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ATTORNEY FOR APPELLANT
Leanna Weissmann Lawrenceburg, Indiana

ATTORNEYS FOR APPELLEE
Gregory F. Zoeller Attorney General of Indiana Ian McLean Deputy Attorney General Indianapolis, Indiana

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Indiana Supreme Court
_________________________________ No. 15S04-0909-CR-405 STEPHAN M. GALLAGHER, v. STATE OF INDIANA,

In the

FILED
Feb 23 2010, 9:51 am
of the supreme court, court of appeals and tax court

CLERK

Appellant (Defendant below),

Appellee (Plaintiff below). _________________________________

Appeal from the Dearborn Circuit Court, No. 15C01-0511-FA-14 The Honorable James D. Humphrey, Judge _________________________________ On Transfer from the Indiana Court of Appeals, No. 15A04-0806-CR-326 _________________________________ February 23, 2010 Dickson, Justice.

We granted transfer in this case and in Griffin v. State, also decided today, to address the meaning and application to be given to the statutory provisions that preclude, in limited circumstances, the penalty enhancement that ordinarily results from drug offenses committed within 1,000 feet of school property, a public park, a family housing complex, or a youth program center.

Appealing his conviction and sentence for Dealing in a Schedule II Controlled Substance Within One Thousand Feet of School Property, a class A felony, the defendant claims errors re-

lated to (1) the adequacy of the State's rebuttal of the statutory defense concerning the location of the drug sale, (2) the admissibility of a digital recording, (3) the correctness of an instruction regarding aiding and inducing, and (4) the appropriateness of the sentence. The Court of Appeals addressed and rejected the defendant's claims with respect to issues (2) and (3), and, as to issue (1), it reversed and remanded with instructions to enter a conviction for the offense as a class B felony and to resentence the defendant accordingly and thus did not address issue (4). Gallagher v. State, 906 N.E.2d 272, 277 (Ind. Ct. App. 2009). We granted transfer to consider issue (1) and now summarily affirm the Court of Appeals as to issues (2) and (3).1 Addressing issues (1) and (4) below, we affirm the defendant's conviction and sentence.

1. Statutory Defenses

The defendant contends that he raised, and the State failed to adequately rebut, two statutory defenses. Seeking to reduce his conviction from a class A felony to a class B felony, he argues that the State failed to rebut: (a) that he was within 1,000 feet of school property only "briefly" at a time when no children were present; and (b) that his presence within the proscribed zone resulted from the request or suggestion of law enforcement.

In response, the State contends that there was sufficient evidence to establish beyond a reasonable doubt: (a) that the defendant was within the proscribed zone for twenty minutes for the purpose of retrieving, dividing, and delivering a controlled substance; and (b) that the defendant selected the meeting place thus placing himself in the proscribed zone.

The offense of Dealing in a Schedule I, II, or III Controlled Substance is classified as a class B felony. But if the offense is committed by delivery or financing of the delivery of the controlled substance (a) to certain persons under eighteen years of age, (b) on a school bus, or (c) within one thousand feet of school property, a public park, a family housing complex, or a youth program center, then the offense is a class A felony with substantially greater penal consequences. Ind. Code

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Indiana Law