This interpretation is most consistent with the Act's thrust and intent. Under our construction, then, a jury will never determine as a fact question whether an item is in and of itself “drug paraphernalia” without also considering the defendant's state of mind with respect to that item in using, marketing, or designing it. We think it clear that in nearly every case, the item in issue will be capable of being used with a controlled substance, thereby making it “drug paraphernalia.” The crucial decision under the Act, though, and what makes an item “drug paraphernalia” for purposes of the Act, is whether the defendant intended that it be used with illegal drugs. We think it rare, indeed, that a defendant will ever be able to rebut the assertion that the item in question is, in fact, capable of being used as drug paraphernalia.
But the defendant need not do so. Rather, with respect to
I.C. § 37–2701(bb), what the State must prove beyond a reasonable doubt is that the defendant used an item with an illegal drug (use), or, marketed an item with the intent that it be used with illegal drugs (intended for use), or, designed an item with the intent that it be used with illegal drugs (designed for use). Any other construction of the statute would unconstitutionally lead juries, parties, and judges alike into a semantical quagmire, with the potential for reliance on factors and evidence outside the defendant's awareness and control all too real.