Harrison v. State, 4-484A91

• Docket Nº: No. 4-484A91
• Citation: 469 N.E.2d 22
• Case Date: October 02, 1984
• Court: Court of Appeals of Indiana

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469 N.E.2d 22 Billy HARRISON, Appellant (Defendant Below),
v.
STATE of Indiana, Appellee (Plaintiff Below). No. 4-484A91. Court of Appeals of Indiana,
Fourth District. Oct. 2, 1984.

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Daniel L. Weber, Terre Haute, for appellant.

Linley E. Pearson, Atty. Gen., Jay Rodia, Deputy Atty. Gen., Indianapolis, for appellee.

MILLER, Presiding Judge.

Billy Harrison is appealing a ninety-day penalty imposed upon him for a conviction based on possession of drug paraphernalia, a Class A misdemeanor (IND.CODE 35-48-4-8.3). He contends the State failed to provide sufficient evidence that the objects retrieved during a search of his apartment--a pipe, cigarette papers, two scales--were intended to be used for "enhancing the effect of a controlled substance." IC 35-48-4-8.3(a)(3). We agree and reverse the jury verdict based thereon.

FACTS

On April 20, 1982, the Terre Haute Police Department served a search warrant on Apartment # 8, 1790 Maiden Lane Apartments. While a number of persons were present in the apartment besides Harrison, evidence indicated he was frequently at that address and made the rental payments for that particular apartment. Police found about 600 grams of marijuana throughout the residence and several items which led to the charge against Harrison that he

"did then and there knowingly possess instruments, to wit: two pipes containing marijuana residue, two sets of scales, and two packages of cigarette papers used for rolling marijuana cigarettes, that he intended for use for enhancing the effect of marijuana, in violation of I.C. 35-48-4-8.3, I.C. 35-48-2-4(d)(13)."

Record, p. 16 (Emphasis added). He was also charged with possession of marijuana, Class D felony (IND.CODE 35-48-4-11) (1982) (amended 1983 Ind. Acts, P.L. 138 Sec. 5) and maintaining a common nuisance, Class D felony (IND.CODE 35-48-4-13(b)). The jury found Harrison guilty of possession of marijuana and possession of paraphernalia but not guilty of maintaining a common nuisance. He was sentenced to two years and to ninety days respectively, both sentences to run concurrently. Harrison

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appeals only his conviction on the charge of possessing paraphernalia. ¹

The record positively reveals the following items were found in Harrison's apartment and were introduced into evidence: a small pipe with "residue" in it (Record, p. 132), two sets of scales (Record, pp. 134, 137), and cigarette wrapping papers (Record, p. 156). (Other items may indeed have been introduced into evidence, but we do not have the exhibits before us and the record is otherwise silent as to the identity of these other exhibits.) The foregoing is the sum total of the State's case regarding the paraphernalia charge against Harrison. For instance, there was no attempt to identify the residue in the pipe, nor was there any testimony as to how the subject items would enhance the effect of marijuana. At the end of the State's case, Harrison moved for a directed verdict of not guilty on the paraphernalia count for insufficiency of the evidence. After such motion was denied, Harrison presented his own case wherein he attempted to establish control of Apartment # 8 in another individual then rested. His motion to correct errors contends the denial of his motion for directed verdict was incorrect.

DECISION

Ordinarily, a criminal defendant waives his right to attack the denial of his motion for directed verdict when he proceeds to present evidence on his own behalf. E.g., Sanders v. State, (1981) Ind., 428 N.E.2d 23. Such is the posture of Harrison's case as he has presented his issue before us and in his motion to correct error before the trial court. However, his actual argument attacks not the motion for directed verdict but rather attacks the sufficiency of the evidence to support the jury's verdict. Indiana law clearly allows a criminal defendant to raise the sufficiency issue for the first time on appeal. Ind.Rules of Procedure, Trial Rule 50(A)(5); Collins v. State, (1977) 266 Ind. 430, 364 N.E.2d 750; Tilton v. State, (1981) Ind.App., 416 N.E.2d 870. Thus, we may proceed to the actual question of whether the jury's verdict rested upon sufficient evidence.

Our standard of review is time worn but ever constant. We review only that evidence most favorable to the verdict along with all the reasonable inferences to be drawn therefrom. It is not our province to gainsay the jury's assessment of witnesses' credibility nor its weighing of the evidence. If there is substantial evidence of probative value to support the jury's decision, we must affirm the judgment. Collins v. State, supra. In the instant case, we find the state's case upon the paraphernalia charge falls far short of the substantiality clearly required by our standard of review.

The statute under which Harrison was brought to trial creates the following offense:

"(a) A person who possesses a raw material, instrument, device, or other object that he intends to use for:

(1) introducing into his body a controlled substance;

(2) testing the strength, effectiveness, or purity of a controlled substance; or

(3) enhancing the effect of a controlled substance;

in violation of this chapter commits possession of paraphernalia, a Class D felony.

(b) However, the offense is a Class A misdemeanor if the person:

(1) intends to use the raw material, instrument device, or other object in connection with marijuana, hash oil, or hashish; and

(2) has not had a prior conviction of an offense involving marijuana, hash oil, or hashish."

IC 35-48-4-8.3. The italicized portion is the substance of the specific charge against Harrison. Pared to its basic elements, the State had to prove (1) Harrison

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possessed the pipe et al.; (2) they were adapted for enhancing the effect of a controlled substance; and (3) Harrison intended to so use them. See Bradley v. State, (1972) 153 Ind.App. 421, 287 N.E.2d 759 (predecessor...