Gary Elvers v. State of Indiana ( 2014 )

Dec 17 2014, 8:24 am
FOR PUBLICATION
ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
DONALD E. C. LEICHT GREGORY F. ZOELLER
Kokomo, Indiana Attorney General of Indiana
IAN McLEAN
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
GARY ELVERS, )
)
Appellant-Defendant, )
)
vs. ) No. 34A02-1404-CR-239
)
STATE OF INDIANA, )
)
Appellee-Plaintiff. )
APPEAL FROM THE HOWARD SUPERIOR COURT
The Honorable William C. Menges, Judge
Cause No. 34D01-1207-FD-592
December 17, 2014
OPINION - FOR PUBLICATION
RILEY, Judge
STATEMENT OF THE CASE
Appellant-Defendant, Gary Elvers (Elvers), appeals his conviction of three Counts
of dealing in a synthetic drug, Class D felonies, Ind. Code § 35-48-4-10(a)(2),(b)(1)(B)
(2012); and one Count of maintaining a common nuisance, a Class D felony, I.C. § 35-48-
4-13(b)(2).
We affirm in part, vacate in part, and remand.1
ISSUES
Elvers raises six issues on appeal, which we consolidate and restate as the following
four issues:
(1) Whether Indiana Code section 35-38-4-10 is unconstitutional;
(2) Whether the State improperly charged Elvers;
(3) Whether the trial court abused its discretion by admitting certain evidence; and
(4) Whether there is sufficient evidence to support Elvers’ conviction of dealing in
a synthetic drug.
FACTS AND PROCEDURAL HISTORY
Prior to the onset of these proceedings, Elvers owned Elvie’s, a retail smoke shop
in Kokomo, Indiana. Elvie’s was in the business of selling tobacco, pipes, rolling papers,
1
In two prior memorandum decisions, our court noted that the record emitted a foul odor consistent with
cigarette or pipe smoke, and we asked that those who handle the appellate record refrain from such
contamination in the future. See Rice v. State, No. 49A02-1401-CR-12 (Ind. Ct. App. Sept. 30, 2014);
Wampler v. State, No. 09A02-1201-CR-61 (Ind. Ct. App. July 3, 2012). It appears that our requests were
disregarded because the record in the instant case is permeated with the same repugnant stench. The fact
that all three of these malodorous records were handled by the same Deputy Attorney General prompts us
to direct this third entreaty to the Office of the Attorney General with the demand that our request for clean,
unscented records be heeded.
2
incense, detoxification products, novelty items, and a variety of products commonly known
as “spice” and “bath salts.” (Transcript p. 173). Effective July 1, 2011, Indiana law
prohibited dealing in “synthetic cannabinoid[s].” I.C. § 35-48-4-10 (2011). A
corresponding statute set forth a detailed list of illicit cannabinoids, which included, in part,
any substances containing JWH-122 and JWH-250. See I.C. § 35-41-1-26.3(6),(8) (now
codified at I.C. § 35-31.5-2-321(1)(F),(H)) (collectively, the Synthetic Drug Law). Shortly
thereafter, Lieutenant Tonda Cockrell (Lieutenant Cockrell) of the Kokomo Drug Task
Force delivered a copy of the updated statutes to Elvie’s. Aware that the chemical
composition of spice often consists of these newly-banned substances, Lieutenant Cockrell
asked Elvers to submit samples of his products for analysis, which he declined.
Subsequent to the statutory enactment, the Kokomo Police Department noted a
sharp increase in the number of complaints related to Elvie’s. Between July of 2011 and
March of 2012, the Department received nineteen calls from Elvers and his staff to report
burglaries and theft, in addition to other reports from concerned community members
regarding Elvie’s products. As a result, the Drug Task Force commenced an investigation.
On September 30, 2011, Detective James Nielson (Detective Nielson), acting undercover,
purchased several packets of spice and bath salts from Elvie’s, which he subsequently
submitted to the Indiana State Police Lab for testing. A month later, the Lab results
confirmed that the spice contained JWH-122 and JWH-250. On October 28, 2011,
Detective Nielson returned to Elvie’s and purchased two more packets of spice, and on
February 9, 2012, the Lab results indicated the presence of JWH-122 in one of the packets.
