Tony Sluder v. State of Indiana , 2013 Ind. App. LEXIS 581 ( 2013 )

FOR PUBLICATION
Nov 20 2013, 10:08 am
ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
ALAN L. WHITTED GREGORY F. ZOELLER
Whitted Law, LLC Attorney General of Indiana
Columbus, Indiana
JAMES B. MARTIN
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
TONY SLUDER, )
)
Appellant-Defendant, )
)
vs. ) No. 03A01-1305-CR-208
)
STATE OF INDIANA, )
)
Appellee-Plaintiff. )
APPEAL FROM THE BARTHOLOMEW SUPERIOR COURT
The Honorable Kathleen T. Coriden, Judge
Cause No. 03D02-1208-CM-4417
November 20, 2013
OPINION - FOR PUBLICATION
VAIDIK, Judge
Case Summary
Columbus Police Department Officer Troy Love stopped Tony Sluder after
discovering Sluder had an outstanding arrest warrant. Officer Love searched Sluder but
did not find anything. When Officer Angela Owens arrived to transport Sluder to the
Bartholomew County Jail, she again searched Sluder, finding a syringe in the back pocket
of his jeans. Sluder had a bench trial and was convicted of Class A misdemeanor
possession of paraphernalia. Sluder appeals his conviction, arguing that the evidence was
insufficient to establish that he intended to use the syringe to introduce a controlled
substance into his body. Finding that no evidence of intent existed, we reverse.
Facts and Procedural History
Officer Love was on a bicycle patrolling the area of Fourteenth and Lafayette
Streets in Columbus in August 2012. While on patrol, he recognized Sluder riding past
him on a scooter. Officer Love called the station to see if Sluder had any outstanding arrest
warrants, and the station confirmed that he did. Officer Love then turned around and found
Sluder stopped at 1334 Lafayette Street. Officer Love informed Sluder that there was a
warrant out for his arrest, arrested him, and searched him. When Officer Love searched
Sluder, he did not find anything. Officer Love then called for a police car to transport
Sluder to the jail.
Officer Owens arrived in her police car to transport Sluder. Although Officer Love
had already searched Sluder, Officer Owens searched Sluder again because she always
performs a search before placing someone in her car. Tr. p. 11. This time, Officer Owens
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found a syringe in the bottom of his rear pocket. She does not recall whether the syringe
actually had a needle on it. Id. at 13. No drugs were found on Sluder.
At the time of his arrest, Sluder claimed that the syringe was not his. According to
his sister, Tammy Sluder, the syringe Officer Owens found was actually a medicine
dropper the hospital gave her to feed her premature baby. Last summer, Tammy gave her
small dropper to Sluder because he wanted to use the dropper to feed puppies after their
mother was hit and killed by a car. Tammy also stated that she had only one dropper of
the same size, which was admitted into evidence for demonstrative purposes as
Defendant’s Exhibit A, and she remembered giving the small dropper to Sluder because a
bigger dropper “would be too much to give the dog.”1 Id. at 18. According to Sluder, the
syringe was in his pocket because he had fed the puppies earlier that day. Tammy’s dropper
did not have a needle. Instead, it was a hollow tube with a plunger.2 Id. at 26; Def.’s Ex.
A.
Sluder claims that he never used the syringe to ingest any kind of controlled
substances because, “I don’t see how you could.” Id. at 27. He also claimed that he did
not use it for any illegal purpose.
Officer Owens took Sluder to the Bartholomew County Jail and confiscated the
syringe. After transporting Sluder to jail, she placed it in a sharps container at the
1
Tammy did not explain how the dropper admitted into evidence for demonstrative purposes could
be the same item taken from Sluder if she only had one dropper of that size. On cross-examination she
stated that, “I don’t know what [the police] took from him. I know I gave him one identical to that.” Tr. p.
21.
2
The dropper admitted into evidence is contained in the record on appeal.
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Columbus Police Department, which was the standard practice for confiscated syringes.3
Although Columbus police officers usually take pictures of confiscated syringes before
destroying them, no photograph of Sluder’s syringe was taken.
The State charged Sluder with Class A misdemeanor possession of paraphernalia. 4
Appellee’s App. p. 1. A bench trial was held. Following the trial, the trial court stated that
it did not find Sluder’s testimony or his sister’s testimony credible. Tr. p. 33. For this
reason, the trial court found Sluder guilty of Class A misdemeanor possession of
paraphernalia. Id. Based on a sentencing agreement between the State and Sluder, the trial
court sentenced Sluder to one year in the Bartholomew County Jail, all suspended to
probation. Id. at 35-36.
Sluder now appeals.
Discussion and Decision
Sluder contends that that the evidence is insufficient to support his conviction for
Class A misdemeanor possession of paraphernalia. When reviewing the sufficiency of the
evidence, we neither reweigh the evidence nor determine the credibility of witnesses.
Bailey v. State, 979 N.E.2d 133, 135 (Ind. 2012). We look solely to the evidence most
favorable to the judgment together with all reasonable inferences to be drawn therefrom.
3
On redirect examination, Officer Owens stated that there would have been no reason to dispose
of the syringe in the sharps container if the syringe did not have a needle, but that needleless syringes would
be placed in the sharps container for safety concerns. Tr. p. 14.
