Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be regarded as precedent or cited before any court except for the purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case.
ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
JASON A. CHILDERS GREGORY F. ZOELLER Hulse, Lacey, Hardacre, Austin, Attorney General of Indiana Sims & Childers, P.C. Anderson, Indiana NICOLE M. SCHUSTER Deputy Attorney General
FILED Indianapolis, Indiana
Feb 22 2012, 9:13 am IN THE COURT OF APPEALS OF INDIANA CLERK of the supreme court, court of appeals and tax court
JEREMY L. HOPKINS, ) ) Appellant-Defendant, ) ) vs. ) No. 48A02-1104-CR-342 ) STATE OF INDIANA, ) ) Appellee-Plaintiff. )
APPEAL FROM THE MADISON CIRCUIT COURT The Honorable Dennis D. Carroll, Judge Cause No. 48D01-1004-FA-60
February 22, 2012
MEMORANDUM DECISION – NOT FOR PUBLICATION
BAKER, Judge Appellant-defendant Jeremy L. Hopkins appeals his conviction and sentence that
was imposed for Dealing in Cocaine, class A. Felony. Specifically, Hopkins contends
that the evidence is insufficient because the State failed to prove that Hopkins was within
1000 feet of a family housing complex for more than a brief period of time or that
persons under the age of eighteen were within 1000 feet of the family housing complex at
the time of the offense. Hopkins also maintains that the trial court abused its discretion
by failing to find the fact that his imprisonment would cause undue hardship on his six-
year-old daughter as a mitigating circumstance and that his sentence is inappropriate in
light of the nature of the offense and his character. Finding sufficient evidence and no
other error, we affirm the judgment of the trial court.
FACT
On December 1, 2009, Anderson Police Detective Kevin Earley was parked on
Morton Avenue conducting surveillance. At about 4:30 p.m., Detective Earley saw
Hopkins driving a white Ford pull up and park across the street in front of a residence on
Morton Avenue, opposite the flow of traffic. Another individual, Ryan Steffler came out
of his residence and approached the driver’s side of Hopkin’s vehicle. At that point,
Hopkins paid Steffler $20 for 0.12 grams of cocaine. Following the transaction, Steffler
walked toward his residence.
Detective Earley exited his police vehicle and approached Steffler as Hopkins
watched from his car. Detective Earley identified himself as a police officer and ordered Steffler to stop. Steffler ran into his residence, and Detective Earley chased him inside.
While Detective Earley was in the residence, he heard Hopkins drive away.
Steffler told Detective Earley that he had purchased the drugs from Hopkins and
threw them under the Christmas tree. Detective Earley located the substance, which the
Indiana State Police Laboratory later confirmed was cocaine. Steffler identified Hopkins
in court and in a photo lineup as the individual from whom he had purchased cocaine.
On April 8, 2010, the State charged Hopkins with dealing in cocaine as a class A
felony because it alleged that the drug transaction occurred with 1000 feet of the cottages
of Anderson, a family housing complex. On February 22, 2011, following a bench trial,
Hopkins was convicted as charged.
A sentencing hearing was conducted on March 21, 2011. Several witnesses
testified as to Hopkins’s good character, work history, learning disability, and difficult
upbringing, including spending time in foster care. The trial court found Hopkins’s
difficult childhood and hearing disability to be mitigating factors and his criminal history,
consisting of three felony convictions, ten misdemeanor convictions, and numerous
arrests to be an aggravating factor. The trial court sentenced Hopkins to thirty years
imprisonment, with five years suspended to probation. Hopkins now appeals.
DISCUSSION AND DECISION
I. Insufficient Evidence
Hopkins argues that there was insufficient evidence to support his conviction
In reviewing a challenge to the sufficiency of the evidence, this court will neither reweigh the evidence nor judge the credibility of the witnesses. Baumgartner v. State,
891 N.E.2d 1131, 1137 (Ind. Ct. App. 2008). We will consider only the evidence most
favorable to the verdict and all reasonable inferences. Taylor v. State 879 N.E.2d 1198,
1202 (Ind. Ct. App. 2008). Additionally, this court will affirm if there is probative
evidence from which a jury could have found the defendant guilty beyond a reasonable
doubt. Gray v. State, 871 N.E.2d 408, 416 (Ind. Ct. App. 2007).