3
On March 15, 2012, an emergency amendment to the Synthetic Drug Law went into
effect, which replaced “synthetic cannabinoid” with “synthetic drug.” I.C. § 35-48-4-10
(2012) (current version at I.C. § 35-48-4-10.5). Under the amended law, the list of illicit
chemical compounds incorporated the same substances previously banned as “synthetic
cannabinoids”—such as JWH-122 and JWH-250—but also added a significant number of
new compounds. I.C. § 35-41-1-26.3.2 Four days later, Detective Nielson attempted to
make a third undercover purchase of spice and bath salts from Elvie’s. At this time,
Detective Nielson observed that the display case no longer contained the merchandise he
had previously observed, and a store clerk informed him that no spice or bath salts were
available for purchase.
Later that day, March 19, 2012, Kokomo police officers obtained and executed a
search warrant at Elvie’s. As part of the search, a K-9 officer escorted his drug-sniffing
dog through the building and parking lot. Based on the dog’s alerts, the police officers
obtained two more warrants to search a vehicle registered to Elvie’s and a purse that
belonged to the store manager. Also, the police officers applied for additional warrants to
search the cash drawer and two gun safes. At the conclusion of the search, the officers had
seized business records, more than $10,000 in cash, and nearly 1,000 spice and bath salt
products. Detective Nielson subsequently submitted sixteen randomly-selected items to
the State Police Lab for testing, fifteen of which yielded positive results for controlled
2
The amendment to Indiana Code section 35-41-1-26.3 was also effective as of March 15, 2012. See Ind.
Pub. L. No. 78-2012, § 11. Then on July 1, 2012, Indiana Code section 35-41-1-26.3 was repealed and
recodified into its current form at Indiana Code section 35-31.5-2-321.
4
substances. Five of the spice packets contained JWH-122 and weighed a total of 14.51
grams; four contained JWH-250 and weighed a total of 3.39 grams. The six bath salt
products tested positive for the synthetic drugs alpha-PVP and pentylone.
On July 5, 2012, the State filed an Information, charging Elvers with six Class D
felonies pursuant to Indiana Code section § 35-48-4-10(a)(2),(b)(1)(B): Count I, dealing
in the synthetic drug pentylone; Counts II and VII, dealing in the synthetic drug alpha-
PVP; Counts III and V, dealing in the synthetic drug JWH-122; and Count IV, dealing in
the synthetic drug JWH-250. The State also charged Elvers with Count VI, maintaining a
common nuisance, a Class D felony, I.C. § 35-48-4-13(b)(2). On September 4, 2012,
Elvers filed a motion to dismiss the charges, alleging the Synthetic Drug Law to be
unconstitutionally vague. On November 7, 2012, Elvers filed a motion to suppress the
evidence seized from Elvie’s based on a defective search warrant. Following a hearing on
November 16, 2012, the trial court denied Elvers’ motion to dismiss. On February 1, 2013,
the trial court held a hearing on his motion to suppress and denied the same on April 9,
2013.
On January 31, 2014, a four-day jury trial commenced. At the close of the evidence,
the jury returned a guilty verdict as to Counts III, IV, V, and VI.3 On March 12, 2014, the
trial court conducted a sentencing hearing. For each of the four Counts, the trial court
3
The jury found Elvers not guilty of Counts I, II, and VII, which charged him with dealing in synthetic
drugs (alpha-PVP and pentylone) that were not illegal until March 15, 2012. See I.C. § 35-31.5-2-
321(1)(NN),(LLL). Additionally, in his appellate brief, Elvers indicates an intent to challenge his
conviction of Count VI, maintaining a common nuisance, but because he does not further develop this
argument, we confine our review to his convictions of Counts III through V.
5
imposed concurrent sentences of 548 days, with 365 days executed on in-home detention
and 183 days suspended to supervised probation.
Elvers now appeals. Additional facts will be provided as necessary.
