Armes v. State

• Decision Date: 12 September 2022
• Docket Number: Court of Appeals Case No. 21A-CR-2384
• Citation: 194 N.E.3d 1220
• Parties: Travis ARMES, Eric Settles, and Debra Pennington, Appellants-Defendants, v. STATE of Indiana, Appellee-Plaintiff
• Court: Indiana Appellate Court

194 N.E.3d 1220

Travis ARMES, Eric Settles, and Debra Pennington, Appellants-Defendants,
v.
STATE of Indiana, Appellee-Plaintiff

Court of Appeals Case No. 21A-CR-2384

Court of Appeals of Indiana.

Filed September 12, 2022

Attorney for Appellant: 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

OPINION ON REHEARING

Crone, Judge.

1] The State has filed a petition for rehearing of our opinion in Armes v. State , 191 N.E.3d 942 (Ind. Ct. App. 2022), in which we reversed the trial court's denial of Travis Armes’, Eric Settles’, and Debra Pennington's (collectively Defendants) motions to dismiss the charging informations against them, which alleged that they had committed various crimes involving MDMB-4en-PINACA (MDMB), a Schedule I controlled substance. We grant rehearing and affirm our original opinion in all respects.

[2] In our opinion, we concluded that LSA Document No. 20-516(E) (the Emergency Rule), which declared MDMB a Schedule I controlled substance, is unconstitutionally vague under the United States Constitution. Under federal constitutional principles of due process, a criminal statute is void for vagueness if it "fail[s] to provide notice enabling ordinary people to understand the conduct that it prohibits." Brown v. State , 868 N.E.2d 464, 467 (Ind. 2007).

[3] Schedule I controlled substances include those substances listed in Indiana Code Section 35-48-2-4, the synthetic drugs listed in Section 35-31.5-2-321, and "[a]ny compound determined to be a synthetic drug by rule adopted under IC 25-26-13-4.1." Ind. Code § 35-31.5-2-321(13). Pursuant to the authority granted in Section 25-26-13-4.1, the Indiana Board of Pharmacy adopted the Emergency Rule, which added three substances to Schedule I:

(1) MDMB-4en-PINACA.

(2) 4F-MDMB-BICA; 4-fluoro MDMB-BICA, 4F-MDMB-BUTICA; Methyl 2-[[1-(4-fluorobutyl)indole-3-carbonyl]amino]-3,3- dimethyl-butanoate.

(3) Isotonitazene. Synonyms: N,N-diethyl-2-(2-(4 isopropoxybenzyl)-5-nitro-1 H - benzimidazol-1-yl)ethan-1-amine.

Ind. Reg. LSA Doc. No. 20-516(E) § 1 (filed Oct. 6, 2020), http://iac.iga.in.gov/iac/20201014-IR-856200516ERA.xml.html [https://perma.cc/63UF-GQQV].

[4] Based on our supreme court's decision in Tiplick v. State , 43 N.E.3d 1259 (Ind. 2015), we concluded that the Emergency Rule was unconstitutionally vague. In Tiplick , the defendant was...