Use of wrong statute requires reversal of dealing conviction

The Indiana Court of Appeals reversed a Class A felony conviction of dealing in cocaine because the trial court instructed
the jury on an incorrect version of the statute that allows for enhancing dealing convictions.

Leroy Jones challenged his conviction of Class A felony dealing in cocaine as well as his sentence for that conviction and
a Class B felony conviction of dealing in cocaine. Jones sold cocaine in a controlled buy to a confidential informant in May
2006 – once at the Greentree West Apartments and once at a gas station.

In November 2006, he was charged with the dealing counts and later convicted after a jury trial. He was sentenced to 35 years
on the Class A felony and 15 years on the Class B felony to be served consecutively.

Jones argued his Class A felony dealing conviction should be reduced to a Class B felony because the jury was incorrectly
instructed on the statutory definition of the offense of dealing within 1,000 feet of a family housing complex. The instruction
used a definition of “family housing complex” that wasn’t in effect at the time of the offense: that it
means a building or series of buildings that is operated as an apartment complex.

This definition wasn’t added until July 2006, after he committed his crimes. The version in effect at the time he dealt
the cocaine defined it as a series of buildings owned by a governmental unit or political subdivision, contains at least 12
dwelling units, and where children are or are likely to live.

In Leroy
Jones v. State of Indiana, No. 27A02-1002-CR-168, the Court of Appeals found the application of the revised statute
violated the prohibition against ex post facto laws. The state didn’t prove that Greentree was a family housing complex
even under the former version of the statute. Testimony from the apartment complex’s maintenance supervisor established
there were 90 units, and that young families lived there. However, there was no evidence that the apartments were owned by
a governmental unit or political subdivision, wrote Judge Ezra Friedlander.

“Accordingly, because the trial court erroneously instructed the jury as to the meaning of “family housing complex”,
Jones’s dealing conviction under Count 1 was enhanced via a statute that, after the acts were committed, changed
the elements of the crime of which he was charged. This violates the prohibition against ex post facto laws and therefore
constitutes fundamental error,” he wrote.

The judges ordered Jones’ Class A felony conviction reduced to a Class B felony. They also found consecutive sentences
to be inappropriate and remanded for re-sentencing based on the principles in the opinion.