CRONE, J.
Indiana Code Section 35-48-4-16 provides,
(a) For an offense under this chapter that requires proof of:
(1) delivery of cocaine, a narcotic drug, methamphetamine, or a controlled substance;
(2) financing the delivery of cocaine, a narcotic drug, methamphetamine, or a controlled substance; or
(3) possession of cocaine, narcotic drug, methamphetamine, or controlled substance;
within one thousand (1,000) feet of school property, a public park, a family housing complex, or a youth program center, the person charged may assert the defense in subsection (b) or (c).
(b) It is a defense for a person charged under this chapter with an offense that contains an element listed in subsection (a) that:
(1) a person was briefly in, on, or within one thousand (1,000) feet of school property, a public park, a family housing complex, or a youth program center; and
(2) no person under eighteen (18) years of age at least three (3) years junior to the person was in, on, or within one thousand (1,000) feet of the school property, public park, family housing complex, or youth program center at the time of the offense.
(Emphasis added.)
Specifically, Harrison asserts that the State’s evidence was insufficient to disprove that he was briefly within 1000 feet of a public park, here University Park, and that no persons under the age of eighteen were present. [Footnote omitted.] As a threshold matter, we observe that the parties set forth in their briefs different burdens of proof, and therefore we must resolve which burden of proof is applicable.
The parties do agree that generally, a defendant bears the initial burden to prove any affirmative defense by a preponderance of evidence. See Adkins v. State, 887 N.E.2d 934, 938 (Ind. 2008) (“A defendant bears an initial burden of proof by a preponderance of the evidence on any affirmative defense.”). If the defendant meets this burden, the State is required to rebut the defense. Wallace v. State, 498 N.E.2d 961, 964 (Ind. 1986). Harrison argues, however, that Indiana Code Section 35-48-4-16(b) actually contains mitigating factors that merely reduce, not excuse, a defendant’s culpability, and that therefore the defendant has only the burden of placing the issue in question where the State’s evidence has not done so. Our review of Indiana case law shows that we have not previously addressed this argument. . . . .
Harrison asserts that Section 35-48-4-16(b) is analogous to the defenses of sudden heat, which reduces a defendant’s culpability from murder to voluntary manslaughter, and an unloaded firearm, which reduces class D felony pointing a firearm pursuant to Indiana Code Section 35-47-4-3 to a class A misdemeanor. Recently, in Adkins, 887 N.E.2d 934, our supreme court analyzed Indiana Code Section 35-47-4-3 and concluded that an unloaded firearm was a mitigating factor similar to sudden heat. We think Adkins supports Harrison’s argument.
In Adkins, the State charged the defendant with class D felony pointing a firearm. Indiana Code Section 35-47-4-3 provides, “A person who knowingly or intentionally points a firearm at another person commits a Class D felony. However, the offense is a Class A misdemeanor if the firearm was not loaded.” At the conclusion of the trial, the jury was instructed that to find the defendant guilty of class A misdemeanor pointing a firearm, he had to prove by a preponderance of the evidence that the firearm was not loaded. Adkins, 887 N.E.2d at 936. Adkins objected to the instruction but was overruled. The jury found Adkins guilty as charged. The Court of Appeals affirmed. Adkins v. State, 870 N.E.2d 465 (Ind. Ct. App. 2007), trans. Granted.
On transfer, Adkins contended that the instruction was erroneous because it placed the burden of proving that his gun was unloaded on him, rather than on the State. In reviewing Adkinsâ’s argument, our supreme court stated:
. . . .
Judge Crone analogized the role that the unloaded firearm plays to that which “sudden heat” plays in prosecutions for murder. Id. “Sudden heat” is not an affirmative defense in such a case (because it does not negate an element of the crime of murder) but a mitigating factor that reduces the defendant’s culpability from murder to voluntary manslaughter. Id. (citing Boone v. State, 728 N.E.2d 135, 138 (Ind. 2000)). We agree . . . that the fact that a gun is unloaded is a mitigating factor that reduces a defendant’s culpability from a felony to a misdemeanor, not an affirmative defense.
