Christopher Tiplick v. State of Indiana , 2015 Ind. LEXIS 852 ( 2015 )


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  • ATTORNEYS FOR APPELLANT                           ATTORNEYS FOR APPELLEE
    Mark W. Rutherford                                Gregory F. Zoeller
    Stephen R. Donham                                 Attorney General of Indiana
    Indianapolis, Indiana
    Ellen H. Meilaender
    Deputy Attorney General
    Indianapolis, Indiana
    In the
    Indiana Supreme Court                                    Oct 07 2015, 10:43 am
    No. 49S04-1505-CR-287
    CHRISTOPHER TIPLICK,
    Appellant (Defendant below),
    v.
    STATE OF INDIANA,
    Appellee (Plaintiff below).
    Appeal from the Marion Superior Court, No. 49G20-1210-FC-70439
    The Honorable Steven R. Eichholtz, Judge
    On Petition to Transfer from the Indiana Court of Appeals, No. 49A04-1312-CR-617
    October 7, 2015
    Massa, Justice.
    Christopher Tiplick faces criminal charges for possessing, selling, and dealing in the
    chemical compound designated XLR11, and dealing and conspiracy to commit dealing in look-
    alike substances. He sought dismissal of all counts, on the grounds that: (1) the charging
    information failed to reference the Indiana Board of Pharmacy’s Emergency Rule 12-493(E),
    which criminalized XLR11; (2) the applicable statutory schemes are impermissibly vague under
    both the United States and Indiana Constitutions; and (3) our General Assembly impermissibly
    delegated the authority to criminalize XLR11 to the Pharmacy Board under the Indiana
    Constitution.   The trial court denied Tiplick’s motion, and he appealed.         We too find no
    constitutional or statutory infirmity to any of the charges, but find the charging information
    inadequate with respect to the XLR11-related charges, necessitating dismissal of those counts.
    Facts and Procedural History
    Synthetic cannabinoids, also known as “spice,” are compounds designed to mimic the
    psychoactive properties of marijuana, first reported in the United States in 2008. See Schedules
    of Controlled Substances: Temporary Placement of Three Synthetic Cannabinoids Into Schedule I,
    78 Fed. Reg. 28,735–39 (May 16, 2013) (to be codified at 21 C.F.R. pt. 1308.11(h)(9)–(11)).
    Regulation of “spice” is a particularly challenging pursuit, as minor variants in chemical structure
    can place the substances beyond the reach of criminal statutes without diminishing their
    psychotropic effects. 
    Id. Our General
    Assembly made two significant revisions to our criminal
    code in 2012, in an attempt to match pace with the evolving chemistry. First, Indiana Code section
    35-31.5-2-321 (“Section 321”) re-defined the term “synthetic drug” to include a broad range of
    compounds and chemical analogs, including “any compound determined to be a synthetic drug by
    rule adopted under IC 25-26-13-4.1.” 2012 Ind. Acts 1795–99. Second, the Assembly added
    Indiana Code section 25-26-13-4.1 (“Section 4.1”), which empowered the Indiana Board of
    Pharmacy to adopt emergency rules declaring additional compounds to be a “synthetic drug,”
    which would become effective thirty days after publication in the Indiana Register and would
    remain in effect until June of the following year. 2012 Ind. Acts 1134–35.
    On August 15, 2012, pursuant to their authority under Section 4.1, the Pharmacy Board
    filed Emergency Rule 12-493(E) with the Indiana Register (the “Emergency Rule”), classifying
    thirteen additional compounds as “synthetics,” including “XLR11 [(1-(5-fluoropentyl)indol-3-yl)-
    (2,2,3,3-tetramethylcyclopropyl)methanone].”      Ind. Reg. LSA Doc. No. 12-493(E) (August 15,
    2
    2015) (see http://www.in.gov/legislative/iac/20120822-IR-856120493ERA.xml.html).                        The
    Emergency Rule thus became effective on September 15, 2012.
    In October of 2012, Tiplick was charged with eighteen drug-related counts: Counts I
    through VI and XVI allege dealing and conspiracy to commit dealing in look-alike substances,
    while Counts VII through XV and XVII through XVIII allege dealing, conspiracy to commit
    dealing, and possession of synthetic drugs. The charging information alleges several purchases by
    undercover police officers at Tiplick’s stores (all named “Smoke Shop”), “on or about September
    20, 2012,” “on or about October 9, 2012,” and “on or about October 10, 2012.” App. at 19–24.
    The information itself alleged that Tiplick’s stores sold a “synthetic drug a/k/a spice” without
    allegations of the precise compound, but the probable cause affidavit accompanying the
    information asserted that the packages purchased contained “XLR11 (1-(5-flouropentyl)indol-3-
    
    yl)-(2,2,3,3-tetramethylcyclopropyl)methanone].” 1 Ohio App. at 19
    –36. Neither document mentioned
    the Emergency Rule.
