dissenting. Since I believe that the trial court abused its discretion in admitting the various items of paraphernalia seized in the search in issue, I must respectfully dissent from the majority opinion herein.
Generally, I am inclined to accord the trial judge the benefit of the doubt with regard to admissibility of certain items of evidence. However, I find the majority’s conclusion that any error in the admission of some of the items would have been harmless in any event does not square with the facts.
While, admittedly, the items of paraphernalia tend to indicate that drugs may have been used in defendant’s dwelling, they hardly form the foundation for a finding that a drug sale took place. In my view, these items of paraphernalia are no more *101relevant to prove a marijuana sale than the possession of Car and Driver magazines would be to prove auto theft. Use of a drug does not make one a trafficker any more than imbibing liquor made one a bootlegger during the Prohibition Era. Clearly, the items of paraphernalia accomplished the very purpose for which I believe they were intended, i.e., to inflame the jury to convict because no direct evidence of the alleged offense exists.
Once the items of paraphernalia are excluded, it is clear that the state’s case is not supported by “solid evidence” as the majority states. In my view, the testimony of the officer is both sketchy and inconclusive. In fact, the one crucial piece of evidence that could have supported a conviction was never, and apparently to this day, has never been recovered, i.e., the marked bills that the officer gave the informant to make the purchase. Curiously, the majority glosses over this significant aspect of the case with barely a mention.
While this case may be characterized as a “nickel and dime” drug bust, I feel that the majority must be more vigilant in considering the consequences of a trafficking conviction that is based wholly upon irrelevant evidence.
Even assuming, arguendo, that the items of paraphernalia were relevant, Evid. R. 403(A) mandates exclusion since the probative value of such items was substantially outweighed by the prejudice that admission would engender. In addition, the items of paraphernalia confused the issues and misled the jury, since they merely showed that defendant used drugs as opposed to selling them.
Accordingly, since the items of paraphernalia were irrelevant to support a drug trafficking allegation, the trial court acted unreasonably and, hence, abused its discretion in admitting such items of evidence. See State v. Adams (1980), 62 Ohio St. 2d 151, 16 O.O. 3d 169, 404 N.E. 2d 144. Therefore, I would affirm the decision of the court of appeals.