DISCUSSION AND DECISION
I. Constitutionality of the Synthetic Drug Law
Elvers claims that the trial court erred in denying his motion to dismiss the charging
Information because the Synthetic Drug Law, as it existed on March 19, 2012, is
unconstitutional. While the denial of a motion to dismiss is generally reviewed under an
abuse of discretion standard, the constitutionality of a statute is a question of law that our
court reviews de novo. Salter v. State, 906 N.E.2d 212, 215 (Ind. Ct. App. 2009), reh’g
denied. Because we presume that the General Assembly enacts constitutional laws, the
burden is on the challenger to prove otherwise. Lee v. State, 973 N.E.2d 1207, 1209 (Ind.
Ct. App. 2012), trans. denied. Any doubts regarding a statute’s validity are resolved in
favor of its constitutionality. Lock v. State, 971 N.E.2d 71, 74 (Ind. 2012).
A. Technical Terms
First, Elvers contends that the Synthetic Drug Law is contrary to the mandate of the
Indiana Constitution that “[e]very act and joint resolution shall be plainly worded,
avoiding, as far as practicable, the use of technical terms.” Ind. Const. art. 4, § 20. A basic
tenet of “due process requires that a penal statute ‘clearly define its prohibitions.’” Lock,
971 N.E.2d at 74 (quoting Brown v. State, 868 N.E.2d 464, 467 (Ind. 2007)). Thus, a
criminal statute will be held unconstitutionally vague if it fails to “give a person of ordinary
intelligence fair notice that his contemplated conduct is forbidden so that ‘no man shall be
6
held criminally responsible for conduct which he could not reasonably understand to be
proscribed.’” Brown, 868 N.E.2d at 467 (quoting United States v. Harriss, 347 U.S. 612,
617 (1954)). We will examine a vagueness challenge in light of the precise circumstances
of the present case. Baumgartner v. State, 891 N.E.2d 1131, 1136 (Ind. Ct. App. 2008).
Elvers acknowledges that in Kaur v. State, 987 N.E.2d 164, 168-69 (Ind. Ct. App.
2013), our court rejected a vagueness challenge to the Synthetic Drug Law because—as in
Elvers’ case—the synthetic drug in question was specifically identified in the statute.
Nevertheless, he argues that the Synthetic Drug Law is written “like a chemical engineer’s
dissertation, [such that] ordinary citizens, who are supposed to be at the top of the power-
chain, will not know what is proscribed.” (Appellant’s Br. pp. 7-8). At the time of Elvers’
crime, the Synthetic Drug Law provided that “[a] person who . . . possesses, with intent to
. . . deliver . . . a synthetic drug, pure or adulterated[,] commits dealing in . . . a synthetic
drug.” I.C. § 35-48-4-10(a)(2)(C) (2012). The Synthetic Drug Law then specifically
defined a synthetic drug, in part, as
a substance containing one (1) or more of the following chemical
compounds:
****
(6) JWH-122 (1-pentyl-3-(4-methyl-1-naphthoyl)indole).
****
(8) JWH-250 (1-pentyl-3-(2-methoxyphenylacetyl)indole).
I.C. § 35-41-1-26.3(6),(8) (now codified at I.C. § 35-31.5-2-321(1)(F),(H)). According to
Elvers, it is this list of synthetic drugs that is too technical for individuals of ordinary
intelligence to comprehend. We disagree.
7
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. As the
forensic scientist from the State Police Lab explained, the chemical composition of
synthetic drugs varies by manufacturers, products, and batches, so chemical analyses are
necessary to discern whether a particular product contains an illegal drug. By identifying
both the name and the chemical structures of the banned substances, the Synthetic Drug
Law ensures that individuals are charged only if found in possession of a compound that is
specifically proscribed.
Furthermore, focusing only on the facts of this case and not hypothetical situations,
we decline to find that Elvers’ lack of knowledge and understanding of the chemical
makeup of JWH-122 and JWH-250 renders the Synthetic Drug Law unconstitutional. See
Kaur, 987 N.E.2d at 169. Our supreme court has previously determined that so long as a
statute is “susceptible to both an intelligible and reasonable construction”—even if it is not
“a model of rhetorical clarity”—it satisfies Article 4, Section 20. Welsh v. Sells, 192
N.E.2d 753, 762-63 (Ind. 1963) (per curiam), reh’g denied. Here, the statute
unambiguously notified Elvers that he would be subjected to criminal liability for
possessing, with intent to deliver, any substance that contains JWH-122 or JWH-250.
