COA: Dealing statute not unconstitutionally vague

A Huntington County man who called the local sheriff and said he “was strung out on meth and to come get him and take it all out of his house,” unsuccessfully argued before the Indiana Court of Appeals that the statute under which he was convicted was unconstitutionally vague.

Ricci Davis was found guilty and sentenced to 50 years in prison for dealing methamphetamine within 1,000 feet of a youth center, a Class A felony. The Indiana Court of Appeals affirmed his conviction in Davis v. State, No. 35A02-1411-CR-804, slip op. at 2-5 (Ind. Ct. App. June 2, 2015).

At trial, the GIS/IT technician for Huntington County testified that a map he had created to measure the distance between Davis’ residence and Trinity United Methodist Church, which housed a preschool, had a total margin of error of 5 feet. Therefore, the map admitted as evidence, with the margin of error included, would have Davis’ house and the church as close as 965 feet and as far as 975 feet.

Davis challenged the accuracy of the maps. His attorney told the jury the distance was not physically measured or determined by inputting addresses into a computer. Rather, the attorney said, the technician picked the locations just by clicking his mouse. Also, counsel questioned the margin of error, saying it was not verified.“We’ve got human margin of error,” the attorney told the jury. “And then and this is the most important part, he has no idea how they get those … those distances.”

In his petition for post-conviction relief, Davis argued, in part, that Indiana Code section 35-48-4-1.1, which boosts the known or intentional manufacture of methamphetamine to a Class A felony if the drug is concocted within 1,000 feet of a youth program center, is unconstitutionally vague.

Davis’ attorney stated, “And I just want to make clear to the Court that we’re not arguing that it’s vague as applied to the facts of this case, I mean it’s probably not vague as applied to the facts of this but, the (Johnson v. United States, 135 S. Ct. 2551 (2015)) case from the U.S. Supreme Court says it can still be vague overall, even if it’s not vague in this case.”

The Court of Appeals disagreed and affirmed the denial of Davis’ petition for post-conviction relief in Ricci Davis v. State of Indiana, 19A-PC-984.

Specifically, the appellate panel did not find Indiana’s methamphetamine dealing statute required a categorical approach as used in United States v. Davis, 139 S. Ct. 2319, 2124 (2019).

“Rather we note that the Court in (United States v. Davis) observed that a way of adopting a case-specific approach is to create a statute that covers any felony that, based on the facts underlying the offense, involved a substantial risk that physical force against the person or property of another would be used in the course of committing the offense,” Judge Elaine Brown wrote. “Ind. Code §§ 35-48-4-1.1 and 35-31.5-2-357 adopted a case-specific approach by focusing on the facts underlying the offense. We conclude that reversal is not warranted on this basis.”