Erik D. Flynn v. State of Indiana (mem. dec.) ( 2020 )

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be FILED
regarded as precedent or cited before any Feb 21 2020, 9:26 am
court except for the purpose of establishing CLERK
the defense of res judicata, collateral Indiana Supreme Court
Court of Appeals
and Tax Court
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Elizabeth A. Bellin Curtis T. Hill, Jr.
Elkhart, Indiana Attorney General of Indiana
Justin F. Roebel
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Erik D. Flynn, February 21, 2020
Appellant-Defendant, Court of Appeals Case No.
19A-CR-1757
v. Appeal from the Elkhart Superior
Court
State of Indiana, The Honorable Stephen R.
Appellee-Plaintiff Bowers, Judge
Trial Court Cause No.
20D02-1812-F5-367
May, Judge.
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[1] Erik D. Flynn appeals his conviction of Level 5 felony aiding trafficking in a
controlled substance with an inmate. 1 He raises two issues for our review,
which we restate as: (1) whether the charging information was so deficient it
amounted to fundamental error, and (2) whether the State presented sufficient
evidence Flynn committed Level 5 felony aiding trafficking in a controlled
substance with an inmate. We affirm.
Facts and Procedural History
[2] Investigator Fred Mock of the Elkhart County Sheriff’s Department learned
contraband was being brought into the Elkhart County Jail and delivered to
inmates working in the jail’s kitchen. On July 10, 2018, officers searched the
inmate kitchen workers as they left the kitchen to return to their housing pod.
The officers found a cylindrical package tightly wrapped in cellophane
containing a green leafy substance and cigarette rolling papers on inmate James
Woodard. The Indiana State Police tested the substance and determined that it
contained Fluoro ADB, a chemical compound found in synthetic marijuana. 2
Flynn was an inmate kitchen worker, but he was absent from work on July 10,
2018, because he had an appointment in the jail’s medical ward.
1
Ind. Code §§ 35-44.1-3-5; 35-41-2-4.
2
The spelling of the substance varies throughout the record. The chemical name of the substance is methyl 2-
(1-(5-fluroopentyl)-1H-indazole-3-carboxamido)-3,3-dimethylbutanote [5F-ADB; 5F-MDMB-PINACA].
(Tr. Vol. II at 113; State’s Ex. 6.) For the sake of simplicity and consistency, we refer to the substance as
“Fluoro ADB.” (App. Vol. II at 16.)
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[3] The jail housed all the kitchen workers in the same pod at the jail, and on July
11, 2018, jail officers searched their housing unit. The inmates were instructed
to line up against the wall, and Corrections Officer Tim Lechlitner of the
Elkhart County Sheriff’s Office ran his police dog past the inmates. The dog
alerted that Flynn might be in possession of contraband. Officers then removed
Flynn from the unit to strip search him. Officer Lechlitner then had his dog
sniff all the bunks on the unit. The dog indicated that a few of the bunks,
including Flynn’s bunk, might contain contraband. Officers searched Flynn’s
possessions and found cigarettes.
[4] Officers performed an initial strip search of Flynn and found a note in his shoe.
The note stated:
Yeah, we got popped off yesterday. Lost an ounce of Toon + 30
strips. I hate rats. I was over at medical waitin to see the Dr.
yesterday too, trying to see you, but I . . .was askin about you. I
am trying to let you C who I am. Im also trying get ahold of my
sis to get some pics, she ain’t answering her phone, Ill get em tho.
So tell me, how you get involved in a robbery? How you get
caught? Look, I got 2 □’s 4 you but, can you get a lite? Or you
can sell em. Matter of fact, here they are, ma. I don’t want you
2 think I just be talkin. I don’t play games. I’m tryin to get you
somethin better. Its gonna be hard now tha my plug got popped
off. But Ill keep tryin. Soon as I touch it, you got it, thats my
word.
(State’s Ex. 2) (errors in original). Investigator Mock then interviewed Flynn.
