                                                                             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



      Court of Appeals of Indiana | Opinion 18A-CR-1494 | October 31, 2018                      Page 1 of 6
      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

      Court of Appeals of Indiana | Opinion 18A-CR-1494 | October 31, 2018       Page 2 of 6
      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


      Court of Appeals of Indiana | Opinion 18A-CR-1494 | October 31, 2018        Page 3 of 6
      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.

      Court of Appeals of Indiana | Opinion 18A-CR-1494 | October 31, 2018                                Page 4 of 6
       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.
       Court of Appeals of Indiana | Opinion 18A-CR-1494 | October 31, 2018       Page 5 of 6
       Accordingly, we reverse Granger’s conviction for possession of paraphernalia,

       as a Class C misdemeanor.


[12]   Reversed.


       Crone, J., and Pyle, J., concur.




       Court of Appeals of Indiana | Opinion 18A-CR-1494 | October 31, 2018   Page 6 of 6