To prove that Hopkins committed a class A felony dealing in cocaine, the State
was required to show that Hopkins knowingly or intentionally delivered the cocaine
within 1000 feet of a family housing complex. Ind. Code 35-48-41-1; Appellant’s App.
P. 137. The General Assembly has provided a defense to the enhancement which
elevated Hopkins’s offense to a class A felony. More particularly, Indiana Code section
35-48-4-16 provides that it is a defense if:
(1) a person was only briefly in, on, or within one thousand (1,000) feet of…a family housing complex… 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…family housing complex…at the time of the offense.
When a defendant raises this defense and supporting evidence is presented, the
burden is on the State to disprove at least one element beyond a reasonable doubt.
Gallagher v. State, 925 N.E.2d 350, 353 (Ind. 2010). This defense contains two
components, namely, that the defendant was in the proscribed area “briefly” and the
absence of children, both of which must exist for the defense to apply. Id. Our Supreme
Court has defined “briefly” as “a period of time no longer than reasonably necessary for a defendant’s intrusion into the proscribed zone principally for conduct unrelated to
unlawful drug activities, provided that the defendant’s activities related to the charged
offense are not visible.” Griffin v. State, 925 N.E.2d 344, 349-50 (Ind.2010).
In Gallagher, the defendant was in the proscribed zone for as little as
thirteen minutes. 925 N.E.2d at 353. Nevertheless, our Supreme Court concluded that
this was not a brief amount of time, inasmuch as “the defendant was principally engaged
in conduct related to unlawful drug activities clearly visible to anyone present.” Id. at
355.
By contract, in Griffin, the companion case to Gallagher, our Supreme
Court held that the State had not sufficiently rebutted the defense because it had failed to
prove that the defendant was within 1,000 feet of a school longer than reasonably
necessary to push his moped down the street while in possession of concealed drugs. 925
N.E.2d at 350. Additionally, the State had failed to prove that there were children
present. Id. Consequently, the defendant’s conviction was reduced from a class B felony
to a class D felony. Id.
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Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be regarded as precedent or cited before any court except for the purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case.
ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
JASON A. CHILDERS GREGORY F. ZOELLER Hulse, Lacey, Hardacre, Austin, Attorney General of Indiana Sims & Childers, P.C. Anderson, Indiana NICOLE M. SCHUSTER Deputy Attorney General
FILED Indianapolis, Indiana
Feb 22 2012, 9:13 am IN THE COURT OF APPEALS OF INDIANA CLERK of the supreme court, court of appeals and tax court
JEREMY L. HOPKINS, ) ) Appellant-Defendant, ) ) vs. ) No. 48A02-1104-CR-342 ) STATE OF INDIANA, ) ) Appellee-Plaintiff. )
APPEAL FROM THE MADISON CIRCUIT COURT The Honorable Dennis D. Carroll, Judge Cause No. 48D01-1004-FA-60
February 22, 2012
MEMORANDUM DECISION – NOT FOR PUBLICATION
BAKER, Judge Appellant-defendant Jeremy L. Hopkins appeals his conviction and sentence that
was imposed for Dealing in Cocaine, class A. Felony. Specifically, Hopkins contends
that the evidence is insufficient because the State failed to prove that Hopkins was within
1000 feet of a family housing complex for more than a brief period of time or that
persons under the age of eighteen were within 1000 feet of the family housing complex at
the time of the offense. Hopkins also maintains that the trial court abused its discretion
by failing to find the fact that his imprisonment would cause undue hardship on his six-
year-old daughter as a mitigating circumstance and that his sentence is inappropriate in
light of the nature of the offense and his character. Finding sufficient evidence and no
other error, we affirm the judgment of the trial court.
