and thirty seconds , of which thirteen m inute s and thirty seconds covered the actual drug dealing transaction itself (starting at the point
when Goodpaster joined the defendant at the Thunderbird and ending when Goodpaster left the car with the purchased drugs). Of the remaining nine recorded minute s, two mi nutes covered
Det ective McHenry's d riving Goodpaster to the vicin i ty of the pharmacy
, and seven minutes and
fourteen seconds recorded the events from Goodpaster 's departure from the Thunderbird to his rejoining Detective McHenry , including the pro cess of turning off the recording device. Co ntrasting slightly with the a c tual thirteen and one half minutes that elapsed during Goodpaster's presence with the defendant in the rear seat of the Thunderbird, Goodpaster's trial testimony e stimated the time to be "probably . . . about twenty minutes." Tr. at 61. 2 The Thunderbird was

2 We note two other occasions when the phrase "twenty minutes" a p pears in the record. The first occurs in the absence of the jury during a colloquy between the court and counsel. In a discussion related5

l o cated 230 feet from St. John's Lutheran School when the drugs were exchanged

. There was no
evidence as to the distance of other involved loc a tions from the school

.

The ev idence is arguably somewhat inconsistent, however, regarding who selected the location for the drug deal . During the direct and redirect examination
, Goodpaster te s tified that it was the defendant who chose the location. But one exchange during cross

- exa mination su ggests otherwise. When defense counsel asserted to Goodpaster that during his prior depos i tion
he had admitted suggest ing the location to Det ective McHenry, Goodpaster responded , "Uh

- huh. Okay." Tr. at 71

– 72.

A. The " b riefly " defense

.

The defendant argues that he is entitled to rel ief based on his st a tutory defense to D ealing
in a S chedule II C ontrolled S ubstance Within One Thousand F eet of S chool P rope r ty because "the transaction lasted only long enough for the pills to be procured an d handed to Goodpaster," Ap p ellant's Br. at 8, and there w as no one under the age of eighteen present on school property when the transaction took place around 3:00 a.m. The defendant argues that any ambiguity in the word "briefly" should be resolved agai nst the State. The State do es not di s pute the absence of persons under the age of eighteen at the time , but contends that the defendant was with in
1 , 000 feet of the school for at least twenty minutes and that " [t] here is no lenient interpretation of
'brie f' which can embrace this transa c tion

. " App e llee's Br. at 1 3

.

In today's companion case, Griff i n , we held that the term "briefly," as used in the statut ory defense provision
, mean s " a period of time no longer than reasonably necessary for a defe ndant' s intrusion into the proscribed zone principally for conduct unrelated to unlawful drug acti vities, provided that the defendant's activities related to the charged offense are not visible. " Gri ffin , ___ N.E.2d at ___. [Slip Opinion at 7

– 8 ]

.

to the admissib ility of the tape recording, the trial judge expressed his understan d ing that the recording "is between twenty minutes and a half hour," to which counsel for the State replied: "I believe that['s] right around twenty minutes, Judge." Tr. at 235

– 36. The p hrase also appears later, during closing argument, when the State asserted, "I don't think twenty minutes is brief under anybody's sta n dards." Tr. at 326. The transcript of the recording includes Detective McHenry's statement that it began at 3:19 a.m. a nd concluded at 3:41 a.m. State's Exh. 9

- A, Tr. Exh. Vol. at 11.6

The eviden ce establish ed that the defendant was presen t within 1
, 000 feet of the school
and that he was located in the proscribed zone for as little as thirteen minutes and thirty seconds. During that period of time, however, the defendant was principally engaged i n co n duct related to unlawful drug activities clearly visible to anyone present , and thus his thirteen and one half m inutes in the proscribed zone does not qualify as "briefly

. " We co n clude that the evidence was
sufficient to rebut the defendant's claim t o the statutory defense that he was only " briefly " in the proscribed zone.

B. The " request or suggestion of law enforcement " defense

.

The defendant alternatively contends that the State failed to rebut the statutory defense that applies for persons charged with dealing in a controlled substance "within one thousand (1,000) feet of school property, a public park, a family housing complex, or a youth program

ce n ter at the request or suggestion of a law enforcement officer or an agent of a law e n forcem ent officer. " Ind. Code § 35

- 48

- 4

- 16(c) (emphasis added)

. 3 The defendant argues that there is "some

unce r tainty about who selected" the location for the drug deal, which was within 1
, 000 feet of the school. Appellant's Br. at 7. From this uncertainty, he asserts that he esta b lished, and the State failed to rebut, that he was within the proscribed zone only at the request or suggestion of a law enforcement agent

. The State urges that Goodpaster testified that it was the defendant who
selected the meetin g place and that Goodpaster's agreement "that defense counsel's selective reading of his deposition was accurate" did not amount to an affirmative statement that he, Goodpaster, s e lected the location. Appellee's Br. at 12.

