Lamont Perkins v. State of Indiana

FILED
Jul 26 2016, 8:16 am
CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Joel M. Schumm Gregory F. Zoeller
Indianapolis, Indiana Attorney General of Indiana
Jesse R. Drum
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Lamont Perkins, July 26, 2016
Appellant-Defendant, Court of Appeals Case No.
49A02-1511-CR-1955
v. Appeal from the Marion Superior
Court.
The Honorable Shatrese Flowers,
State of Indiana, Judge.
Appellee-Plaintiff. The Honorable David M. Seiter,
Commissioner.
Cause No. 49G20-1501-F5-483
Sharpnack, Senior Judge
Court of Appeals of Indiana | Opinion 49A02-1511-CR-1955 | July 26, 2016 Page 1 of 11
Statement of the Case
[1] Lamont Perkins appeals from his conviction after a bench trial of possession of
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paraphernalia as a Level 6 felony. We affirm.
Issue
[2] The sole issue presented in this appeal is whether there is sufficient evidence to
convict Perkins of the offense, which we set forth in pertinent part, as enacted in
the statute:
A person who possesses a raw material, an instrument, a device,
or other object that the person intends to use for . . . introducing
into the person’s body a controlled substance . . . commits . . .
[possession of] paraphernalia.
Facts and Procedural History
[3] Perkins was housed in the Duvall Center, which is part of Marion County
Community Corrections. Residents there are searched twice upon returning
from authorized passes; once for items they bring in, and, after that, they are
strip searched.
[4] Perkins’s belongings were searched upon his return from an authorized pass on
January 2, 2015. After Perkins emptied his pockets and placed those contents
and all of his additional items, including extra clothing, on the table, Officer
1
Ind. Code § 35-48-4-8.3 (2014).
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Ronnie Jones conducted the initial search of the items. He found two syringe
needles in a Newport cigarette pack Perkins brought in with him. Officer Jones
showed the syringe needles to Sergeant Frank Gunn, his supervisor, who was in
the control room. The control room separates the entrance and exit
passageways for residents and is enclosed in glass. Upon Jones’s discovery,
Perkins grabbed the clothing he had placed on the table, forced open the
entrance door, exited, and fled down Ludlow Avenue. Once residents enter,
they are prohibited from leaving again without an authorized pass.
[5] Officer Gunn pursued Perkins on foot and also signaled to Marion County
Sheriff’s Deputy L. Todd Eppert, who was nearby in his patrol car, alerting him
that Perkins was running from the facility. Deputy Eppert was assigned to
assist the officers at the Duvall Center. As Perkins ran, he tossed his additional
clothing. Deputy Eppert was the first to catch up to Perkins, who initially did
not stop when ordered to do so, but then gave up because he was out of breath
and could not outrun the patrol car. Officer Gunn, who collected Perkins’s
clothes along the way, caught up to the two. The officers asked Perkins what
he was doing. Perkins replied by saying, “it’s not mine, it’s not mine.” Tr. p.
19.
[6] Perkins was returned to the Duvall Center where he was strip searched. A
bundle of Newport cigarettes was found in his crotch area. When the officers
returned to the control center with Perkins, they retrieved the items left in
Officer Jones’s custody. Upon a more detailed search of those items, a bottle
cap containing residue was discovered in the cigarette pack. The officers field-
Court of Appeals of Indiana | Opinion 49A02-1511-CR-1955 | July 26, 2016 Page 3 of 11
tested the substance contained in the bottle cap for heroin, and the test results
were positive. It is against the rules to have syringe needles or cigarettes, let
alone narcotics, in the Duvall Center.
[7] On January 5, 2015, the State charged Perkins with one count of Level 5 felony
possession of a narcotic drug, one count of Level 5 felony escape, and one
count of Level 6 felony possession of paraphernalia with a prior conviction. At
the conclusion of Perkins’s bench trial, he was found guilty as charged. The
trial court sentenced Perkins to four years on each of the Level 5 felony
convictions, and to one year on the Level 6 felony conviction, to be served
concurrently. Perkins now appeals.
Discussion and Decision
[8] Perkins challenges the sufficiency of the evidence supporting his conviction of
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possession of paraphernalia with a prior conviction. Perkins claims that
because the State was required to prove that he intended to use the syringe
needles to introduce a controlled substance into his body, its failure to offer
evidence of track marks on his arms or evidence of past drug use, renders the
evidence insufficient. Further, he claims that even though heroin residue was
found in the bottle cap inside the cigarette pack, the State failed to introduce
evidence of heroin residue in or on the syringe needles. In addition, he
2
The enhancement due to a prior conviction was established in a separate phase of the trial after the trial
court had found Perkins guilty of possession of paraphernalia. Perkins does not challenge the enhancement.
