State of Indiana v. Yvonne S. Morgan , 60 N.E.3d 1121 ( 2016 )

FILED
Aug 16 2016, 10:01 am
CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court
ATTORNEYS FOR APPELLANT ATTORNEY FOR APPELLEE
Gregory F. Zoeller Ronald J. Moore
Attorney General of Indiana The Moore Law Firm, LLC
Richmond, Indiana
Justin F. Roebel
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
State of Indiana, August 16, 2016
Appellant-Plaintiff, Court of Appeals Case No.
89A04-1603-CR-622
v. Appeal from the Wayne Superior
Court
Yvonne S. Morgan, The Hon. Gregory A. Horn, Judge
Trial Court Cause No. 89D02-1409-
Appellee-Defendant.
FB-48
Bradford, Judge.
Case Summary
[1] In September of 2014, Appellant-Plaintiff the State of Indiana charged
Appellee-Defendant Yvonne Morgan with Class B felony conspiracy to commit
dealing in a schedule III controlled substance and Class C felony corrupt
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business influence. Approximately one year later, Morgan moved to dismiss
the charges against her, and the State filed an amended information charging
Morgan with two counts of Class B felony conspiracy to commit dealing in a
schedule III controlled substance, Class C felony corrupt business influence,
and three counts of Class B felony aiding dealing in a schedule III controlled
substance. Morgan filed a renewed motion to dismiss all of the charges against
her, which motion the trial court granted. The State now appeals, arguing that
the trial court abused its discretion in granting Morgan’s motion to dismiss.
Because we agree, we reverse and remand with instructions to reinstate the
charges against Morgan.
Facts and Procedural History
[2] According to the probable cause affidavit filed in this case, in 2008 the United
States Drug Enforcement Administration (“DEA”) began investigating Dr.
Larry Ley, who oversaw the treatment of addiction at several clinics in Indiana
operating as part of Drug & Opiate Recovery Network, Inc. (“DORN”) of
Living Life Clean, LLC (“LLC”). The clinic in Wayne County at which
Morgan worked as a registered nurse (“the Clinic”) had been affiliated with
DORN since 2007. The DEA investigation into the Clinic discovered that it
was run by Dr. Ronald Vierk and was open approximately three days a month
from 4:00 p.m. until 6:30 p.m.
[3] Between November of 2013 and April of 2014, DEA investigators conducted
several periods of surveillance on the Clinic and observed between sixty and
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one hundred patients enter the Clinic during each open period. On November
27, 2013, investigators observed Morgan arrive at the Clinic in a vehicle
registered to DORN. No other medical personnel were observed at the Clinic,
approximately eighty-nine patients entered, and records indicate that at least
seventy-one Suboxone prescriptions were issued by Dr. Vierk.
[4] On April 16, May 14, and June 11, 2014, an undercover investigator visited the
Clinic. On April 16, the officer was told that Dr. Vierk had already left but had
left multiple prescriptions behind. The officer met Morgan once inside the
Clinic and received a prescription for Suboxone signed by Dr. Vierk. Morgan
did not request identification, perform a comprehensive interview, or conduct
any physical examination. On May 14, 2014, the officer visited the Clinic and
received a Suboxone prescription from Morgan in exchange for $160.00. While
Dr. Vierk was there, he discussed only the weather with the officer during the
encounter, which lasted less than two minutes. On June 11, 2014, the officer
went to the clinic and received a Suboxone prescription from Morgan in
exchange for $160.00. Dr. Vierk asked the officer if his dosage was good and
how much Suboxone he was taking, but did not request identification,
interview the officer, or conduct a physical examination.
[5] On September 22, 2014, the State charged Morgan with Class B felony
conspiracy to commit dealing in a schedule III controlled substance and Class
C felony corrupt business influence. On August 19, 2015, Morgan moved to
dismiss the charges. On September 16, 2015, the State filed an amended
information charging Morgan with two counts of Class B felony conspiracy to
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commit dealing in a schedule III controlled substance, Class C felony corrupt
business influence, and three counts of Class B felony aiding dealing in a
schedule III controlled substance. The six counts read as follows:
COUNT I:
[B]etween November 27, 2013, and June 11, 2014, Yvonne S.
