noting, in finding the statute constitutional, that the legislative intent behind the statute enhancing the offense for dealing cocaine was similar to Congress' intent in enacting 21 U.S.C. § 845(a), the federal enhancement statute, that the Indiana legislature in drafting the enhancement provisions intended to afford special protection to children from the perils of drug trafficking and to provide harsher penalties for those culprits determined to peddle drugs on or near school property, and that increased penalties for drug offenders who commit their offenses near school property is rationally related to this purpose
How later courts described this case
- noting, in finding the statute constitutional, that the legislative intent behind the statute enhancing the offense for dealing cocaine was similar to Congress' intent in enacting 21 U.S.C. § 845(a), the federal enhancement statute, that the Indiana legislature in drafting the enhancement provisions intended to afford special protection to children from the perils of drug trafficking and to provide harsher penalties for those culprits determined to peddle drugs on or near school property, and that increased penalties for drug offenders who commit their offenses near school property is rationally related to this purpose
- stating where evidence shows only one possession of cocaine by defendant, which is material element of dealing, defendant cannot be convicted of both possession and dealing
- finding insufficient evidence to corroborate that a second baggie of drugs was cocaine
- reversing conviction for possession of cocaine where defendant’s extra-judicial statement indicating possession was uncorroborated
Written by the judges who cited it.
The opinion
CONOVER, Judge,
concurring in part and dissenting in part!
While I concur in all other respects, I respectfully dissent from the majority’s determination the evidence was insufficient as to Herr’s conviction for possession of cocaine.
While a defendant’s extra-judicial incriminating statement standing alone is insufficient to show the substance was contraband, Warthan v. State (1982), Ind., 440 N.E.2d 657 , Herr’s statement to Overstreet she wanted to retain the second baggie containing a gram because it was all she had does not stand alone, 1
As the majority notes, the state must produce evidence independent of the extrajudicial confession which establishes the corpus delicti or the extra-judicial confession will not be admitted into evidence, nor the conviction upheld. Dennis v. State (1952), 230 Ind. 210 , 102 N.E.2d 650 . This rule avoids the conviction of persons for crimes not committed. Clark v. State (1987), Ind.App., 512 N.E.2d 223 . However, the corpus delicti may be established by circumstantial evidence, and it need not establish defendant’s guilt beyond a reasonable doubt before the defendant’s confession can be admitted. Id., at 227 .
In Clark , a police officer received a radio call regarding a car stuck in mud next to a highway and a person walking south toward Bloomington. The officer responded, finding defendant walking on the roadway less than a mile from the stuck car with the auto’s keys in his pocket. The officer, smelling alcohol on the subject’s breath, administered field sobriety tests and determined the subject was under the influence. The Clark court determined the corpus delicti was established from that evidence, independent of his statements to the police officer.
Likewise here.
Overstreet personally saw a second baggie, in substantially the same condition as the one he had just purchased from Herr in the identical spot in her purse from which she had produced the baggie she sold to him. The subsequent tests on the two *842 gram baggie’s contents conclusively established it contained cocaine. Further, Over-street testified “well, once I seen [sic] it, I could tell that it was [cocaine].” (R. 384). The majority assures us Overstreet’s statement identifying the substance in the baggies as being cocaine referred only to the two gram baggie in the last paragraph of its note 3. In this regard the majority errs. It cannot make such an assumption. One of the bedrock standards of review which binds this court is we do not weigh the evidence nor judge the credibility of witnesses on appeal. Such matters are solely for the trier of fact. Everroad v. State (1991), Ind., 571 N.E.2d 1240, 1244 . The majority’s assumption here clearly violates that principle.
The evidence is Overstreet saw two different baggies in Herr’s purse, “one contained two (2) grams and the other one which was a gram, which, she didn’t want to get rid of at the time, because that was all she had.” (Compare with note 3, majority opinion.) Whether his statement identifying the substance as cocaine referred to only one, or to both baggies was a fact question for the jury, not this court. The majority here is simply weighing the evidence to support the conclusion it reaches as to corpus delicti.
The proximity of the two baggies in Herr’s purse, the proof one contained cocaine, and Overstreet’s independent identification of the substance as being cocaine sufficiently establishes the corpus delicti, in my opinion. Herr’s confession/statement against interest was properly admitted for the jury to consider. Substantial evidence supports the judgment on that score, in my opinion.
For these reasons I dissent from the majority’s determination the evidence was insufficient to sustain Herr’s conviction of possession of cocaine.
. In the first instance, Herr did not object to Overstreet’s testimony relating Herr's inferential statement that the second baggie contained cocaine. Thus, she has waived this issue.