Elvers v. State

Decision Date17 December 2014
Docket NumberNo. 34A02–1404–CR–239.,34A02–1404–CR–239.
Citation22 N.E.3d 824
PartiesGary ELVERS, Appellant–Defendant, v. STATE of Indiana, Appellee–Plaintiff.
CourtIndiana Appellate Court

Donald E.C. Leicht, Kokomo, IN, Attorney for Appellant.

Gregory F. Zoeller, Attorney General of Indiana, Ian McLean, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.



, Judge.


AppellantDefendant, Gary Elvers (Elvers), appeals his conviction of three Counts of dealing in a synthetic drug, Class D felonies, Ind.Code § 35–48–4–10(a)(2)

,(b)(1)(B) (2012) ; and one Count of maintaining a common nuisance, a Class D felony, I.C. § 35–48–4–13(b)(2).

We affirm in part, vacate in part, and remand.1


Elvers raises six issues on appeal, which we consolidate and restate as the following four issues:

(1) Whether Indiana Code section 35–48–4–10

is unconstitutional;

(2) Whether the State improperly charged Elvers;
(3) Whether the trial court abused its discretion by admitting certain evidence; and
(4) Whether there is sufficient evidence to support Elvers' conviction of dealing in a synthetic drug.

Prior to the onset of these proceedings, Elvers owned Elvie's, a retail smoke shop in Kokomo, Indiana. Elvie's was in the business of selling tobacco, pipes, rolling papers, incense, detoxification products, novelty items, and a variety of products commonly known as “spice” and “bath salts.” (Transcript p. 173). Effective July 1, 2011, Indiana law prohibited dealing in “synthetic cannabinoid[s].” I.C. § 35–48–4–10 (2011)

. A corresponding statute set forth a detailed list of illicit cannabinoids, which included, in part, any substances containing JWH–122 and JWH–250. See I.C. § 35–41–1–26.3(6), (8) (now codified at I.C. § 35–31.5–2–321(1)(F),(H) ) (collectively, the Synthetic Drug Law). Shortly thereafter, Lieutenant Tonda Cockrell (Lieutenant Cockrell) of the Kokomo Drug Task Force delivered a copy of the updated statutes to Elvie's. Aware that the chemical composition of spice often consists of these newly-banned substances, Lieutenant Cockrell asked Elvers to submit samples of his products for analysis, which he declined.

Subsequent to the statutory enactment, the Kokomo Police Department noted a sharp increase in the number of complaints related to Elvie's. Between July of 2011 and March of 2012, the Department received nineteen calls from Elvers and his staff to report burglaries and theft, in addition to other reports from concerned community members regarding Elvie's products. As a result, the Drug Task Force commenced an investigation. On September 30, 2011, Detective James Nielson (Detective Nielson), acting undercover, purchased several packets of spice and bath salts from Elvie's, which he subsequently submitted to the Indiana State Police Lab for testing. A month later, the Lab results confirmed that the spice contained JWH–122 and JWH–250. On October 28, 2011, Detective Nielson returned to Elvie's and purchased two more packets of spice, and on February 9, 2012, the Lab results indicated the presence of JWH–122 in one of the packets.

On March 15, 2012, an emergency amendment to the Synthetic Drug Law went into effect, which replaced “synthetic cannabinoid” with “synthetic drug.” I.C. § 35–48–4–10 (2012)

(current version at I.C. § 35–48–4–10.5 ). Under the amended law, the list of illicit chemical compounds incorporated the same substances previously banned as “synthetic cannabinoids”—such as JWH–122 and JWH–250—but also added a significant number of new compounds. I.C. § 35–41–1–26.3.2 Four days later, Detective Nielson attempted to make a third undercover purchase of spice and bath salts from Elvie's. At this time, Detective Nielson observed that the display case no longer contained the merchandise he had previously observed, and a store clerk informed him that no spice or bath salts were available for purchase.

Later that day, March 19, 2012, Kokomo police officers obtained and executed a search warrant at Elvie's. As part of the search, a K–9 officer escorted his drug-sniffing dog through the building and parking lot. Based on the dog's alerts, the police officers obtained two more warrants to search a vehicle registered to Elvie's and a purse that belonged to the store manager. Also, the police officers applied for additional warrants to search the cash drawer and two gun safes. At the conclusion of the search, the officers had seized business records, more than $10,000 in cash, and nearly 1,000 spice and bath salt products. Detective Nielson subsequently submitted sixteen randomly-selected items to the State Police Lab for testing, fifteen of which yielded positive results for controlled substances. Five of the spice packets contained JWH–122 and weighed a total of 14.51 grams; four contained JWH–250 and weighed a total of 3.39 grams. The six bath salt products tested positive for the synthetic drugs alpha-PVP and pentylone.

