Armes v. State
| Decision Date | 08 July 2022 |
| Docket Number | Court of Appeals Case No. 21A-CR-2384 |
| Citation | 191 N.E.3d 942 |
| Parties | Travis ARMES, Eric Settles, and Debra Pennington, Appellants-Defendants, v. STATE of Indiana, Appellee-Plaintiff |
| Court | Indiana Appellate Court |
Attorney for Appellants: Christopher Kunz, Marion County Public Defender, Appellate Division, Indianapolis, Indiana
Attorneys for Appellee: Theodore E. Rokita, Attorney General, Kelly A. Loy, Assistant Section Chief Criminal Appeals, Indianapolis, Indiana
[1] The State charged Travis Armes, Eric Settles, and Debra Pennington (collectively Defendants) with various crimes involving a Schedule I controlled substance identified as MDMB-4en-PINACA (MDMB). They filed motions to dismiss the charging informations, which the trial court denied. In this interlocutory appeal, they argue that the charging informations fail to state facts constituting an offense because the emergency rule (the Emergency Rule) adopted by the Indiana Board of Pharmacy (the Board) purporting to add MDMB to Schedule I failed to comply with the authorizing statute. They also assert that the charging informations are defective because the Emergency Rule failed to provide fair notice of the proscribed conduct and is void for vagueness under the federal constitution.
[2] We conclude that the Emergency Rule complied with the authorizing statute, and thus added MDMB to Schedule I. However, we agree with Defendants that the Emergency Rule fails to provide adequate information for a person of ordinary intelligence to determine whether he or she is dealing a substance that contains MDMB, and therefore it is unconstitutionally vague. Defendants are entitled to dismissal of the charges on this ground, and accordingly we reverse.
[3] As alleged by the probable cause affidavits, in January 2021, Settles was in custody at the Marion County Jail awaiting trial. Armes worked in the jail kitchen. Settles arranged with Pennington to deliver drugs to Armes so that he could bring the drugs into the jail on January 26. On January 26, two police officers at the jail observed Armes entering the jail through the employee entrance with a plastic grocery bag in his hand. The officers asked Armes to step into the video visitation room, and as he walked into the room, he tossed a clear plastic Ziploc bag up next to one of the monitors. The bag contained candy and a box of crackers. Under the box of crackers was a damp notebook. Based on one of the officers’ training and experience, he believed the paper to be soaked in a synthetic narcotic. According to one of the officers present, "These sheets of paper are regularly found in correctional facilities and can sell for $400 per sheet once in an inmate's possession." Appellants’ App. Vol. 2 at 17. Subsequent testing indicated that the paper contained MDMB, "a synthetic cannabinoid" that "is an emergency [S]chedule 1 narcotic." Id. at 20.
[4] On January 29, 2021, the State charged Settles and Pennington with level 2 felony conspiracy to commit dealing in a Schedule I controlled substance in violation of Indiana Code Section 35-48-4-2(a)(1) and - (f)(1) and Section 35-41-5-2. The State also charged Armes with level 2 felony dealing in a Schedule I controlled substance in violation of Section 35-48-4-2(a)(1) and - (f)(1) and level 5 felony trafficking with an inmate in violation of Section 35-44.1-3-5(b)(1). Appellants’ App. Vol. 2 at 22, 87, 175. The informations identified the controlled substance as "MDMB-4en-PINACA, a controlled substance classified in Schedule I." Id. Defendants filed motions to dismiss, arguing that the charges failed to state an offense because the drug was not found under Schedule I and was not otherwise declared to be a Schedule I substance; that the statutory scheme defining controlled substances was unconstitutionally vague as applied under the United States and the Indiana Constitutions; and that the informations failed to cite the rule of law alleged to be violated. Id. at 110.
[5] The State filed a motion to amend the informations to add that MDMB was a controlled substance classified in Schedule I "pursuant to Emergency LSA Document #20-516(E)," which the trial court granted. Id. at 50, 142, 229. The Emergency Rule, LSA Document No. 20-516(E), was adopted by the Board and filed with the Indiana Register on October 6, 2020, to add drug compounds, including MDMB, to Schedule I and became effective on November 5, 2020. The addition of the citation to the Emergency Rule to the informations rendered Defendants’ third argument in support of their motion to dismiss moot. In August 2021, the trial court held a hearing to address the remainder of Defendants’ arguments. On September 14, 2021, the trial court issued an order denying Defendants’ motions to dismiss. This interlocutory appeal ensued.
[6] Defendants contend that the trial court abused its discretion by denying their motions to dismiss. "We review a trial court's ruling on a motion to dismiss a charging information for an abuse of discretion, which occurs only if a trial court's decision is clearly against the logic and effect of the facts and circumstances," or when it misinterprets the law. State v. Barnett , 176 N.E.3d 542, 551 (Ind. Ct. App. 2021), trans. denied (2022). We review questions of law de novo. Id. "[W]e review a matter of statutory interpretation de novo because it presents a question of law." Study v. State , 24 N.E.3d 947, 950 (Ind. 2015) (quoting Sloan v. State , 947 N.E.2d 917, 920 (Ind. 2011) ), cert. denied. Likewise, "[t]he constitutionality of an Indiana statute is a pure question of law we review de novo." State v. Katz , 179 N.E.3d 431, 441 (Ind. 2022) (quoting Horner v. Curry , 125 N.E.3d 584, 588 (Ind. 2019) ).
Section 1 – MDMB became a Schedule I controlled substance pursuant to the Emergency Rule.
[7] Defendants first argue that they are entitled to dismissal on the basis that the charging informations fail to state facts constituting an offense because MDMB was not a Schedule I controlled substance when the alleged crimes occurred. See Ind. Code § 35-34-1-4(a)(5) (). In determining whether an information fails to state facts constituting an offense, we take the facts as alleged in the information as true. Barnett , 176 N.E.3d at 551. "We will find that dismissal for failure to state an offense is warranted ‘only when an information is facially deficient in stating an alleged crime.’ " State v. Sturman , 56 N.E.3d 1187, 1196 (Ind. Ct. App. 2016) ().
[8] We begin with a review of the statutory scheme designating Schedule I controlled substances. Indiana Code Section 35-48-2-4 provides a long list of Schedule I controlled substances and is organized into six categories: (b) opiates, (c) opium derivatives, (d) hallucinogenic substances, (e) depressants, (f) stimulants, and (g) synthetic drugs as defined in Section 35-31.5-2-321 (Section 321). Section 321, in turn, provides a lengthy list of synthetic drugs. Although MDMB was not explicitly named in either statute at the time of Defendants’ alleged crimes,1 Section 321 also includes "[a]ny compound determined to be a synthetic drug by rule adopted under IC 25-26-13-4.1 [(Section 4.1)]." As recognized by our supreme court, the regulation of synthetic drugs "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." Tiplick v. State , 43 N.E.3d 1259, 1261 (Ind. 2015). The General Assembly enacted Section 4.1 in 2012 to address the fast pace of evolving chemistry and the rapid introduction of new substances. Id.
[9] Section 4.1 grants the Board the authority to adopt emergency rules as follows:
[10] The Board maintains a list of Schedule I controlled substances at 856 Indiana Administrative Code 2-2-2. Categories include opiates, opium derivatives, hallucinogenic substances, and depressants. The rule does not include a separate category of synthetic drugs.
[11] The Emergency Rule at issue here provides as follows:
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