Actually, I think the state can't make a case against Phelps. When it comes to controlled substances, the state laws criminalize possession, attempted possession, possession with intent to deliver and the most serious, delivery. They do not criminalize use. The photo and admission fall short of the state's burden of evidence. There is nothing to establish beyond a reasonable doubt that Phelps was smoking marijuana. Without the corpus, namely a substance that is chemically tested by a lab as positive for marijuana, there is no basis for a crime.