Kory Berkhardt v. State of Indiana , 82 N.E.3d 313 ( 2017 )

FILED
Aug 10 2017, 8:31 am
CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Megan Shipley Curtis T. Hill, Jr.
Marion County Public Defender Agency Attorney General of Indiana
Indianapolis, Indiana Michael Gene Worden
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Kory Berkhardt, August 10, 2017
Appellant-Defendant, Court of Appeals Case No.
49A04-1702-CR-369
v. Appeal from the Marion Superior
Court
State of Indiana, The Honorable Ronnie Huerta,
Appellee-Plaintiff Commissioner
Trial Court Cause No.
49G09-1607-F6-29576
Baker, Judge.
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[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,
1
Ind. Code § 16-42-19-18.
2
Ind. Code § 35-48-4-11.
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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
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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
3
Both the Legend Drug Act and controlled substance statutes criminalize dealing and manufacture of illegal
drugs in addition to mere possession. I.C. §§ 16-42-19-1 to -30; Ind. Code §§ 35-48-4-1 to -17. Therefore, the
State could satisfy the intent element by showing that a defendant possessed a syringe with the intent to deal
or manufacture illegal drugs. Here, however, the State charged and argued only that Berkhardt possessed the
syringes with the intent to inject illegal drugs.
4
Before 2015, the statute prohibited possession of a syringe only with intent to violate the Legend Drug Act;
the statute did not include the current subsection that addresses intent to commit a controlled substance
offense. I.C. § 16-42-19-18 (2014). This Court’s previous cases address defendants who admitted that they
intended to inject drugs that were not legend drugs, and we reversed those convictions as a result. See Smart
v. State, 40 N.E.3d 963 (Ind. Ct. App. 2015) (defendant admitted intent to inject methamphetamine);
Bookwalter v. State, 22 N.E.3d 735 (Ind. Ct. App. 2014) (defendant admitted intent to inject heroin). The
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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
legislature amended the statute in 2015 to add the subsection addressing intent to commit a controlled
substance offense.
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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.
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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 (Ind. 1972) (recent
needle marks); Sargent v. State, 153 Ind. App. 430, 436-37, 287 N.E.2d 795, 798-
99 (Ind. Ct. App. 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 (Ind. 1971) (needle marks, admission to
past narcotics use); Von Hauger III v. State, 255 Ind. 666, 668, 266 N.E.2d 197,
198 (Ind. 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.
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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 the syringes. Instead, the statute requires the State to prove his
intent beyond a reasonable doubt. We have long rejected the argument that the
intent element can be inferred from unexplained possession of a syringe. As
noted above, mere possession of the syringes (whether or not there is a medical
use, and whether or not it is in a medical setting) is insufficient evidence for the
State to meet its burden. This evidence does not support the conviction.
2. Concealment From Police
[15] The State next contends that it can be inferred that Berkhardt and the woman
were concealing themselves from the police on the side of the liquor store. See
Willis v. State, 27 N.E.3d 1065, 1067 (Ind. 2015) (attempting to hide from law
enforcement to avoid arrest can be circumstantial evidence of guilt). The
record, however, belies the State’s contention. The officers pulled into the
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liquor store parking lot because they saw a woman walk to the side of the
closed store at 11:00 a.m. on a Sunday morning. When the officers got there,
Berkhardt was already sitting on the pavement between two air conditioning
units. He did not move when the police approached. It cannot be reasonably
inferred from this evidence that Berkhardt was attempting to conceal himself
from the police.
[16] And the State’s assertion that Berkhardt and the woman were planning to
“complete some illegal transaction” is mere speculation. Appellee’s Br. p. 11.
There was no evidence that the woman made any incriminating statements,
that she possessed anything illegal, or that either Berkhardt or the woman made
furtive movements when the police approached. There was evidence that the
woman had an open warrant, but no evidence of what the warrant was for, or
that Berkhardt knew about the warrant. There was no evidence regarding
whether Berkhardt and the woman knew each other previously. There was also
no evidence as to the reason she approached him that morning or the reason he
was sitting in the parking lot. We find that inferring from these circumstances
that Berkhardt and the woman must have been conducting an illegal transaction
is not reasonable. This evidence does not support the conviction.
