ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
KENNETH R. MARTIN JEFFREY A. MODISETT
Goshen, Indiana Attorney General of Indiana
TERESA DASHIELL GILLER
Deputy Attorney General
MARK A. REED, ) ) Appellant-Defendant, ) ) vs. ) No. 20A03-9902-CR-72 ) STATE OF INDIANA, ) ) Appellee-Plaintiff. )
OPINION - FOR PUBLICATION
II. Whether the trial court improperly instructed the jury.
Possession of Cocaine within one thousand feet of a public park pursuant to Ind. Code § 35-
48-4-6(b)(3)(B). (R. 9).
At trial, the County Surveyor estimated the distance between Julie's residence, the place of the arrest, to Eagle Park, a public park, to be 750 feet based on an aerial photograph. (R. 120). Additionally, the State introduced evidence that a survey crew calculated the distance between the two locations using a method called traversing which utilizes trigonometry to arrive at a direct sight measurement. (R. 124-25). To utilize this method, the crew located a random point which afforded a line-of-sight measurement point to Eagle Park, and then measured back to Julie's residence. (R. 124-25). The surveying crew then brought back the data, entered it into a coordinate geometry computer package, calculated it, and made a drawing. (R. 125). The distance which was calculated by using this method was 736.6 feet. (R. 120, 126, 136). Reed introduced evidence calculating that the distance between Julie's residence and Eagle Park was 1,880 feet by using a rollertape on the public roadways. (R. 142-43).
A jury convicted Reed of the charged offense and the trial court subsequently ordered Reed to serve an executed sentence of twenty years. (R. 62, 65). The following appeal ensued.
to the Constitution of the United States, and article 1, § 9 of the Indiana Constitution.
Specifically, Reed argues that because this statute does not provide notice that the enhanced
punishment will be based on a line-of-sight measurement, it is unconstitutionally vague,
especially under the facts of his case where the epicenter of the 1000 foot zone cannot even
be glimpsed from the defendant's location. (Appellant's brief at 7). Reed's challenge
regarding the constitutionality of Ind. Code § 35-48-4-6(b)(B)(3) is a case of first impression
35-48-4-6 is unconstitutionally vague because it fails to set forth a specific method for
measuring the 1,000 foot drug-free zone fails on its own merits, waiver notwithstanding.
Indiana Code section 35-48-4-6(b)(3)(B) reads in pertinent part as follows:
A person who . . . knowingly or intentionally possesses cocaine . . . commits possession of cocaine or a narcotic drug, a class D felony, except . . . [t]he offense is . . . a class A felony if the person possesses the cocaine or narcotic drug in an amount (pure or adulterated) weighing at least 3 (3) grams . . . in, on, or within one thousand (1,000) feet of . . . a public park . . . .
We find nothing indefinite or uncertain in the above quoted language. By this statute, every
person is put on notice that the possession of cocaine or narcotic drug within 1,000 feet of
a public park is an unlawful act in the state of Indiana. Further, we hold that the phrase,
within one thousand feet of a public park is sufficiently clear and unambiguous such that
a person of ordinary intelligence would be capable of comprehending that it means exactly
what it says, within one thousand feet of the park itself, not that it refers to the measurement
of the shortest route a person could take to get to the park via public streets, as Reed
Based on the foregoing, we reject Reed's contention that Ind. Code § 35-48-4-6 is unconstitutionally vague because it fails to provide fair notice that the line-of-sight technique for measuring distance will be utilized. Contrary to Reed's argument on appeal, we find that the State's use of the measuring methods discussed above comport with the legislative intent of the statute. See Charley v. State, 651 N.E.2d 300, 303 (Ind. Ct. App. 1995) (finding that the State is only required to show that the measuring device [used] was accurate and was operated correctly in order to allow the admission of the distance as
evidence), Cf. Steelman v. State, 602 N.E.2d 152, 157 (Ind. Ct. App. 1992) (holding that the
direct line-of-sight technique used to determine the 1,000 foot perimeter around school
property conforms to the legislative intent).
We likewise reject Reed's additional contention that Ind. Code § 35-48-4-6 does not provide notice sufficient to meet due process requirements that his . . . proximity to the [park] would be measured by line-of-sight when the prohibited area was not even within sight. (Appellant's brief at 14). When the legislature created Ind. Code § 35-48-4-6, it clearly intended to create certain drug-free zones by increasing the penalty for those individuals who choose to possess cocaine or narcotic drugs within 1,000 feet of schools, public parks, and family housing complexes. See Ind. Code § 35-48-4-6; Cf. Steelman, 602 N.E.2d at 157 (stating that, when the legislature created the 1,000 foot drug-free zone surrounding our schools, it made no allowance for barriers such as buildings or homes or fences or concrete barriers or creeks . . . the legislative intent [was] plain: to punish those who deal drugs within 1,000 feet of school property.). Reed, at his own peril, chose to possess 8.9 grams of cocaine within 1,000 feet of Eagle Park.
between the park and the location where Officer Cummings found Reed. (Appellant's brief
at 8). We disagree.
(R. 31, 187). The instruction given immediately after instruction eight informed the jury
You are instructed that there are no statutory requirements regarding the method of measurement of distance or operation of measurement devices in drug cases.
(R. 187). The trial court also informed the jury that if the State failed to prove beyond a reasonable doubt each of the elements of Ind. Code § 35-48-4-6(b)(3)(B), which included the element of whether Reed was within the 1,000 foot drug-free zone, that it should find Reed not guilty. Additionally, the trial court correctly instructed the jury about the elements of Possession of Cocaine as a lesser included offense.
Our review of the record reveals that a major point of contention at trial was whether Reed possessed the cocaine within the 1,000 foot drug-free zone. In fact, both the State and Reed presented evidence regarding how to measure or determine this distance. Finally, as stated earlier, in Steelman, a case where the defendant challenged the method employed by the State to determine whether he was within the 1,000 foot drug free zone surrounding a school and thereby in violation of this State's corollary marijuana statute located at Ind. Code § 35-48-4-10, we held that [t]he surveyor's line-of-sight technique to determine the 1,000-foot perimeter around the school property conforms to the legislative intent. Id. at 157.
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