IC § 35-48-4-8.3. Possession of paraphernalia.

This section does not apply to a rolling paper.

(b)  A person who knowingly or intentionally possesses an instrument, a device, or another object that the person intends to use for:

(1) introducing into the person’s body a controlled substance;

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

(3) enhancing the effect of a controlled substance;

commits a Class C misdemeanor. However, the offense is a Class A misdemeanor if the person has a prior unrelated judgment or conviction under this section.

Notes

– There is no (a) subsection for this statute. I assume this is a legislative typo.

– Make sure the alleged paraphernalia meets one of the 3 subsections of the statute. I have seen a lot of situations where the alleged contraband does not meet the legal definition. The most common example is a scale (although there is one Court of appeals decision that says a scale is paraphernalia).

– Possession of paraphernalia on its own is not enough for a conviction. The State must also prove intent to use it in one of the 3 manners outlined in the statute. The State will often test the contraband for drug residue. Some judge’s will find that this is enough to show intent, while others will not.

– Always double check the charging information. Some police officers still use the old form document, which contains “reckless” instead of “knowing or intelligent.” If the police officer uses the wrong form document, and you are the defense, you want to sit on this until the state has rested. If you bring it up prior to the State resting, the Judge will probably allow the State to move to amend the charging information.

Case Law 

– Evidence that defendant was in possession of certain instruments often used by narcotics users to unlawfully administer narcotic drugs was insufficient, standing alone, to prove requisite intent to unlawfully administer and use narcotic drugs. Taylor v. State, 267 N.E.2d 383 (Ind. 1971).

– Intent to unlawfully use the possessed instruments was an element of the crime which had to be proven beyond a reasonable doubt. Mere evidence of possession coupled with flight and attempted concealment did not establish the necessary intent to sustain a conviction. Eskridge v. State, 281 N.E.2d 490 (Ind. 1972).

– Intent to use an instrument for illegal drug use may be inferred from circumstantial evidence, such as from evidence of previous convictions for drug use, and from former drug use and the presence of needle marks on defendant’s arms. Bradley v. State, 287 N.E.2d 759 (Ind. Ct. App. 1972).

– Police officer’s testimony that the substance found in the bowl of a smoking pipe appeared to be marijuana was sufficient evidence from which the jury could infer that the substance was marijuana and that defendant intended to use the pipe in connection with marijuana. McConnell v. State, 540 N.E.2d 100 (Ind. Ct. App. 1989).

– Testimony of officer, qualified as an expert in the area of narcotics violations, that the accused had puncture marks, the type of marks found on narcotic users, coupled with accused’s admission of past use was sufficient to show that the accused was a user of narcotics and that he intended to use “outfit,” found in his possession, to unlawfully administer the narcotic drugs. Stevens v. State, 275 N.E.2d 12 (Ind. 1971).

– Possession of the contraband and blood-stained toilet tissue, coupled with discovery of puncture marks on defendant’s swollen forearm, when taken together, were sufficient evidence that defendant’s possession of the contraband was with “intent to unlawfully administer and use narcotic drugs.” Dabner v. State, 279 N.E.2d 797 (Ind. 1972).

– Testimony by officer that appellant had just injected himself with narcotics which was borne out by the physical condition of appellant as well as by the presence of a cooker, matches, eyedropper, needle and a fresh puncture mark on appellant’s arm supplied sufficient evidence of probative value from which the trier of facts could reasonably infer the appellant was guilty beyond a reasonable doubt.  Irvin v. State, 282 N.E.2d 825, (Ind. 1972).

– Where defendant under arrest attempted to conceal narcotics “outfit,” had fresh needle marks on arms, later exhibited narcotics withdrawal symptoms and admitted he was an addict with a $25.00 a day habit, there was sufficient evidence of intent to sustain a conviction. Sargent v. State, 287 N.E.2d 795 (Ind. Ct. App. 1972).

– Where defendant fidgeted in the seat as though trying to hide or retrieve something as the officer approached the vehicle, and residue encrusted crack pipe was lying on the car seat where defendant had been sitting immediately prior to exiting the car, the evidence was sufficient to support an inference that defendant possessed the pipe with the intent to use it to smoke crack. Trigg v. State, 725 N.E.2d 446 (Ind. Ct. App. 2000).

