                                                                                 FILED
                                                                            Mar 22 2017, 9:25 am

                                                                                 CLERK
                                                                             Indiana Supreme Court
                                                                                Court of Appeals
                                                                                  and Tax Court




ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
R. Patrick Magrath                                        Curtis T. Hill, Jr.
Alcorn Sage Schwartz & Magrath, LLP                       Attorney General of Indiana
Madison, Indiana
                                                          Christina D. Pace
                                                          Deputy Attorney General
                                                          Indianapolis, Indiana


                                            IN THE
    COURT OF APPEALS OF INDIANA

Corey A. McAlpin,                                         March 22, 2017
Appellant-Defendant,                                      Court of Appeals Case No.
                                                          39A01-1606-CR-1417
        v.                                                Appeal from the Jefferson Circuit
                                                          Court
State of Indiana,                                         The Honorable Darrell M. Auxier,
Appellee-Plaintiff                                        Judge
                                                          Trial Court Cause No.
                                                          39C01-1408-F4-707



Vaidik, Chief Judge.




Court of Appeals of Indiana | Opinion 39A01-1606-CR-1417 | March 22, 2017                   Page 1 of 11
                                           Case Summary
[1]   The State charged Corey A. McAlpin with Level 4 felony dealing in

      methamphetamine (manufacturing), alleging that he was found to be

      manufacturing the drug around 10 a.m. on August 21, 2014. The State

      enhanced the offense from a Level 5 felony to a Level 4 felony because it

      claimed that McAlpin committed the offense in a drug-free zone, that is, in, on,

      or within 500 feet of Bicentennial Park in Madison, Indiana, “while a person

      under eighteen (18) years of age was reasonably expected to be present.” Given

      that August 21 was a school day for public and private schools in the Madison

      area and the unique status of Bicentennial Park as having an outdoor

      amphitheater but no playground equipment, benches, or shade trees, we

      conclude that the State has failed to prove beyond a reasonable doubt that it

      was reasonably expected that children would be present at the park at the time

      of the offense. We therefore vacate McAlpin’s conviction for Level 4 felony

      dealing in methamphetamine and remand with instructions for the trial court to

      enter judgment of conviction for Level 5 felony dealing in methamphetamine

      and to resentence him accordingly.




      Court of Appeals of Indiana | Opinion 39A01-1606-CR-1417 | March 22, 2017   Page 2 of 11
                              Facts and Procedural History
[2]   August 21, 2014, was a school day in Madison, Indiana.1 Around 10:00 a.m.

      that day, police officers went to McAlpin’s apartment on Second Street, which

      was within five hundred feet of Bicentennial Park, a public park. Bicentennial

      Park has no playground equipment, benches, or shade trees;2 instead, it has an

      outdoor amphitheater, bathrooms, and green space:




      1
       The parties stipulated that “all of the local area schools, public and private, were in session” that day.
      Appellant’s App. Vol. II p. 209; Tr. Vol. III p. 79.
      2
       Defense counsel said during her opening statement that there was “one tree in the whole park.” Tr. Vol II
      p. 39. The City Utility Manager for the City of Madison testified that he did not know for sure whether there
      were any trees in the park, but he thought that there might be one. Id. at 201, 202. The State does not
      contest McAlpin’s claim that the park does not have any shade trees.

      Court of Appeals of Indiana | Opinion 39A01-1606-CR-1417 | March 22, 2017                            Page 3 of 11
      Ex. D. In addition, there was no performance at the amphitheater on August

      21. While the officers were at McAlpin’s apartment they smelled an odor

      consistent with the manufacture of methamphetamine. Officers searched

      McAlpin’s apartment and found all the ingredients necessary to manufacture

      methamphetamine, including “two active HCL generators,” which are “two of

      the final steps . . . of the manufacturing process.” Tr. Vol. III p. 52. Although

      there was no finished product, they found methamphetamine residue on a glass

      pipe and scales. McAlpin was arrested and charged with Level 4 felony dealing

      in methamphetamine (manufacturing), which was enhanced from a Level 5

      felony because the manufacturing occurred “within five hundred (500) feet of a

      public park, that is: Bicentennial Park, while a person under eighteen (18) years

      of age was reasonably expected to be present.”3 Appellant’s App. Vol. II p. 169

      (capitalization omitted).

[3]   During closing argument, defense counsel did not contest the fact that

      McAlpin’s apartment was within 500 feet of Bicentennial Park. Rather, defense

      counsel argued that it was not reasonable to expect that children would be

      present at Bicentennial Park at 10 a.m. on August 21 because not only was it a

      school day but there were also “no playground equipment,” “no benches,” and

      “no shade trees” there; accordingly, although it was possible for children to be

      there, it was not reasonably expected. Tr. Vol. III pp. 108-09. The prosecutor



      3
        McAlpin was also charged with and found guilty of Level 5 felony possession of precursors and Level 5
      felony possession of methamphetamine, but the trial court found that these convictions merged with the
      dealing conviction.