During the interview with Investigator Mock, Flynn stated he knew a civilian
jail employee was bringing contraband into the jail and delivering it to inmate
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Craig Green. Flynn acknowledged writing the note and said he planned to
deliver it to a female inmate. Flynn told Investigator Mock that the
“somethin[g] better” referred to in the note meant “tune.” 3 (State’s Ex. 4 at
9:37:45-9:38:19.) 4 Flynn also said his reference in the note to a “plug” meant
Green. (Id. at 9:38:25-9:38:39.) Following Investigator Mock’s interview with
Flynn, Officer Lechlitner performed a second strip search. Before the second
strip search, Flynn handed over tobacco to Officer Lechlitner that Flynn had
hidden in his pants.
[5] On December 26, 2018, the State filed an information charging Flynn with
Level 5 felony aiding trafficking with an inmate. The information provided:
The affiant of the Probable Cause Affidavit filed herewith swears
that on or about July 10, 2018, at the County of Elkhart, State of
Indiana, one ERIK D. FLYNN . . . did knowingly, and without
prior authorization of the person in charge of the penal facility or
juvenile facility, to wit: Elkhart County Jail, deliver or carry into
the penal facility or juvenile facility with intent to deliver, a
controlled substance to an inmate or child of the facility; all of
which is contrary to the form of I.C. § 35-44.1-3-5(b)(1) and I.C.
§ 35-41-2-4; contrary to the form of the statute in such cases made
and provided; and against the peace and dignity of the State of
Indiana.
3
Investigator Mock testified, “Tune is a common name for synthetic marijuana.” (Tr. Vol. II at 71.)
4
Citations to State’s Exhibit 4 refer to the time of day the interview was recorded as indicated on the
timestamp present on the top left corner of the video display.
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(App. Vol. II at 14.) The probable cause affidavit stated that the suspected
synthetic drugs recovered from inmate James Woodard contained Fluoro ADB.
[6] The trial court held a bench trial on April 9, 2019. Melinda McNair, a forensic
scientist with the Indiana State Police, testified that Fluoro ADB “was federally
controlled on April 10th, 2017, and controlled in the state of Indiana on July 7th,
2018.” (Tr. Vol. II at 112.) The court took judicial notice of the statute
authorizing state agencies to adopt emergency rules and the Indiana Board of
Pharmacy emergency rule classifying Fluoro ADB as a controlled substance.
[7] Flynn testified at trial and admitted purchasing Suboxone and cigarettes from
Craig Green. He denied giving “Tune” to anyone at the jail or asking anyone
to bring “Tune” into the jail. (Id. at 123-24.) Flynn testified that Green asked
Flynn to take a package back to the pod with him on July 10, 2018, but Flynn
refused. Flynn admitted passing notes for Green. Flynn’s counsel asked Flynn
about the note found in his shoe:
[Flynn’s Counsel:] And uh, so who got popped off that day?
[Flynn:] Uh, I said—I did say we, but I was—I—talking to her, I
was talking as a whole, the whole kitchen popped off, so I
couldn’t help her out.
(Id. at 127.) Flynn also testified that the square in the note referred to tobacco
cigarettes.
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[Flynn’s counsel:] Okay. So uh, next you wrote, I’m trying to get
you something better. It’s going to be hard now though, my plug
got popped off. What were you trying to get her that was better?
[Flynn:] Just like, if she didn’t smoke squares or uh, pretty much
like, I asked her what she wanted and I could try to get it for her
and that’s what I was going to do.
[Flynn’s counsel:] So it could have been Tune, it could have
been Suboxone strips, it could have been a number of things?
[Flynn:] It could have been anything, but I mean, I just told her I
would try to get her something better if she wanted it.
[Flynn’s counsel:] But then you said, it’s going to be hard now,
my plug got popped off. What does that mean?
[Flynn:] Uhm, cause I was getting the, the, the—like the person
I was getting the stuff from most of the time, when he got—Craig
or Money would have stuff and everybody got caught, so I
couldn’t—I couldn’t get her nothing.
(Id. at 129-130.) The court found Flynn guilty, and imposed a seven-year
sentence, with five years executed in the Indiana Department of Correction and
the remaining two years suspended to probation.
Discussion and Decision
1. The Charging Information and Fundamental Error
[8] Flynn argues the State’s failure to list the Indiana Board of Pharmacy
emergency rule classifying Fluoro ADB as a controlled substance in either the
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charging information or the probable cause affidavit amounts to fundamental
error because it compromised his ability to prepare a defense. Indiana Code
section 35-34-1-4 provides that a defendant may move to dismiss an inadequate
charging information no later than twenty days before the omnibus date. Flynn
did not move to dismiss the charging information, and he acknowledges that
the failure to timely challenge a defective charging information results in waiver
of the challenge, unless the defect amounts to fundamental error. Hayden v.
