                                                                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
                                                   1
      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).


      Court of Appeals of Indiana | Opinion 49A02-1511-CR-1955 | July 26, 2016          Page 2 of 11
      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
                                                                            2
      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

       Court of Appeals of Indiana | Opinion 49A02-1511-CR-1955 | July 26, 2016   Page 5 of 11
       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,

       Court of Appeals of Indiana | Opinion 49A02-1511-CR-1955 | July 26, 2016     Page 6 of 11
       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),
                                                                                                                3
       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
                                                                                                          4
       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).

       Court of Appeals of Indiana | Opinion 49A02-1511-CR-1955 | July 26, 2016                               Page 7 of 11
       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
                  5
       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
                                                  6
       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

       Court of Appeals of Indiana | Opinion 49A02-1511-CR-1955 | July 26, 2016   Page 10 of 11
       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.




       Court of Appeals of Indiana | Opinion 49A02-1511-CR-1955 | July 26, 2016   Page 11 of 11
