McAlpin v. State

Bradford, Judge,

dissenting.

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. In reviewing a sufficiency claim, we do not reweigh the evidence. See McHenry v. State, 820 N.E.2d 124, 126 (Ind. 2005). We will only “examine the probative evidence and reasonable inferences that support the verdict.” Lock v. State, 971 N.E.2d 71, 74 (Ind. 2012). We will “affirm the conviction *945unless no reasonable fact-finder could find the elements of the crime proven beyond a reasonable doubt.” Id. “This evidence need not overcome every reasonable hypothesis of innocence; it is sufficient so long as an inference may reasonably be drawn from it to support the verdict.” Id.

McAlpin was convicted of Level 4 felony dealing in methamphetamine. The State was required to prove that McAlpin knowingly or intentionally manufactured methamphetamine, pure or adulterated, and that an enhancing circumstance applied. The enhancing circumstance alleged by the State was that the offense had been committed within 500 feet of a public park while a person under the age of eighteen was reasonably likely to be present. See Ind. Code § 35-48-1-16.5(3)(B)(ii). A “[p]ublic park means any property operated by a political subdivision for park purposes.” 5 App. Vol. II p. 236.

The public park in question, Bicentennial Park, is surrounded by residential neighborhoods, has “bathhouses,” an outdoor amphitheater for “recreational programs,” “playfields” and green space. Ind. Code § 36-10-1-2. 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. 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. 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. I believe there was sufficient evidence for the jury to reasonably infer that McAl-pin 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. For this reason, I respectfully dissent.

. Under Indiana Code section 36-10-1-2 "Park purposes” includes the following:

the establishment, equipment, and operation of parks, boulevards, pleasure drives, parkways, wheelways, park boulevards, bridlepaths, playgrounds, playfields, bathhouses, comfort stations, swimming pools, community centers, recreation centers, other recreational facilities, and recreational programs.