Morgan, with the intent to commit Dealing in a Schedule III
Controlled Substance agreed with Ronald Vierk, M.D. to commit
Dealing in a Schedule III Controlled Substance and Ronald
Vierk, M.D. performed an overt act, to-wit: prescribed a
Schedule III Controlled Substance outside the usual course of
professional medical practice in furtherance of the agreement,
contrary to Indiana law.
COUNT II:
[B]etween November 27, 2013, and June 11, 2014, Yvonne S.
Morgan, with the intent to commit Dealing in a Schedule III
Controlled Substance agreed with Ronald Vierk, M.D. to commit
Dealing in a Schedule III Controlled Substance and Yvonne S.
Morgan performed an overt act, to-wit: delivered a pre-signed
prescription form to an undercover law enforcement officer
which was done outside the usual course of professional medical
practice in furtherance of the agreement, contrary to Indiana law.
COUNT III:
[B]etween December 9, 2011, and June 30, 2014, Yvonne S.
Morgan, was employed by or associated with an enterprise, to-
wit: DORN a/k/a Drug & Opiate Recovery Network and
knowingly or intentionally conducted or otherwise participated
in the activities of that enterprise through a pattern of
racketeering activity, to-wit: Dealing in a Schedule III
Controlled Substance by committing two or more of the
following overt acts:
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1) Yvonne S. Morgan served as the point of contact and/or
office manager for the DORN Office at 801 Airport Road,
Centerville, Indiana.
2) On or about November 27, 2013, Yvonne S. Morgan was
present at the DORN office at 801 Airport Road, Centerville,
Indiana, and delivered prescriptions that had been prepared
outside the usual course of professional medical practice,
3) On or about January 15, 2014, Yvonne S. Morgan was
present at the DORN office at 801 Airport Road, Centerville,
Indiana, and delivered prescriptions that had been prepared
outside the usual course of professional medical practice.
4) On or about April 16, 2014, Yvonne S. Morgan was
present at the DORN office at 801 Airport Road, Centerville,
Indiana, and delivered prescriptions that had been prepared
outside the usual course of professional medical practice.
5) On or about May 14, 2014, Yvonne S. Morgan was present
at the DORN office at 801 Airport Road, Centerville,
Indiana, and delivered prescriptions that had been prepared
outside the usual course of professional medical practice.
6) On or about June 11, 2014, Yvonne S. Morgan was present
at the DORN office at 801 Airport Road, Centerville,
Indiana, and delivered prescriptions that had been prepared
outside the usual course of professional medical practice.
COUNT IV:
[O]n or about April 16, 2014, in Wayne County, State of
Indiana, Yvonne S. Morgan did knowingly or intentionally aid
another person, to-wit: Dr. Ronald Vierk, M.D., to commit the
offense of Dealing In A Schedule III Controlled Substance by
delivering a prescription to an undercover law enforcement agent
that had been prepared outside the usual course of professional
medical practice, contrary to Indiana law.
COUNT V:
[O]n or about May 14, 2014, in Wayne County, State of Indiana,
Yvonne S. Morgan did knowingly or intentionally aid another
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person, to-wit: Dr. Ronald Vierk, M.D., to commit the offense
of Dealing In A Schedule III Controlled Substance by delivering
a prescription to an undercover law enforcement agent that had
been prepared outside the usual course of professional medical
practice, contrary to Indiana law.
COUNT VI:
[O]n or about June 11, 2014, in Wayne County, State of Indiana,
Yvonne S. Morgan did knowingly or intentionally aid another
person, to-wit: Dr. Ronald Vierk, M.D., to commit the offense
of Dealing In A Schedule III Controlled Substance by delivering
a prescription to an undercover law enforcement agent that had
been prepared outside the usual course of professional medical
practice, contrary to Indiana law.
Appellant’s App. pp. 33-35
[6] On November 3, 2015, Morgan renewed her motion to dismiss, seeking
dismissal of all six counts against her on the basis that the charging information
lacked sufficient evidence to show that the alleged facts constitute offenses and
the criminal statutes in question were void for vagueness as applied to her. The
trial court held a hearing on Morgan’s motion to dismiss on November 17,
2015, and granted Morgan’s motion on March 1, 2016, dismissing all six
charges. The trial court essentially concluded that, because Morgan was not a
licensed physician, there was no way that the State could prove the mens rea
necessary for conviction, i.e., that she knew that hers and Dr. Vierk’s actions
were outside the usual course of professional medical practice.
