SULLIVAN, J.
The Legislature has declared that if a person commits certain drug offenses within 1,000 feet of a “youth program center,” the penal consequences are enhanced. Defendant Walker Whatley committed such an offense within 1,000 feet of a church with an active youth program. The church constituted a “youth program center” for purposes of the enhancement.
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Whatley contends that his Class A felony conviction is not supported by sufficient evidence. Specifically, Whatley argues that because the State failed to prove that RCC qualifies as a youth program center under Indiana Code section 35-41-1-29, his sentence should be reduced to a Class C felony.
Relying on principles of zoning law, the Court of Appeals held that the principal charac-ter and use of a structure “is not changed by some ancillary or accessory use.” Whatley, 906 N.E.2d at 262. Applying these principles to RCC, the Court of Appeals found it significant that evidence at trial revealed that all of the youth program services and events were essentially faith based. Thus, it held that RCC’s principal identity or purpose was as a church; it was not converted into a youth program center by reason of its incidental and auxiliary faith-based activities for young people.
We disagree with our colleagues and find that neither the religious content of the programs offered by RCC nor the other uses of the building are relevant to whether RCC meets the statutory definition of a “youth program center.” The statute neither explicitly nor implicitly places any limitation on the content of the programs offered or the purposes for which children are present. The only relevant characteristic of the programs and services offered by RCC were whether they were programs provided on a regular basis for persons less than eighteen years of age.
The evidence produced at trial showed that RCC regularly held the following youth programs:
(1) “Amani (sic) church services” several Sundays out of the month, targeted for young people age 5-11, to “teach them the purpose of worship and why we worship the way we do”;
(2) “Boys to Men” and “Girls to Women” programs which are mentoring programs “so that the kids have positive role models”;
(3) A Girl Scout troop made up of girls who are members of the church and a few
from the community, meeting twice a month;
(4) “Wednesday Bible Circle” for teens, youth and children broken into age
appropriate classes “so that they might learn the Bible and the principles therein”;
(5) “Family Fun Night” every Friday from 6 p.m. to 9 p.m. where parents and
children meet together at church to “get them to find positive ways to interact one with another. Give children opportunities to see how other kids react and interact with their parents. And give all of them positive role models”; and
(6) Monday night Teen Choir (ages 13-18) and Wednesday night Children’s Choir
(age 5-12).
(Tr. at 30-33.)
Whatley himself, “in the interest of candor, . . . concede[s] that the Robinson Community Church does offer activities for children[ and] [t]his was clearly established at trial and cannot reasonably be disputed.” (Appellant’s Resp. in Opp’n to Transfer 5.) In light of these facts, a jury could properly find that RCC was a “youth program center” because it provided a building or structure that on a regular basis offered recreational, social, or other programs or services for persons less than 18 years of age.
Shepard, C.J., and Dickson, J., concur.
BOEHM, J., dissents with separate opinion in which Rucker, J., concurs:
I agree with the majority that there are many buildings that are easily identified as housing “regular . . . programs or services” for persons under age eighteen. But the statute under the majority’s rationale here looks only to the activities conducted in the structure to determine whether it is a youth program center, and not to whether a casual observer could readily discern that the structure provides those services. This reasoning would make a youth program center of every residence housing a Cub Scout weekly meeting. Any other building could become a “youth program center” regardless of its appearance or signage. I would confine the term as the legislature has written it to those structures identifiable from their appearance as likely to house youth programs. These would include Boys and Girls Clubs, YMCAs, YWCAs, sports facilities and the like, but not structures principally identified with other activities, at least without some external signage or other clear indication that the structure houses regularly conducted youth programs.