3. Possession of Marijuana
[17] With respect to Berkhardt’s possession of marijuana, this Court has held that
the simultaneous possession of an illegal drug and an instrument for
administering that particular illegal drug is sufficient to establish intent. E.g.,
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McConnell, 540 N.E.2d at 103. Here, however, the record establishes that a
syringe cannot be used to introduce marijuana into the body; instead, an officer
testified that syringes are used to inject drugs such as heroin, cocaine, and
methamphetamine into the body. Tr. p. 72. Therefore, cases such as McConnell
are not relevant to our analysis here.
[18] Generally, intent may be inferred “from the actor’s conduct and the natural and
usual sequence to which such conduct usually points.” McElfresh, 51 N.E.3d
103, 109 (Ind. 2016). The natural and usual sequence to which possession of a
small amount of marijuana usually points is the intent to use marijuana—not
the intent to inject or possess some other kind of illegal drug. We cannot
conclude that Berkhardt’s possession of marijuana satisfies the intent element of
the unlawful syringe charge.
4. False Name and Identification Card
[19] Next, the State argues that Berkhardt’s use of a false name and identification
card constituted circumstantial evidence of his intent. This Court has held that
using a false name is analogous to flight and that it may be considered
circumstantial evidence of consciousness of guilt. Cantrell v. State, 673 N.E.2d
816, 816-17 (Ind. Ct. App. 1996). But evidence of flight “has no probative force
unless it satisfactorily appears that the accused fled to avoid arrest . . . for the
crime charged.” Id. at 818. The Cantrell Court held that, “in analyzing
evidence of flight, this court must look at the totality of the circumstances
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including the method of flight employed and how it relates to the crime.” Id. at
819.
[20] Here, Berkhardt gave the officers the false name as soon as they approached
him, before there was any suspicion of a drug-related crime. As one of the
officers testified, Berkhardt’s motive for using a false name would seem to be
avoiding arrest on an open warrant or preventing the police from learning his
real identity rather than avoiding arrest for unlawful possession of a syringe.
He did not know he was going to be searched at the time he provided the false
name, and the syringes were not discovered until well after he used the false
name.
[21] Moreover, to the extent his provision of a false name could constitute a method
of concealment or flight, Berkhardt possessed marijuana in addition to the
syringes at the time. If he was, indeed, attempting to avoid arrest on a drug
charge by providing a false name, there is no way to know whether he was
avoiding arrest based on his possession of marijuana or based on his possession
of the syringes. The State could not meet its beyond a reasonable doubt burden
based on this evidence.
[22] Furthermore, even if the use of the false name is remotely relevant to
Berkhardt’s intent, this Court has held for decades that flight or concealment
alone is not enough to demonstrate intent in this type of case. E.g., Perkins, 57
N.E.3d at 865 (citing Bradley, 153 Ind. App. at 429, and holding that “even if
there is evidence of flight, attempted concealment, and possession of narcotics-
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related equipment, the conviction cannot be sustained absent evidence of
intent”). Here, there was no drug or drug residue on the syringes, no evidence
of prior drug-related convictions, and no evidence of current or past drug use.
Therefore, even if we accepted for argument’s sake that Berkhardt’s provision of
a false name to the police officers was relevant to his intent, it would not be
enough.
[23] In sum, there is no direct or indirect evidence establishing Berkhardt’s intent to
use the syringes to inject illegal drugs. No reasonable factfinder could have
found Berkhardt guilty beyond a reasonable doubt based on this record.
Therefore, the conviction cannot stand. We reverse.
II. Misdemeanor Conviction
[24] Finally, Berkhardt was convicted of Class B misdemeanor possession of
marijuana but the sentencing order states that he was convicted of Class A
misdemeanor possession of marijuana. The State concedes that this is
erroneous. We remand to the trial court to correct the sentencing order.
[25] The judgment of the trial court is reversed with respect to the Level 6 felony
conviction and remanded with instructions to correct the sentencing order with
respect to the Class B misdemeanor conviction.
Bailey, J., and Altice, J., concur.
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