Whitt v. State

¶1OPINION

¶2Terrence Whitt (“Whitt”) was convicted for possession of cocaine within 1000 feet of school property, a class B felony1, failure to pay the Controlled Substance Excise Tax, a class D felony2, and resisting a law enforcement officer, a class A misdemeanor3. Whitt raises two issues on appeal which we restate as follows:

I. Whether the evidence was sufficient to support the conviction for possession within 1000 feet of school property.

II. Whether the Controlled Substance Excise Tax (“CSET”) is unconstitutional.

¶3We affirm in part, reverse in part, and remand.

¶4The facts most favorable to the judgment are as follows. Police, suspecting drug activity, approached Whitt in the vicinity of Irwin Elementary School (“Irwin”). Whitt fled from them and quickly discarded a plastic bag containing cocaine. Police apprehended Whitt soon thereafter.

¶5Though Whitt stipulated before trial that Irwin was school property, as defined by statute, the State failed to put this stipulation before the jury and, indeed, put forth no evidence that Irwin was school property. Despite this, Whitt was convicted of possession of cocaine within 1000 feet of school property, in addition to failure to pay the CSET and resisting a law enforcement officer. This appeal ensued.

¶6I.

¶7Sufficiency of Evidence

¶8Whitt claims that the evidence was insufficient to support the conviction. Specifically, Whitt argues that the State offered no evidence that Irwin was school property.

¶9We first note that the State has failed to file an appellee’s brief. As such, Whitt must only show prima facie error to win reversal. Delval v. PPG Industries, Inc. (1992), Ind. App., 590 N.E.2d 1078, 1080, trans. denied. However, this lower standard is for the bene*679fit of this court, not the appellant, and we choose to decide the case on the merits. Id.

¶10Our test for sufficiency of the evidence requires that we neither weigh the evidence nor resolve questions of credibility. We look only to the evidence of probative value and the reasonable inferences to be drawn therefrom which support the verdict. Jones v. State (1992), Ind., 589 N.E.2d 241, 242.

¶11The State offered no evidence that Irwin was school property under the statutory definition.4 The police officers who testified referred to Irwin as a school, but did not testify to the property limits or indicate that the property fits within the statutory definition. The State was required to either present the stipulation or to prove this element independently, but failed to do so.

¶12The evidence was insufficient to establish that Irwin was school property. As such, we reverse Whitt’s conviction for possession of cocaine within 1000 feet of school property.5

¶13II.

¶14Constitutionality of Substance Tax

¶15Whitt next argues that the CSET6 is unconstitutional. Whitt cites Dep’t of Revenue of Montana v. Kurth Ranch et al., (1994), — U.S. -, 114 S.Ct. 1937, 128 L.Ed.2d 767, as the basis for his claim without offering a supporting argument. We will not construct an argument for Whitt, thus he can secure reversal only if Kurth Ranch is in his favor and directly on point.

¶16Kurth Ranch held that Montana’s Dangerous Drug Tax (“DDT”)7 was a “punishment” and the double jeopardy clause forbade imposing this punishment in a proceeding subsequent to the underlying drug prosecution. Id, — U.S. at -, 114 S.Ct. at 1948, 128 L.Ed.2d at 781-782. Recently the Indiana Tax Court, considering Kurth Ranch, held the CSET is constitutional though it is also “punishment” and implicates the double jeopardy clause. Clifft v. Indiana Department of State Revenue (1994), Ind. Tax, 641 N.E.2d 682, p. 693. This conclusion, however, does not aid Whitt as his prosecution for failure to pay the CSET was contemporaneous with his prosecution for the underlying drug offense. Therefore, Whitt’s conviction did not violate the double jeopardy clause and is affirmed.

¶17We reverse Whitt’s conviction for possession of cocaine within 1000 feet of school property and remand for resentencing for failure to pay the CSET and resisting a law enforcement officer.