Bradley v. State, 2--572A3

• Decision Date: 10 October 1972
• Docket Number: No. 2--572A3,2--572A3
• Citation: 33 Ind.Dec. 22,287 N.E.2d 759,153 Ind.App. 421
• Parties: Gerald A. BRADLEY, Appellant (Defendant below), v. STATE of Indiana, Appellee (Plaintiff below).
• Court: Indiana Appellate Court

Page 759

287 N.E.2d 759

153 Ind.App. 421

Gerald A. BRADLEY, Appellant (Defendant below), v. STATE of Indiana, Appellee (Plaintiff below).

No. 2--572A3.

Court of Appeals of Indiana, Second District.

Oct. 10, 1972.

Palmer K. Ward, Indianapolis, for appellant.

Theodore L. Sendak, Atty. Gen., Wesley T. Wilson, Deputy Atty. Gen., for appellee.

BUCHANAN, Presiding Judge.

STATEMENT OF THE CASE AND FACTS--This is an appeal by defendant-appellant, Gerald A. Bradley (Bradley), from a conviction of possession of narcotics- adapted instruments with intent to unlawfully administer narcotic drugs by injection in a human being. Ind.Ann.Stat. § 10--3520 (Burns Supp.1972), IC 1971, 35--24--1--2. We reverse.

On March 16, 1971, at about 3 o'clock in the afternoon, a police officer was patrolling a high burglary neighborhood in Indianapolis when he saw Bradley and another person walking along Fall Creek Parkway. The person with Bradley was carrying a white bag 'with objects in it.' As the officer turned his vehicle around to investigate, Bradley and his companion fled. In the ensuing chase, the officer lost sight of both men. However, he soon observed Bradley, this time alone, and approached him for questioning.

As the officer approached, Bradley threw an object wrapped in white tissue paper to the ground. The officer immediately picked up the object, unwrapped it, and found that it contained an eyedropper with a needle attached. He then searched Bradley, finding in his left coat pocket a bottle cap with burns on the bottom wrapped in yellow tissue paper.

Bradley was indicted by the grand jury for the crime of possession of narcotics adapted instruments with the intent to administer narcotic drugs by way of injection into a human being. This indictment in part reads as such:

'The Grand Jury for the County of Marion in the State of Indiana, upon their oath do present that GERALD A. BRADLEY on or about the 16th day of March, A.D.1971, at and in the County of Marion and in the State of Indiana, did then and there unlawfully and feloniously with intent to unlawfully administer narcotic drugs, possess and have under his control certain instruments, to-wit: a syringe and hypodermic needle, which said instruments were then and there adapted for the use of narcotic drugs by injection in a human being, . . .' (Emphasis supplied.)

During trial, an officer of the Narcotics Division of the Indianapolis Police Department identified the equipment confiscated from Bradley as instruments commonly used to inject narcotics into the human body.

Bradley was found guilty as charged in the indictment and sentenced from one to five years.

ISSUE--Was the evidence sufficient to sustain Bradley's conviction for possession of narcotics adapted instruments with the intent to unlawfully administer narcotics to a human being?

Bradley contends that a conviction for the offense charged cannot stand upon a showing of mere possession of instruments adapted for the injection of narcotics into the human body. There must be other evidence tending to prove the intent to administer narcotics to the human being. Since the State only proved that Bradley possessed these instruments without proving that he intended to administer narcotics to a human being, the conviction cannot stand.

The State argues that the evidence was sufficient to sustain Bradley's conviction as charged because the intent to use the equipment he possessed could be inferred from his attempt to escape from the police officer.

DECISION--It is our opinion that the evidence was insufficient to sustain Bradley's conviction because the State failed to prove the specific intent necessary for conviction, i.e., that Bradley possessed the narcotics adapted instruments with the intent to administer narcotics to a human being.

On appeal, this court will not weigh the evidence nor determine the credibility of witnesses. We will only consider that evidence most favorable to the State together with all logical and reasonable inferences which may be drawn therefrom. Consequently, a conviction will be affirmed if there is substantial evidence of probative value from which the trier of facts could infer that the defendant was guilty beyond a reasonable doubt. Vaughn v. State (Ind.1972), 284 N.E.2d 765; Hash v. State, (Ind.1972), 284 N.E.2d 770.

Under the indictment, and pursuant to Ind.Ann.Stat. § 10-- 3520 (Burns Supp.1972), the State was required to prove each of the following three elements:

1) That Bradley had possession of narcotics equipment, i.e., a syringe and hypodermic needle;

2) That these instruments were adapted for the use of narcotic drugs by injection in a human being; and

3) That Bradley possessed these instruments with the intent to unlawfully administer and use narcotic drugs. Taylor v. State (Ind.1971), 267 N.E.2d 383; Von Hauger v. State (Ind.1971), 266 N.E.2d 197.