A defendant bears an initial burden of proof by a preponderance of the evidence on any affirmative defense. But the defendant bears no burden of proof with respect to the mitigating factor of sudden heat, only the burden of placing the issue in question where the State’s evidence has not done so. The State then assumes the burden of disproving the existence of sudden heat beyond a reasonable doubt. We hold the same rule applies with respect to Class A Misdemeanor Pointing a Firearm. That is, if a defendant charged with Class D Felony Pointing a Firearm seeks instead to be convicted of Class A Misdemeanor Pointing a Firearm, the defendant must place the fact of the gun having been unloaded at issue if the State’s evidence has not done so. Once at issue, the State must then prove beyond a reasonable doubt that the firearm was loaded.
887 N.E.2d at 937-38 (some citations omitted). [Footnote omitted.]
Thus, in Adkins, our supreme court recognized that an unloaded firearm does not completely excuse the defendant from culpability, but only to reduce the level of the defendant’s culpability. In other words, even if the firearm is unloaded, the defendant is still guilty of pointing a firearm, the base crime. Similarly, the statutory defense provided by Section 35-48-4-16(b) does not excuse a defendant from culpability. [Footnote omitted.] It operates only to reduce the level of culpability when certain factors are present. Even if the factors are present, the defendant is still guilty of the base crime. Accordingly, we conclude that Indiana Code Section 35-48-4-16(b) constitutes a mitigating factor that reduces culpability, and therefore the defendant does not have the burden of proof but “only the burden of placing the issue in question where the State’s evidence has not done so.” See Adkins, 887 N.E.2d at 938. Once at issue, the State must rebut the defense by proving beyond a reasonable doubt either that the defendant was within 1000 feet of a public park more than “briefly” or persons under the age of eighteen at least three years junior to the defendant were within 1000 feet of the public park (because both factors are required to effectuate the mitigation). Ind. Code § 35-48-4-16(b).
Here, Harrison argues that the evidence placed in issue both the brief duration of his presence within 1000 feet of University Park and the absence of any persons under the age of eighteen within 1000 feet of the park at the time of the offenses. The record shows that the undercover operation began at approximately 7:40 p.m., with Officer McGivern approaching a group of men in the Wheeler Mission foyer. There is no evidence as to whether Wheeler Mission is within 1000 feet of University Park or how far the Mission is from that boundary. Officer McGivern had a conversation with the men, and he and Harrison began walking north. There is no evidence as to when Harrison entered within 1000 feet of University Park. The cocaine delivery occurred at approximately 8:05 p.m., and the undercover operation was concluded at 8:10 p.m., when Officer McGivern identified Harrison. Appellant’s App. at 158, 160.
As to whether any persons under the age of eighteen were within 1000 feet of University Park, the record shows that it was a rainy, windy evening in mid-March. In fact, it was too rainy for the officers to use their video equipment. Tr. at 139-40. Also, between 7:40 p.m. and 8:10 p.m., it would have been rather dark because at that time of year the sun would have been setting. The temperature is unknown, but we may reasonably infer from the date, the wind and rain, and the fact that the men wore jackets and sweatshirts that it was not warm. Harrison’s counsel recalled one of the State’s witnesses, a police officer, and asked him whether he had driven by University Park at about 8:00 p.m., and the police officer answered affirmatively. Id. at 200-01. Defense counsel then asked the witness whether he had noticed any children in the park. The witness answered that he had not been paying attention. Id. at 201. In closing arguments, both parties made arguments to the jury regarding Section 35-48-4-16(b). Id. at 228-234. The defense offered to tender an instruction regarding the statutory mitigating factors, but the trial court had already included it in its final instructions. Id. at 202-03. We agree with Harrison that the evidence put the statutory mitigating factors contained in Section 35-48-4-16(b) at issue.
ROBB, J., and BROWN, J., concur.