BROWN, Judge.
Robert A. Baker appeals his convictions and sentence for possession of methamphetamine within one thousand feet of a school as a class B felony,
Officer Kipper contacted other officers and learned that the Sheriff's Department had completed controlled buys involving Baker during the previous months. After North Vernon Police Officer Matthew Staples verified that the chemical odor in the apartment was consistent with the manufacturing of methamphetamine, officers performed a protective sweep of Baker's apartment while another officer obtained a search warrant for the residence. Baker and a woman were in the apartment and were secured by police. Marijuana, a bottle containing pills including Zolpiden, and a coffee filter containing methamphetamine residue were discovered in the apartment. Baker claimed ownership of the marijuana.
On June 30, 2009, the State charged Baker with: Count I, possession of methamphetamine within one thousand feet of a school as a class B felony; Count II, possession of a controlled substance, specifically Lortab as a Schedule III controlled substance and Zolpiden as a Schedule IV controlled substance, within one thousand feet of a school as a class C felony; and Count III, possession of marijuana with prior conviction as a class D felony. At a bench trial, the court, upon request by the State, struck Lortab from the charging information in Count II. The State presented the testimony of Officer Kipper that Baker's apartment was located approximately six hundred feet from the Early Training Center (the "ETC").
The issue is whether the evidence is sufficient to sustain Baker's enhanced convictions under Counts I and II. When reviewing the sufficiency of the evidence to support a conviction, we must consider only the probative evidence and reasonable inferences supporting the verdict. Drane v. State, 867 N.E.2d 144, 146 (Ind.2007). We do not assess witness credibility or reweigh the evidence. Id. We consider conflicting evidence most favorably to the trial court's ruling. Id. We affirm the conviction unless "no reasonable fact-finder could find the elements of the crime proven beyond a reasonable doubt." Id. (quoting Jenkins v. State, 726 N.E.2d 268,
Baker argues that the State did not present sufficient evidence to support the enhancements under Counts I and II for being within 1,000 feet of school property. He argues that the school enhancement law is meant to protect those under eighteen rather than those seeking education and is written in such a way as to place the focus on protecting children, not the school. He asserts that the State sought a class B Felony conviction rather than a class D Felony conviction and that "[i]n essence, the State wanted Baker kept in jail for twenty years rather than three." Appellant's Brief at 9. Baker further asserts that the State failed to present accurate and reliable information to prove beyond a reasonable doubt that the school near Baker's apartment qualified as an educational facility serving those under the age of eighteen. Baker argues that the only evidence concerning the nature of the ETC came in through Officer Kipper who "did not explain whether the services were offered to children, or just to adults," that "[f]rom his testimony, the ETC Learning Center appears to be a building geared toward adult education," and "[t]he State presented no evidence that the center enrolled or taught anyone under the age of eighteen." Id. Baker also maintains that "[t]he State may counter that the words `high school' imply a place for teens," that such implication should not be enough to meet the State's burden of proof, and that "[t]his is especially so given that many adults without educations later go back to get their GEDs" and "[j]ust because high school level courses are being offered does not prove that those under eighteen are taking them." Id. at 9-10. Baker argues that he cannot be punished more harshly for possessing drugs if he did so near an adult facility and requests that his convictions under Counts I and II be reduced to class D felonies.
The State maintains that the evidence supports the school zone enhancement, that Baker's argument fails because he waived it by failing to raise it during trial, that the State demonstrated that the ETC was a school, that the trial court "could take judicial notice that ETC was a school," and that Baker nevertheless violated the charged statutes by possessing the methamphetamine and controlled substances in a family housing complex. Appellee's Brief at 8. The State asserts that Officer Kipper's testimony allowed the trial court to correctly conclude that the ETC was a school for high-school-aged students, the majority of whom are younger than eighteen. The State argues that "[t]he ETC is located at the same site of the Jennings County Education Center, a school listed on the Jennings County School Corporation's website," that "[t]he two appear to be the same facility, or at least located on the same property owned or rented by the Jennings County School Corporation," that "[i]t is generally known that the two are one and the same," and that "[a]s such, the trial court can take judicial notice that the ETC ... was a school." Id. at 9. The State also argues that the evidence that Baker's apartment was located in an "apartment complex" is sufficient to prove that Baker possessed the contraband within 1,000 feet of a "family housing complex." Id. at 10.
In his reply brief, Baker argues that he did not waive his sufficiency argument by failing to raise it at trial, that it is well-settled that sufficiency of the evidence may be raised for the first time on appeal, and that he had no obligation to disprove the State's allegations. Baker argues that the
Ind.Code § 35-48-4-6.1 (Supp.2006), pursuant to which Baker was convicted under Count I, provides in pertinent part:
(Emphasis added).
