FOR PUBLICATION


ATTORNEY FOR APPELLANT:    ATTORNEYS FOR APPELLEE:

MICHAEL C. BORSCHEL    STEVE CARTER
Indianapolis, Indiana    Attorney General of Indiana

             GRANT CARLTON
            Deputy Attorney General
            Indianapolis, Indiana

TED L. VERTNER,         )
                             )
Appellant-Defendant,         )
                             )
vs.                          )    No. 49A02-0203-CR-215
                             )
STATE OF INDIANA,            )
                             )
Appellee-Plaintiff.          )

                         

Vertner argues a separate instruction should have been given because the crime of possession of paraphernalia can be charged under two separate culpability levels and because subsection (a) is a lesser included offense of subsection (c). However, we need not address whether failure to so instruct the jury was error because we find, sua sponte, that the State failed to prove Vertner’s possession was “reckless.”
In Avant v. State, 779 N.E.2d 538 (Ind. Ct. App. 2002), we noted that subsections (a) and (c) differ with respect to the character of the possession. “The character of the possession proscribed in section (a) is straightforward: possession with intent to use. The character of the possession proscribed in subsection (c) depends on the meaning of ‘recklessly.’” Id. at 542.
A person’s conduct is reckless if it is done in “plain, conscious, and unjustifiable disregard of harm that might result and the disregard involves a substantial deviation from acceptable standards of conduct.” Ind. Code § 35-41-2-2(c). See footnote In Avant, we held that “to obtain a conviction under subsection (c) requires more than a mere showing of possession such as would be sufficient to obtain a conviction under subsection (a).” Avant, 779 N.E.2d at 543.
We recently discussed the meaning of “recklessly” as used in Ind. Code § 35-48-4-8.3(c) in Bocko v. State, 769 N.E.2d 658 (Ind. Ct. App. 2002), reh’g denied, trans. denied 783 N.E.2d 702 (Ind. 2002). In Bocko, a straw and a plastic bag, both covered with a white powder, were found in one of the defendant’s pockets. Like Vertner, Bocko was charged with reckless possession of paraphernalia under Ind. Code. § 35-48-4-8.3(c). We found the evidence demonstrated Bocko merely possessed a straw, not that he recklessly possessed it, as there was (1) no evidence the paraphernalia was ever out of Bocko’s pocket until the police removed it; (2) no evidence of the harm that might result from his possession of the straw in his pocket, and, (3) no evidence that his possession of the straw showed his disregard of the harm that might result from his conduct or that it involved a substantial deviation from acceptable standards of conduct. Id. at 664.
In the case before us, Vertner’s admission would have provided ample evidence to support a charge of the Class A infraction of possession of paraphernalia. However, the State directs us to no evidence that the character of Vertner’s possession was “reckless.” The record does not reflect the pipe was out of Vertner’s pocket until police removed it during the search incident to Vertner’s arrest. Nor does the record include any evidence of the harm that might result from his possession of a pipe in his pocket, that his possession of the pipe showed his disregard of the harm that might result from having the pipe in his pocket, or that having a pipe in his pocket involved a substantial deviation from acceptable standards of conduct. We accordingly vacate Vertner’s conviction of reckless possession of paraphernalia.

     IN THE
     COURT OF APPEALS OF INDIANA

TED VERTNER,    )
)
Appellant-Defendant,    )
)
vs.    )    No. 49A02-0203-CR-215
)
STATE OF INDIANA,    )
)
Appellee-Plaintiff.    )

BROOK, Chief Judge, 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 35-48-4-8.3 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;