3 Although citing and quoting the statutory defense established by Indiana Code § 35

- 48

- 4

- 16(c), the defendant's argument refers to this as his "entrapment" defense. Appellant's Br. at 5

– 7. In r e sponse, the State discusses the general defense of entrapment set forth at Indiana Code § 35

- 41

- 3

- 9, and argues, among other things, that such defense is available only where "the person was not predi s posed to commit the offense." Id. At is sue in this case, however, is not the general defense of entrapment (which would operate as a complete defense to drug dealing, regardless whether charged as a class A or class B felony), but rather is the limited statutory mitigator (that merely precludes the enhanced penalty resulting from commission of the offense within the proscribed 1,000 foot zone). We address this issue only in the latter context, as presented in this case. The absence of propensity to commit the offense is not an el e ment of this statutory defense.7

As noted above, in the appel late review of a claim of insufficient evidence to rebut this
defense , we consider the evidence and reasonable inferences favorable to the judgment, without reweighing or assessing credibility, to evaluate whether there is sufficient probative evidence
fro m which a reasonable jury could have found that the State rebutted the defense beyond a re asonable doubt. The defense acknowledges that the evidence on this point was uncertain, i mplie d ly conceding the existence of evidence supporting the jury's rejection of his claim to the d efense . We decline to find that the State's rebuttal was insuff i cient.

2

. Sentence Reasonableness

Challenging the appropriateness of his sentence, as permitted by Indiana Appellate Rule 7, t he defendant contends that his chara cter and the nature of his offense do not warrant a thirty

year sentence. Emphasizing his youth (age twenty when sentenced), a lack of adult convictions, and a juvenile history of only three incidents when age seventeen , the defendant urges that a long

p rison term is not needed to accomplish his rehabilitation. He also asserts that the offense, sel ling Ox y contin pills to an undercover informant, was non

- violent, caused no pecuniary loss, and took place at three o'clock in the morning

— when no children wer e present, and thus is less s evere than other class A felonies.

The State responds that the advisory sentence he received from the trial court is appr opriate in part because of his prior juvenile adjudication s

— o ne involv ing two acts at age seve nteen that, if committed by an adult, would have been battery , and one that would have been r esisting law enforcement. The State emphasizes evidence that the defendant had been a fr e quent

user of marij uana, cocaine, and pain killers since he was twelve years ol d and that he was high

on c o caine and heroin when he committed the instant offense. While acknowledging that this
was the d e fendant's first adult offense, the State argues that his juvenile history is violent and that
he has demonstrated an evasive attitu de toward taking responsibility for his actions. For these

re a sons, the State urges that it was appropriate for the trial court to impose the sentence of thirty years, with ten years suspended to probation.

Appellate Rule 7 permits an appellate sente nce revision when, "after due consideration of8

the trial court's decision," the reviewing court "finds that the sentence is inappr o priate in light of
the nature of the offense and the character of the offender." App

. R

. 7. After cons i dering the

pre

- sente nce investigation report and conducting a sentencing hearing, the trial court found a ggravating factors to include the defendant's evasiveness, lack of remorse, and general defiant att itude, that he is likely to commit future crimes, that he curses and ver bally abuses his mother, that
he smoked m a ri

j uana while in the Law Enforcement Center pending trial, and that he has shown a failure to take personal responsibility for his actions. The trial court also noted mitigating fa ctors in the defendant's young ag e and the fact that this was his first adult offense. But it expres sly declined to give mitigating value to the fact that the defendant has two sons because of the d efendant's failure to make significant efforts toward their support and "the contempt show n by d efendant towards his children." Tr. at 419 . Balancing the aggravating and mitigating fa c tors, the
trial court ordered the thirty

- year advisory sentence for a class A felony, 4 and then su s pended ten years to probation.

We decline to find that th e sentence selected by the trial court was inappropriate in light
of the nature of the offense and the defendant's character.

Conclusion

The judgment of the trial court is affirmed.

Shepard, C.J., and Sullivan, Boehm, and Rucker, JJ., concur.

4 The permissible sentences for a class A felony range from twenty to fifty years, with thirty years designated as the "advisory sentence." Ind. Code § 35

- 50

- 2

- 4.