Vaidik, CJ.
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.” …
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The jury found McAlpin guilty of the Level 4 felony, and the trial court sentenced him to ten years.
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… The purpose of a drug-free zone is to protect children from drugs; however, offenders must know where the zones are so that they can make a rational choice to avoid them due to the increased penalties. See Whatley v. Zatecky, 833 F.3d 762, 783-84 (7th Cir. 2016) (addressing Indiana law).
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… McAlpin points out that not only was August 21 a school day, but Bicentennial Park is not a park in the traditional sense; that is, it has an outdoor amphitheater but no playground equipment, benches, or shade trees. … The State claims, however, that McAlpin’s argument fails to give “appropriate consideration” to the fact that preschool-aged children or home-schooled children could be at Bicentennial Park for a walk in a stroller or to run around in the open space before it became too hot on that nice summer day. The State’s argument, in essence, is that there is only a nighttime exception to the drug-free zones because it is always reasonable to expect that children will be present at a park during the day. But if the legislature intended to create a nighttime exception to the drug-free zones, it could have easily done so. It did not. … Accordingly, 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 children were reasonably expected to be present at Bicentennial Park at 10 a.m. that day. 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.
Reversed and remanded.
Brown, J., concurs.
Bradford, J., dissents with separate opinion.
Because I disagree with the majority’s conclusion that the State failed to prove beyond a reasonable doubt that children were reasonably expected to be present at Bicentennial Park at 10 a.m. that day, I respectfully dissent. …
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The public park in question, Bicentennial Park, is surrounded by residential neighborhoods, has “bathhouses,” an outdoor amphitheater for “recreational programs,” “playfields” and green space. Due to its location, the State argued that Bicentennial Park would be a wonderful place for home-schooled children to run around or for stay-at-home parents to take their young children for a walk. Its central location and wide-open green space also makes Bicentennial Park a great place for children to run around with their dogs, play Frisbee, and enjoy the sunshine. The term public park includes many different types of parks, many of which do not contain playground equipment. … I believe there was sufficient evidence for the jury to reasonably infer that McAlpin was manufacturing methamphetamine within 500 feet of a park where children under the age of eighteen were likely to be present; I would, therefore, affirm the conviction. …