COA: Participating in needle exchange doesn’t excuse drug activity

A Lawrence County man who argued he had “legal authority” to possess two syringes under the county’s needle exchange program has lost his appeal of his possession of paraphernalia conviction, with the Indiana Court of Appeals rejecting the notion that needle exchanges excuse illegal drug activity. However, the court overturned another of the man’s drug convictions for lack of evidence.

In Jerold W. Leatherman v. State of Indiana, 47A04-1711-CR-2711, two Bedford Police Department officers were patrolling a neighborhood in Mitchell when Jerold Leatherman opened the door of his van and nearly hit the unmarked patrol car. Pursuant to safety protocol, both officers exited their vehicle and approached Leatherman, who they saw hand a small bag to Heather Ditton, his passenger.

Sergeant Justin Dodd then saw Ditton shove the bag down her pants, so he escorted her from the van and removed the bag, which contained a substance later identified as methamphetamine. Detective Chris Roberts then conducted a patdown search on Leatherman and found two syringes in his pockets that he received from the county’s needle exchange program. Subsequent searches of the vehicles uncovered additional syringes in the van.

Leatherman was subsequently charged with Level 6 felony maintaining a common nuisance and Class C misdemeanor possession of paraphernalia, among other drug charges, and was alleged to be a habitual offender. After he was found guilty as charged, Leatherman appealed his Level 6 felony and Class C misdemeanor convictions, arguing they were not supported by sufficient evidence.

The Indiana Court of Appeals partially agreed on Wednesday, with Judge L. Mark Bailey writing the state “failed to provide evidence that the vehicle Leatherman drove had been used on multiple occasions for the delivery of a controlled substance.” Without that evidence, Leatherman’s conviction of maintaining a common nuisance cannot stand, Bailey wrote.

But the state did present evidence that Leatherman possessed meth and delivered it to Ditton, and that he was found in possession of two syringes, which is sufficient to support the possession of paraphernalia charge, Bailey said. Though Leatherman argued the needle exchange program gave him “legal authority” to possess the syringes, the appellate panel said the needle exchange statute does not carve out “immunity” from possession of paraphernalia charges.

“Rather, it is apparent that (Indiana Code) Section 16-41-7.5-9 protects the means by which individuals in counties with certain disease epidemics obtain hypodermic syringes,” Bailey wrote. “It does so by prohibiting mere possession of a needle obtained through the program or attendance at the program as bases for arrest or prosecution. Nothing in the language of the statute purports to condone unlawful conduct that transpires after an individual has obtained a needle from the exchange program.”