– Possession of a straw was not reckless for purposes of reckless possession of drug paraphernalia where: (1) there was no evidence the straw was ever out of defendant’s pocket until the police removed it; (2) there was no evidence of the harm that might result from possession of the straw in defendant’s pocket; (3) there was no evidence that possession of the straw showed a disregard of the harm that might result from defendant’s conduct or that it involved a substantial deviation from acceptable standards of conduct; and (4) the evidence demonstrated only that defendant possessed the straw. Grim v. State, 797 N.E.2d 825 (Ind. Ct. App. 2003).

– Evidence was insufficient to affirm defendant’s conviction for possession of paraphernalia because, while evidence was sufficient to show he knew of presence of paraphernalia and could easily have asserted dominion and control over it, state did not prove possession was “reckless,” since no evidence was presented of harm which might result from defendant’s constructive possession of paraphernalia or that defendant acted in total disregard of any such harm. Bocko v. State, 769 N.E.2d 658 (Ind. Ct. App. 2002).

– Defendant’s conviction of possession of paraphernalia under IC 35-48-4-8.3(c)(2) was reversed for lack of evidence that cigarette papers in defendant’s possession could have been used to “test” strength, effectiveness or purity of marijuana. (In this case the State merely checked the wrong box on the charging information). Atkinson v. State, 810 N.E.2d 1190, 2004 Ind. App. LEXIS 1269 (Ind. Ct. App. 2004).

– Trial court erred in convicting defendant of reckless possession of paraphernalia; the police officer’s investigatory stop of defendant based on an anonymous tip was impermissible because the officer’s conduct was not based on reasonable suspicion that defendant was involved in criminal activity, especially since the officer did not corroborate the information he received regarding defendant, and, in any event, the evidence was not sufficient to show recklessness since the state did not show defendant’s conduct involved “possible harm.” Castner v. State, 840 N.E.2d 362, 2006 Ind. App. LEXIS 14 (Ind. Ct. App. 2006).

– When defendant and five other men exited a residence during the execution of a search warrant, a clandestine lab team searched the residence and found numerous ingredients used to manufacture methamphetamine, tablets, scales, marijuana, a glass smoking device, money in a lockbox, and several guns; there was sufficient evidence to show that defendant manufactured methamphetamine. Defendant was convicted of felony dealing in methamphetamine in an amount of three grams or more, IC 35-48-4-1.1(a)(1), (b)(1); felony possession of methamphetamine, IC 35-48-4-6.1(a), (b)(1); misdemeanor possession of marijuana, IC 35-48-4-11(1); and misdemeanor possession of paraphernalia, IC 35-48-4-8.3(a)(1). Gaynor v. State, 914 N.E.2d 815 (Ind. Ct. App. 2009).

– Defendant’s motion to dismiss should have been granted after the State brought charges against him for reckless possession of drug paraphernalia under IC 35-48-4-8.3(c) because there was no evidence presented that showed any possible harm resulting from the possession, which was a requirement for reckless conduct under IC 35-41-2-2(c). Helms v. State, 926 N.E.2d 511 (Ind. Ct. App. 2010).

– Evidence was sufficient to support a conviction for possession of paraphernalia because a factfinder could have reasonably concluded that defendant possessed scales with the intent of testing the strength, effectiveness, or purity of marijuana. During a post-interview arrest, defendant admitted that he used the scales to measure the weight of marijuana that he purchased to ensure that it was the quantity for which he had bargained. McIlquham v. State, 992 N.E.2d 904 (Ind. Ct. App. 2013).

– Where state prosecuted defendant for possession of drug paraphernalia, which included a pipe, cigarette papers and two scales, there was not enough evidence to uphold conviction because no evidence was introduced to show that the paraphernalia was intended to be used for “enhancing the effect of a controlled substance” outside of their mere presence. Harrison v. State, 469 N.E.2d 22 (Ind. Ct. App. 1984).

– Sufficient evidence supported an inference that defendant knew about the cocaine and paraphernalia in a car and had the ability to control it: he apologized to an officer for reaching his hands between the seat, confessed that he had just purchased two rocks of cocaine and had just smoked one, and explained that crack and crack pipes were in the car in violation of IC 35-48-4-8.3(b) and 35-48-4-6(b)(2)(B)(i). Atwood v. State, 905 N.E.2d 479 (Ind. Ct. App. 2009).

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