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               MEMORANDUM DECISION – NOT FOR PUBLICATION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.
