Harrison v. State
| Decision Date | 02 October 1984 |
| Docket Number | No. 4-484A91,4-484A91 |
| Citation | 469 N.E.2d 22 |
| Parties | Billy HARRISON, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below). |
| Court | Indiana Appellate Court |
Daniel L. Weber, Terre Haute, for appellant.
Linley E. Pearson, Atty. Gen., Jay Rodia, Deputy Atty. Gen., Indianapolis, for appellee.
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.
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 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.
appeals only his conviction on the charge of possessing paraphernalia. 1
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 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 ().
At the outset, we feel the State, by introducing the pipe and papers into evidence, had the beginnings of a charge under section (a)(1)--possession of paraphernalia used to introduce a controlled substance into the body. (There is no suggestion in the State's appellate brief that evidence supported a finding the scales in any way enhanced the marijuana.) But here, the State elected to charge that the paraphernalia was intended to be used to enhance the effect of the marijuana under section (a)(3). Here, the State failed in its proof that the seized evidence was adapted for the enhancement of controlled substances.
"Enhance," as ordinarily defined pursuant to Indiana's rules of statutory construction (see IND.CODE 1-1-4-1(1)), 2 means to "advance, augment, elevate, heighten, increase." WEBSTER'S THIRD NEW INTERNATIONAL DICTIONARY 753 (1976). 3 As the term is used by our appellate courts, "enhance" has just such connotations. When we address the "enhancement" of criminal sentences, we are obviously referring to an increase in penalty. For example, our supreme court refers to the "discretion to enhance" a sentence synonymously with the "discretionary power to increase" a sentence in Lang v. State, (1984) Ind., 461 N.E.2d 1110. See Kalady v. State, (1984) Ind., 462 N.E.2d 1299; Gajdos v. State, (1984) Ind., 462 N.E.2d 1017. We believe, therefore, that in section (a)(3), the legislature intended to proscribe items which would be used to increase, or augment, the effect of controlled substances on the human body.
Our definition is given credence by cases from other jurisdictions where the courts, in describing evidence regarding drugs, use "enhance" to describe an increase. For instance, the Illinois Court of Appeals described an expert's testimony in the following terms: "It was his opinion that the drug percodan should not be given to a patient being treated with heparin because it would enhance the anticoagulent effect of heparin." Ziegert v. South Chicago Community Hospital, (1981) 99 Ill.App.3d 83, 54 Ill.Dec. 585, 591, 425 N.E.2d 450, 456. The Oklahoma Court of Criminal Appeals used the term in the same manner: "He stated that there is a synergistic effect between alcohol and Librax; a phenomenon whereby one drug enhances the effect of the other and vice versa ...." Findlay v. City of Tulsa, (1977) Okla.Crim.App., 561 P.2d 980, 982. "Enhance" is used similarly in Commonwealth v. Youngkin, (1981) 285 Pa.Super. 417, 427 A.2d 1356, and in Perano v. State, (1983) 167 Ga.App. 560, 307 S.E.2d 64. Our definition is thus in line with our own current usage in the criminal sentencing context but also in line with its usage in the drug and narcotics context. Upon arriving at this conclusion, we are now compelled to determine whether the mere entry of the pipe and rolling papers into evidence was sufficient to establish they would have been used to enhance the effect of a controlled substance, presumably the marijuana in Harrison's apartment. We think not.
First of all, we believe it the better practice when striving for a paraphernalia conviction for the State to present evidence of how such equipment is used with controlled substances. In Bradley v. State, supra, the State provided testimony that an eyedropper with a needle and a bottlecap which had burns on the bottom were utilized for injecting narcotics into the human body. Similar testimony was introduced in Dabner v. State, (1972) 258 Ind. 179, 279 N.E.2d 797, and in Stevens v. State, (1971) 257 Ind. 386, 275 N.E.2d 12. With the increased public knowledge of marijuana and its manner of ingestion, one might be led to believe that testimony of the mere presence of a pipe and of rolling papers in the vicinity of quantities of marijuana would raise a presumption the items would facilitate burning the marijuana plant matter and thereby inhaling the smoke thereof. However, such process is described in section (a)(1) where the statute proscribes objects used for ...
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