Tiplick v. State , 2015 Ind. App. LEXIS 37 ( 2015 )

MAY, Judge.

[1] Christopher Tiplick appeals the denial of his motion to dismiss eleven counts of his eighteen count indictment. He presents multiple issues for our review, one of which we find dispositive: whether, at the time of Tiplick’s alleged offenses, Ind.Code § 35-48 — 4-10(a), which prohibited dealing in a synthetic drug, and Ind.Code § 35-48-4-11, which prohibited possession of a synthetic drug, were unconstitutionally vague when the synthetic drug alleged to have been dealt in or possessed was not listed in the relevant definitional statutes and can be found only in the Pharmacy Board Regulations?

[2] We reverse and remand.

Facts and Procedural History

[3] On October 18, 2012, the State charged Tiplick with: Count I, Class C felony conspiracy to commit dealing in a lookalike substance;¹ Count II, Class C felony dealing in a lookalike substance;² Count III, Class G felony conspiracy to commit dealing in a lookalike substance; Count IV, Class C felony dealing in a lookalike substance; Count V, Class C felony conspiracy to commit dealing in a lookalike substance; Count VI, Class C felony dealing in a lookalike substance; Count VII, Class D felony conspiracy to commit dealing in a synthetic drug;³ Count VIII, Class D felony dealing in a synthetic drug;⁴ Count IX, Class D felony possession of a synthetic drug;⁵ Count X, Class D felony conspiracy to commit dealing in a synthetic drug; Count XI, Class D felony dealing in a synthetic drug; Count XII, Class D felony possession of a synthetic drug; Count XIII, Class D felony conspiracy to commit dealing in a synthetic drug; Count XIV, Class D felony dealing in a synthetic drug; Count XV, Class D felony possession of a synthetic drug; Count XVI, Class C felony dealing in a lookalike substance; Count XVII, Class D felony dealing in a synthetic drug; and Count XVIII, Class D felony possession of a synthetic drug. The charges were based on undercover observations and purchases at three stores owned by Tiplick on September 20, 2012, October 9, 2012, and October 10, 2012. The charging information and accompanying probable cause affidavit alleged Tiplick sold, possessed, or entered into a conspiracy to sell “spice,” (App. at 19-24), and some of the packages sold to undercover officers contained “XLR11(1-(flouropentyl)indol-3-yl)-2, 2, 3, 3,-tetram-ethylcyclopropy)methanone).” (Id. at 28.)

[4]On January 17, 2013, Tiplick filed a motion to dismiss the counts against him, arguing:

1) the statutes as charged, I.C. [§ 35-48-4-10(a)(l), I.C. § 35-48-4-10(b), I.C. § 35-48-4-11(1), and I.C. § 35-48-4-13(b)(2) ] are unconstitutionally “vague” in violation of the Fifth and Fourteenth Amendments to the United States Constitution and Article One, Sections Twelve and Thirteen of the Constitution of the State of Indiana and 2) the statutes cited violate the Distribution of Powers Clause contained in Article Three, Section One of the Constitution ’ of the State of Indiana.

[5] (Id. at 37.) The trial court denied Tiplick’s Motion to Dismiss and his motion to reconsider, then granted his motion to certify the order on his motion to dismiss for interlocutory appeal. We accepted jurisdiction.

Discussion and Decision

[6] Generally, we review the denial of a motion to dismiss for an abuse of discretion, McCown v. State, 890 N.E.2d 752, 756 (Ind.Ct.App.2008), while taking the facts stated in the charging information as true. Delagrange v. State, 951 N.E.2d 593, 594 (Ind.Ct.App.2011). However, when, as hére, the denial rests on the trial court’s interpretation of a statute, we review the decision de novo. McCown, 890 N.E.2d at 756.

[7]The trial court determined the statutes under which Tiplick was charged⁶ were not void for vagueness:⁷

The defendant claims the dealing statute, the possession statute, the nuisance statute and the Iook-a-like statute are void for vagueness. The defendant argues that the dealing statute, the possession statute and the nuisance statute include the term synthetic drug the definition of which contains a jumbled mix of chemicals and their analogs. This chemical hodgepodge within the synthetic drug definition includes cannabinoid, receptor agonists, stimulants, opiate receptor agonists, as well as anything else the Pharmacy Board decides to include. Defendant asserts that a person of common intelligence cannot be expected to understand the entire synthetic drug and [sic] definition and continuously monitor the promulgations and findings of the Board which are not yet enacted. The Court disagrees and feels that is exactly and precisely the duty of the citizens which is to monitor statutes to determine what action they might take. Each' year on July 1st hundreds of new statutes go into effect and it surely cannot be a defense that the defendant cannot be expected to read all of the statutes and know what the laws are. In this case [Ind.Code § ] 35-31.5-2-321 clearly [sic] provides the definition of a synthetic drug including emergency rules promulgated by the [P]harmacy [B]oard. Furthermore the criminal statute makes it quite clear that synthetic drugs and their distribution are illegal. Before someone chooses to sell a substance that might be a synthetic drug the statutes and emergency rules are available and illegal synthetic drugs are currently listed. Before selling a substance a citizen may review the rule to determine what substances are banned. If it[’]s listed they shouldn’t sell it. On the other hand if they don’t know what they are selling and choose to sell it any way [sic] they do so at their own risk. The Court finds that the Defendant’s void for vagueness argument as to this case should be denied.

