Berkhardt v. State

Decision Date10 August 2017
Docket NumberCourt of Appeals Case No. 49A04-1702-CR-369.
Citation82 N.E.3d 313
Parties Kory BERKHARDT, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff
CourtIndiana Appellate Court

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 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 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 convictions for drug-related crimes. Ultimately, we found that his flight and attempted concealment of the eyedropper, alone, did not constitute sufficient evidence of the specific intent to use narcotics. Id. at 429, 287 N.E.2d at 763.

[11] More recently, in Sluder v. State , Sluder was convicted of possession of paraphernalia after a search incident to arrest on an unrelated warrant revealed a syringe in Sluder's rear pocket. 997 N.E.2d 1178 (Ind. Ct. App. 2013). Sluder denied the syringe was his. No drugs were found on his person, he had no track marks on his arms, there was no evidence of previous drug use, and he had no previous drug convictions. Citing Taylor and Bradley , this Court held that mere possession of the syringe was insufficient to satisfy the intent element. We rejected the State's argument that Sluder's inconsistent statements, alone, showed consciousness of guilt: "Merely denying ownership of an item without more is insufficient to indicate a consciousness of guilt." Id. at 1182.

[12] Cases in which courts have found sufficient evidence of unlawful intent generally include evidence of prior narcotics convictions; admissions to drug use; the presence of illegal drugs or drug residue on the paraphernalia; track marks on the defendant's arms or hands; or withdrawal symptoms showing recent drug use. E.g. , Perkins v. State , 57 N.E.3d 861, 866 (Ind. Ct. App. 2016) (heroin residue on paraphernalia and defendant's flight immediately after officers discovered paraphernalia); Trigg v. State , 725 N.E.2d 446, 450 (Ind. Ct. App. 2000) (cocaine residue on crack pipe); McConnell v. State , 540 N.E.2d 100, 103-04 (Ind. Ct. App. 1989) (presence of marijuana residue on marijuana pipe); Dabner v. State , 258 Ind. 179, 182, 279 N.E.2d 797, 798-99 (1972) (recent needle marks); Sargent v. State , 153 Ind. App. 430, 436-37, 287 N.E.2d 795, 798-99 (1972) (heroin residue on paraphernalia, recent needle marks, symptoms of withdrawal, admission that he was an addict); Stevens v. State , 257 Ind. 386, 388-89, 275 N.E.2d 12, 13 (1971) (needle marks, admission to past narcotics use); Von Hauger III v. State , 255 Ind. 666, 668, 266 N.E.2d 197, 198 (1971) (prior convictions for narcotics crimes, admission to narcotics use, attempt to hide paraphernalia). Several of these cases discuss flight and/or concealment as factors supporting an inference of intent, but they reaffirm the holding in Bradley that flight or concealment alone is insufficient to establish intent. Perkins , 57 N.E.3d at 865 ; McConnell , 540 N.E.2d at 102.

B. Berkhardt

[13] The State argues that the following evidence constitutes sufficient circumstantial evidence of Berkhardt's intent to use the syringes to inject illegal drugs: absence of evidence of a medical use for the syringes and possession of the syringes in a non-medical setting; evidence that Berkhardt and the woman were hiding from the police; Berkhardt's possession of marijuana; and Berkhardt's use of a false name and identification card.

1. No Medical Use, Non-Medical Setting

[14] With respect to the absence of evidence of a medical use for the syringes, this argument is an inappropriate attempt to shift the burden to Berkhardt to explain his possession of...

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  • Brantley v. State
    • United States
    • Indiana Appellate Court
    • 2 Septiembre 2021
    ...for administering that particular illegal drug is sufficient evidence of the intent element of that crime, Berkhardt v. State , 82 N.E.3d 313, 318 (Ind. Ct. App. 2017) (citing McConnell v. State , 540 N.E.2d 100, 103 (Ind. Ct. App. 1989) ). Intent to introduce a controlled substance into on......
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    • United States
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    ...instrument for administering that particular illegal drug is sufficient evidence of the intent element of that crime, Berkhardt v. State, 82 N.E.3d 313, 318 (Ind.Ct.App. 2017) (citing McConnell v. State, 540 N.E.2d 100, 103 (Ind.Ct.App. 1989)). Intent to introduce a controlled substance int......
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    ...illegal drug is sufficient to establish the intent" to use the instrument to introduce drugs into the body. Berkhardt v. State , 82 N.E.3d 313, 318 (Ind. Ct. App. 2017) (citing McConnell v. State , 540 N.E.2d 100, 103 (Ind. Ct. App. 1989) ); see also Perkins v. State , 57 N.E.3d 861, 866 (I......
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