    Tiplick filed a motion to dismiss all charges, claiming the information failed to state the
    alleged offenses with sufficient certainty, the statutory definition of “synthetic drug” and statutes
    criminalizing “look-alike” substances were void for vagueness, and the General Assembly could
    not delegate to the Pharmacy Board the power to declare new synthetic drugs illegal via emergency
    rule. The trial court disagreed on all points and denied the motion, but certified its order for
    interlocutory appeal.
    A divided panel of our Court of Appeals reversed and dismissed the synthetic drug charges.
    Tiplick v. State, 
    25 N.E.3d 190
    , 196 (Ind. Ct. App. 2015). The majority concluded that the
    1
    For clarity, we do not believe the slight typographical error in the chemical formula (“flouro” instead of
    “fluoro”) used in the probable cause affidavit is relevant; the substance listed would still be understood by
    an average person as XLR11.
    3
    provision allowing for the creation of the Emergency Rule rendered the statute unconstitutionally
    vague, necessitating a “Where’s Waldo” approach to determining which substances are classified
    as “synthetic drugs” under Section 321, and that holding a citizen of ordinary intelligence to such
    a requirement would be “ludicrous.” 
    Id. at 195–96.
    But the dissent found the statutory scheme
    created a “finite number of locations” to investigate when determining the legality of the sale of
    XLR11, and was thus constitutionally permissible. 
    Id. at 196–97
    (Bailey, J., dissenting).
    We granted the State’s petition to transfer, vacating the opinion below. Tiplick v. State,
    
    30 N.E.3d 1229
    (Ind. 2015) (table); Ind. Appellate Rule 58(A).
    Standard of Review
    “It is well established that a trial court’s denial of a motion to dismiss is reviewed only for
    an abuse of discretion.” Study v. State, 
    24 N.E.3d 947
    , 950 (Ind. 2015). To the extent we consider
    matters of law, including constitutional questions, our review is de novo, “but all statutes are
    presumptively constitutional, and the court must resolve all reasonable doubts concerning a statute
    in favor of constitutionality.” Dep’t of State Revenue v. Caterpillar, Inc., 
    15 N.E.3d 579
    , 587 (Ind.
    2014) (internal quotations omitted).
    I.     The Synthetic Drug Statute Is Not Unconstitutionally Vague.
    “Due process principles advise that a penal statute is void for vagueness if it does not
    clearly define its prohibitions.” Brown v. State, 
    868 N.E.2d 464
    , 467 (Ind. 2007). To that end,
    there are two independent causes to invalidate a statute on vagueness grounds: (1) the statute does
    not provide “notice enabling ordinary people to understand the conduct that it prohibits”; and
    4
    (2) the statute potentially “authorizes or encourages arbitrary or discriminatory enforcement.” 2 
    Id. Although Tiplick
    asserts that Sections 321 and 4.1 fail both tests, his briefing does not
    substantively argue that the statutes permit arbitrary or discriminatory enforcement. Moreover,
    we do not find sufficient cause to believe these statutes so allow. Despite its cumbersome length
    and detail, Section 321 is ultimately just a discrete list of chemical formulas and analogs,
    supplemented with additional chemicals by Section 4.1’s emergency rules. Such a list does not
    allow for any interpretation by law enforcement which would render it vulnerable to subjective
    views. See Kolender v. Lawson, 
    461 U.S. 352
    , 354–58 (1983) (invalidating California Penal Code
    section 647(e) on vagueness grounds, finding that requiring an individual to provide “credible and
    reliable” identification when stopped by police “vests virtually complete discretion in the hands of
    the police to determine whether the suspect has satisfied the statute”). Accordingly, we consider
    in detail only his first grounds for a constitutional vagueness challenge: whether Sections 321 and
    4.1 give adequate notice to ordinary people of the proscribed conduct.
    Tiplick makes two overlapping contentions in support of his vagueness claim. First, he
    asserts that the sheer complexity of Section 321 is beyond the grasp of an ordinary person, and
    thus is impermissibly vague. We do not agree. Our General Assembly is attempting to regulate a
    field of advanced chemistry that creates synthetic cousins of naturally occurring illegal substances
    like marijuana. “Article 4, Section 20 instructs the General Assembly to avoid the use of technical
    terms to the extent that it is practicable. The novelty, complexity, and rapidly-evolving nature of
    synthetic drugs necessitates some scientific terminology in the law.” Elvers v. State, 
    22 N.E.3d 824
    , 830 (Ind. Ct. App. 2014) (emphasis in original). Moreover, Tiplick may only challenge the
    chemical description of XLR11 on these grounds, not the entire text of Section 321. See Maynard
    2
    Both Tiplick and the State assert that the vagueness analysis is the same under both the Indiana and Federal
    Constitutions, relying on Bemis v. State, 
    652 N.E.2d 89
    , 92 (Ind. Ct. App. 1995). It is worth noting, our
    Court has never held the same analysis applies to both; here, however, without any cogent argument
    distinguishing the two, we will apply the traditional test for vagueness under the Federal Constitution. We
    leave for another day the question of whether the Indiana Constitution provides a different remedy.
