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
Kory Berkhardt appeals his convictions for Level 6 Felony
Unlawful Possession of a Syringe and Class B Misdemeanor
Possession of Marijuana. 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
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.
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.
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.
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.
Sufficiency of the Evidence
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).
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. 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 ...