Berkhardt v. State, Court of Appeals Case No. 49A04-1702-CR-369.

• Docket Nº: Court of Appeals Case No. 49A04-1702-CR-369.
• Citation: 82 N.E.3d 313
• Case Date: August 10, 2017
• Court: Court of Appeals of Indiana

82 N.E.3d 313

Kory BERKHARDT, Appellant-Defendant,
v.
STATE of Indiana, Appellee-Plaintiff

Court of Appeals Case No. 49A04-1702-CR-369.

Court of Appeals of Indiana.

August 10, 2017

Attorney for Appellant : Megan Shipley, Marion County Public Defender Agency, Indianapolis, Indiana

Attorneys for Appellee : Curtis T. Hill, Jr., Attorney General of Indiana, Michael Gene Worden, Deputy Attorney General, Indianapolis, Indiana

Baker, Judge.

1] Kory Berkhardt appeals his convictions for Level 6 Felony Unlawful Possession of a Syringe¹ and Class B Misdemeanor Possession of Marijuana.² Berkhardt argues that there is insufficient evidence supporting the Level 6 felony conviction and that the sentencing order erroneously states that he was convicted of a Class A, rather than a Class

[82 N.E.3d 315

B, misdemeanor for the second conviction. We agree. We reverse the Level 6 felony conviction and remand to the trial court to correct its sentencing order with respect to the misdemeanor conviction.

Facts

2] Two Indianapolis Metropolitan Police Department officers were patrolling on the west side of Indianapolis on the morning of Sunday, July 31, 2016. Around 11:00 a.m., the officers saw a woman walk to the side of a closed liquor store. The officers drove into the parking lot to see what she was doing, and saw the woman talking to a man later identified as Berkhardt. Berkhardt was sitting in between two air conditioner units on the side of the liquor store building.

[3] The officers approached Berkhardt and the woman, asked what they were doing there, and asked for identification. Berkhardt handed the officers an identification card, but the officers noticed that the card did not match Berkhardt's appearance, height, or weight. When asked for his name, Berkhardt gave the name on the identification card. The officers arrested Berkhardt for failure to identify.

[4] After arresting and handcuffing Berkhardt, the officers searched him. In the waistband of his shorts, they found a gray plastic bag containing two syringes and a substance later determined to be .54 grams of marijuana. Forensic testing later determined that "[t]here were no controlled substances on either of the syringes." Tr. p. 79. The officers found no other drugs on Berkhardt.

[5] On August 1, 2016, the State charged Berkhardt with Level 6 felony unlawful possession of a syringe and Class B misdemeanor possession of marijuana. At the close of Berkhardt's January 11, 2017, jury trial, the jury found him guilty as charged. On January 25, 2017, the trial court sentenced Berkhardt to 795 days on the Level 6 felony conviction and to a concurrent term of 180 days on the Class B misdemeanor conviction. The sentencing order incorrectly states that Berkhardt was convicted of Class A misdemeanor possession of marijuana. Appellant's App. Vol. II p. 13. Berkhardt now appeals.

Discussion and Decision

I. Sufficiency of the Evidence

[6] Berkhardt first argues that there is insufficient evidence supporting his conviction for Level 6 felony unlawful possession of a syringe. When reviewing a claim of insufficient evidence, we will consider only the evidence and reasonable inferences that support the conviction. Gray v. State , 957 N.E.2d 171, 174 (Ind. 2011). We will affirm if, based on the evidence and inferences, a reasonable jury could have found the defendant guilty beyond a reasonable doubt. Bailey v. State , 907 N.E.2d 1003, 1005 (Ind. 2009).

[7] To convict Berkhardt of Level 6 felony unlawful possession of a syringe, the State was required to prove beyond a reasonable doubt that he possessed a hypodermic syringe for the use of a controlled substance or legend drug by injection in a human being with intent to violate the Indiana Legend Drug Act or to commit a controlled substance offense.³ I.C. § 16-42-19-18. Berkhardt does not contest that he possessed the syringes; he argues that the

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State failed to prove beyond a reasonable doubt that he did so with the specific intent to violate the Legend Drug Act or to commit a controlled substance offense. In other words, he contends that the State failed to prove that he intended to use the syringes to inject illegal drugs.

A. Caselaw

8] This Court has not had occasion to interpret the intent element of this statute in a way that is relevant to this case.⁴ There is, however, a relevant, decades-long line of cases interpreting the intent element of the offenses of possession of narcotics equipment and possession of paraphernalia.

[9] In Taylor v. State , Taylor was charged with possession of narcotics equipment; that statute had language similar to the present statute for unlawful possession of a syringe. 256 Ind. 170, 267 N.E.2d 383 (Ind. 1971) (statute making it unlawful to possess a syringe or needle with intent to violate any provision of the Uniform Narcotic Drug Act). At trial, the State presented evidence that when Taylor was searched after being arrested for shoplifting, the officer found a hypodermic needle, eye dropper, and burnt bottle cap. The officer testified that Taylor was an addict but did not explain his source for this claim. Our Supreme Court reversed, noting that there was no evidence of prior drug use, prior drug convictions, incriminating statements made by Taylor, or evidence of flight or concealment. Id. at 172-73, 267 N.E.2d at 385.

The Court disregarded the testimony that Taylor was an addict because it was "completely useless as evidence." Id. at 173, 267 N.E.2d at 385. Therefore, "all the evidence showed was that appellant was in possession of adapted instruments," which was insufficient to satisfy the statutory requirements:

The statute sets out three elements to be proved and it does not permit conviction merely upon a showing of the possession of adapted instruments. To permit such a conviction would be in effect to amend the statute. We assume the Legislature did not do a useless act in including the element of intent; if they had intended to punish the mere possession of adapted instruments they would not have included that element. The fact that the Legislature included the requirement that intent be proved necessarily implies that they recognized that there could be cases of possession of adapted instruments which would not be punishable under the statute. This is one of those cases.

Id.

[10] In Bradley v. State , Bradley was convicted of possession of narcotics equipment after he ran from an officer in a high crime neighborhood. 153 Ind. App. 421, 287 N.E.2d 759 (Ind. Ct. App. 1972). When the officer stopped him, Bradley threw down an eyedropper with a needle attached and had a burnt bottle cap in his pocket. This Court reversed the conviction, noting that there were no needle marks on Bradley's arms or hands, no admissions to prior drug use, and no prior...