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High court to decide if kids ‘reasonably expected’ to play at park with no equipment

May 31, 2017

The effect of a change to Indiana’s criminal code limiting the enhancement for committing a drug offense near a school or park will be at the center of a case the Indiana Supreme Court will hear next month.

In Corey A. McAlpin v. State of Indiana, 39S01-1705-CR-00342, all of the ingredients necessary to manufacture methamphetamine were found in Corey McAlpin’s apartment, an offense that would normally constitute Level 5 felony dealing in methamphetamine. However, McAlpin’s charge was enhanced to a Level 4 felony because the cooking occurred with 500 feet of a public park, where it was assumed children could be reasonably expected to be present.

McAlpin was found guilty as charged and sentenced to 10 years, but a divided Indiana Court of Appeals reversed his conviction in March, noting the park had no trees, no playground equipment and no benches. A change in Indiana’s criminal code limited the enhancement of a drug offense near a school or park to situations in which a child “is reasonably expected to be present,” and the majority found expecting a child to play in a park without swings or trees was not reasonable.

Judge Cale Bradford dissented, but the majority vacated McAlpin’s conviction and remanded the case for the trial court to enter judgment for Level 5 felony dealing in methamphetamine. The high court will hear arguments in McAlpin’s case at 9:45 a.m. June 22.

The Supreme Court denied transfer to 25 cases last week. The full list of transfer actions can be read here

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