Baker, J.
Kory Berkhardt appeals his convictions for Level 6 Felony Unlawful Possession of a Syringe and Class B Misdemeanor Possession of Marijuana. …
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. … 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.” The officers found no other drugs on Berkhardt.
… 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. …
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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.
This Court has not had occasion to interpret the intent element of this statute in a way that is relevant to this case. There is, however, a relevant, decades-long line of cases interpreting the intent element of the offenses of possession of narcotics equipment and possession of paraphernalia.
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) … 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. … 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. …
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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). … 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. … We rejected the State’s argument that Sluder’s inconsistent statements, alone, showed consciousness of guilt: …
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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.
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. …
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. … The record, however, belies the State’s contention. … 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.
And the State’s assertion that Berkhardt and the woman were planning to “complete some illegal transaction” is mere speculation. … 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.
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. … 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.
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.”
Here, Berkhardt gave the officers the false name as soon as they approached him, before there was any suspicion of a drug-related crime. …
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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 …
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. ….
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.