It is uncontested that the evidence presented by the State proved the existence of the first two elements. However, Bradley maintains that the State failed to prove the third element, i.e., that he possessed these instruments with the intent to unlawfully administer narcotics to a human being.

A series of recent cases have considered the quantum of evidence necessary to sustain a conviction for possession of narcotics equipment with the intention to unlawfully administer narcotics. In all but one of the following cases sufficient evidence of such specific intent was determined to exist:

Von Hauger v. State, supra, presented the most evidence of specific intent, i.e., flight, abandonment of a package, previous convictions, and admissions of narcotic use. In affirming the conviction, Chief Justice Arterburn recognized these factors as indicative of the specific intent required,

'. . . nor do we think there is any question here that there was evidence of intent from the history of appellant's own activities, which showed previous convictions with reference to the use of narcotic drugs and the statement which he made to a police officer only a month prior to his arrest that he was a narcotics user. When the appellant saw the police he tried to hide the sack, as well as moved towards his running car, all of which is some evidence of a consciousness of guilt.'

The evidence in Eskridge v. State (Ind.1972), 281 N.E.2d 490, was also convincing--flight, abandonment of a package, recognition of Defendant by police as a narcotics user, admissions of narcotics use and puncture marks on Defendant's hands and arms. The Supreme Court affirmed the conviction on the authority of Von Hauger v. State, supra.

Sargent v. State (Ind.App.1972), 287 N.E.2d 795, followed Von Hauger v. State, supra, and Eskridge v. State, supra. The evidence sustaining the Sargent conviction was an attempt to secrete the narcotics instruments at time of arrest, puncture marks on Defendant's arms (one of which was still bleeding), existence of withdrawal symptoms requiring hospitalization, and admission of narcotic addiction.

In Stevens v. State (Ind.1971), 275 N.E.2d 12, the requisite specific intent was satisfactorily demonstrated needle marks and admission of narcotic use.

Even less evidence of specific intent was held sufficient in Dabner v. State (Ind.1972), 279 N.E.2d 797,--flight plus puncture marks. Justice Prentice concluded that:

'In the case at bar, although we may not infer the intent from the possession alone, we believe that it may be fairly inferred from such possession, together with the puncture marks over the veins of the defendant's forearm, evidencing recent injections.' (Emphasis supplied.)

In the descending scale of the amount of evidence of specific intent necessary to convict we finally reach Taylor v. State (Ind.1971), 267 N.E.2d 383. The evidence in this case indicated only that the defendant was in possession of narcotics equipment. demonstrated by needle marks reversed the defendant's conviction stating:

'. . . all the evidence showed was that appellant was in possession of adapted instruments. This is not sufficient to satisfy the statutory requirement.'

The case before us does not fit in the mold of any of the above six cases, but rather falls between Dabner v. State, supra, and Taylor v. State, supra. Like Dabner there is evidence of flight but no evidence of puncture marks. Unlike Taylor there is evidence of flight and concealment in addition to possession.

The inquiry then becomes one of whether possession plus flight accompanied by attempted concealment is sufficient evidence of specific intent to unlawfully administer narcotics by injection in a human being.

It is true that specific intent may be proven by circumstantial evidence if such evidence excludes all reasonable hypotheses of innocence. But, the circumstantial evidence will not be sufficient if it merely tends to arouse suspicion of guilt. Easton v. State (1967), 248 Ind. 338, 228 N.E.2d 6; Tibbs v. State (Ind.1970), 263 N.E.2d 728; Crawford v. State (1968), 251 Ind. 437, 241 N.E.2d 795.

One example of circumstantial evidence is flight from the scene of a crime. While evidence of flight is competent to show a consciousness of guilt, it is for the trier of fact to determine what weight and value should be placed upon such evidence. State v. Torphy (1940), 217 Ind. 383, 28 N.E.2d 70; Banks v. State (Ind.1971), 276 N.E.2d 155. Furthermore, flight alone is insufficient to sustain a conviction; it must be combined with other evidence which establishes beyond a reasonable doubt that the defendant committed the crime with which he is charged. The general rule recognized by most jurisdictions is perhaps best stated in 1 Underhill, Criminal Evidence § 373 at 924:

'It cannot be said that flight or attempted flight before arrest, taken alone, raises a legal presumption of guilt so that an inference of guilt must be drawn therefrom, or that his flight, without regard to the motive which prompted it, is, in law, proof of guilt. At most it is only one...