    5
    v. Cartwright, 
    486 U.S. 356
    , 361 (1988) (“Vagueness challenges to statutes not threatening First
    Amendment interests are examined in light of the facts of the case at hand; the statute is judged on
    an as-applied basis.”). Thus, it may be that a person with ordinary experience and knowledge does
    not know what [(1-(5-fluoropentyl)indol-3-yl)-(2,2,3,3-tetramethylcyclopropyl)methanone] is
    made of, but that is not the test; rather, it is whether a person of ordinary intelligence would
    understand his conduct was proscribed. Here, an ordinary Hoosier, armed with this chemical
    formula for XLR11, could determine through appropriate testing whether he was attempting to sell
    any products containing it. That is what we demand of our penal statutes.
    Second, Tiplick asserts that the cross-referencing of Section 321 and Section 4.1 presents
    a “statutory maze” that prevents a person of ordinary intelligence from being able to discover
    which conduct is proscribed. Appellant’s Br. at 28. In support, Tiplick relies upon Healthscript,
    Inc. v. State, 
    770 N.E.2d 810
    (Ind. 2002), which is distinguishable. In Healthscript, we found that
    Indiana Code section 35-43-5-7.1(a)(1) was not sufficiently definite to survive a vagueness
    challenge. 
    Id. at 816.
    Specifically, the statute’s “general reference to Ind. Code § 12-15” led the
    reader to “an entire article of the Indiana Code, covering 50 pages of the 1993 Code and comprising
    280 sections organized in 37 chapters,” from which the reader was required to discern that all
    relevant administrative rules were applicable as well, 3 and then independently investigate the
    entire Indiana Administrative Code to determine whether there were any applicable rules, finally
    arriving at a Medicaid rule “limiting providers of covered legend drugs to their usual and
    customary charges. Ind. Admin. Code tit. 405 r. 1-6-21.1(g) (1996 & Supp. 1997).” 
    Id. at 815–
    16. And despite such a large degree of attenuation, we still found the State’s argument that this
    statutory scheme survived a vagueness challenge “plausible.” 
    Id. at 815.
    Here, however, the State
    has provided a much more confined universe of investigation. “Synthetic drug” is defined in
    3
    See Ind. Code § 12-15-21-1 (2012) (“A provider who accepts payment of a claim submitted under the
    Medicaid program is considered to have agreed to comply with the statutes and rules governing the
    program.” (emphasis added)).
    6
    Section 321, it names the Section 4.1 emergency rules as the only additional source for prohibited
    substances, and Section 4.1(c) describes where to look for those published rules, based on the
    procedures contained in Indiana Code section 4-22-2-37.1 (2012). This is not a “maze,” but rather
    a chain with three links—three discrete statutes which give clear guidance as to how to find
    everything falling within the definition of “synthetic drug” under Section 321. Such a statutory
    scheme is not unduly vague.
    II.      The Look-Alike Statutes Are Not Unconstitutionally Vague.
    Tiplick also asserts a vagueness challenge to Indiana Code sections 35-48-4-4.5,
    35-48-4-4.6 and 35-48-4-5 (2008), collectively referred to as the “Look-Alike Statutes,” which
    prohibit conduct related to substances “represented to be a controlled substance” and “counterfeit
    substances.” 4 Here, Tiplick properly invokes both causes to invalidate application of the statutes
    on vagueness grounds, though neither argument is persuasive.
    First, Tiplick asserts that the text of the statute itself is impermissibly vague, pointing out
    that terms such as “substance,” “dosage unit,” “consistency,” “control,” and “nature” are
    undefined. Appellant’s Br. at 32–33. Tiplick primarily relies upon Record Head Corp. v. Sachen,
    which invalidated a local ordinance banning the sale of drug paraphernalia. 
    682 F.2d 672
    , 679
    (7th Cir. 1982). We, however, find that Sachen demonstrates that the language of the Look-Alike
    Statutes is adequate. The ordinance at issue in Sachen prohibited the sale of drug-related
    “instruments,” defined as “devices designed for use or intended for use in ingesting, smoking,
    administering, or preparing any controlled substance,” and went on to list a number of factual
    4
    The majority opinion below found that Tiplick did not properly appeal the denial of his motion to dismiss
    the charges under these statutes. See 
    Tiplick, 25 N.E.3d at 192
    n.6. We, however, believe the issue was
    adequately presented to the trial court and was adequately briefed by both parties on appeal, and thus should
    now be substantively addressed.
    7
    considerations to be used in making that determination, such as expert testimony and business
    registrations. 
    Id. at 677.
    The Seventh Circuit determined, “In place of the scienter requirement,
    the West Allis ordinance enumerates various factors to be considered in deciding what is an
    instrument . . . . Far from curing vagueness, these factors seem to us to exacerbate it. None of the
    factors helps to define the intent of the noncommercial purveyor . . . .” 
    Id. (emphasis added).