Discussion and Decision
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Background
[7] The Indiana Legend Drug Act provides, in part, that “a prescription or drug
order for a legend drug is not valid unless the prescription or drug order is
issued for a legitimate medical purpose by a practitioner acting in the usual
course of the practitioner’s business” and that “[a] practitioner may not
knowingly issue an invalid prescription or drug order for a legend drug.” Ind.
Code § 16-42-19-20. We have held that “[w]hen … a physician acts without
any legitimate legal purpose and beyond the course of professional practice by
selling prescriptions that allow the bearer to obtain controlled substances, his
conduct should be treated like any street-corner pill-pusher.” Alarcon v. State,
573 N.E.2d 477, 481 (Ind. Ct. App. 1991) (citations omitted), trans. denied.
Thus, under Indiana law, the issuance of invalid prescriptions for controlled
substances can support charges for dealing in a controlled substance pursuant to
Indiana Code section 35-48-4-2. See id. Here, Morgan’s charges are all based
on allegations that she participated with Dr. Vierk in the ongoing delivery of
invalid prescriptions for Suboxone.
I. Whether Morgan’s Actions, if Proven,
Constitute Criminal Acts
[8] The State argues that the trial court abused its discretion in dismissing the
charges filed against Morgan because, if proven, her actions would constitute
criminal offenses. Pursuant to Indiana Code section 35-38-4-2(1), the State may
seek review of “an order granting a motion to dismiss one (1) or more counts of
an indictment or information.” We review a trial court’s grant of a motion to
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dismiss an information for an abuse of discretion. Zitlaw v. State, 880 N.E.2d
724, 728 (Ind. Ct. App. 2008), trans. denied. In reviewing a trial court’s decision
for an abuse of discretion, we reverse only where the decision is clearly against
the logic and effect of the facts and circumstances. Id. at 728-29.
[9] The trial court dismissed the information pursuant to Indiana Code section 35-
34-1-4, which provides, in relevant part, that “[t]he court may, upon motion of
the defendant, dismiss the indictment or information [if t]he facts stated do not
constitute an offense.” As a general rule, when a defendant files a motion to
dismiss an information, the facts alleged in the information are to be taken as
true. State v. Bilbrey, 743 N.E.2d 796, 798 (Ind. Ct. App. 2001). Questions of
fact to be decided at trial or facts constituting a defense are not properly raised
by a motion to dismiss. State v. Isaacs, 794 N.E.2d 1120, 1122 (Ind. Ct. App.
2003). A hearing on a motion to dismiss is not a trial of the defendant on the
offense charged. See id. (noting that the facts “permitted to be raised under
[Indiana Code] Section 35-34-1-8 typically concern only pre-trial matters”).
[10] As mentioned, the basis of the trial court’s dismissal of all of the charges against
Morgan was its conclusion that it was impossible for Morgan to have known, as
a non-physician, whether her actions and those of Dr. Vierk were outside the
usual course of professional medical practice. The State counters that the
question is one of fact for the jury, not appropriately addressed in a motion to
dismiss. We agree with the State.
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[11] Morgan cites to no authority for the proposition that a non-physician can never
know whether certain conduct is outside the usual course of professional
medical practice, and our research has uncovered none. Without clear and
compelling precedent, we will not write requirements into statutes that simply
do not appear in the text. In any event, it seems clear that, far from being
impossible, there are many ways by which the State could prove the necessary
mens rea in this and similar cases.
[12] There are other practical issues with the trial court’s position. For instance, the
trial court’s ruling, if taken to its logical conclusion, does not just mean that
physicians1 are the only persons who could ever be convicted under the type of
circumstances alleged in this case. If one accepts that non-physicians cannot
know, as a matter of law, whether conduct falls outside the usual course of
professional medical practice, then they cannot be judges or jurors sitting in
judgment of physicians accused of acting in such a manner. As a practical
1
Another question would be whether the rule should be limited to physicians or applied to other persons
who may write prescriptions. Pursuant to the Indiana Legend Drug Act, the following may write
prescriptions in Indiana:
(1) A physician licensed under IC 25-22.5.
(2) A veterinarian licensed to practice veterinary medicine in Indiana.
(3) A dentist licensed to practice dentistry in Indiana.
(4) A podiatrist licensed to practice podiatric medicine in Indiana.
(5) An optometrist who is:
(A) licensed to practice optometry in Indiana; and
(B) certified under IC 25-24-3.
