Question: When you charge a minor caught with a pipe of intending to smoke weed, do you have to prove that the minor was going to smoke weed? Answer: Yes.
In 2012, a principal at a middle school learned that a student had a pipe sticking out of his pants pocket. The student was called out of the classroom and escorted to the office. The student was told that they “were aware that there could be a situation where he was in possession of something that should not be brought to school and that [they] were interested in knowing more about that.” Without saying anything, the student retrieved a pipe from his sock and laid it on the desk. After seeing the pipe, the student was asked where he had acquired the pipe and why he had brought it to school. In addition to questioning the student, the principal had him write out a statement that explained having the pipe at school and why he came about bringing it to school. This statement read:
I got in trobel [sic] today because I had a pipe on me and what a pipe is is … smothing [sic] were [sic] you smoke drug’s [sic] out of it. The last thing I smoked out of it was spice[.] Spice is like weed but it has different flavor than weed and spice can kill you aloot [sic] faster than weed can. The pipe I have I got it from my cousin [A.J.] and I gave him mine[.] I got my pipe from someone named [J.Y.] like 3 or 4 mount’s [sic] ago.
Thereafter, the State filed a petition alleging that he was a delinquent child since he had a marijuana pipe and he intend to introduce marijuana into his body. On appeal, the student claimed that because the State failed to introduce any evidence that “spice” was a controlled substance, the State’s evidence was also insufficient to prove that his adjudication as a delinquent child was proper on the basis that he intended to use the pipe to smoke “spice” which is synthetic marijuana.
In the instant case, the student was accused of knowingly or intentionally violating I.C. section 35–48–4–8.3(a), which provides: A person who possesses a raw material, an instrument, a device, or other 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; in violation of this chapter commits … possessing paraphernalia.
However, there is no indication in the record that the juvenile court based its determination that the student was a delinquent child due to his intent to smoke “spice.” The State’s petition specifically alleged that he had violated the possession of paraphernalia statute because he intended to use the pipe to smoke marijuana, not “spice.” Nevertheless, even if the juvenile court had determined that the residue in the pipe was a synthetic cannabinoid, such an inference could not sustain the adjudication of a delinquent child. More particularly, this would have constituted a material variance between the charging information and the proof presented at the fact-finding hearing. In conclusion, the State presented insufficient evidence by which a reasonable trier of fact could have found that the student intended to use the pipe he possessed to introduce marijuana into his body, and any inference that he intended to use the pipe to ingest a synthetic cannabinoid nevertheless fails to support the offense specifically alleged in the delinquency petition filed by the State.
A.M. v. State, 981 N.E.2d 91 (Ind.App. 2012).