4
We note that Sluder’s counsel did not file an Appendix. See Ind. Appellate Rule 49(A) (“The
appellant shall file its Appendix with its appellant’s brief.”). We also direct counsel to Indiana Appellate
Rule 50(B), which states that the Appellant’s Appendix shall contain “(a) the Clerk’s Record, including the
chronological case summary.” Ind. Appellate Rule 50(B). The Clerk’s Record “shall consist of the
Chronological Case Summary (CCS) and all papers, pleadings, documents, orders, judgments, and other
materials filed in the trial court . . . .” Ind. Appellate Rule 2(D). Instead of relying on the charging
information, we must rely on the chronological case summary submitted by the State.
4
Id. A conviction will be affirmed if the probative evidence and reasonable inferences to
be drawn from the evidence could have allowed a reasonable trier of fact to find the
defendant guilty beyond a reasonable doubt. Id.As charged here, Class A misdemeanor possession of paraphernalia is knowingly or
intentionally possessing a raw material, instrument, device, or other object with the intent
to introduce a controlled substance into one’s body. Ind. Code § 35-48-4-8.3(a)(1), (b);
Appellee’s App. p. 1. Sluder argues that the State did not prove that the object seized was
intended to introduce a controlled substance into his body.5 Appellant’s Br. p. 3.
The intent to introduce a controlled substance into one’s body may be inferred from
circumstantial evidence. See Dabner v. State, 279 N.E.2d 797, 798-99 (Ind. 1972)
(puncture marks over the veins of the defendant’s forearm, evidencing recent injections,
are sufficient to establish intent); Stevens v. State, 275 N.E.2d 12, 13 (Ind. 1971)
(admission to past drug use coupled with needle marks on defendant’s arms sufficient to
establish intent); Von Hauger v. State, 266 N.E.2d 197, 198 (Ind. 1971) (previous
convictions of drug use sufficient to establish intent); Trigg v. State, 725 N.E.2d 446, 450
(Ind. Ct. App. 2000) (residue-encrusted crack pipe found where defendant was sitting was
sufficient to establish intent to use the pipe to smoke crack); McConnell v. State, 540
N.E.2d 100, 103-04 (Ind. Ct. App. 1989) (expert testimony that paraphernalia contained
drug residue sufficient to establish intent). However, evidence of flight and attempted
5
Sluder also contends that the evidence is insufficient because the object seized was incapable of
introducing a controlled substance into the body. Appellant’s Br. p. 3. The evidence most favorable to the
judgment suggests that the object seized was a syringe. Moreover, there is no requirement in the statute
requiring the seized paraphernalia to be capable of introducing a controlled substance into the body. See
Ind. Code § 35-48-4-8.3(a).
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concealment, without more, is not sufficient to prove the intent element of the statute.
Bradley v. State, 287 N.E.2d 759, 763 (Ind. Ct. App. 1972).
Our Supreme Court has also held that the mere possession of paraphernalia when a
statute requires intent is not sufficient to establish that crime without additional evidence
of intent. For example, in Taylor v. State, the Supreme Court held that no intent existed
when the defendant possessed a hypodermic needle, an eye-dropper covered with an
unknown sticky substance, a bottle cap that had been burned on the bottom, and an empty
Excedrin bottle because “there was no evidence of flight or any other behavior indicating
consciousness of guilt.” 267 N.E.2d 383, 385 (Ind. 1971). In that opinion, the Supreme
Court commented on the intent element of an earlier version of the statute6 stating that
To permit such a conviction [without proving intent] 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.
Id.In this case, the State presented no evidence that Sluder intended to use the syringe
to inject a controlled substance into his body. There was no evidence of track marks on
Sluder’s arms, past drug use, previous drug convictions, or the presence of drugs that would
circumstantially establish his intent to use drugs. While the State is correct that this is not
an exclusive list of the type of evidence necessary to establish intent, the State has not
6
The statute discussed in Taylor, Indiana Code section 35-24-1-2 (1971), was repealed in 1976.
P.L. 148-1976, Sec. 24. An earlier version of the statute under which Sluder was charged was added to the
Indiana Code in the same Act. See P.L. No. 148-1976, Sec. 8.
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pointed to any other evidence in the record that circumstantially establishes Sluder’s intent
to use the syringe to introduce a controlled substance into his body.
The State argues in its brief that Sluder exhibited behavior indicating a
consciousness of guilt because he denied that the syringe was his but testified to a different
story at trial and allegedly hid the syringe. Merely denying ownership of an item without
more is insufficient to indicate a consciousness of guilt.7 Second, there is no evidence that
Sluder hid the syringe when he was arrested. According to Officer Love, Sluder was given
a pat down when he was taken into custody. When Officer Owens arrived to transport
Sluder to jail, she again searched Sluder. It was not until the second search that Officer
Owens found Sluder’s syringe in the back pocket of his jeans. Tr. p. 15. The mere fact
that the syringe was not found until the second search is not evidence that Sluder hid the
syringe. The evidence was insufficient to establish that Sluder intended to use the syringe
to introduce a controlled substance into his body.
Reversed.
BAKER, J., and FRIEDLANDER, J., concur.
7
The State argues that this Court should find that the evidence of Sluder’s intent to use the syringe
to introduce a controlled substance into the body existed because the trial court found Tammy’s testimony
not credible and it would be a “disregard of Defendant’s repeated denials of what the item that the officers
seized was.” Appellee’s Br. p. 8. However, doing so would impermissibly shift the burden of disproving
intent from the State to Sluder.
7