FACT
On December 1, 2009, Anderson Police Detective Kevin Earley was parked on
Morton Avenue conducting surveillance. At about 4:30 p.m., Detective Earley saw
Hopkins driving a white Ford pull up and park across the street in front of a residence on
Morton Avenue, opposite the flow of traffic. Another individual, Ryan Steffler came out
of his residence and approached the driver’s side of Hopkin’s vehicle. At that point,
Hopkins paid Steffler $20 for 0.12 grams of cocaine. Following the transaction, Steffler
walked toward his residence.
Detective Earley exited his police vehicle and approached Steffler as Hopkins
watched from his car. Detective Earley identified himself as a police officer and ordered Steffler to stop. Steffler ran into his residence, and Detective Earley chased him inside.
While Detective Earley was in the residence, he heard Hopkins drive away.
Steffler told Detective Earley that he had purchased the drugs from Hopkins and
threw them under the Christmas tree. Detective Earley located the substance, which the
Indiana State Police Laboratory later confirmed was cocaine. Steffler identified Hopkins
in court and in a photo lineup as the individual from whom he had purchased cocaine.
On April 8, 2010, the State charged Hopkins with dealing in cocaine as a class A
felony because it alleged that the drug transaction occurred with 1000 feet of the cottages
of Anderson, a family housing complex. On February 22, 2011, following a bench trial,
Hopkins was convicted as charged.
A sentencing hearing was conducted on March 21, 2011. Several witnesses
testified as to Hopkins’s good character, work history, learning disability, and difficult
upbringing, including spending time in foster care. The trial court found Hopkins’s
difficult childhood and hearing disability to be mitigating factors and his criminal history,
consisting of three felony convictions, ten misdemeanor convictions, and numerous
arrests to be an aggravating factor. The trial court sentenced Hopkins to thirty years
imprisonment, with five years suspended to probation. Hopkins now appeals.
DISCUSSION AND DECISION
I. Insufficient Evidence
Hopkins argues that there was insufficient evidence to support his conviction
In reviewing a challenge to the sufficiency of the evidence, this court will neither reweigh the evidence nor judge the credibility of the witnesses. Baumgartner v. State,
891 N.E.2d 1131, 1137 (Ind. Ct. App. 2008). We will consider only the evidence most
favorable to the verdict and all reasonable inferences. Taylor v. State 879 N.E.2d 1198,
1202 (Ind. Ct. App. 2008). Additionally, this court will affirm if there is probative
evidence from which a jury could have found the defendant guilty beyond a reasonable
doubt. Gray v. State, 871 N.E.2d 408, 416 (Ind. Ct. App. 2007).
To prove that Hopkins committed a class A felony dealing in cocaine, the State
was required to show that Hopkins knowingly or intentionally delivered the cocaine
within 1000 feet of a family housing complex. Ind. Code 35-48-41-1; Appellant’s App.
P. 137. The General Assembly has provided a defense to the enhancement which
elevated Hopkins’s offense to a class A felony. More particularly, Indiana Code section
35-48-4-16 provides that it is a defense if:
(1) a person was only briefly in, on, or within one thousand (1,000) feet of…a family housing complex… 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…family housing complex…at the time of the offense.
When a defendant raises this defense and supporting evidence is presented, the
burden is on the State to disprove at least one element beyond a reasonable doubt.
Gallagher v. State, 925 N.E.2d 350, 353 (Ind. 2010). This defense contains two
components, namely, that the defendant was in the proscribed area “briefly” and the
absence of children, both of which must exist for the defense to apply. Id. Our Supreme
Court has defined “briefly” as “a period of time no longer than reasonably necessary for a defendant’s intrusion into the proscribed zone principally for conduct unrelated to
unlawful drug activities, provided that the defendant’s activities related to the charged
offense are not visible.” Griffin v. State, 925 N.E.2d 344, 349-50 (Ind.2010).
