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COA: Marijuana grinder not ‘paraphernalia’ under statute

October 31, 2018

A misdemeanor paraphernalia charge against a man found with a marijuana grinder in his car has been overturned after the Indiana Court of Appeals determined the grinder did not constitute “paraphernalia” under the applicable statute.

In Devon R. Granger v. State of Indiana, 18A-CR-1494, Avon Police Department Officer Jacob Elder stopped Devon Granger when he saw him driving over the speed limit. During the stop, Elder saw a grinder in the door and recognized it as an item used to grind marijuana into finer pieces for easier consumption.

Elder then had Granger get out of the vehicle, read him his Miranda rights and asked if there was anything else illegal in the vehicle. Granger said there was not, and a subsequent search of the vehicle did not reveal anything of interest. However, Elder did find marijuana in the grinder, so Granger was arrested and eventually convicted of Class C misdemeanor paraphernalia possession.

On appeal, Granger argued the state presented insufficient evidence to support his conviction, and the Indiana Court of Appeals agreed. Specifically, Judge Edward Najam wrote for the unanimous appellate panel that the state failed to present evidence that the grinder could be used to introduce marijuana into Granger’s body.

“Officer Elder testified that the grinder was ‘a device to grind [marijuana] down more finely so [that the person] can consume it easier,” Najam wrote. “And he agreed that the grinder was used ‘in preparation of using marijuana.’”

“But there is a material distinction between possession of an instrument or device that can only be used to prepare a controlled substance for consumption and possession of an instrument or device that can be used to introduce a controlled substance into the body,” Najam continued. “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.”

Thus, the court held that under Indiana Code section 35-48-4-8.3(b)(1), “paraphernalia” does not include devices used only for the preparation of a substance to enter a body by another means. Using that definition, the court found Granger’s conviction was not supported by the evidence.

The state argued in the alternative that Granger’s conviction should still be upheld because “[t]he variance between the charging information and the proof presented at trial was not fatal” to the case, but the court rejected that theory.

“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),” Najam said. “Our Supreme Court has made clear that the State may not make such arguments.”

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