    This
    is consistent with long-standing precedent of the United States Supreme Court, holding that a
    proper scienter element defeats a vagueness challenge to a criminal statute:
    [W]here the punishment imposed is only for an act knowingly done
    with the purpose of doing that which the statute prohibits, the
    accused cannot be said to suffer from lack of warning or knowledge
    that the act which he does is a violation of law. The requirement
    that the act must be willful or purposeful may not render certain, for
    all purposes, a statutory definition of the crime which is in some
    respects uncertain. But it does relieve the statute of the objection
    that it punishes without warning an offense of which the accused
    was unaware.
    Screws v. United States, 
    325 U.S. 91
    , 102 (1945).
    Unlike the ordinance at issue in Sachen, all three of the Look-Alike Statutes have a
    sufficient scienter requirement—“knowingly or intentionally” dealing in a look-alike substance,
    Ind. Code § 35-48-4-4.5, “knowingly or intentionally” manufacturing a look-alike substance, Ind.
    Code § 35-48-4-4.6, and either “knowingly or intentionally” dealing in or “possess[ing], with
    intent to” deal in a counterfeit substance, Ind. Code § 35-48-4-5. Furthermore, the enumerated
    factors in Indiana Code section 35-48-4-4.5(b) are designed to help determine the accused’s intent,
    based on the representations of the parties and the attendant circumstances of the sale. 5 And in
    5
    Specifically, Indiana Code section 35-48-4-4.5(b) states:
    In determining whether representations have been made, subject to
    subsection (a)(1), or whether circumstances of distribution exist,
    8
    any event, although the particular terms noted by Tiplick are not defined by statute (and are thus
    arguably open to interpretation), there is no construction of these phrases which would “embrace
    a vast assortment of very acceptable and even salutary conduct that is clearly not criminal in
    nature,” thus rendering the statute unduly vague despite inclusion of a specific intent requirement.
    
    Brown, 868 N.E.2d at 468
    ; see also Morgan v. State, 
    22 N.E.3d 570
    , 577 (Ind. 2014) (holding that
    although the term “annoys” was undefined in public intoxication statute, application of an
    objective reasonableness standard to that term was sufficient to satisfy constitutional
    requirements). Therefore, the text of the Look-Alike Statutes gives adequate notice to ordinary
    persons of the conduct proscribed.
    Tiplick also asserts that the Look-Alike Statutes permit arbitrary or discriminatory
    enforcement, because the factors and statutory terms used in examining the defendant’s intent “are
    fuzzy, contradictory and dangerously open to erratic and after-the-fact interpretation.” Appellant’s
    Br. at 35 (quoting 
    Sachen, 682 F.2d at 678
    ). In particular, Tiplick argues that the charges against
    him under the Look-Alike Statutes were based on the sale of “chocolate chip cookies,” and thus
    even an ordinary grocery store could be subjected to search and seizure in the police’s sole
    discretion. But Tiplick overlooks two important pieces of context contained in the probable cause
    affidavit: (1) these cookies were being sold at a store named “Smoke Shop” that did not otherwise
    sell food products; and (2) these cookies were represented by the store staff as being “Hippie
    subject to subsection (a)(2), the trier of fact may consider, in
    addition to other relevant factors, the following:
    (1) Statements made by the owner or other person in control of the
    substance, concerning the substance’s nature, use, or effect.
    (2) Statements made by any person, to the buyer or recipient of the
    substance, that the substance may be resold for profit.
    (3) Whether the substance is packaged in a manner uniquely used for
    the illegal distribution of controlled substances.
    (4) Whether:
    (A) the distribution included an exchange of, or demand for,
    money or other property as consideration; and
    (B) the amount of the consideration was substantially greater than
    the reasonable retail market value of the substance.
    9
    Chips,” not garden-variety cookies. App. at 29, 34. Moreover, the statutory factors Tiplick
    complains of in Indiana Code section 35-48-4-4.5 are to be used by the trier of fact to determine if
    an objectively “reasonable person” would believe the substance is a controlled substance, which
    we have long held to be sufficient. See Price v. State, 
    622 N.E.2d 954
    , 967 (Ind. 1993) (rejecting
    a vagueness challenge to disorderly conduct statute, finding that “the objective ‘reasonableness’
    test is used in many areas of the law as an appropriate determinant of liability and thus a guide to
    conduct”). There are thus no grounds to find the Look-Alike Statutes are subject to arbitrary
    enforcement, or were arbitrarily applied to Tiplick.
    III.     The Synthetic Drug Statute Is Not an Unconstitutional Delegation of Legislative
    Authority.
    Tiplick also asserts that Section 4.1 is in derogation of the Distribution of Powers Clause
    of the Indiana Constitution, 6 because it impermissibly assigns the legislative function of enacting
    criminal statutes to the Pharmacy Board, an executive agency. The trial court disagreed, relying
    primarily upon People v. Turmon, which interpreted the Michigan Constitution to permit its Board
    of Pharmacy to add additional drugs to its controlled substances schedule. 