Armed with this information, Elvers could have taken measures to ensure that he was not
selling merchandise containing these substances.
B. Weight Enhancement
8
Second, Elvers contends that the Synthetic Drug Law’s weight enhancement is
unconstitutional, as applied to the facts of his case. The crime of dealing in a synthetic
drug is punishable as a Class A misdemeanor, but the charge is enhanced to a Class D
felony if “the amount involved is . . . more than two (2) grams of a synthetic drug.” I.C. §
35-48-4-10(b)(1)(B)(ii) (2012). In the present case, Elvers was charged with Class D
felonies based on the total weight of the spice that contained synthetic drugs. As such,
Elvers argues that because the State did not present evidence of the weight of the JWH-
122 and JWH-250 in isolation from the remaining material comprising the spice, he was
subjected to a harsher penalty “for possessing a non-proscribed substance with but a trace
of a proscribed substance.” (Appellant’s Br. p. 17). Again, we disagree.
We first note that Elvers did not raise this issue in his motion to dismiss; however,
our supreme court has previously decided that “the constitutionality of a statute may be
raised at any stage of the proceeding including raising the issue sua sponte by [the] [c]ourt.”
Tooley v. State, 911 N.E.2d 721, 723 (Ind. Ct. App. 2009), trans. denied. Although Elvers’
argument is predominantly incoherent, he seems to posit that the State violated his rights
under Article 1, Section 16 of the Indiana Constitution, which provides, in pertinent part,
that “[a]ll penalties shall be proportioned to the nature of the offense.” To this end, Elvers
relies on Conner v. State, 626 N.E.2d 803, 805-06 (Ind. 1993), in which our supreme court
determined that a conviction for dealing a substance represented to be a controlled
substance did not merit a six-year sentence where there were no traces of any illicit drugs
in the sample, and the defendant would have received a lesser penalty if he had been dealing
actual marijuana. We find Conner to be inapposite to Elvers’ situation. The synthetic
9
drugs seized from Elvie’s did, in fact, test positive for JWH-122 and JWH-250, which are
explicitly proscribed by the Synthetic Drug Law. Furthermore, it is well established that
the total weight of a final, deliverable (adulterated) drug product—not just the pure
component thereof—may be used to support a weight enhancement. See Buelna v. State,
No. 20S04-1404-CR-243, 2014 WL 5995839, at *4, *8-10 (Ind. Nov. 13, 2014).
Accordingly, as the spice containing JWH-122 weighed 14.51 grams and the spice
containing JWH-250 weighed 3.39 grams, the State did not violate Elvers’ constitutional
rights by enhancing his charges.
II. Charging Information
A. Crime Alleged
Next, Elvers claims that his charges were improper because the Information failed
to allege a crime. In particular, Elvers argues that he “was charged with possessing a plant
material that contained a synthetic drug[,]” which he maintains is not proscribed by Indiana
law. (Appellant’s Br. p. 7). Yet, as the State correctly asserts, Elvers failed to raise this
contention in his motion to dismiss and, therefore, has waived the issue on appeal. See
Wilhoite v. State, 7 N.E.3d 350, 352 (Ind. Ct. App. 2014). Waiver notwithstanding,
because “it is a due process violation for the State to convict people of crimes that do not
exist[,]” we will address the merits of Elvers’ claim. Id.“The purpose of the charging information is to provide a defendant with notice of
the crime of which he is charged so that he is able to prepare a defense.” Gilliland v. State,
979 N.E.2d 1049, 1060 (Ind. Ct. App. 2012). The information must, in part, “stat[e] the
name of the offense in the words of the statute or any other words conveying the same
10
meaning” and explain “the nature and elements of the offense charged in plain and concise
language without unnecessary repetition.” I.C. § 35-34-1-2(a)(2),(4). The State is under
no obligation to include detailed factual allegations; rather, a charging information satisfies
due process if it “enables an accused, the court, and the jury to determine the crime for
which conviction is sought.” Gilliland, 979 N.E.2d at 1061. “Errors in the information are
fatal only if they mislead the defendant or fail to give him notice of the charge filed against
him.” Id.
