A TTORNEY FOR A PPELLANT A TTORNEYS FOR A PPELLEE R. Patrick Magrath Curtis T. Hill, Jr. Alcorn Sage Schwartz & Magrath, LLP Attorney General of Indiana Madison, Indiana Stephen R. Creason Christina D. Pace Deputy Attorneys General Indianapolis, Indiana

_______________________________________________________________ _______________ 

# In the 

# Indiana Supreme Court

_________________________________ No. 39S01-1705-CR-342

C OREY M C A LPIN , Appellant (Defendant),

V

.
S TATE OF I NDIANA , Appellee (Plaintiff).

_________________________________ Appeal from the Jefferson C ircuit Court, No. 39C01-1408-F4-707 The Honorable Darrell M. Auxier, Judge

_________________________________ On Petition to Transfer from the Indiana Court of Appeals, No. 39A01-1606-CR-1417

_________________________________ August 14, 2017

Rush, Chief Justice

. Juries decide a host of fact-sensitive disputes. Did the defen dant kill “knowingly”? Resist “forcibly”? Drive “recklessly”? Wh en the jury returns a guilty verdict and the defendant appeals the sufficiency of the evidence, our job is not to proclaim wha t we would have done as jurors.2 Instead, we view the record favorably to the verdict and decide whether a reasonable fact-finder
could convict.
Here, a jury found defendant Corey McAlpin guilty of committin g various meth-related crimes with a drug-free-zone enhancement. Specifically, the jur y determined that the crimes occurred near a public park where a minor’s presence was “reaso nably expected.” Though this may have been a close factual ca ll for the jury, we find the ev idence sufficient and affirm McAlpin’s enhan ced conviction.
Facts and Procedural History
Nestled against the Ohio River, tucked away in rolling hills a nd limestone bluffs, lies picturesque Madison, Indiana. For that historic river town, Thu rsday, August 21, 2014, began as “just your normal” peaceful summer morning. Schools were in ses sion. The sun was low. The temperature was warm, not yet blistering.
But something had been cooking on West Second Street—and it wa sn’t apple pie. Around 10:00 a.m., a team of police entered Corey McAlpin’s apartment and noticed a “horrible” odor, like that of “50 cats . . . with no litter box.” They soon lear ned why: the apartment was an active methamphetamine lab. Police found an abundance of meth-making s upplies, including two active hydrochloric acid gas generators , a reaction vessel, a mangled plastic bottle, plastic tubing, drain cleaner, an empty box of pseudoephedrine, petroleum fuel, a col d pack, a razor blade, scales, syringes, a glass pipe, meth residue, and a mutilated lithium b attery. McAlpin was arrested on the spot.
Two blocks from this meth operation sits Bicentennial Park. P ictured below, this city park features a wide-open green space surrounded by a residential ne ighborhood. It also has an outdoor amphitheater, restrooms, convenien t parking, and sidewalks wrap ping around and cutting within. The park does not, however, have benches, playgrounds, or trees :3 The State used Bicentennial Park’s proximity to McAlpin’s apar tment to enhance his charges to Level 4 felony dealing in methamphetamine, Level 5 f elony possession of precursors, and Level 5 felony possession of methamphetamine. To prove thes e drug-free-zone enhancements, the State needed to show that McAlpin committed the crimes “wit hin five hundred (500) feet of a public park . . . while a person under eighteen (18) years of a ge was reasonably expected to be present.”4 During the jury trial’s closing arguments, the parties agreed that McAlpin’s apartment was within 500 feet of a park but disputed whether a child was “rea sonably expected” to be in the park during the crimes. The State acknowledged that schools were in session, but urged the jury to
think of your stay-at-home moms, your stay-at-home dads. What about your grandparents, childre n under school age, toddlers, m aybe a stay-at-home dad taking his infant son for a walk and stops a t the park? What about home school children? They take breaks. They have recess. It’s absolutely rea sonable to conclude that a chil d under the age of 18 would be present a t that park at 10 a.m. on Thurs day, August 21. McAlpin’s counsel offered a diffe rent perspective, saying she would
expect a six-year-old on that day to be in school. I would expe ct a 17-year-old who is not in school that day to be home in bed sle eping because that’s what 17-year-olds do. But it’s not reasonable to expect that there are pre-school age children in that park at t hat time of day on a hot August morning with no shade, no benches, no playground equipment, and that is an element of each one of the charges . . . .
After the jury’s guilty verdicts, the court entered a convicti on on Level 4 felony dealing methamphetamine and merged the other two counts. The court note d several aggravating factors— including that McAlpin committed the crimes while on probation, used methamphetamine for over a decade, wore a “Papa Smurf” 1 tattoo across his torso, and exposed his innocent apartmentcomplex neighbors to a “substantial risk of fire and/or explosi on.” The court sentenced McAlpin to ten years. McAlpin appealed, and a divided panel of the Court of Appeals reversed the drug-freezone enhancement and remanded for resentencing. The majority fo und insufficient evidence that a child was “reasonably expected” to be present at Bicentennial Park when McAplin’s crimes
occurred because schools were in session and the park lacked tr aditional park fixtures like trees, benches, and playgrounds. McAl pin v. State, 72 N.E.3d 940, 944 (Ind. Ct. App. 2017). In dissent, Judge Bradford thought that the “reasonably expected” element w as a fairly debatable factual issue best left to the jury. Id. at 944–45 (Bradford, J., dissenting)