Ind.Code § 35-48-4-7(a) (2004) (subsequently amended by Pub. L. No. 138-2011, § 14 (eff. Jul. 1, 2011), Pub.L. No. 182-2011, § 14 (eff. Jul. 1, 2011)), pursuant to which Baker was convicted under Count II, provides:
(Emphasis added).
In Count I, the State alleged on or about May 14, 2009, Baker "did knowingly or intentionally possess methamphetamine in an amount less than three grams, in, on, or within one thousand feet of school property, to-wit: ETC Learning Center...." Appellant's Appendix at 14. In Count II, the State alleged on or about May 14, 2009, Baker "did knowingly or intentionally possess... Zolpiden, a controlled substance listed in Schedule IV, without a valid prescription or order of a practitioner acting in the course of his/her professional practice, in, on, or within one thousand feet of school property, to-wit: ETC Learning Center." Id. at 15. Accordingly, in order to obtain the enhancements from a class D felony to a class B felony under Count I and from a class D felony to a class C felony under Count II, the State needed to prove that Baker possessed the methamphetamine and controlled substance identified in those counts within 1,000 feet of "school property" and that the "ETC Learning Center" constituted school property. Id.
Ind.Code § 35-41-1-24.7 (Supp.2006) provides:
In Pridgeon v. State, this court held, in interpreting a prior version of Ind.Code § 35-41-1-24.7, that "[t]he words `school property' do not include a college or university." 569 N.E.2d 722, 724 (Ind.Ct. App.1991), trans. denied. In support of this holding, the court in Pridgeon observed that "[o]ver and again, our courts have strictly construed criminal statutes defining offenses to avoid the creation of penalties by construction," that "[c]riminal statutes must be strictly construed against the State, and they may not be enlarged beyond the fair meaning of the language used," and that "[a]lthough the word `school' has numerous meanings, this court excluded colleges and universities from the `common usage' of this term in Lawrence v. Cain (1969), 144 Ind.App. 210, 245 N.E.2d 663." Id. at 723. See Lawrence, 144 Ind.App. at 216, 245 N.E.2d at 666 (providing that "[i]n the ordinary accept[ance] of its meaning, a school is a place where instruction is imparted to the
In this case, the only evidence presented at trial on this issue consisted of the following exchange during the questioning of Officer Kipper by the prosecutor:
The State elicited testimony from Officer Kipper that the ETC had "continuing education classes for students who wish to pursue their high school education to get their diplomas." Id. at 44. However, the State does not point to any evidence presented at trial which shows that the ETC was a building or other structure owned or rented by a school corporation or other type of entity or organization described under Ind.Code § 35-41-1-24.7. Moreover, the State does not point to evidence which indicates that the students enrolled in any program at the ETC, including those seeking their high school diplomas, were school-age children and not adults or college-age individuals.
In light of this court's holdings and observations that the words "school property" do not include a college or university, see Pridgeon, 569 N.E.2d at 724, that we strictly construe criminal statutes defining
Further, we do not find the State's arguments as to waiver, judicial notice, or the fact that Baker's apartment building may have constituted a family housing complex to have merit. The State does not point to authority for the proposition that a defendant must object at trial to the State's introduction of evidence as to one or more elements of an offense in order to preserve the argument on appeal that the evidence was insufficient to support an element of the offense or sustain the defendant's conviction. See Powers v. State, 540 N.E.2d 1225, 1227 (Ind.1989) ("This Court has held many times that the burden of proving all elements of a charged crime beyond a reasonable doubt rests with the State and the raising of an affirmative defense does not relieve the State of such burden."), reh'g denied. Further, the State does not point to the transcript or record to show that the trial court took judicial notice, or that it requested the court to take such notice, of the fact that the ETC constituted "school property." In addition, the State's charging information in Counts I and II specifically alleged that Baker committed the possession offenses "in, on, or within one thousand feet of school property, to-wit: ETC Learning Center," see Appellant's Appendix at 14-15, and not within 1,000 feet of a family housing complex, and the State does not point to the record to show that it advanced this basis for the enhancement at trial.
Based upon the evidence presented at Baker's trial and the charging information, we conclude that the evidence is insufficient to permit a trier of fact to conclude beyond a reasonable doubt that Baker committed the enhanced possession offenses charged under Counts I and II
Reversed and remanded.
BAKER, J., and KIRSCH, J., concur.
Appellee's Brief at 4 n. 2.
The State does not point to the record to show, nor has our review revealed, that any such evidence was presented at trial.