State, 19 N.E.3d 831, 841 (Ind. Ct. App. 2014), reh’g denied, trans. denied.
[9] As our Indiana Supreme Court has explained, “[t]he fundamental error
exception is extremely narrow, and applies only when the error constitutes a
blatant violation of basic principles, the harm or potential for harm is
substantial, and the resulting error denied the defendant fundamental due
process.” Brown v. State, 929 N.E.2d 204, 207 (Ind. 2010) (internal quotation
marks omitted). The claimed error must be so egregious it renders a fair trial
impossible or constitutes a blatant violation of basic and elementary principles
of due process. Id. An omission in the charging information constitutes
fundamental error if it misleads the defendant or fails to give the defendant
notice of the charges against him. Miller v. State, 634 N.E.2d 57, 61 (Ind. Ct.
App. 1994).
[10] Flynn likens his case to Tiplick v. State, 43 N.E.3d 1259 (Ind. 2015). In Tiplick,
the defendant faced charges for possessing, selling, and dealing products
containing the chemical compound XLR11 and moved to dismiss the charging
information. Id. at 1260-61. Synthetic cannabinoids are difficult to regulate
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because “minor variants in chemical structure can place the substances beyond
the reach of criminal statutes without diminishing their psychotropic effects.”
Id. at 1261. In 2012, the Indiana legislature amended the criminal code to re-
define the term “synthetic drug” to encompass a variety of compounds and
chemical analogs, “including ‘any compound determined to be a synthetic drug
by rule adopted under IC 25-26-13-4.1.’” Id. (quoting 2012 Ind. Acts 1795-99).
Indiana Code section 25-26-13-4.1 authorized the Indiana Board of Pharmacy
to declare additional compounds to be synthetic drugs via emergency rule. Id.
At the time Tiplick was charged, XLR11 was classified as a synthetic drug via
emergency rule. Id.
[11] Tiplick argued “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.” Id. at 1270. Our Indiana
Supreme Court agreed and held that the charges related XLR11 must be
dismissed, but the court noted the State could “re-file an amended information
with proper reference to the Emergency Rule.” Id. at 1270 n.13. Initially, we
note the different procedural posture between the case at bar and Tiplick. “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.” State v.
Laker, 939 N.E.2d 1111, 1113 (Ind. Ct. App. 2010), trans. denied. Tiplick
challenged the adequacy of the charging information at the beginning of the
litigation when he was still formulating a defense; whereas, Flynn challenges
the charging information after he was tried and convicted.
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[12] Flynn knew the substance that he was alleged to have aided in trafficking and
never contested the criminality of the substance. The probable cause affidavit
identified Fluoro ADB as a controlled substance, even though it did not specify
any statute or Indiana Board of Pharmacy emergency rule listing Fluoro ADB
as a prohibited substance. The Indiana State Police Certificate of Analysis also
identified Fluoro ADB as a controlled substance, and it listed the dates it was
federally controlled and controlled in Indiana. Further, when the State asked
the trial court to take judicial notice of the emergency rule, the deputy
prosecutor noted that he had spoken with Flynn’s counsel before offering the
exhibit. Therefore, the failure of the charging information and the probable
cause affidavit to list the emergency rule classifying Fluoro ADB as a controlled
substance does not amount to fundamental error. See Leggs v. State, 966 N.E.2d
204, 208 (Ind. Ct. App. 2012) (holding failure of charging information to allege
defendant acted with intent that the victim be put in fear was not fundamental
error).
2. Sufficiency of the Evidence
[13] When reviewing the sufficiency of the evidence to support a conviction, we
look only to the probative evidence and the reasonable inferences supporting
the verdict. Drane v. State, 867 N.E.2d 144, 146 (Ind. 2007). The evidence does
not need to overcome every hypothesis of innocence. Id. at 147. We do not
reweigh the evidence; nor do we assess the credibility of the witnesses. Stokes v.
