Felony syringe conviction reversed for lack of evidence

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An Indiana’s man felony syringe conviction has been overturned after the Indiana Court of Appeals determined the evidence was insufficient to prove the man was in possession of the syringe for an unlawful purpose.

While on patrol on the west side of Indianapolis in July 2016, two Indianapolis Metropolitan Police Department officers saw a woman walk to the side of a closed liquor store and begin speaking with a man, later identified as Kory Berkhardt. The officers approached Berkhardt and the woman and asked for identification, but the card Berkhardt provided did not match his appearance, height or weight.

Berkhardt then gave the name listed on the identification card, so the officers arrested him for failure to identify. The officers conducted a search and found a bag containing two syringes and a substance later identified as marijuana in the waistband of Berkhardt’s shorts. No other drugs or controlled substances were found on Berkhardt or the syringes.

Berkhardt was subsequently charged and convicted of Level 6 felony unlawful possession of a syringe and Class B misdemeanor possession of marijuana. However, his sentencing order incorrectly lists his second conviction as a Class A misdemeanor, not a Class B.

Berkhardt appealed in Kory Berkhardt v. State of Indiana, 49A04-1702-CR-369, arguing first that there was insufficient evidence to support his Level 6 felony conviction. Specifically, he argued the state failed to prove he possessed the syringe with intent to violate the Legend Drug Act or commit a controlled substance offense.

A panel of the Indiana Court of Appeals agreed, with Judge John Baker writing Thursday that mere possession of a syringe is not sufficient evidence for the state to meets its burden of proving a criminal intent. Further, Baker rejected the state’s argument that Berkhardt and the woman were planning to complete an illegal transaction as “mere speculation,” as there was no evidence whether the two knew each other previously or why she approached Berkhardt that morning.

Instead, Baker noted that a syringe cannot be used to introduce marijuana into a person’s body, and further noted that there was no way for Berkhardt to know whether he would be arrested for the syringe or marijuana when he provided a fake name.  Even if Berkhardt’s use of a false name is related to his intent, “concealment alone is not enough to demonstrate intent in this type of case,” the judge said.

“In sum, there is no direct or indirect evidence establishing Berkhardt’s intent to use the syringes to inject illegal drugs,” Baker wrote. “No reasonable factfinder could have found Berkhardt guilty beyond a reasonable doubt based on this record. Therefore, the conviction cannot stand.”

In addition to reversing the Level 6 felony conviction, the appellate panel also remanded Berkhardt’s case for the sentencing order to be amended to reflect a Class B, rather than Class A, misdemeanor possession of marijuana conviction.  

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