    340 N.W.2d 620
    , 627
    (Mich. 1983). Although we agree with Tiplick that Turmon is not controlling precedent in Indiana,
    it does not necessarily follow that Section 4.1 is an impermissible delegation of legislative
    authority under Indiana law.
    The creation of criminal statutes is an inherently legislative function. State v. Moss-Dwyer,
    
    686 N.E.2d 109
    , 111 (Ind. 1997) (“Indiana courts have consistently supported the proposition that
    6
    “The powers of the Government are divided into three separate departments; the Legislative, the Executive
    including the Administrative, and the Judicial: and no person, charged with official duties under one of
    these departments, shall exercise any of the functions of another, except as in this Constitution expressly
    provided.” Ind. Const. art. 3, § 1.
    10
    the nature and extent of penal sanctions are primarily legislative considerations.” (internal
    quotations omitted)).     Tiplick asserts that all delegation is prohibited if violation of the
    administrative rules would result in criminal penalties, relying on our statement in Ensign v. State
    that “the legislature cannot delegate its express authority defining criminal responsibility to
    anyone.” 
    250 Ind. 119
    , 124, 
    235 N.E.2d 162
    , 165 (1968). Our decision in Ensign, however, does
    not stand for Tiplick’s broad proposition. Richard Ensign was convicted of manslaughter in
    connection with the Coliseum tragedy at the State Fair Grounds in 1963, when three propane tanks
    he had left in the building exploded. 7 
    Id. at 120–21,
    235 N.E.2d at 162–63. The charges were
    bootstrapped onto Ensign’s violation of rules and regulations promulgated by the State Fire
    Marshal, on the theory that an involuntary killing occurred “while in the commission of an
    unlawful act.” 
    Id. at 120,
    235 N.E.2d at 163. We reversed the conviction, finding that violation
    of the Fire Marshal’s regulations was not “unlawful” per se: “The only statutes empowering the
    Fire Marshall to make rules and regulations specifically limits them. This Court has previously
    held those sections were not designed nor intended to confer law making power upon the Fire
    Marshall. His authority to make rules and regulations does not include legislative power.” 
    Id. at 124,
    235 N.E.2d at 165. 8 Thus in Ensign, we did not hold the General Assembly could not delegate
    7
    Ensign was only charged with one count of manslaughter, but this explosion actually killed 74 people and
    injured nearly 400 during a “Holiday on Ice” show on Halloween night, one of the most deadly tragedies
    in Indiana history. See RetroIndy: The 1963 Coliseum Explosion, The Indianapolis Star (Apr. 17, 2013),
    http://archive.indystar.com/article/99999999/NEWS06/80817011/RetroIndy-1963-Coliseum-explosion.
    8
    The Ensign Court relied principally upon Town of Kirkland v. Everman, which both describes the powers
    of the State Fire Marshal, and states with precision the same delegation doctrine we follow today:
    The Legislature cannot delegate the power to make laws. Nor is this a case
    in which the Legislature has enacted a law and delegated to a ministerial
    body the duty of ascertaining the facts upon which the law will operate.
    In such a case disobedience would be in violation of the statute, and not of
    a rule of the ministerial board.
    It is clear that the statute which authorizes the Fire Marshal to
    make rules for the safety of life and property was not designed or intended
    to convey law-making power upon the Fire Marshal. The rules are only
    11
    any portion of its authority over the penal code; rather, we found the General Assembly did not
    delegate any such authority to the State Fire Marshal.
    Accordingly, it appears to be a matter of first impression whether our General Assembly
    may delegate rule-making power to an administrative agency if violation of such rules would result
    in penal sanctions. 9 This issue contains two pertinent questions: (1) is such a delegation
    permissible under the Indiana Constitution; and (2) even if generally permissible, what test should
    we apply to determine whether a particular delegation of this kind is valid?
    We can discern no guidance from the Indiana Constitutional Convention of 1850–51 with
    respect to whether the Distribution of Powers Clause prevents delegation where criminal penalties
    could result. 10 Therefore, although our decision today is based exclusively on the Indiana
    Constitution, we think it appropriate to seek guidance from other state courts and the United States
    Supreme Court, which have previously confronted these questions in interpreting constitutional
    enforcible [sic] by order in the same manner that other safety orders are
    enforced.
    
    217 Ind. 683
    , 693, 
    29 N.E.2d 206
    , 206–07 (1940) (internal citations omitted).
    9
    See 
    Healthscript, 770 N.E.2d at 814
    (declining to determine whether statute criminalizing Medicaid fraud
    constituted an impermissible delegation of authority to the Medicaid program).
    10
    In fact, this clause appears to have resulted in no debate whatsoever during its three readings before the
    Convention. See 2 Report of the Debates and Proceedings of the Convention for the Revision of the
    Constitution of the State of Indiana 1943, 1954, 2068 (1850). However, this Court has a robust body of
    precedent examining the Distribution of Powers Clause in civil contexts, and has recognized in
    “innumerable decisions” for over a century that “when the Legislature defines its policy and prescribes a
    standard . . . , it may leave to executive boards . . . the determination of facts in order to apply the law, and
    in connection therewith the right . . . to make reasonable rules and regulations . . . .” Fin. Aid Corp. v.