[8](App. at 14-5.)

[9]Our Indiana Supreme Court stated in Brown v. State:

A challenge to the validity of a statute must overcome a presumption that the statute is constitutional. State v. Lom-bardo, 738 N.E.2d 653, 655 (Ind.2000). The party challenging the statute has the burden of proving otherwise. Brady v. State, 575 N.E.2d 981, 984 (Ind.1991). Due process principles advise that a penal statute is void for vagueness if it does not clearly define its prohibitions. Klein v. State, 698 N.E.2d 296, 299 (Ind. 1998) (citing Grayned v. City of Rockford, 408 U.S. 104, 92 S.Ct. 2294, 33 L.Ed.2d 222 (1972)). A criminal statute may be invalidated for vagueness for either of two independent reasons: (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. City of Chicago v. Morales, 527 U.S. 41, 56, 119 S.Ct. 1849, 1859,144 L.Ed.2d 67, 79-80 (1999); Healthscript, Inc. v. State, 770 N.E.2d 810, 815-16 (Ind.2002). A related consideration is the requirement that a penal statute give a person of ordinary intelligence fair notice that his contemplated conduct is forbidden so that “no man shall be held criminally responsible for conduct which he could not reasonably understand to be proscribed.” Healthscript, Inc., 770 N.E.2d at 816 (quoting United States v. Harriss, 347 U.S. 612, 617, 74 S.Ct. 808, 812, 98 L.Ed. 989, 996 (1954)). In State v. Dow-ney, 476 N.E.2d 121, 123 (Ind.1985), this Court emphasized that “there must be something in a criminal statute to indicate where the line is to be drawn between trivial and substantial things so that erratic arrests and convictions for trivial acts and omissions will not occur. It cannot be left to juries, judges, and prosecutors to draw such lines.” Accord- . ingly, the statutory language must “convey sufficiently definite warning as to the proscribed conduct when measured by common understanding.” Rhinehardt v. State, 477 N.E.2d 89, 93 (Ind.1985).

But a statute “is not void for vagueness if individuals of ordinary intelligence could comprehend it to the extent that it would fairly inform them of the generally proscribed conduct.” Klein, 698 N.E.2d at 299; accord Lombardo, 738 N.E.2d at 656. And the statute does not have to list specifically all items of prohibited conduct; rather, it must inform the individual of the conduct generally proscribed. Lombardo, 738 N.E.2d at 656. The examination of a vagueness challenge is performed in light of the facts and circumstances of each individual 'case. Id.

[10] 868 N.E.2d 464, 467 (Ind.2007). Ti-plick was charged with multiple counts of Class D felony dealing in a synthetic drug, Class D felony conspiracy to deal in a synthetic drug, and Class D felony possession of a synthetic drug. By the standard articulated in Brown, the versions of Ind. Code §§ 35-48-4-10(a) and 11 effective at the time of Tiplick’s alleged offenses were unconstitutionally vague⁸ as they related to the term “synthetic drug”⁹ as defined by Ind.Code § 35-31.5-2-321(9).¹⁰

[11] At the time Tiplick allegedly committed the offenses, Ind.Code § 35-31.5-2-321 listed over sixty specific chemical compounds, and it included eleven sections regarding compounds “structurally derived” from other chemicals. Ind.Code § 35-31.5-2-321(l)-(8) (2012). It provided a synthetic drug is “Any compound determined to be a synthetic drug by rule adopted under IC 25-26-13-4.1.” Ind.Code § 35-31.5-2-321(9) (2012). Ind.Code § 25-26-13-4.1 (2012),¹¹ which outlines the duties of the Pharmacy Board, states:

[12] (a) The board may adopt an emergency rule to declare that a substance is a synthetic drug.

[13](b) The board may adopt an emergency rule declaring a substance to be a synthetic drug if the board finds that the substance:

[14](1) has been scheduled or emergency scheduled by the United States Drug Enforcement Administration; or

[15] (2) has been scheduled, emergency scheduled, or criminalized by another state.

