concurring as to Issue III.
I agree with the majority's conclusion that the State presented no evidence that Vertner possessed the crack pipe recklessly, as that word is defined in Indiana Code Section 35-41-2-2(c). I write separately to urge the General Assembly to revisit and perhaps revise Indiana Code Section 35-48-4-8.3(c), as it is difficult to imagine a set of facts that would satisfy the elements of reckless possession of paraphernalia.
Indiana Code Section 35-48-4-8.8 reads as follows:
(a) 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
(8) enhancing the effect of a controlled substance; in violation of this chapter commits a Class A infraction for possessing paraphernalia.
(b) A person who:
(1) knowingly or intentionally violates subsection (a); and
(2) has a previous judgment or conviction under this section; commits possession of paraphernalia, a Class D felony.
(c) A person who recklessly possesses a raw material, an instrument, a device, or other object that is to be used primarily for: ~
(1) introducing into the person's body a controlled substance;
(2) testing the strength, effectiveness, or purity of a controlled substance; or
*1156(3) enhancing the effect of a controlled substance; in violation of this chapter commits reckless possession of paraphernalia, a Class A misdemeanor. However, the offense is a Class D felony if the person has a prfaviousjudgment or conviction under this section.
In Avant, we noted that subsections (a) and (c) "differ with respect to the nature of the object possessed." Avant, 779 N.E.2d at 541.
Subsection (a) provides that it is a erimi-nal offense to possess an object "that the person intends to use" for taking drugs. Subsection (c), on the other hand, criminalizes possession of an object "that is to be used primarily for" taking drugs. Thus, a person would violate subsection (a) by possessing an object that he intended to use in taking drugs, regardless of whether the object would be innocuous in a different context. The person's intent not the intrinsic nature of the object is the critical element. On the other hand, possession of, for example, a crack pipe would constitute a violation of subsection (c), regardless of whether a person then harbored an intent to use it to take drugs.
1;q,
It would seem that in subsections (a) and (b) of the statute,8 the legislature's primary intent was to criminalize the possession of otherwise innocent items, such ag an alligator clip used to smoke a mariJuana cigarette or an eyedropper used to test the purity of cocaine, where the possessor intended to use the item for one of the activities enumerated in subsection (a). In subsection (c) of the statute, it would appear that the legislature's primary intent was to criminalize the possession of not-so-innocent items such as crack pipes and marijuana bongs, regardless of whether the possessor intended to use the item for one of the activities enumerated in that subsection. See id. ("Thus, the difference between subsections (a) and (c) in this respect is that (a) focuses on the possessor's intent to use, whereas (c) focuses on the nature of the object itself.").9 As wor*1157thy and sengible as this objective might be, it is difficult to imagine that the mere possession of any such item (with the possible exception of certain sharp objects or volatile "raw materials") might result in "harm" as contemplated by the culpability statute. See Ind.Code § 35-41-2-2(c) ("A person engages in conduct 'recklessly' if he engages in the conduct in plain, conscious, and unjustifiable disregard of harm that might result and the disregard involves a substantial deviation from acceptable standards of conduct.").
Although the use of a crack pipe might well result in harm, the mere possession of a crack pipe will rarely, if ever, do so, whether to the possessor or to others. If the legislature's intent is indeed to criminalize the possession of items "to be used primarily for" ingesting, testing, or enhancing the effect of controlled substances, regardless of whether the possessor intends to use them for these purposes, then perhaps it should consider making their possession a strict liability offense or, at the very least, criminalizing the "knowing" possession of these items instead.
. I respectfully disagree with the Avant court's conclusions that "under both subsection (a) and (c), the defendant must knowingly possess an object" and that "recklessly" as used in subsection (c) "describes the manner of possession{[.]" Avant, 779 N.E.2d at 542. Given subsection (b)'s specific mention of a knowing or intentional violation of subsection (a), I cannot conclude that the legislature also intended to apply the mens rea of "knowingly" to subsections (a) and (c). See N.D.F. v. State, 775 N.E.2d 1085, 1088 (Ind.2002) ("[We will not read into the statute that which is not the expressed intent of the legislature. As such, it is just as important to recognize what the statute does not say as it is to recognize what it does say.") (citation omitted); see also Tipton County ex rel. Tipton County Council v. State ex rel. Nash, 731 N.E.2d 12, 18 (Ind.Ct.App.2000) ("It is a well-recognized rule of statutory construction that, where a restriction is not general but is provided in a specific instance, application of the specific instance will not be carried into other statements that do not provide such limitations."), trans. denied. In my view, possession of paraphernalia under Indiana Code Section 35-48-4-8.3(a) is a strict liability offense, but the State must prove that the defendant intended to use the object for one of the activities enumerated in that subsection. This evidentiary burden would preclude the conviction of a person who mistakenly donned another's jacket containing a cocaine-encrusted straw and did not intend to use the straw to ingest a controlled substance. I must also respectfully disagree with the Avant court's holding that "subsection (a) is a lesser-included offense of subsection (c)." Avant, 779 N.E.2d at 543. In my estimation, these subsections define two separate crimes.
. See Brack's Law Dictionary 322 (6th ed. 1990) (" 'Contraband per se' is property the mere possession of which is unlawful, while 'derivative contraband is unlawful act.") (citation omitted).