      Court of Appeals of Indiana | Opinion 39A01-1606-CR-1417 | March 22, 2017                      Page 4 of 11
      responded that it was reasonable to expect that preschool-aged children would

      be present at Bicentennial Park at 10 a.m. because, for example, a stay-at-home

      parent could take a “challenging” three-year-old child there to “run wild and

      get that energy out.” Id. at 113-14.


[4]   The jury found McAlpin guilty of the Level 4 felony, and the trial court

      sentenced him to ten years.

[5]   McAlpin now appeals.



                                 Discussion and Decision
[6]   McAlpin argues that the evidence is insufficient to support his conviction for

      Level 4 felony dealing in methamphetamine because it was not reasonably

      expected that a person under eighteen years of age would be present at

      Bicentennial Park—which has an outdoor amphitheater but no playground

      equipment, benches, or shade trees—at 10 a.m. on a school day. Accordingly,

      he asks us to reduce his conviction to a Level 5 felony.

[7]   In order to convict McAlpin of Level 4 felony dealing in methamphetamine as

      charged here, the State was required to prove beyond a reasonable doubt that he

      knowingly or intentionally manufactured methamphetamine, pure or

      adulterated, and that an enhancing circumstance applied. Ind. Code Ann. § 35-

      48-4-1.1 (West Supp. 2016); Appellant’s App. Vol. II p. 169. The enhancing

      circumstance that the State alleged was that McAlpin committed the offense in

      a drug-free zone, that is, in, on, or within 500 feet of a public park “while a

      Court of Appeals of Indiana | Opinion 39A01-1606-CR-1417 | March 22, 2017   Page 5 of 11
      person under eighteen (18) years of age was reasonably expected to be present.”

      Ind. Code Ann. § 35-48-1-16.5(3)(B)(ii) (West Supp. 2016); Appellant’s App.

      Vol. II p. 169. The purpose of a drug-free zone is to protect children from

      drugs; however, offenders must know where the zones are so that they can

      make a rational choice to avoid them due to the increased penalties. See

      Whatley v. Zatecky, 833 F.3d 762, 783-84 (7th Cir. 2016) (addressing Indiana

      law).

[8]   The statute enhancing dealing in methamphetamine from a Level 5 felony to a

      Level 4 felony became effective July 1, 2014. See P.L. 158-2013, § 619. This

      amendment made significant changes to the prior enhancement. See Norris v.

      State, 27 N.E.3d 333, 334 n.1 (Ind. Ct. App. 2015); see also Whatley, 833 F.3d at

      784 n.17 (“The current version of the drug-free zone statute applies only to drug

      offenses committed on a school bus, or within five hundred feet of school

      property or a public park while a person under eighteen years of age was

      reasonably expected to be present.”). Under the prior statutory scheme, if a

      person manufactured methamphetamine “in, on, or within one thousand

      (1,000) feet of” “school property” or “a public park,” the offense was elevated

      from a Class B felony to a Class A felony. Ind. Code Ann. § 35-48-4-1.1 (West

      2012). Not only does the amendment decrease the distance from 1000 to 500

      feet, but the amendment also requires that the defendant commit the offense in,

      on, or within 500 feet of school property or a public park while a person under




      Court of Appeals of Indiana | Opinion 39A01-1606-CR-1417 | March 22, 2017   Page 6 of 11
      eighteen years of age is reasonably expected to be present.4 Thus, the

      legislature’s purpose in amending the statute was to limit the applicability of the

      enhancement.


[9]   McAlpin argues that the State failed to prove beyond a reasonable doubt that he

      committed the offense within 500 feet of Bicentennial Park while a person

      under eighteen years of age was reasonably expected to be present. McAlpin

      points out that not only was August 21 a school day, but Bicentennial Park is

      not a park in the traditional sense; that is, it has an outdoor amphitheater but no

      playground equipment, benches, or shade trees. Contrary to the dissent’s

      implication, McAlpin correctly notes that the State presented no evidence that it

      is common to see children at that park during school hours, even on nice-

      weather days. The State claims, however, that McAlpin’s argument fails to

      give “appropriate consideration” to the fact that preschool-aged children or

      home-schooled children could be at Bicentennial Park for a walk in a stroller or

      to run around in the open space before it became too hot on that nice summer

      day. Appellee’s Br. p. 8. The State’s argument, in essence, is that there is only

      a nighttime exception to the drug-free zones because it is always reasonable to

      expect that children will be present at a park during the day. But if the

      legislature intended to create a nighttime exception to the drug-free zones, it

      could have easily done so. It did not. Instead, it added a “reasonably expected

      to be present” requirement to the statute, which was intended to limit the



      4
          The legislature also removed youth-program centers and family-housing complexes as enhancements.


      Court of Appeals of Indiana | Opinion 39A01-1606-CR-1417 | March 22, 2017                     Page 7 of 11
       applicability of the enhancement. Accordingly, given that August 21 was a

       school day for public and private schools in the Madison area and the unique

       status of Bicentennial Park as having an outdoor amphitheater but no

       playground equipment, benches, or shade trees, we conclude that the State has

       failed to prove beyond a reasonable doubt that children were reasonably

       expected to be present at Bicentennial Park at 10 a.m. that day. We therefore

       vacate McAlpin’s conviction for Level 4 felony dealing in methamphetamine

       and remand with instructions for the trial court to enter judgment of conviction

       for Level 5 felony dealing in methamphetamine and to resentence him

       accordingly.