[16] (c) A rule adopted under this section becomes effective thirty (30) days after it is filed with the publisher under IC 4-22-2-37.1.

[17] (d) A rule adopted under this section expires on June 30 of the year following the year in which it is filed with the publisher under IC 4-22-2-37.1.

[18](e) The board may readopt under this section an emergency rule that has-expired.

[19] Tiplick argues Ind.Code § 35-31.5-2-321(9) and by implication Ind. Code § 25-26-13^.1 are void for vagueness because their “numerous cross-references, undefined terms, and required monitoring of Indiana statutes and promulgations of the Pharmacy Board cannot be understood by an ordinary person.” (Br. of Appellant at 27.) We agree.

[20] Tiplick’s charging information indicated he allegedly sold and possessed a synthetic drug, identified in the probable cause affidavit as XLR11. That drug was not listed as a synthetic drug under Ind. Code §§ 35-31.5-2-321(1-8) on September 20, 2012, October 9, 2012, and October 10, 2012, the dates Tiplick’s alleged crimes occurred, and nothing in the charging information indicates which Pharmacy Board emergency rule declared XLR11 a synthetic drug pursuant to the provisions in Ind.Code § 35-31.5-2-321(9) and Ind.Code § 25-26-13-4.1 (2012). A Pharmacy Board Emergency Rule, LSA Document # 12-493(E) (“Emergency Rule”), declared XLR11 a “synthetic substance” effective September 15, 2012.¹² However, Ind.Code § 25-26-13-4.1 did not authorize the Pharmacy Board to declare something a “synthetic substance” in an Emergency Rule. Instead, the Emergency Rule permits the declaration of a substance as a “synthetic drug.” While that distinction may seem trivial, we believe the technical nature of this particular statute requires precision in language. For example, the Pharmacy Board may declare a new chemical concoction used to treat a deadly disease a “synthetic substance” and such a declaration would not invoke the criminal consequences as would the Pharmacy Board’s declaration of something as a “synthetic drug.” See Brown v. State, 868 N.E.2d 464, 468 (Ind.2007) (noting alternate, legal uses for terms and the unconstitutional vagueness stemming therefrom). This linguistic confusion only adds to the vagueness of this statutory structure.

[21] To understand the charges against him, a person of ordinary intelligence would have to first find the definition of “synthetic drug” in Ind.Code § 35-31.5-2-321, determine the synthetic drug alleged to be illegal is not in the very long list¹³ in the statute, and finally look to Ind.Code § 25-26-13-4.1 to determine whether the drug may have been declared a synthetic drug by a Pharmacy Board Emergency Rule, the location of which is not specified in Ind.Code § 25-26-13-4.1. ■

[22] To require a citizen of ordinary intelligence to meticulously search through the criminal code, the administrative code, and not-yet-codified agency rules for information regarding a charge, only to be sent on a “Where’s Waldo” expedition is ludicrous. See Aquila, Inc. v. C.W. Mining, 545 F.3d 1258, 1268 (10th Cir.2008) (‘When a party’s brief fails to provide citations in support of its factual assertions, we are left to scan volumes aimlessly for asserted facts. But reading a record should not be like a game of Where’s Waldo?”). No person of ordinary intelligence could determine what behavior is prohibited by the term “synthetic drug” in Ind.Code §§ 35-48^t-10(a) and 11, based on Ind.Code §§ 35-31.5-2-321(9) and 25-26-13-4.1, and thus the portions of Ind.Code §§ 35-48-4-10(a) and 11 in effect at the time of Tiphck’s alleged offenses are void for vagueness to the extent they rely on definitions in Ind.Code §§ 35-31.5-2-321(9) and 25-26-13-4.1. See Healthscript, 770 N.E.2d at 816 (holding the requirement that a person search through multiple statutes, then through the administrative code, “lacks the ‘sufficient definiteness’ that due process requires for penal statutes.”).

[23]We distinguish our holding here from those in two recent cases, Kaur v. State, 987 N.E.2d 164, 168 (Ind.Ct.App.2013) and Elvers v. State, 22 N.E.3d 824 (Ind.Ct.App.2014), both which declined to hold Ind.Code §§ 35-31.5-2-321(l)-(8) void for vagueness. In Kaur, the State charged Kaur with dealing and possession of AM-2201, which is specifically referenced as a synthetic drug under Ind.Code § 35-31.5-2-321(l)(QQ) (2012). We affirmed Kaur’s convictions, because Kaur’s constitutional arguments centered around Ind.Code § 35-31.5-2-321(9), which was not the definition of “synthetic drug” relied upon in Kaur’s convictions. Regarding Ind.Code § 35-31.5-2-321(9), we stated, “We leave for' another day — and express no opinion on — the question of whether a person charged with possession of one of the Board-specified synthetic drugs would have a meritorious Article II, Section 1 argument.” Kaur, 987 N.E.2d 164, 169 n. 6. That day has come in the instant case, as Tiplick was charged with dealing and possession of a synthetic drug, XLR11, which was allegedly specified as a synthetic drug by a Pharmacy Board Emergency Rule.

