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McAlpin v. State

Court of Appeals of Indiana

March 22, 2017

Corey A. McAlpin, Appellant-Defendant,
v.
State of Indiana, Appellee-Plaintiff

         Appeal from the Jefferson Circuit Court The Honorable Darrell M. Auxier, Judge Trial Court Cause No. 39C01-1408-F4-707 Vaidik, Chief Judge.

          ATTORNEY FOR APPELLANT R. Patrick Magrath Alcorn Sage Schwartz & Magrath, LLP Madison, Indiana

          ATTORNEYS FOR APPELLEE Curtis T. Hill, Jr. Attorney General of Indiana Christina D. Pace Deputy Attorney General Indianapolis, Indiana

          Vaidik, Chief Judge.

         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.

         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:

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         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 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] ...


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