Devon R. Granger v. State of Indiana

FILED
Oct 31 2018, 11:12 am
CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Andrew R. Falk Curtis T. Hill, Jr.
Indianapolis, Indiana Attorney General of Indiana
Lyubov Gore
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Devon R. Granger, October 31, 2018
Appellant-Defendant, Court of Appeals Case No.
18A-CR-1494
v. Appeal from the Hendricks
Superior Court
State of Indiana, The Honorable Stephenie LeMay-
Appellee-Plaintiff. Luken, Judge
Trial Court Cause No.
32D05-1710-CM-1432
Najam, Judge.
Statement of the Case
[1] Devon Granger appeals his conviction for possession of paraphernalia, as a
Class C misdemeanor, following a bench trial. Granger presents a single issue
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for our review, namely, whether the State presented sufficient evidence to
support his conviction based upon his possession of a grinder. We reverse.
Facts and Procedural History
[2] On October 18, 2017, Avon Police Department Officer Jacob Elder saw
Granger driving well over the speed limit and initiated a traffic stop. After
Officer Elder asked Granger for his license and registration, Officer Elder saw a
grinder in the door handle area of the driver’s side door. Officer Elder
recognized the grinder as something that is used to grind marijuana into finer
pieces for “easier” consumption. Tr. at 48. Accordingly, Officer Elder asked
Granger to exit the vehicle, read him his Miranda rights, and asked him whether
there was “anything else illegal in the vehicle.” Id. at 46. Granger responded in
the negative, and Officer Elder searched the vehicle but did not find anything
else of interest. Officer Elder found a substance that he believed to be
marijuana inside the grinder. Accordingly, Officer Elder arrested Granger.
[3] The State charged Granger with possession of paraphernalia, as a Class C
misdemeanor. Following a bench trial, the trial court found him guilty as
charged and entered judgment. The court sentenced Granger to time served.
This appeal ensued.
Discussion and Decision
[4] Granger contends that the State presented insufficient evidence to support his
conviction. In reviewing the sufficiency of the evidence, we consider only the
evidence and reasonable inferences most favorable to the conviction, neither
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reweighing the evidence nor reassessing witness credibility. Griffith v. State, 59
N.E.3d 947, 958 (Ind. 2016). We will affirm the judgment unless no reasonable
fact-finder could find the defendant guilty. Id.[5] To prove possession of paraphernalia, as a Class C misdemeanor, the State was
required to show that Granger knowingly or intentionally possessed an
instrument, device, or other object that he intended to use for “introducing into
[his] body a controlled substance.” Ind. Code § 35-48-4-8.3(b)(1) (2018).
Granger asserts that the State did not present any evidence that the grinder
could be used to introduce marijuana into his body. We must agree.
[6] Our goal in statutory interpretation is to determine the legislature’s intent,
which, if the statute is unambiguous, we do by following the plain and ordinary
meaning of the statute. E.g., Jones v. State, 87 N.E.3d 450, 454 (Ind. 2017).
Here, Granger’s conviction depends on the meaning of “introducing” as used in
the statute, and to “introduce” is defined in relevant part as “to put or insert
into.” Webster’s Third New Int’l Dictionary 1186 (2002). Thus, an instrument
or device that is used to put or insert a controlled substance into the body is
paraphernalia under the statute.
[7] Officer Elder testified that the grinder was “a device to grind [marijuana] down
more finely so [that the person] can consume it easier.” Tr. at 48. And he
agreed that the grinder was used “in preparation of using marijuana.” Id.(emphasis added). But there is a material distinction between possession of an
instrument or device that can only be used to prepare a controlled substance for
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consumption and possession of an instrument or device that can be used to
introduce a controlled substance into the body. Here, the evidence shows only
that the grinder could be used to prepare marijuana for ingestion by another
means, such as by a joint, a pipe, or a bong.
[8] We hold that the term “paraphernalia” as used in Indiana Code Section 35-48-
4-8.3(b)(1) does not apply to an instrument or device that merely prepares a
substance for introduction into the body by another means. Because the State
did not present evidence that the grinder could itself be “use[d] for[]
introducing” marijuana into Granger’s body, the evidence is insufficient to
support his conviction.1
[9] Still, the State asserts in the alternative that, “should this Court find that a
grinder could not physically be used for introducing controlled substances into
the body,” Granger’s conviction should be affirmed because “[t]he variance
between the charging information and the proof presented at trial was not fatal”
to the case against Granger. Appellee’s Br. at 12-13. In particular, the State
maintains that the evidence shows that Granger’s possession of paraphernalia
also falls under Indiana Code Section 35-48-4-8.3(b)(3), which prohibits
possession of an instrument, device, or other object that the person intends to
1
While a grinder does not constitute “paraphernalia” under the statute because it cannot be used to
introduce marijuana into a person’s body, it might be considered paraphernalia as that term is commonly
used to describe evidence of the “manufacture” of marijuana under Indiana Code Section 35-48-1-18, just as
with scales, baggies, and the like. See, e.g., Bell v. State, 626 N.E.2d 570, 571 (Ind. Ct. App. 1993), trans.
denied.
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use for enhancing the effects of a controlled substance. And the State contends
that Granger was “in no way misled by any arguable error in the charging
information”; he “was on proper notice of his alleged crime”; and his “defenses
would not have been impacted in any way regardless of what subsection of the
statute” Granger was charged under. Appellee’s Br. at 14.
[10] The State is incorrect. The State’s purported “variance” argument is really an
argument that a different offense occurred, namely, an uncharged offense under
subsection (b)(3) rather than the charged offense under subsection (b)(1). Our
Supreme Court has made clear that the State may not make such arguments.
Young v. State, 30 N.E.3d at 719, 726 (Ind. 2015) (holding that a fair trial was
impossible where the State had charged the defendant with attempted
aggravated battery by shooting but pursued a theory of attempted aggravated
battery by beating during trial). Here, the State did not charge Granger with
possession of the grinder with the intent to use it to enhance the effects of
marijuana. Indeed, the State presented no evidence to show that the grinder
could enhance the effects of marijuana, and Granger had no notice to prepare a
defense against such an allegation. We reject the State’s contention on this
issue.
Conclusion
[11] The State introduced no evidence that the grinder could be used to introduce
marijuana into Granger’s body. And we reject the State’s argument in the
alternative that we should affirm Granger’s conviction because the variance
between the charging information and the proof presented at trial was not fatal.
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Accordingly, we reverse Granger’s conviction for possession of paraphernalia,
as a Class C misdemeanor.
[12] Reversed.
Crone, J., and Pyle, J., concur.
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