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.
Free access — add to your briefcase to read the full text and ask questions with AI
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
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