A man’s felony drug conviction level depends on whether the Indiana Supreme Court believes he sold drugs near a public park where children were “reasonably expected” to be.
In oral arguments Thursday before the court, Corey McAlpin’s counsel Patrick Magrath told the justices that while it was possible children could have been at Bicentennial Park in Madison when McAlpin had the elements necessary to make meth in his nearby apartment, it was not probable that children would be there because it was 10 a.m. on a school day.
The difference between “possible” and “probable” is key to the case, Magrath said, as the “reasonably expected” standard required in Indiana Code 35-48-4-16(d) calls for a probability of children’s presence, not a mere possibility. Thus, because it was only possible that children would be at the park, McAlpin should be convicted on a Level 5 felony, rather than a Level 4, he said.
The Indiana Court of Appeals reached a similar decision in its March opinion, with the majority finding that because McAlpin’s drug-related substances were discovered during a school day, and because the park had no playground equipment, then children would not be reasonably expected to be present at that time. Judge Cale Bradford dissented, but the majority vacated McAlpin’s conviction and ordered the trial court to enter judgment of conviction for Level 5 felony dealing in meth.
The state, however, said McAlpin’s argument was merely an attempt to imagine why children might not have been at the park, and that his admission that it was possible for children to be there was fatal to his case. Although there was no playground equipment at Bicentennial Park on the day in question, Stephen Creason with the Indiana Attorney General’s Office said the park was equipped with amphitheater seating, bathrooms and parking, so it wouldn’t take a stretch of the imagination to determine that children could possibly be there.
Chief Justice Loretta Rush offered similar comments, telling Magrath it seemed as if he was focusing too heavily on the lack of playground equipment. Asked by Rush if the presence of a teeter-totter at the park would make a difference in the case, Magrath said the “reasonably expected” standard is a fact-sensitive inquiry.
But such an inquiry should be considered by a jury, Creason said, as was done in this case when the jury initially found McAlpin guilty of a Level 4 felony. If jurors can’t be trusted to answer questions such as whether children under the age of 18 are reasonably expected to be at a park at a certain time of day, then there is no point in having a jury at all, he said.
Magrath, however, said the jurors in this case were not presented with any evidence of the circumstances at Bicentennial Park on the day in question and, instead, used their own knowledge of the park to determine if the “reasonably expected” standard had been met. While Magrath agreed with Justice Mark Massa’s comments that jurors can draw inferences from the facts they are presented, he also said no facts were presented in this case, so any knowledge the jurors had of Bicentennial Park was not in the record.
The case is Corey A. McAlpin v. State of Indiana, 39S01-1705-CR-00342. Full oral arguments in the case can be viewed here.