                                                                     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.




Court of Appeals of Indiana | Opinion 49A04-1702-CR-369 | August 10, 2017                Page 1 of 12
[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.


      Court of Appeals of Indiana | Opinion 49A04-1702-CR-369 | August 10, 2017   Page 2 of 12
      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
      Court of Appeals of Indiana | Opinion 49A04-1702-CR-369 | August 10, 2017   Page 3 of 12
      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

      Court of Appeals of Indiana | Opinion 49A04-1702-CR-369 | August 10, 2017                         Page 4 of 12
      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.

      Court of Appeals of Indiana | Opinion 49A04-1702-CR-369 | August 10, 2017                        Page 5 of 12
               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.

       Court of Appeals of Indiana | Opinion 49A04-1702-CR-369 | August 10, 2017   Page 6 of 12
       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.

       Court of Appeals of Indiana | Opinion 49A04-1702-CR-369 | August 10, 2017   Page 7 of 12
                                                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

       Court of Appeals of Indiana | Opinion 49A04-1702-CR-369 | August 10, 2017   Page 8 of 12
       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.,


       Court of Appeals of Indiana | Opinion 49A04-1702-CR-369 | August 10, 2017   Page 9 of 12
       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




       Court of Appeals of Indiana | Opinion 49A04-1702-CR-369 | August 10, 2017    Page 10 of 12
       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-


       Court of Appeals of Indiana | Opinion 49A04-1702-CR-369 | August 10, 2017   Page 11 of 12
       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.




       Court of Appeals of Indiana | Opinion 49A04-1702-CR-369 | August 10, 2017   Page 12 of 12