.

1 At sentencing, one officer defined “smurf” as a street term fo r someone “involved in the gathering of ingredients for methamphetamine.”5 We granted the State’s petiti on to transfer, thereby vacating the Court of Appeals opinion. Ind. Appellate Rule 58(A).

Standard of Review
The existence of a statutory enhancement is a “fact-sensitive” determination, reviewed under our deferential sufficiency standard of review. Erkins v. State, 13 N.E.3d 400, 409 (Ind. 2014); Buelna v. State, 20 N.E.3d 137, 141 (Ind. 2014). We exam ine the record in the light most favorable to the conviction, keeping in mind that the evidence need not be direct—a reasonable inference of guilt is enough. Lock v. State, 971 N.E.2d 71, 74 (Ind. 2012). And we affirm unless
“no reasonable fact-finder” cou ld find the defendant guilty. Id . This case thus boils down to one question: could a reasonable jury find on this record that the State proved the drug-free-zone
enhancement?

Discussion and Decision
Methamphetamine destroys lives. It addicts users, spews toxic fumes, spreads disease, and occasionally explodes when cooked. 2 Few states have suffered from this epidemic more than Indiana—which recently led the nation in meth-lab seizures. 3 To protect youth, the General Assembly has created drug-free-zone enhancements that boost pen alties for meth dealing (and other drug crimes) when committed “within five hundred (500) fe et of . . . a public park while a person under eighteen (18) years of age was reasonably expected to be present.” Ind. Code § 35- 48-1-16.5 (2014); see also Whatley v. Zatecky, 833 F.3d 762, 78 3–84 (7th Cir. 2016).
Here, the parties agree that Bicentennial Park was a “public p ark” 4 and that it sat within 500 feet of McAlpin’s meth lab. They dispute only whether suffi cient evidence proved that a minor’s presence in the park was “reasonably expected.” We begi n by discussing that element, which the parties correctly agr ee is an objective, fact-sensiti ve inquiry. Then, applying our
deferential standard of review , we hold that the evidence was e nough.

2 See Governor’s Task Force on Drug Enforcement, Treatment & Pre vention, Final Report (Fall 2016), at 9, http://www.in.gov/gtfdetp/files/Governors_Drug_Task_Force_Final _Report.pdf; Marion S. Green et al., What’s Cooking? Meth Use in Indiana, Indi ana University Center for Hea lth Policy (July 2010), at 3–4, https://fsph.iupui.edu/doc/resear ch-centers/Meth%20Use%20in%20I ndiana%202010.pdf.

3 Danielle Carriere & Janet Ayres, Methamphetamine Use in Rural I ndiana, Purdue Extension Center for Rural Development (Jan. 2015), at 1, h ttps://extension.purdue.edu/ext media/EC/EC-794-W.pdf.