    Wallace, 
    216 Ind. 114
    , 119–20, 
    23 N.E.2d 472
    , 475 (1939) (citing Carroll Perfumers, Inc. v. State, 
    212 Ind. 455
    , 
    7 N.E.2d 970
    (1937); N.Y. Cent. R.R. Co. v. Pub. Serv. Comm’n, 
    212 Ind. 329
    , 336–37, 
    7 N.E.2d 957
    ,
    960 (1937); Stith Petroleum Co. v. Dep’t. of Audit & Control, 
    211 Ind. 400
    , 
    5 N.E.2d 517
    (1937); Dunn
    v. City of Indianapolis, 
    208 Ind. 630
    , 638, 
    196 N.E. 528
    , 531 (1935); Wallace v. Feehan, 
    206 Ind. 522
    , 532,
    
    190 N.E. 438
    , 442–43 (1934); Blue v. Beach, 
    155 Ind. 121
    , 133, 
    56 N.E. 89
    , 91–93 (1900)).
    12
    counterparts to our Distribution of Powers Clause. See, e.g., Clem v. Christole, Inc., 
    582 N.E.2d 780
    , 783–84 (Ind. 1991) (deriving guidance on Indiana’s Contracts Clause (Article 1, Section 24
    of the Indiana Constitution) from United States Supreme Court precedent interpreting the Federal
    Contracts Clause (Article 1, Section 10 of the United States Constitution)).
    In particular, the Supreme Court has considered such a delegation under the Federal
    Constitution, and examined facts very similar to those at issue here. In Touby v. United States,
    the Court considered the constitutionality of a 1984 amendment to the Federal Controlled
    Substances Act, which permitted the Attorney General to schedule additional substances as
    “controlled” for a limited time as “necessary to avoid an imminent hazard to public safety.” 
    500 U.S. 160
    , 163 (1991) (quoting 21 U.S.C. § 811(h)). The Supreme Court upheld the delegation,
    utilizing the same test it applied in previous cases where criminal penalties were not at issue: “So
    long as Congress lays down by legislative act an intelligible principle to which the person or body
    authorized to act is directed to conform, such legislative action is not a forbidden delegation of
    legislative power.” 
    Id. at 165
    (internal quotations omitted). Moreover, at least twenty states have
    analyzed statutes authorizing administrative agencies to designate chemicals as controlled
    substances subject to state criminal laws, and regardless of whether the particular statute was
    upheld, all but one court utilized standards previously applied in civil contexts. 11
    11
    See, e.g., Ex parte McCurley, 
    390 So. 2d 25
    , 28–29 (Ala. 1980); Curry v. State, 
    649 S.W.2d 833
    , 836–
    37 (Ark. 1983); Sundberg v. State, 
    216 S.E.2d 332
    , 333 (Ga. 1975); State v. Kellogg, 
    568 P.2d 514
    , 516
    (Idaho 1977); Commonwealth v. Hollingsworth, 
    685 S.W.2d 546
    , 547 (Ky. 1984); State v. Rodriguez, 
    379 So. 2d 1084
    , 1086 (La. 1980); People v. Turmon, 
    340 N.W.2d 620
    , 623–26 (Mich. 1983); State v. King,
    
    257 N.W.2d 693
    , 697 (Minn. 1977); State v. Thompson, 
    627 S.W.2d 298
    , 301–02 (Mo. 1982) (en banc);
    Sheriff, Clark Cnty. v. Luqman, 
    697 P.2d 107
    , 110 (Nev. 1985); Montoya v. O’Toole, 
    610 P.2d 190
    , 191
    (N.M. 1980); State v. Lisk, 
    204 S.E.2d 868
    , 870 (N.C. Ct. App. 1974); State v. Reed, 
    470 N.E.2d 150
    , 154
    (Ohio Ct. App. 1983); State v. Brown, 
    576 P.2d 776
    , 777 (Okla. Crim. App. 1978); State v. Sargent, 
    449 P.2d 845
    , 845 (Or. 1969) (en banc); State v. Edwards, 
    572 S.W.2d 917
    , 919 (Tenn. 1978); Threlkeld v.
    State, 
    558 S.W.2d 472
    , 474 (Tex. Crim. App. 1977); State v. Gallion, 
    572 P.2d 683
    , 687 (Utah 1977);
    Matter of Powell, 
    602 P.2d 711
    , 715–16 (Wash. 1979) (en banc); State v. Grinstead, 
    206 S.E.2d 912
    , 919
    (W.Va. 1974). But see Howell v. State, 
    300 So. 2d 774
    , 781 (Miss. 1974) (“We hold that the authority to
    13
    One Indiana case also provides interesting guidance. In Burk v. State, Debra Burk was
    charged with the use of LSD under the Indiana Uniform Narcotic Drug Act, but LSD was only
    prohibited under the Indiana Dangerous Drug Act. 
