Submitted: December 5, 2013
John S. Taylor, Esquire, Deputy Attorney General, Attorney for the State of Delaware
Jonathan Layton, Esquire Layton & Associates, P.A. Attorney for Defendant
DECISION AFTER TRIAL
On July 2, 2010, Defendant Kevin Hynson ("Hynson") was issued a citation for possession of marijuana in violation of 16 Del C. § 4764, and possession of drug paraphernalia in violation of 16 Del C. § 4771.
A non-jury trial was held on December 5, 2013. After each party presented its case-in-chief, the State indicated that it was not pursuing the possession of marijuana charge. At the conclusion of trial, the Court reserved decision. This is the Court's decision after trial.
The sole witness to testify at trial was Officer Timothy Hoffecker, who has been employed by the Middletown Police Department since 2008. Officer Hoffecker testified that on July 2, 2010, he was working a proactive patrol assignment geared towards the control of problem areas. While patrolling the area of Middletown Village, Officer Hoffecker observed a silver Taurus driven by an individual who was not wearing a seatbelt. Officer Hoffecker conducted a traffic stop of the vehicle. Upon making contact with the driver, Officer Hoffecker observed Hynson and another individual in the back seat of the vehicle. Officer Hoffecker had knowledge of all three occupants of the vehicle, because he had come in contact with them previously.
Officer Hoffecker detected an odor of marijuana coming from the vehicle and asked Hynson to step out of the car. As he exited the vehicle, Hynson, without solicitation, stated that he had a digital scale in his pocket that he used to weigh marijuana. Hynson also stated that he had marijuana in the ash tray in the center console of the vehicle. Officer Hoffecker retrieved the digital scale from Hynson's pants pocket, and he observed what appeared to be marijuana residue on the scale itself. After searching the vehicle, Officer Hoffecker located a small baggie that contained a plantlike substance consistent with marijuana behind the ashtray in the center console. Officer Hoffecker placed these items in Middletown Police Envelopes, which were then locked into evidence lockers and logged in a custodian log.
At trial, the State moved the digital scale into evidence without objection. Officer Hoffecker testified that in his training and experience, buyers and sellers of drugs typically use scales like the one recovered from Hynson to weigh their product. Officer Hoffecker testified that the digital scale recovered from Hynson had a green flakey substance, which Officer Hoffecker found to be consistent with marijuana.
In closing argument, Hynson argued that the State did not introduce the marijuana, and asked for a dismissal as to the possession of marijuana charge. The State acknowledged that it was abandoning the possession of marijuana charge.
Hynson also argued that the only evidence offered by the State to indicate that the scale was used with a controlled substance was the presence of a de minimis amount of a green substance, which was never tested. Hynson maintained that the State did not meet its burden because it failed to establish that the scale was, in fact, intended for use in weighing a controlled substance.
Pursuant to 16 Del C. § 4771(a), "it is unlawful for any person to use, or possess with intent to use, drug paraphernalia, " including "[s]cales and balances used, intended for use or designed for use in weighing or measuring controlled substances." To find a defendant guilty of possession of drug paraphernalia under § 4771, the ...