COA rules park with no playground cannot enhance drug conviction

A split Indiana Court of Appeals, divided over whether a park with no trees, no playground equipment and no benches could attract children during a school day, reversed a man’s conviction for Level 4 felony dealing in methamphetamine.

Corey A. McAlpin was arrested and charged after police officers found all the ingredients necessary to manufacture methamphetamine in his apartment. The charge was enhanced from a Level 5 felony to a Level 4 because the cooking occurred within 500 feet of a public park where a child under 18 years old was reasonably expected to be present. A jury found him guilty and McAlpin received a 10-year sentence.

On appeal, McAlpin argued the state failed to prove beyond a reasonable doubt that he manufactured meth while a youngster could have been in the park. The state countered that preschool-aged children, possibly brought by a parent wanting the toddler to burn some energy, could have been enjoying the public space.

However, the appellate panel noted with the change in Indiana’s criminal code, the Legislature limited the enhancement for committing a drug offense near a school or park. Specifically, the felony level may be increased if “a person under eighteen years of age is reasonably expected to be present.”

The majority agreed with McAlpin that expecting a child to be playing in a park with no swings or trees was not reasonable. It vacated his conviction and remanded for the trial court to enter judgment of conviction for Level 5 dealing in methamphetamine.

Judge Cale Bradford dissented, finding the evidence was sufficient to reasonably infer that children were likely to be present in the park.

“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,” Bradford wrote. “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.”

The case is Corey A. McAlpin v. State of Indiana, 39A01-1606-CR-1417.

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