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Berkhardt v. State

Court of Appeals of Indiana

August 10, 2017

Kory Berkhardt, Appellant-Defendant,
v.
State of Indiana, Appellee-Plaintiff

         Appeal from the Marion Superior Court The Honorable Ronnie Huerta, Commissioner Trial Court Cause No. 49G09-1607-F6-29576

          ATTORNEY FOR APPELLANT Megan Shipley Marion County Public Defender Agency Indianapolis, Indiana

          ATTORNEYS FOR APPELLEE Curtis T. Hill, Jr. Attorney General of Indiana Michael Gene Worden Deputy Attorney General Indianapolis, Indiana

          Baker, Judge.

         [¶1] Kory Berkhardt appeals his convictions for Level 6 Felony Unlawful Possession of a Syringe[1] 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, 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 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. ยง 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 ...


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