[10]   Reversed and remanded.

       Brown, J., concurs.

       Bradford, J., dissents with separate opinion.




       Court of Appeals of Indiana | Opinion 39A01-1606-CR-1417 | March 22, 2017   Page 8 of 11
       ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
       R. Patrick Magrath                                        Curtis T. Hill, Jr.
       Alcorn Sage Schwartz & Magrath, LLP                       Attorney General of Indiana
       Madison, Indiana
                                                                 Christina D. Pace
                                                                 Deputy Attorney General
                                                                 Indianapolis, Indiana


                                                   IN THE
           COURT OF APPEALS OF INDIANA

       Corey A. McAlpin,                                         March 22, 2017
       Appellant-Defendant,                                      Court of Appeals Case No.
                                                                 39A01-1606-CR-1417
               v.                                                Appeal from the Jefferson Circuit
                                                                 Court
       State of Indiana,                                         The Honorable Darrell M. Auxier,
       Appellee-Plaintiff                                        Judge
                                                                 Trial Court Cause No.
                                                                 39C01-1408-F4-707




       Bradford, Judge, dissenting.


[11]   Because I disagree with the majority’s conclusion that the State failed to prove

       beyond a reasonable doubt that children were reasonably expected to be present

       at Bicentennial Park at 10 a.m. that day, I respectfully dissent. In reviewing a

       sufficiency claim, we do not reweigh the evidence. See McHenry v. State, 820
       Court of Appeals of Indiana | Opinion 39A01-1606-CR-1417 | March 22, 2017               Page 9 of 11
       N.E.2d 124, 126 (Ind. 2005). We will only “examine the probative evidence

       and reasonable inferences that support the verdict.” Lock v. State, 971 N.E.2d

       71, 74 (Ind. 2012). We will “affirm the conviction unless no reasonable fact-

       finder could find the elements of the crime proven beyond a reasonable doubt.”

       Id. “This evidence need not overcome every reasonable hypothesis of

       innocence; it is sufficient so long as an inference may reasonably be drawn from

       it to support the verdict.” Id.


[12]   McAlpin was convicted of Level 4 felony dealing in methamphetamine. The

       State was required to prove that McAlpin knowingly or intentionally

       manufactured methamphetamine, pure or adulterated, and that an enhancing

       circumstance applied. The enhancing circumstance alleged by the State was

       that the offense had been committed within 500 feet of a public park while a

       person under the age of eighteen was reasonably likely to be present. See Ind.

       Code § 35-48-1-16.5(3)(B)(ii). A “[p]ublic park means any property operated by

       a political subdivision for park purposes.”5 App. Vol. II p. 236.

[13]   The public park in question, Bicentennial Park, is surrounded by residential

       neighborhoods, has “bathhouses,” an outdoor amphitheater for “recreational




       5
           Under Indiana Code section 36-10-1-2 “Park purposes” includes the following:

                  the establishment, equipment, and operation of parks, boulevards, pleasure drives,
                  parkways, wheelways, park boulevards, bridlepaths, playgrounds, playfields, bathhouses,
                  comfort stations, swimming pools, community centers, recreation centers, other
                  recreational facilities, and recreational programs.



       Court of Appeals of Indiana | Opinion 39A01-1606-CR-1417 | March 22, 2017                       Page 10 of 11
programs,” “playfields” and green space. Ind. Code § 36-10-1-2. Due to its

location, the State argued that Bicentennial Park would be a wonderful place

for home-schooled children to run around or for stay-at-home parents to take

their young children for a walk. Its central location and wide-open green space

also makes Bicentennial Park a great place for children to run around with their

dogs, play Frisbee, and enjoy the sunshine. The term public park includes

many different types of parks, many of which do not contain playground

equipment. While the offense in question did take place on a school day, it was

also a warm, sunny, summer day and the State provided many valid reasons

why it was reasonably probable that children under the age of eighteen were

present in the park at that time. Moreover, the jury was in a better position,

after having heard and seen the evidence, to judge whether it is common to see

children under the age of eighteen in Bicentennial Park on any given day. I

believe there was sufficient evidence for the jury to reasonably infer that

McAlpin was manufacturing methamphetamine within 500 feet of a park where

children under the age of eighteen were likely to be present; I would, therefore,

affirm the conviction. For this reason, I respectfully dissent.




Court of Appeals of Indiana | Opinion 39A01-1606-CR-1417 | March 22, 2017   Page 11 of 11