Court of Appeals of Indiana | Opinion 49A02-1511-CR-1955 | July 26, 2016 Page 4 of 11
highlights what he describes as a lack of evidence that the amount of heroin
found in the bottle cap was sufficient for him to inject into his body. Further,
he claims that the possession of the syringe needles, plus what he describes as
an insufficient amount of heroin in the bottle cap, cannot sustain his conviction
because there is insufficient evidence that there was a “controlled substance . . .
otherwise nearby or available in the locked facility where Perkins was
returning.” Reply Br. p. 5.
[9] When appellate courts review the sufficiency of the evidence to support a
conviction, we neither reweigh the evidence nor assess the credibility of
witnesses. Thang v. State, 10 N.E.3d 1256, 1258 (Ind. 2014). We consider only
the evidence supporting the judgment and any reasonable inferences that can be
drawn from that evidence. Id. We will affirm the conviction if there is
substantial evidence of probative value supporting each element of the offense
such that a reasonable trier of fact could have found the defendant guilty
beyond a reasonable doubt. Id. A conviction may be based upon an inference
if reasonably drawn from the evidence. Drane v. State, 867 N.E.2d 144, 147
(Ind. 2007).
[10] We disagree with Perkins’s argument that the statute requires the amount of the
controlled substance be a usable amount. In Cooper v. State, 171 Ind. App. 350,
363, 357 N.E.2d 260, 267 (1976), we squarely addressed the issue, with respect
to a possession of narcotics conviction, and concluded that because the statute
“makes no mention of an amount of drug necessary to sustain a conviction” it
is reasonable to conclude “that the legislature intended that any identifiable
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amount be sufficient.” Indeed, in Sargent v. State, 153 Ind. App. 430, 436-37,
287 N.E.2d 795, 798-99 (1972), a conviction was upheld where the defendant
had needle marks on his arms, one of which was still bleeding, admitted to prior
narcotics use, was hospitalized post-arrest for withdrawal symptoms, and was
in possession of a needle, eyedropper, and cooker, later analyzed as showing
traces of heroin.
[11] Here, there was evidence that the residue inside the bottle cap field-tested
positive for heroin, and thus, the residue was identifiable. The amount or
usability of the heroin is of no consequence for purposes of the conviction
because it is not an element of the offense as defined by our legislature.
Evidence of possession of even a trace or residue of a controlled substance is
relevant to the issue of the intended use of the paraphernalia, not that the trace
or residue of the controlled substance found was going to be used. Like track
marks, admission of prior drug use or convictions for drug use, possession of
the trace or residue of a controlled substance is indicative of the intended use of
the paraphernalia.
[12] As we held in Bradley v. State, 153 Ind. App. 421, 429, 287 N.E.2d 759, 763
(1972), even if there is evidence of flight, attempted concealment, and
possession of narcotics-adapted equipment, the conviction cannot be sustained
absent evidence of intent. Intent to introduce a controlled substance into one’s
body may be inferred from circumstantial evidence. Sluder v. State, 997 N.E.2d
1178, 1181 (Ind. Ct. App. 2013). Examples of evidence used to establish intent,
albeit not an exclusive list, are possession of an identifiable amount of narcotics,
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an instrument, a device, or other object that the person intends to use for
introduction of a controlled substance in the person’s body, and/or evidence of
or admission to prior drug use.
[13] In Bradley, there was no admission or evidence of prior drug use or possession
of narcotics. Dabner v. State, 258 Ind. 179, 279 N.E.2d 797, 798-99 (1972),
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involved a review of the sufficiency of the evidence under a prior version of the
statute, where the evidence of the defendant’s possession of an eye-dropper, a
needle, and a cooker, along with evidence of puncture marks over the veins of
the defendant’s forearm, was sufficient to sustain the conviction.
[14] In Stevens v. State, 257 Ind. 386, 388-89, 275 N.E.2d 12, 13 (1971), evidence of a
defendant’s possession of a needle, syringe, and cooker, along with the
defendant’s admission of past narcotics use, and expert testimony about the
presence of puncture marks consistent with narcotics use, was sufficient to
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support the defendant’s conviction under a prior version of the statute.
[15] Likewise, in Von Hauger v. State, 255 Ind. 666, 668, 266 N.E.2d 197, 198 (1971),
possession of a syringe, plunger, and needle, along with attempted concealment
3
Dabner was charged with committing an offense on October 1, 1968. The version of the statute in effect at
that time provided as follows: “(c) It shall be unlawful for any person to possess or have under his control,
with intent to violate any provision of this act [§ § 10-3519, 3543] any hypodermic syringe or needle or any
instrument adapted for the use of narcotic drugs by injection in a human being.” (Acts 1961, ch. 90, § 2, p.
169, § 10-3520, Burns’ 1966 Cum. Supp.) (quoted from Moore v. State, 248 Ind. 109, 111-12, 223 N.E.2d 899,
901-02 (1967)).
4
The statute involved in Stevens is the same as set forth in the previous footnote. Stevens included the
additional statutory citation I.C. 1971, 35-24-1-2(c).
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and flight, coupled with evidence of previous convictions involving the use of
narcotic drugs and an admission by the defendant that he was a narcotics user,
was found sufficient to support a conviction under a prior version of the
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statute.
