Opinion
I.D. No. 0106000763
September 4, 2002
Appeal from the Court of Common Pleas
Thomas D. Donovan, Esquire, Office of the Public Defender, Dover
Jason C. Cohee, Esquire, Department of Justice, Dover.
Dear Counsel:
In this appeal from a conviction on September 25, 2001, in the Court of Common Pleas, the defendant raises a single issue of error. The defendant asserts that there was insufficient evidence presented by the State to establish, beyond a reasonable doubt, that the defendant possessed drug paraphernalia thus the trial judge's findings were not supported by the evidence. This Court disagrees and affirms the conviction below.
Background
On June 1, 2001, two officers of the Clayton Police Department were patrolling in the Town of Clayton at night and noticed that defendant's pickup truck had a headlight out and pulled defendant over. Cpl. Hill of the Clayton Police Department had the defendant step out of the vehicle to place him in his patrol car to issue a traffic citation for this violation and because the defendant could not produce a valid driver's license, registration and proof of insurance. The officer then noticed two metal pipes on the floor on the passenger's side of the truck to the right of the center console or "hump". At trial, both officers testified that these pipes were used to smoke marijuana. Their testimony was based on their training and experience. There was no testimony that the defendant had used or intended to use the pipes as drug paraphernalia and the defendant testified that they were not his property.
Standard of Review
When reviewing an appeal from the Court of Common Pleas, the Court assumes the same appeal posture as that of the Supreme Court. Baker v. Cornell, Del. Supr., 488 A.2d 1303, 1309 (1985). Such appeals are not subject to de novo review. First State Construction Company v. Delaware Lumber Millwork, Inc., Del. Super., C.A. No. 98A-03-002, Ridgely, P.J. (June 22, 1998) (Order). However, this Court may review any error of law de novo. Downs v. State, Del. Supr., 570 A.2d 1142 (1991). Therefore, the Court's role is to correct errors of law and to review the factual findings of the court below to determine if they are sufficiently supported by the record and are the product of an orderly and logical deductive process.
Findings of fact made by the trial court must be supported by substantial evidence. Shahan v. Landing, Del. Supr., 643 A.2d 1357 (1994). Such evidence is that which a reasonable mind might accept to support a proposition. Oceanport v. Wilmington Stevedores, Del. Supr., 636 A.2d 892 (1994). Substantial evidence is more than a scintilla, but less than a preponderance. Onley v. Cooch, Del. Supr., 425 A.2d 610 (1981). If substantial evidence exists for a finding of fact, this Court must accept that ruling as it must not make its own conclusion of fact, weigh evidence or make credibility determinations. Johnson v. Chrysler, Del. Supr., 213 A.2d 64 (1965). This Court will not overturn the Court of Common Pleas' findings merely because this Court would have decided the issue differently unless the lower court abused its discretion in making those findings.
Discussion
Appellant argues that because there is no evidence that the defendant actually used or intended to use the pipes for an illegal purpose, one of the elements necessary for a conviction under 16 Del. C. § 4771 has not been met. The gravamen of the defendant's position is that the trier of fact could not determine that the mere physical characteristics of the two pipes could establish the intention that they were used for smoking marijuana.
Possession of drug paraphernalia under 16 Del. C. § 4771 is defined in part as follows:
It is unlawful for any person to use, or to possess with intent to use, drug paraphernalia to . . . ingest, inhale or otherwise introduce into the human body a controlled substance in violation of this chapter.
The definition of drug paraphernalia is set forth in 16 Del. C. § 4701(16)l.1 as:
"Drug paraphernalia" shall mean all equipment, products and materials of any kind which are used, intended for use or designed for use, in . . . storing, containing, . . . ingesting, inhaling or otherwise introducing into the human body, a controlled substance . . . possession or use of which is a violation of this chapter. The term "drug paraphernalia" includes, but is not limited to . . . objects used, intended for use or designed for use in ingesting, inhaling or otherwise introducing . . . into the human body such as metal . . . pipes.
Under the statute a determination of whether an object is "drug paraphernalia" can only be made with reference to the use of the person alleged to have possessed the item in violation of the statute. An otherwise legal item may become illegal if it is used or intended for use in violating the drug laws. Delaware Accessorie Trade Ass'n v. Gebelein, 497 F. Supp. 289 (1980).
The defendant has testified that the pipes were not his and there is also uncontroverted testimony by the two officers that given their experience and training the pipes were used to smoke marijuana. There is also evidence that the pipes were found in a close proximity so that the defendant had access to them.
No argument has been made either at trial or before this Court that defendant did not have constructive possession, therefore this Court will not consider this issue. What is at issue is whether there is sufficient evidence that the metal pipes were drug paraphernalia. Under the plain error standard, Monroe v. State, Del. Supr., 652 A.2d 560, 563 (1995), the placement of the pipes among the trash in the truck may be considered by the trier of fact to consider and conclude that trained and experienced police officers were able to see and locate the pipes. There was no abuse of discretion for the trial judge to determine that the pipes were within the defendant's grasp and thus within his possession. The trial judge found the two police officers' testimony to be credible and there was no contra evidence by the defendant to say that the pipes were not drug paraphernalia, especially so since the defendant claimed that the pipes were not his.
In making these findings the court below exercised reasonable discretion. It is within the lower court's discretion to accept or reject testimony and to resolve conflicts resulting therefrom. In this case those resolutions were made in favor of the prosecution. The evidence presented was sufficient to support a conviction and will not be disturbed by this Court.
Conclusion
For the foregoing reasons, this Court rejects appellant's contentions and the decision of the Court of Common Pleas is hereby affirmed.
IT IS SO ORDERED.