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                                         May 29 2014, 10:13 am
establishing the defense of res judicata,
collateral estoppel, or the law of the
case.

ATTORNEY FOR APPELLANT:                           ATTORNEYS FOR APPELLEE:

CARA SCHAEFER WIENEKE                             GREGORY F. ZOELLER
Special Assistant to the State Public Defender    Attorney General of Indiana
Wieneke Law Office, LLC
Plainfield, Indiana                               IAN MCLEAN
                                                  Deputy Attorney General
                                                  Indianapolis, Indiana


                               IN THE
                     COURT OF APPEALS OF INDIANA

ROBERT L. MCFALL,                                 )
                                                  )
       Appellant-Defendant,                       )
                                                  )
               vs.                                )      No. 62A05-1309-CR-446
                                                  )
STATE OF INDIANA,                                 )
                                                  )
       Appellee-Plaintiff.                        )


                      APPEAL FROM THE PERRY CIRCUIT COURT
                          The Honorable Lucy Goffinet, Judge
                             Cause No. 62C01-0801-FA-85


                                         May 29, 2014

                MEMORANDUM DECISION - NOT FOR PUBLICATION

BARTEAU, Senior Judge
                             STATEMENT OF THE CASE

      Robert L. McFall appeals his conviction of dealing in methamphetamine within

1000 feet of a school, a Class A felony. Ind. Code § 35-48-4-1.1 (2006). We affirm and

remand.

                                        ISSUES

      McFall raises one issue, which we expand and restate as:

      I.     Whether the evidence is sufficient to sustain his conviction for dealing in
             methamphetamine.

      II.    Whether the trial court’s sentencing order requires clarification.

                       FACTS AND PROCEDURAL HISTORY

      In January 2008, McFall lived in Cannelton, Indiana while on parole. His home

was located within 1000 feet of the William Bennett Early Learning Center (“the

Center”).

      On January 30, Parole Agent Michelle Asher and several officers went to McFall’s

home because she received a tip that he was manufacturing methamphetamine and

wanted to determine whether he was complying with the terms of his parole. McFall was

standing outside when they arrived. He admitted during questioning that drugs and a

handgun were in his home. An officer handcuffed McFall while other officers went

inside and secured the handgun.

      Next, McFall consented to a search of his home and detached garage. Asher and

the officers found items used to manufacture methamphetamine as well as items used to




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smoke methamphetamine. McFall also had methamphetamine stashed in one of his

socks.

         The State charged McFall with dealing in methamphetamine within 1000 feet of a

school; possession of methamphetamine, a Class C felony; maintaining a nuisance, a

Class D felony; and possession of paraphernalia, a Class A misdemeanor.          A jury

determined he was guilty as charged. The court imposed a sentence, and this appeal

followed.

                             DISCUSSION AND DECISION

                          I. SUFFICIENCY OF THE EVIDENCE

         When reviewing a challenge to the sufficiency of the evidence underlying a

conviction, we neither reweigh the evidence nor assess the credibility of witnesses.

Bailey v. State, 979 N.E.2d 133, 135 (Ind. 2012). The evidence and all reasonable

inferences drawn from it are viewed in a light most favorable to the verdict. Id. We

affirm if there is substantial evidence of probative value supporting each element of the

crime from which a reasonable trier of fact could have found the defendant guilty beyond

a reasonable doubt. Id.

         To obtain a conviction for Class A felony dealing in methamphetamine within

1000 feet of a school, the State is required to prove beyond a reasonable doubt that the

defendant: (1) knowingly or intentionally (2) manufactured or delivered or possessed

with intent to deliver (3) methamphetamine (4) within one thousand feet of school

property. Ind. Code § 35-48-4-1.1.



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       McFall argues the State failed to prove that the Center is “school property” for the

purposes of Indiana Code section 35-48-4-1.1. Statutory interpretation is a question of

law reserved for the court. Montgomery v. State, 878 N.E.2d 262, 266 (Ind. Ct. App.

2007). We assign words in statutes their plain and ordinary meaning unless a statute

provides a specific definition. Id.

       The General Assembly has defined “school property” as follows:

       (1) A building or other structure owned or rented by:

              (A) a school corporation;

              (B) an entity that is required to be licensed under IC 12-17.2 or IC
              31-27;

              (C) a private school that is not supported and maintained by funds
              realized from the imposition of a tax on property, income, or sales;
              or

              (D) a federal, state, local, or nonprofit program or service operated
              to serve, assist, or otherwise benefit children who are at least three
              (3) years of age and not yet enrolled in kindergarten, including the
              following:

                     (i) A Head Start program under 42 U.S.C. 9831 et seq.

                     (ii) A special education preschool program.

                     (iii) A developmental child care program for preschool
                     children.

       (2) The grounds adjacent to and owned or rented in common with a
       building or other structure described in subdivision (1).

Ind. Code § 35-31.5-2-285 (2012).

       Here, Police Officer Marty Lee Haughee testified that the Center was a “pre-

school.” Tr. p. 350. He further agreed that it was “a place where four- and five-year-old

                                              4
kids go to school to begin their education.” Id. at 351. The jury could have reasonably

concluded from this evidence that the Center was a “federal, state, local, or nonprofit

program or service operated to serve, assist, or otherwise benefit children who are at least

three (3) years of age and not yet enrolled in kindergarten,” as provided by statute, and

that the Center was thus school property. See Whitt v. State, 659 N.E.2d 512, 513 (Ind.

1995) (State submitted sufficient proof that an offense was committed near school

property because an officer testified that the offense occurred near an “Elementary

School.”). McFall’s challenge to the sufficiency of the evidence must fail.

                              II. SENTENCING OMISSION

       During sentencing, the court merged McFall’s guilty verdicts for possession of

methamphetamine and maintaining a nuisance into his conviction for dealing in

methamphetamine. The parties agree that the court did not address the jury’s guilty

verdict for possession of paraphernalia, either by imposing a sentence or by merging it

with his conviction for dealing in methamphetamine. It is thus necessary to remand to

the trial court to dispose of this count. We express no opinion as to what course of action

is appropriate.

                                     CONCLUSION

       For the reasons stated above, we affirm the judgment of the trial court but remand

for further sentencing proceedings on the charge of possession of paraphernalia.

       Affirmed and remanded.

FRIEDLANDER, J., and BARNES, J., concur.



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