    257 Ind. 407
    , 409–10, 
    275 N.E.2d 1
    , 2–3
    (1971). The State’s theory was that because the Pharmacy Board was empowered to enact
    regulations stating additional substances met the statutory definition of “narcotic drugs” under the
    NDA, the Pharmacy Board could also redefine the NDA to include the definition of “dangerous
    drugs” in the DDA (which the State alleged had occurred), and thus the NDA now covered all
    substances included in the DDA. 
    Id. We rejected
    this contention, finding that since the Pharmacy
    Board’s power was limited to “determining, after reasonable notice and opportunity for hearing,
    whether a certain drug falls within the definition of a ‘narcotic drug’ as that term is used in the
    Narcotic Drug Act,” the Pharmacy Board could not redefine the NDA. 
    Id. at 410–11,
    275 N.E.2d
    at 3. However, our discussion strongly implied that the Pharmacy Board’s actual authority—to
    determine whether additional substances met the definition of a “narcotic drug” under the NDA—
    was appropriate, even though criminal penalties would result. 
    Id. at 411,
    275 N.E.2d at 3.
    Based on the weight and consistency of this authority, we find that the Distribution of
    Powers Clause of the Indiana Constitution does not prohibit our General Assembly from delegating
    rule-making authority to administrative agencies where violation of such rules may result in
    criminal penalties by statute, and moreover, that it is appropriate to apply Indiana’s traditional
    analysis to determine whether such a delegation is valid.
    In Indiana, “although the legislature cannot delegate the power to make a law, it can make
    a law delegating power to an agency to determine the existence of some fact or situation upon
    which the law is intended to operate.” City of Carmel v. Martin Marietta Materials, Inc., 
    883 N.E.2d 781
    , 788 (Ind. 2008) (internal quotations omitted). Such delegations are valid when
    define crimes and fix the punishment therefor is vested exclusively in the legislature, and it may not delegate
    that power either expressly or by implication . . . .”).
    14
    “accompanied by sufficient standards to guide the agency in the exercise of its statutory authority.”
    
    Healthscript, 770 N.E.2d at 814
    . These standards “need to be as specific as the circumstances
    permit, considering the purpose to be accomplished by the statute.” Barco Beverage Corp. v. Ind.
    Alcoholic Beverage Comm’n, 
    595 N.E.2d 250
    , 254 (Ind. 1992).
    Here, the Pharmacy Board has not been empowered to legislate with respect to dealing,
    conspiracy to commit dealing, or possession of synthetic drugs; that power has already been
    exercised by the General Assembly, as contained in relevant part at Indiana Code sections 35-48-
    4-10(a)(1) and -11 (Supp. 2012). The Pharmacy Board has merely been given the power to
    determine, via emergency rule, whether additional substances should qualify as “synthetic drugs”
    under Section 321—in other words, “to determine the existence of some fact or situation upon
    which the law is intended to operate.” City of 
    Carmel, 883 N.E.2d at 788
    . Since these rules are
    expressly incorporated into Section 321, as we said 75 years ago, “disobedience [is] in violation
    of the statute, and not of a rule of the ministerial board.” Town of Kirklin v. Everman, 
    217 Ind. 683
    , 693, 
    29 N.E.2d 206
    , 207 (1940). Moreover, the Pharmacy Board could only exercise that
    power if the substance “(1) has been scheduled or emergency scheduled by the United States Drug
    Enforcement Administration; or (2) has been scheduled, emergency scheduled, or criminalized by
    another state.” Ind. Code § 25-26-13-4.1(b) (Supp. 2012). 12 This constitutes sufficient guidance
    to direct the Pharmacy Board’s discretion. See 
    Barco, 595 N.E.2d at 254
    (holding that delegation
    of authority to Alcoholic Beverage Commission to “exercise all powers necessary and proper to
    carry out the policies of this title” was valid when accompanied by statutory policy directives).
    In sum, we find Section 4.1 does not constitute an impermissible delegation of legislative
    authority to the Pharmacy Board under the Distribution of Powers Clause.
    12
    To a certain extent, this issue has been rendered moot by our General Assembly, as they added additional
    criteria to Section 4.1, effective July 1, 2013. See Ind. Code § 25-26-13-4.1(b) (Supp. 2014).
    15
    IV.      The XLR11-Related Counts Must Be Dismissed for Failure to Reference the
    Emergency Rule.
    Tiplick asserts two challenges to the charging information with respect to the synthetic
    drug charges. First, Tiplick claims the information is fatally flawed because it fails to name a
    specific synthetic drug within its four corners, even though the supporting probable cause affidavit
    does allege that the products sold contained XLR11. It has long been the rule in Indiana that the
    State may meet its burden of providing sufficient notice of the charges the defendant faces through
    the combination of an information and a probable cause affidavit. See Patterson v. State, 
    495 N.E.2d 714
    , 719 (Ind. 1986); Woods v. State, 
    980 N.E.2d 439
    , 443 (Ind. Ct. App. 2012) (“Since
    the charging information and probable-cause affidavit are filed together, they should be viewed in
    tandem to determine if they satisfy the goal of putting the defendant on notice of the crimes with
    which she is charged . . . .”). We therefore find this claim to be without merit.