4 A “public park” is “any property operated by a political subdi vision for park purposes.” I.C. § 35-31.5-2-258 (2014).6 I. The New “Reasonably Expected” Standard Is Objective and Fact-Se nsitive—a Quintessential Question for the Fact-Finder.
For over two decades, Indiana’s drug-free-zone enhancements di d not require that a child’s presence be “reasonably expect ed.” In 1988, the drug-free-zone enhancement required proof only that the drug crime was committed on a school bus or within 1,0 00 feet of school property. I.C. § 35-48-4-1 (1988). Amendments in 1995, 1996, and 2001 simply add ed more zones: public parks, family housing complexes, and youth program centers. P.L. 296-1 995; P.L. 65-1996; P.L. 17- 2001. But in 2014, as part of Indiana’s comprehensive criminal code reform, the l egislature made three changes. It deleted the youth program center and family h ousing complex zones, tightened the proximity element to 500 feet , and—front-and-center here—ad ded the element that a minor’s presence be “reasonably exp ected.” See I.C. §§ 35-48-1-16.5, -4 -1, -4-1.1 (2014).
Though the statute does not define the “reasonably expected” e lement, the parties correctly agree on its fact-sensitive, objective nature. See Short v. Est wing Mfg. Corp., 634 N.E.2d 798, 801 (Ind. Ct. App. 1994). Like the “reasonable care” standard in ne gligence law and the “reasonably expectable [use]” standard under Indiana’s Products Liability A ct, the enhancement’s “reasonably expected” element does not rely on anyone’s subjective expectation. See id. It does not require proof, for example, that the defendant actually anticipated tha t a child would be in the park. Instead,
it asks what the ordinary reasonable person would expect under the circumstances. See id. And that objective, fact-intensive standard is “best applied by a j ury after hearing all of the evidence.” Rhodes v. Wright, 805 N.E.2d 382, 387 (Ind. 2004). After all, t he jury is a body of citizens whose collective experience allows it to “draw wiser and safer conclu sions” than any one person could. Louisville, Evansville & Saint Louis Consol. R.R. v. Berry, 9 I nd. App. 63, 35 N.E. 565, 566 (1893).
With this objective standard i n hand, we analyze the evidence’ s sufficiency in this case.

II. Sufficient Evidence Allowed the Jury to Conclude that a Minor W as Reasonably Expected to Be at Bicentennial Park.
McAlpin acknowledges on appeal t hat the “reasonably expected” standard permits a range of evidence, but he asserts that the State failed to present wh at he calls the “best evidence”—that children typically use Bicentennial Park even while school is i n session. This argument, however, does not scale the peak of our d eferential sufficiency standard of review. The que stion here is not7 whether the verdict was based on the “best evidence” but whethe r it was based on a reasonable inference. See Lock, 971 N.E.2d at 74. We hold that it was.
Through aerial photos and testim ony, the jury heard circumstan tial evidence on the ordinary reasonable person’s expe ctations. The jury knew that B icentennial Park is not buried in an exclusively industrial or com mercial district, where homes a nd families are sparse. Instead, the park is surrounded by residences. And appropriate for a neighbo rhood park, it offers an outdoor amphitheater, restrooms, parking, and sidewalks. It also boasts the area’s largest wide-open green field. The jury could reasonably conclude that this field, espe cially on a pleasant summer morning, is an attractive place for minors to unwind—to run, walk, crawl , throw a frisbee, fly a kite, play catch, play tag, play Red-Rover , and indulge in countless other youthful pastimes.
Again, this may have been a clo se call for the jury. Schools w ere in session. The park had no playground. It had no benches for resting, no shade trees to block the August sun. But the jury was free—indeed, instructed—to weigh these facts using its “com mon sense.” See Halsema v. State, 823 N.E.2d 668, 673 (Ind. 200 5). The jury could reason, for example, that not every child attends school or is school age, not every child needs a playgr ound to have fun, and not every child
needs shade at 10:00 a.m.
In sum, this is a fact-sensitive issue that we ask juries to r esolve by drawing—or not drawing—certain inferences. See, e.g., Brewington v. State, 7 N .E.3d 946, 964–65 (Ind. 2014). We “trust juries to make such inferential decisions” not becaus e they are infallible, but because they have the clearest view of t he evidence to sift through sub tle contextual factor s. See id.; Noble v. State, 725 N.E.2d 842, 845 (Ind. 2000) (trusting juries to “ sort out [conflicting] evidence in searching for the truth”). In making those judgment calls, the jury applies its “experiences in life,” “common sense,” and the “conscience of our society” as it “take [s] into account all of the facts
and circumstances.” See Wils on v. State, 697 N.E.2d 466, 477–78 (Ind. 1998). With that in mind, we decline McAlpin’s invitation to invade the jury’s province a nd thus reject his sufficiency claim.

Conclusion
To protect Hoosier youth from methamphetamine, our General Ass embly has enhanced the penalty for dealing the drug within 500 feet of a public park w here a person under 18 was “reasonably expected” to be present. Here, after seeing and hea ring the evidence, the jury found8 the “reasonably expected” element satisfied. Unable to second-g uess that fact-sensitive decision, we affirm McAlpin’s enhanced conviction.
David, Massa, Slaughter, and Goff, JJ., concur.