State, 801 N.E.2d 1263, 1271 (Ind. Ct. App. 2004), trans. denied. “The
conviction will be affirmed if there is substantial evidence of probative value to
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support the conclusion of the trier of fact.” Id. “A verdict may be sustained
based on circumstantial evidence alone if that circumstantial evidence supports
a reasonable inference of guilt.” Maul v. State, 731 N.E.2d 438, 439 (Ind. 2000).
Also, the testimony of a single eyewitness is enough to sustain a conviction.
Emerson v. State, 724 N.E.2d 605, 609-10 (Ind. 2000), reh’g denied. “It is for the
trier of fact to resolve conflicts in the evidence and to decide which witnesses to
believe or disbelieve.” Ferrell v. State, 746 N.E.2d 48, 51 (Ind. 2001). We will
reverse “only when no reasonable fact-finder could find the elements of the
crime proven beyond a reasonable doubt.” McMiller v. State, 90 N.E.3d 672,
675 (Ind. Ct. App. 2017).
[14] A person who aids, induces, or causes another to commit an offense is also
guilty of the offense. Ind. Code § 35-41-2-4. “Under the theory of accomplice
liability, ‘an accomplice is criminally responsible for all acts committed by a
confederate which are a probable and natural consequence’ of their concerted
action.” Porter v. State, 715 N.E.2d 868, 870 (Ind. 1999) (quoting McGee v. State,
699 N.E.2d 264, 265 (Ind. 1998)). The State does not need to prove “the
accomplice personally participated in the commission of each element of the
offense.” Anthony v. State, 56 N.E.3d 705, 714 (Ind. Ct. App. 2016), trans.
denied. Flynn argues the State presented insufficient evidence to support his
conviction. He contends the State presented no evidence linking him to James
Woodard or linking James Woodard to Craig Green. He argues he merely
purchased tobacco and Suboxone but denies trafficking as charged.
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[15] Nonetheless, trafficking into the jail did occur because officers found Woodard
in possession of Fluoro ADB. Flynn knew about trafficking into the kitchen
and identified the civilian kitchen worker involved. The jail did not authorize
inmates to possess tobacco, and Flynn had tobacco on his person and in his
possessions. He also acknowledged passing notes on behalf of Green because
Green did not want to get caught passing notes to other inmates. Further,
Flynn made incriminating statements in the note found in his shoe. For
example, he said, “we got popped off yesterday. Lost an ounce of Toon + 30
strips.” (State Ex. 2.) He promised the intended recipient of the note
“somethin[g] better…Soon as I touch it[.]” (Id.) Flynn also stated his “plug got
popped off.” (Id.)
[16] Flynn offered explanations for these statements in his testimony. For example,
he said the “we” referred to the kitchen staff. (Tr. Vol. II at 127.) He denied
giving tune to anyone at the jail or asking anyone to bring tune into the jail. He
said the note was his way of trying to get to know the intended recipient and
impress her. However, the factfinder was not required to believe Flynn’s
explanations. See Graves v. State, 472 N.E.2d 190, 191 (Ind. 1984) (“In a case of
conflicting evidence, the trier of fact is not obliged to believe the testimony of
the defendant or any other particular witness. It is the prerogative of the jury to
weigh the evidence and to determine who, in fact, is telling the truth.”).
[17] The trier of fact could easily infer that Flynn’s statements in the note
demonstrate Flynn’s involvement in trafficking and an offer to supply the
female inmate with tune when the substance became available. We will not
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second guess the credibility determinations of the trier of fact. McElfresh v. State,
51 N.E.3d 103, 111 (Ind. 2016). Given the evidence linking Flynn to aiding in
trafficking, a reasonable trier of fact could conclude Flynn was guilty beyond a
reasonable doubt. See Crittendon v. State, 106 N.E.3d 1100, 1103 (Ind. Ct. App.
2018) (holding sufficient evidence supported conviction for possession of
narcotic drug when defendant admitted using heroin and showed signs of
heroin overdose).
Conclusion
[18] While the charging information and the probable cause affidavit were flawed
because they failed to reference the Indiana Board of Pharmacy’s emergency
rule listing Fluoro ADB as a prohibited substance, such flaw does not amount
to fundamental error. Further, there was sufficient evidence to affirm Flynn’s
conviction. Accordingly, we affirm.
[19] Affirmed.
Crone, J., and Pyle, J., concur.
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