Employing the language of the Synthetic Drug Law, Counts III and V of the
Information charge Elvers, in relevant part, with “knowingly or intentionally possess[ing]
with the intent to deliver plant material with the brand name of [spice products identified,]
containing JWH-122, a synthetic drug in an amount greater than 2 grams and less than 300
grams.” (Appellant’s App. pp. 17, 19). Likewise, Count IV states that Elvers did
“knowingly or intentionally possess with the intent to deliver a plant material with the
brand names [spice products identified,] containing JWH-250, a synthetic drug in an
amount greater than 2 grams and less than 300 grams.” (Appellant’s App. p. 18). Each
Count also includes the relevant statutory provisions and the caption “DEALING IN A
SYNTHETIC DRUG.” (Appellant’s App. pp. 17-19). Thus, contrary to Elvers’
contention, the Information very clearly charges him with more than simply dealing in
“plant materials with specific brand names.” (Appellant’s Br. p. 9). Because there is no
doubt that Elvers was charged with possessing, with the intent to deliver, a synthetic drug,
pure or adulterated, we find no error.
B. Multiple Charges
11
Count III and Count V of the Information both charge Elvers with dealing in
substances containing JWH-122 in excess of two grams. Elvers now contends that these
charges should have been merged. Again, we note that Elvers has waived this issue by
raising it for the first time on appeal. Nevertheless, waiver notwithstanding, we find that
Elvers prevails on the merits.
The State maintains that separate charges were appropriate because the police
officers seized 10.62 grams of “Kryp2Nite Original” packages (all of which contained
JWH-122) from a cardboard box inside Elvie’s bathroom closet, and 3.89 grams of
products with brand names such as “Spike Max” and “K4 Silver” (also containing JWH-
122) from Elvie’s gun safe. The State insists that because the legislature intended to punish
dealers more severely, Elvers should be charged based on his “decisions to invest in, and
market, multiple types of products containing JWH-122.” (State’s Br. p. 19). On the other
hand, according to Elvers, the separate charges suggest that he was charged for possessing
specific brand names of spice rather than for the underlying synthetic drug. We agree with
Elvers.
The Synthetic Drug Law proscribes the possession, with intent to deliver, of JWH-
122 in any pure or adulterated form—without consideration of the product’s brand name
or any other ingredients. Furthermore, the Synthetic Drug Law has a built-in penalty for
possessing at least two grams of a synthetic drug. I.C. § 35-48-4-10(b)(1)(B)(ii) (2012).
Once this two-gram threshold is met, the statute provides for a Class D felony regardless
of any quantity in excess thereof. Our court has previously determined that “[t]he essence
of the crime of possession of [a controlled substance] is the act of possessing [the controlled
12
substance] on a particular occasion, without respect to the location, quantity, or the number
of individual packages . . . possessed.” Stephens v. State, 588 N.E.2d 564, 657 (Ind. Ct.
App. 1992) (footnote omitted), trans. denied. In the case at hand, Elvers was effectively
convicted of two violations arising “from his single act of simultaneous possession” of
multiple products containing JWH-122. Young v. State, 564 N.E.2d 968, 972 (Ind. Ct.
App. 1991), trans. denied. Accordingly, the State should have charged Elvers with only a
single Count of dealing in the synthetic drug JWH-122. Even though the error did not
result in additional harm to Elvers based on the trial court’s imposition of identical,
concurrent sentences, we remand to the trial court with instructions to vacate the conviction
as to Count V.4
III. Admissibility of Evidence
Elvers claims that the trial court abused its discretion by admitting the evidence
seized from his business pursuant to five separate search warrants. Specifically, Elvers
asserts “that the affidavit tendered for [the] first search warrant is improper under [Indiana
Code section] 35-33-5-1 et seq[.],” and therefore “the items seized under the first search
should have been suppressed, and all subsequent search warrants and the items seized
thereunder are likewise fruits of the poisonous tree and should have been suppressed.”
(Appellant’s Br. p. 11).