[16] However, in Sluder, evidence of a syringe consisting of a hollow tube with a
plunger and no needle, was insufficient to sustain the conviction without
evidence of intent. 997 N.E.2d at 1182. We looked for evidence in the record
of track marks on the defendant’s arms, past drug use, previous drug
convictions, or the presence of drugs that could circumstantially establish
intent. Id. at 1181. In the absence of that evidence the conviction was reversed.
[17] Other cases decided by this Court have also found intent from circumstantial
evidence. For example in Trigg v. State, 725 N.E.2d 446, 450 (Ind. Ct. App.
2000), a residue-encrusted crack pipe was found where the defendant had been
seated in a vehicle. The defendant had nervously fidgeted in his seat while
acting as though he was trying to hide or retrieve something as the officer
approached the vehicle and asked the defendant to exit. This evidence was
sufficient to support the inference that Trigg possessed the pipe with the intent
to use it to smoke crack.
5
The statute quoted in Von Hauger contains the same language as cited above, but with the additional
statutory citation Acts 1935, ch. 280, s 2., p. 1351; 1961, ch. 90, s 2, p. 169. Von Hauger, 266 N.E.2d at 198.
Court of Appeals of Indiana | Opinion 49A02-1511-CR-1955 | July 26, 2016 Page 8 of 11
[18] In McConnell v. State, 540 N.E.2d 100, 101 (Ind. Ct. App. 1989), a defendant
was arrested and taken into custody. After the defendant emptied his pockets,
police recovered a small, green and silver smoking pipe, which had a screen in
the bowl, and contained a small amount of residue. We held that a police
officer’s testimony that the residue in the pipe appeared to be marijuana was
sufficient evidence from which the jury could infer that the substance was
marijuana and that the defendant intended to use the pipe in connection with
marijuana. Id. at 104 (emphasis added). The dissent would have found the
evidence was sufficient if the State had offered more substantial testimony that
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the residue was in fact marijuana.
[19] This case differs from McConnell in that the controlled substance (heroin) is not
in or on the syringe needles. However, it was found in the bottle cap secreted in
the same container as the syringe needles. That is sufficient to support the
inference that the syringe needles were intended to be used to inject a controlled
substance into the defendant’s body.
[20] Although the evidence of Perkins’s prior drug convictions was not introduced
until the enhancement phase, the evidence of intent was sufficient because he
was found to have possessed narcotics and instruments with which to introduce
a controlled substance into his body. Furthermore, he fled from the Duvall
6
The version of the statute cited in McConnell contained an enhancement for “possession of a raw material,
instrument, device, or other object that he intends to use . . . in connection with marijuana, hash oil, or
hashish.” Ind. Code § 35-48-4-8.3 (1988) (As added by Acts 1980, P.L. 115, SEC. 2).
Court of Appeals of Indiana | Opinion 49A02-1511-CR-1955 | July 26, 2016 Page 9 of 11
Center and his first response to the officers was that “it’s not mine.” Tr. p. 19.
Such a response and flight are some evidence of his consciousness of guilt.
Case law has established that the element of intent may be proved by evidence
of possession of narcotics and/or evidence of prior narcotics use or convictions.
Evidence of prior use by way of needle track marks, instances of prior use, prior
convictions for use, or admissions of prior use is relevant to prove intent, but
not required to prove intent where there is other evidence, as here, to prove
intent.
[21] We are likewise unpersuaded by Perkins’s argument about the cleanliness of the
syringe needles. In Cooper, the police officer, who was working as a security
guard and parking attendant, arrested Cooper after seeing him enter a car the
officer had previously parked for a patron of the restaurant. After Cooper was
arrested, the officer walked to the car Cooper had parked and observed a small
package with a needle sticking out of it lying on the driver’s seat where Cooper
had previously sat. The package contained a bottle cap with burn marks on the
bottom later found to contain heroin, a syringe with a needle attached, and
three needle covers. There was no evidence that the syringes contained heroin,
only that the bottle cap contained heroin. Each of the items was contained in
the package. This evidence was sufficient to support the conviction.
[22] Although the issue of specific intent in Cooper was sustained by the presence of
needle marks on the defendant’s arm and an admission of narcotics use and
convictions for narcotics use, it is factually similar to this case. The narcotics
and the syringes/syringe needles were located together and there was no
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evidence that the syringes contained heroin. Such evidence need not be
presented, however, because the statute requires only an intent to use the
syringe needles to introduce narcotics into the person’s body, not actual use of
the narcotics and injection equipment.
[23] Finally, Perkins argues that there was not enough heroin to use in the cap and
no likelihood that heroin would be available in the Duvall Center. However,
the statute does not require that the intended use be immediate or within any
set time frame.
Conclusion
[24] In light of the foregoing, we affirm Perkins’s conviction of possession of
paraphernalia.
[25] Affirmed.
Crone, J., and Pyle, J., concur.
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