    Second, Tiplick claims the information was required to reference the Emergency Rule
    rather than just the criminal statute, because without it, there is nothing to indicate with specificity
    the criminality of XLR11. On this technical point, we find Tiplick to be correct. In State v.
    Jennings, the defendant was charged with possession of a “dangerous drug,” (namely, marijuana)
    under Indiana Code section 16-6-8-2(j), which included “any substance which the state board of
    pharmacy, after reasonable notice and hearing, shall by promulgated rule determine has qualities
    similar to that of any dangerous drug.” 
    262 Ind. 443
    , 444–45, 
    317 N.E.2d 446
    , 447–48 (1974)
    (Givan, J., dissenting). The possession occurred on August 3, 1973, during a narrow gap between
    effective statutes where marijuana was only defined as a “dangerous drug” pursuant to such a
    Pharmacy Board rule. 
    Id. at 445,
    317 N.E.2d at 447–48. We upheld the dismissal of the
    information, finding:
    There being no statutory offense alleged, it was incumbent on the
    State to allege that the appellee violated the promulgated rule of the
    Board of Pharmacy . . . Yet, nowhere in the record before us does
    the Board of Pharmacy rule appear. The affidavit was clearly
    defective in that it alleged no criminal offense.
    16
    
    Id. at 444,
    317 N.E.2d at 447. The same circumstances—almost to the letter—have occurred here:
    Tiplick was charged under Indiana statutes with dealing, conspiracy to commit dealing, and
    possession of synthetic drugs. Yet, the only synthetic drug listed in the information or the probable
    cause affidavit is XLR11. XLR11 was only illegal at that time pursuant to the Emergency Rule,
    and neither the charging information nor the probable cause affidavit reference that Rule. We thus
    find the charging information inadequate under Jennings.
    The State urges us to disavow Jennings, arguing that subsequent Indiana precedent has
    imposed a lesser standard on the allegations in the charging information: “An information that
    enables an accused, the court and the jury to determine the crime for which conviction is sought
    satisfies due process.” State’s Br. at 13 (quoting Dickenson v. State, 
    835 N.E.2d 542
    , 550 (Ind.
    Ct. App. 2005) and Lampitok v. State, 
    817 N.E.2d 630
    , 636 (Ind. Ct. App. 2004)). We have no
    quarrel with the standard used in Dickenson and Lampitok for determining the adequacy of an
    information in general, and we agree with the State that fairness does not mandate dismissal under
    these circumstances, as Tiplick is at this point fully informed that the underlying statutory basis
    for the charges is the Emergency Rule, even if the information was not completely explicit in that
    regard. However, we believe we remain duty-bound to follow Jennings under the highly specific
    factual circumstances presented, given the extreme parity of the two cases. We are therefore
    obliged to dismiss counts VII through XV and counts XVII through XVIII of the information. 13
    13
    We wish to emphasize, however, that as we found no constitutional or statutory infirmity to the charges,
    the State remains free to re-file an amended information with proper reference to the Emergency Rule. See
    Ind. Code § 35-34-1-13(b) (2014) (“In any case where an order sustaining a motion to dismiss would
    otherwise constitute a bar to further prosecution of the crime charged, unless the defendant objects to
    dismissal, the granting of the motion does not bar a subsequent trial of the defendant on the offense
    charged.”); Joyner v. State, 
    678 N.E.2d 386
    , 394 (Ind. 1997) (“[T]he dismissal of a charge will not bar the
    renewal of proceedings unless the substantial rights of the accused have been prejudiced.”).
    17
    Conclusion
    XLR11 became a criminal substance in Indiana on September 15, 2012, and Christopher
    Tiplick is alleged to have violated that rule a mere five days later. While he may have the dubious
    honor of being the first person in Indiana history so charged, being first does not entitle him to a
    free pass. As Justice Joseph Story opined more than 180 years ago:
    It is a common maxim, familiar to all minds, that ignorance of the
    law will not excuse any person, either civilly or criminally . . . .
    There is scarcely any law, which does not admit of some ingenious
    doubt, and there would be perpetual temptations to violations of the
    laws, if men were not put upon extreme vigilance to avoid them.
    Barlow v. United States, 
    32 U.S. 404
    , 411 (1833). For the foregoing reasons, we affirm the trial
    court’s denial of Tiplick’s motion to dismiss the charges against him under the Look-Alike Statutes
    (counts I through VI and XVI), we dismiss the XLR11-related charges (counts VII through XV
    and counts XVII through XVIII) only for insufficiency of the charging information, and remand
    to the trial court for all other proceedings consistent with this opinion.
    Rush, C.J., and Dickson, Rucker, and David, JJ., concur.
    18