[24] In Elvers, we clarified our decision in Kaur, holding the use of scientific terminology in Ind.Code § 35 — 31.5—2—821(1)—(8) does not render the statute unconstitutionally vague because the “novelty, complexity, and rapidly-evolving nature of synthetic drugs necessitates some scientific terminology in the law.” Elvers, 22 N.E.Sd at 880. Elvers also acknowledged his case did not involve those synthetic drugs defined as part of Pharmacy Board Emergency Rules, and only those synthetic drugs “specifically identified in the statute [Ind. Code § 35-31.5-2-321].” Id.

[25] As Ind.Code §§ 35-48 — 4-10(a) and 11 form the basis for Counts VII, VIII, IX, X, XI, XII, XIII, XIV, XV, XVII, and XVIII, and we hold those statutes are unconstitutionally vague based on the definition of “synthetic drug” set forth in Ind. Code § 35-31.5-2-321(9), the trial court erred when it denied Tiplick’s motion to dismiss those charges.

Reversed and remanded.

KIRSCH, J., concurs. BAILEY, J., dissents, with separate opinion.

1 . Ind.Code § 35-48-4-4.6(a) (dealing in a lookalike substance); Ind.Code § 35-41-4-2 (conspiracy) (2012).

2 . Ind.Code § 35-48-4-4.6(a)(l) (2012).

3 . Ind.Code § 35-48-4-10(a) (dealing in a synthetic drug); Ind.Code § 35-41-5-2 (conspiracy) (2012).

4 . Ind.Code § 35-48-4-10(a) (2012).

5 . Ind.Code § 35-48-4-11 (2012).

6 . In his motion to dismiss, Tiplick challenged all counts of his indictment. On appeal, he challenges only those alleging he conspired to deal in, dealt in, or possessed a synthetic drug. Those, are counts VII, VIII, IX, X, XI, XII, XIII, XIV, XV, XVII, and XVIII of the indictment.

7 . The trial court also found and concluded the statutes did not violate the Separation of Powers Clause and the information was not defective. As we find dispositive the vagueness claim, we need not consider those other issues.

8 . The relevant statutes have been amended since 2012. We address only those versions of the statutes effective at the time of Tiplick’s alleged crimes, as issues regarding the current versions of the statutes are not properly before us.

9 . Prior to 2012, Ind.Code §§ 35-48-4-10 and 11 prohibited dealing in and possession of a “synthetic cannabinoid.” "Cannabinoid” was changed to "drug” as part of Public Law 78-2012. The term "synthetic drug” is used in most statutes, including Ind.Code § 35-31.5-2-321(9). However, the term "synthetic substance" is used as part of Pharmacy Board Emergency Rule # 12-493(E).

10 . Tiplick argues the "synthetic drug statutory scheme” is void for vagueness. (Br. of Appellant at 9.) As Ind.Code § 35-31.5-2-321(9) and Ind.Code § 25-26-13-4.1 specifically deal with the definition of “synthetic drug,” which is the crux of Tiplick’s void for vagueness argument, we will examine only those statutes.

11 . Ind.Code § 25-26-13-4.1 (2012) was later amended to add other criteria the Pharmacy Board must consider when adopting an emergency rule declaring a substance is a synthetic drug.

12 .The Emergency Rule was filed with the publisher on August 15, 2012. Therefore, pursuant to the language of Ind.Code § 25-26-13-4.1, the Emergency Rule did not go into effect until September 15, 2012.

13 . The current statute appears to list in part (1) eighty-one specific compounds. Then, in parts (2) through (12), it lists unnamed compounds "structurally derived from” other compounds. See, e.g., Ind.Code § 35-31.5-2-321(2):

Any compound structurally derived from 3-(l-naphthoyl)indole or lH-indol-3-yl-(l-naphthyl)methane by substitution at the nitrogen atom of the indole ring by alkyl, haloalkyl, cyanoalkyl, alkenyl, cycloalkyl-methyl, cycloalkylethyl, l-(N-methyl-2-pi-peridinyl)methyl, 2-(4-morpholinyl)ethyl, or l-(N-methyl-2-pyrrolidinyl)methyl, 1-(N-methyl-3-morpholinyl)methyl, or tet-rahydropyranylmethyl group, whether or not further substituted in the indole ring to any extent and whether or not substituted in the naphthyl ring to any extent.