(6) An advanced practice nurse who meets the requirements of IC 25-23-1-19.5.
(7) A physician assistant licensed under IC 25-27.5 who is delegated prescriptive
authority under IC 25-27.5-5-6.
Ind. Code § 16-42-19-5.
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matter,2 pursuant to the trial court’s ruling, no person, physician or otherwise,
could ever be convicted in Indiana of a crime involving a question of whether
certain conduct fell outside the usual course of professional medical practice.
We conclude that the trial court abused its discretion in dismissing Morgan’s
charges on the basis that she is not a physician.
II. Void for Vagueness
[13] Morgan also contends that the criminal statutes in question are void for
vagueness as applied to her. Although this particular argument was not
reached by the trial court, we address it in the interest of finality and judicial
economy. The State charged Morgan with two counts of Class B felony
conspiracy to commit dealing in a schedule III controlled substance, 3 Class C
felony corrupt business influence,4 and three counts of Class B felony aiding
dealing in a schedule III controlled substance. 5
Upon a challenge that a statute is unconstitutional, we presume
the statute is constitutional. Baumgartner v. State, 891 N.E.2d
1131, 1136 (Ind. Ct. App. 2008). The burden is on the defendant
to rebut this presumption, and we resolve all reasonable doubts in
favor of the constitutionality of the statute. Id. A criminal statute
may be void for vagueness for either of two independent reasons:
2
Although it might be theoretically possible to seat a jury composed entirely of physicians, it seems to us to
be a practical impossibility.
3
Ind. Code §§ 35-41-5-2; 35-48-4-2(a)(1)(C).
4
Ind. Code §§ 35-45-6-2(3); 35-45-6-1(d); 35-45-6-1(e).
5
Ind. Code §§ 35-41-2-4; 35-48-4-2(a)(1)(C).
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(1) for failing to provide notice enabling ordinary people to
understand the conduct that it prohibits, and (2) for the
possibility that it authorizes or encourages arbitrary or
discriminatory enforcement. Brown v. State, 868 N.E.2d 464, 467
(Ind. 2007). With regard to notice to ordinary people, the statute
need only inform people of the generally proscribed conduct; it
need not list specifically each item of prohibited conduct.
Baumgartner, 891 N.E.2d at 1136. Additionally, in order to avoid
arbitrary or discriminatory enforcement of the statute, there must
be in the statute a line of demarcation between trivial and
substantial acts. Id. Assessment of a vagueness challenge is
limited to the facts and circumstances of each case. Brown, 868
N.E.2d at 467.
Houston v. State, 898 N.E.2d 358, 362 (Ind. Ct. App. 2008), trans. denied.
[14] Morgan’s argument is, as with her previous one, based on her status as a non-
physician, specifically that she cannot possibly know what conduct is
proscribed because she cannot know whether conduct falls outside the usual
course of professional medical practice, a fact the State is required to establish
to prove each of the six charges against Morgan. For the reasons explained
above, we have rejected this premise. To reiterate, there is no legitimate legal
reason to conclude that a non-physician could not—under any circumstances—
be made to understand that certain conduct falls outside the usual course of
professional medical practice.
[15] That said, we have little trouble concluding that the statutes in question are not
void for vagueness as applied to Morgan. The Indiana Supreme Court has
concluded that “[a] statute is not void for vagueness if individuals of ordinary
intelligence could comprehend it to the extent that it would fairly inform them
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of the generally proscribed conduct.” Brown, 868 N.E.2d at 467 (citation
omitted). Reading the statutes at issue in this case, a person of ordinary
intelligence would easily understand that agreeing with or assisting a physician
to distribute prescriptions for controlled substances—prescriptions that person
knows to be invalid—is proscribed conduct. As mentioned, any allegation that
the prescriptions were known to be issued outside the usual course of
professional medical practice would have to be proved, just as any other
element of a criminal charge. Morgan has failed to establish that the statutes
used to charge her are void for vagueness as to her.
[16] We conclude that the trial court abused its discretion in dismissing the criminal
charges against Morgan on the basis that the facts alleged did not constitute
criminal offenses. We further conclude that Morgan has failed to establish that
the criminal statutes in question were void for vagueness as applied to her. We
therefore reverse the judgment of the trial court and remand with instructions to
reinstate the criminal charges against Morgan.
[17] The judgment of the trial court is reversed and we remand with instructions.
Pyle, J., and Altice, J., concur.
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