dissenting.
I dissent and vote to reverse McConnell's conviction of possession of paraphernalia because there is insufficient evidence that at the time he possessed the smoking pipe he intended to use it in connection with marijuana.
I agree with the majority opinion to the extent it holds McConnell's simultaneous possession of marijuana and the smoking pipe would be probative evidence of McConnell's intent to use the pipe to introduce marijuana into his body. However, I depart from the conclusion in the majority opinion that the evidence here is sufficient for a reasonable fact finder to conclude beyond a reasonable doubt that McConnell possessed marijuana in the form of residue in the smoking pipe.
The testimony of Officer Lewis quoted in the majority opinion reasonably supports only the conclusion that the residue in the smoking pipe is consistent with it being marijuana and not that it is marijuana. This fact is even more apparent when additional testimony elicited from Officer Lewis on cross-examination is considered:
Q. Officer Lewis, you don't know whether or not the residue is marijuana or not, do you?
A. No, I can't say that, sir.
Record at 98.
Accordingly, because intent may not be inferred merely from proof that the smoking pipe in McConnell's possession is normally used or adapted for use in smoking marijuana, I vote to reverse his conviction for possession of paraphernalia. I vote to affirm his conviction for operating a vehicle while suspended.