4
Pursuant to Indiana Appellate Rule 46(A)(8)(a), Elvers has waived his additional claim that the trial court
failed to properly instruct the jury because he has not developed a cogently-reasoned argument, supported
with citations to authority.
13
Elvers directs our attention to the form of the first warrant issued on March 19, 2012,
and more specifically to the first page, which he posits “looks like an affidavit, not a search
warrant. A trial judge is not permitted to be an affiant. He or she is required to be a neutral
magistrate.” (Appellant’s Br. pp. 11-12). In order to be sufficient, Indiana Code section
35-33-5-3 requires a search warrant to be “in substantially the following form”:
To _______________ (herein insert the name, department or classification
of the law enforcement officer to whom it is addressed) You are authorized
and ordered, in the name of the State of Indiana, with the necessary and
proper assistance to enter into or upon ________________________ (here
describe the place to be searched), and there diligently search for
________________ (here describe property which is the subject of the
search). You are ordered to seize such property, or any part thereof, found on
such search.
Dated this ____ day of ______, 20___, at the hour of ___ __M.
______________________________
(Signature of Judge)
Executed this ___ day of ______, 20___, at the hour of ____ ___M.
_______________________________
(Signature of Law Enforcement Officer)
Here, we find the warrant to search Elvie’s to be in substantially the same form. The
top of the warrant is labeled “SEARCH WARRANT,” below which it states:
To any constable, police officer, sheriff or conservator of the peace,
greeting: Whereas, there has been filed with me an affidavit of which the
following is a copy:
AFFIDAVIT FOR SEARCH WARRANT
[Excerpt from Detective Nielson’s affidavit of probable cause,
describing the place to be search and the items to be sought.]
You are therefore commanded in the name of the State of Indiana,
with necessary and proper assistance in the daytime or nighttime, to enter
into or upon the premises described in said affidavit, said premises
occupied/owned by the above named person and there search diligently for
the above items, to wit: In said affidavit described, and that you bring the
same before me to be disposed of according to law.
Given under my hand this 19th day of March, 2012 at [2:54 p.m.].
14
[Judge’s Signature]
(State’s Exh. 2, p. 9) (emphasis added).
We find it clear that the issuing judge did not improperly act as an affiant in
describing the place to be searched or items to be seized. The warrant specifies that such
information was copied directly from an affidavit that was filed with the judge. See I.C. §
35-33-5-2(a). Moreover, although Elvers has not demonstrated any prejudice from the
subheading “AFFIDAVIT FOR SEARCH WARRANT,” to the extent that it created any
confusion as to the nature of the document, we find it to be “a minor technical anomaly”
that will “not invalidate an otherwise valid search warrant.” Brannon v. State, 801 N.E.2d
750, 752 (Ind. Ct. App. 2004), trans. denied. The warrant contains the statutorily required
information, and it is evident that the judge intended to issue the warrant; thus, the warrant
is valid, and the trial court did not abuse its discretion by admitting the evidence seized
pursuant thereto.5
IV. Sufficiency of Evidence
Lastly, Elvers claims that the State presented insufficient evidence to support his
conviction for dealing in a synthetic drug. When reviewing claims of sufficiency of the
evidence, our court neither reweighs the evidence nor assesses the credibility of witnesses.
5
We decline to address Elvers’ additional claim that there was insufficient probable cause to support the
issuance of the first search warrant. In his motion to suppress, Elvers alleged only a defect in form as
grounds for invalidating the warrant, and he raised no objections to the adequacy of a factual basis for
probable cause. He may not do so for the first time on appeal. See Goodner v. State, 685 N.E.2d 1058,
1060 (Ind. 1997). In addition, Elvers contends that the seized packets of spice and bath salts were
improperly admitted into evidence because the State failed to establish a chain of custody. Because Elvers
did not object on these grounds during the trial and has not claimed fundamental error, he has also waived
this issue for appellate review. See Troxell v. State, 778 N.E.2d 811, 814 (Ind. 2002).