In Gallagher, the defendant was in the proscribed zone for as little as
thirteen minutes. 925 N.E.2d at 353. Nevertheless, our Supreme Court concluded that
this was not a brief amount of time, inasmuch as “the defendant was principally engaged
in conduct related to unlawful drug activities clearly visible to anyone present.” Id. at
355.
By contract, in Griffin, the companion case to Gallagher, our Supreme
Court held that the State had not sufficiently rebutted the defense because it had failed to
prove that the defendant was within 1,000 feet of a school longer than reasonably
necessary to push his moped down the street while in possession of concealed drugs. 925
N.E.2d at 350. Additionally, the State had failed to prove that there were children
present. Id. Consequently, the defendant’s conviction was reduced from a class B felony
to a class D felony. Id.
Here, like the defendant in Gallagher, while Hopkins was in the proscribed
zone, he was primarily engaged in conduct related to unlawful drug activity clearly
visible to anyone present. Indeed Detective Earley saw the transaction occur in
Hopkins’s vehicle. Accordingly, the State sufficiently rebutted the first prong of the
defense, and this claim fails.
II. Sentence Hopkins makes two arguments challenging his thirty-year sentence. Hopkins
contends that the trial court abused its discretion in sentencing him. Additionally,
Hopkins maintains that his sentence is inappropriate in light of the nature of the offense
and his character and requests that this Court revise it pursuant to our authority under
Appellate Rule 7(B).
A. Abuse of Discretion
Hopkins claims that the trial court abused its discretion when sentencing him.
Specifically, Hopkins argues that the trial court failed to find that his imprisonment
would cause undue hardship on his daughter as a mitigating factor.
Initially, we observe that sentencing decisions rest within the trial court’s sound
discretion and are reviewed on appeal only for an abuse of that discretion. Anglemyer v.
State, 868 N.E.2d 482, 490 (Ind. 2007) clarified on reh’g 875 N.E.2d 218 (2007). A trial
court may abuse its discretion by entering a sentencing statement that includes reasons
for imposing a sentence not supported by the record, omits reasons clearly supported by
the record, or includes reasons that are improper as a matter of law. Id. At 490-91.
As stated above, Hopkins argues that the trial court abused its discretion by failing
to find that his imprisonment would cause undue hardship on his daughter as a mitigating
circumstance. While Hopkins’s witnesses mentioned that he had custody of his daughter
and was a good father, this court has recognized that absent special circumstances, trial
courts are not required to find that imprisonment will result in undue hardship. Reese v.
State, 720 N.E.2d 695, 703 (Ind. Ct. App. 2011), trans. denied. Here, Hopkins did not
demonstrate special circumstances such that his imprisonment was an undue hardship on his daughter. Therefore, the trial court did not abuse its discretion when it refused to
find hardship to Hopkins’s child as a mitigating factor.
B. Inappropriate Sentence
Finally, Hopkins argues that his sentence of thirty years with five years
suspended to probation for a class A felony dealing in cocaine is inappropriate in light of
the nature of the offense and his character pursuant to Appellate Rule 7(B). When
reviewing a Rule 7(B) appropriateness challenge, we defer to the trial court. Stewart v.
State, 866 N.E.2d 858, 866 (Ind. Ct. App. 2007). The burden is on the defendant to
persuade us that his sentence is inappropriate. Childress v. State, 848 N.E.2d 1073, 1080
(Ind. 2006).
As for the nature of the offense, Hopkins entered the proscribed zone around the
family housing complex for the purpose of dealing cocaine. The drug transaction
occurred on the street in broad daylight, at 4:30 p.m., where Detective Earley clearly
witnessed the transaction.
As for Hopkins’s character, at the time of sentencing, he had three felony
convictions and ten misdemeanor convictions. Thus, it is evidence he has no respect for
the rule of law and continues to reoffend. Therefore, in light of the nature of the offense
and Hopkins’s character, he has failed to persuade use that his thirty year sentence is
inappropriate, and we affirm the judgment of the trial court.
The judgment of the trial court is affirmed.
DARDEN, J., and BAILEY, J., concur.