15
Davis v. State, 863 N.E.2d 1218, 1220 (Ind. Ct. App. 2007), trans. denied. Rather, we
consider the evidence—and any inferences that may reasonably be derived therefrom—
most favorable to the verdict to determine whether there is “evidence of probative value
from which a reasonable trier of fact could find the defendant guilty beyond a reasonable
doubt.” Id.In order to uphold his conviction, the State had to prove beyond a reasonable doubt
that Elvers possessed, with the intent to deliver, “a synthetic drug, pure or adulterated.”
I.C. § 35-48-4-10(a)(2)(C) (2012). The fact that the synthetic drugs were in Elvers’
possession is not in dispute; rather, he argues that the State failed to prove his intent to
deliver. An intent to deliver may be demonstrated by either direct or circumstantial
evidence. Davis, 863 N.E.2d at 1220. “Intent involves a person’s state of mind, and a
factfinder may infer its existence from the surrounding circumstances.” Wilson v. State,
966 N.E.2d 1259, 1266 (Ind. Ct. App. 2012), trans. denied.
Our courts have long held that “[e]vidence of the illegal possession of a relatively
large quantity of drugs may support a conviction for possession with intent to deliver” as a
larger quantity creates an inference that the drugs are not held for personal consumption.
Davis v. State, 791 N.E.2d 266, 270 (Ind. Ct. App. 2003), trans. denied. In general,
evidence that a large quantity of drugs is divided into small, individual portions rather than
stored in one large container also supports the inference that the drugs are packaged for
sale rather than personal use. Id. In this case, the evidence establishes that Elvers was in
possession of nearly 1,000 different packages of spice and bath salt products, and of the
samples submitted to the State Police Lab, nearly all tested positive for a controlled
16
substance. Many of the seized items were labeled with a price tag. It is undisputed that
Elvie’s was in the business of selling spice and bath salts and, on prior occasions, had sold
products containing synthetic drugs to an undercover police officer. We find that this
evidence sufficiently establishes that Elvers had an intent to deliver.
Elvers directs our attention to other evidence indicating that he lacked the requisite
intent to deliver. During the trial, he testified that when the Synthetic Drug Law was
amended on March 15, 2012, he “instructed the staff to remove all the products that could
possibly be covered by the new law, lock them up, refuse to sell them.” (Tr. p. 411).
Additionally, Detective Nielson testified that when he visited Elvie’s four days later, the
spice and bath salt products were no longer on display, and a clerk informed him that these
products were no longer being sold. When the officers executed the search warrant, with
the exception of a few packets of contraband seized from the store manager’s purse, they
found all of the spice and bath salts inside of a locked bathroom closet, with some products
even further locked up in a gun safe. Elvers explained that he believed he had a thirty-day
grace period to turn in any illegal products without the threat of prosecution, and he
intended to keep them locked up until he could return the products to the manufacturers for
a refund.
Elvers’ argument is largely a request that we reweigh evidence, which we decline
to do. JWH-122 and JWH-250 were clearly banned as of July 1, 2011, and the evidence
reveals that Elvers continued to possess and sell substances containing these synthetic
drugs despite their illegal status. Moreover, for purposes of the Synthetic Drug Law, a
delivery “merely requires the actual or constructive transfer of the controlled substance.”
17
Cline v. State, 860 N.E.2d 647, 650 (Ind. Ct. App. 2007). Thus, even if the jury believed
Elvers’ testimony that he had no plans to covertly sell the merchandise, he admittedly had
every intent to transfer the synthetic drugs back to the manufacturers for a refund, which
we find is sufficient to sustain his conviction for dealing in a synthetic drug.
CONCLUSION
Based on the foregoing, we conclude that the Synthetic Drug Law is not
unconstitutionally technical; the State properly enhanced Elvers’ charges based on the
weight of the synthetic drugs in their adulterated form; the Information sufficiently
apprised Elvers of the crimes with which he was charged; the search warrant is not
defective; and there is sufficient evidence to support a conviction for dealing in a synthetic
drug. We further conclude that the State improperly charged Elvers with two Counts of
dealing in the synthetic drug JWH-122 and remand with instructions for the trial court to
vacate the conviction on Count V.
Affirmed in part, vacated in part, and remanded.
MATHIAS, J. and CRONE, J. concur
18