On July 5, 2012, the State filed an Information, charging Elvers with six Class D felonies pursuant to Indiana Code section § 35–48–4–10(a)(2)

, (b)(1)(B) : Count I, dealing in the synthetic drug pentylone; Counts II and VII, dealing in the synthetic drug alpha-PVP; Counts III and V, dealing in the synthetic drug JWH–122; and Count IV, dealing in the synthetic drug JWH–250. The State also charged Elvers with Count VI, maintaining a common nuisance, a Class D felony, I.C. § 35–48–4–13(b)(2). On September 4, 2012, Elvers filed a motion to dismiss the charges, alleging the Synthetic Drug Law to be unconstitutionally vague. On November 7, 2012, Elvers filed a motion to suppress the evidence seized from Elvie's based on a defective search warrant. Following a hearing on November 16, 2012, the trial court denied Elvers' motion to dismiss. On February 1, 2013, the trial court held a hearing on his motion to suppress and denied the same on April 9, 2013.

On January 31, 2014, a four-day jury trial commenced. At the close of the evidence, the jury returned a guilty verdict as to Counts III, IV, V, and VI.3 On March 12, 2014, the trial court conducted a sentencing hearing. For each of the four Counts, the trial court imposed concurrent sentences of 548 days, with 365 days executed on in-home detention and 183 days suspended to supervised probation.

Elvers now appeals. Additional facts will be provided as necessary.

I. Constitutionality of the Synthetic Drug Law

Elvers claims that the trial court erred in denying his motion to dismiss the charging Information because the Synthetic Drug Law, as it existed on March 19, 2012, is unconstitutional. While the denial of a motion to dismiss is generally reviewed under an abuse of discretion standard, the constitutionality of a statute is a question of law that our court reviews de novo. Salter v. State, 906 N.E.2d 212, 215 (Ind.Ct.App.2009)

, reh'g denied. Because we presume that the General Assembly enacts constitutional laws, the burden is on the challenger to prove otherwise. Lee v. State, 973 N.E.2d 1207, 1209 (Ind.Ct.App.2012), trans. denied. Any doubts regarding a statute's validity are resolved in favor of its constitutionality. Lock v. State, 971 N.E.2d 71, 74 (Ind.2012).

A. Technical Terms

First, Elvers contends that the Synthetic Drug Law is contrary to the mandate of the Indiana Constitution that [e]very act and joint resolution shall be plainly worded, avoiding, as far as practicable, the use of technical terms.” Ind. Const. art. 4, § 20

. A basic tenet of “due process requires that a penal statute ‘clearly define its prohibitions.’ Lock, 971 N.E.2d at 74 (quoting Brown v. State, 868 N.E.2d 464, 467 (Ind.2007) ). Thus, a criminal statute will be held unconstitutionally vague if it fails to “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.’ Brown, 868 N.E.2d at 467 (quoting United States v. Harriss, 347 U.S. 612, 617, 74 S.Ct. 808, 98 L.Ed. 989 (1954) ). We will examine a vagueness challenge in light of the precise circumstances of the present case. Baumgartner v. State, 891 N.E.2d 1131, 1136 (Ind.Ct.App.2008).

Elvers acknowledges that in Kaur v. State, 987 N.E.2d 164, 168–69 (Ind.Ct.App.2013)

, our court rejected a vagueness challenge to the Synthetic Drug Law because—as in Elvers' case—the synthetic drug in question was specifically identified in the statute. Nevertheless, he argues that the Synthetic Drug Law is written “like a chemical engineer's dissertation, [such that] ordinary citizens, who are supposed to be at the top of the power-chain, will not know what is proscribed.” (Appellant's Br. pp. 7–8). At the time of Elvers' crime, the Synthetic Drug Law provided that [a] person who ... possesses, with intent to ... deliver ... a synthetic drug, pure or adulterated [,] commits dealing in ... a synthetic drug.” I.C. § 35–48–4–10(a)(2)(C) (2012). The Synthetic Drug Law then specifically defined a synthetic drug, in part, as

a substance containing one (1) or more of the following chemical compounds:
* * * *
(6) JWH–122 (1–pentyl–3–(4–methyl–l–naphthoyl)indole).
* * * *
(8) JWH–250 (1–pentyl–3–(2–methoxyphenylacetyl)indole).

I.C. § 35–41–1–26.3(6),(8)

(now codified at I.C. § 35–31.5–2–321(1)(F), (H) ). According to Elvers, it is this list of synthetic drugs that is too technical for individuals of ordinary intelligence to comprehend. We disagree.

Article 4, Section 20

instructs the General Assembly to avoid the use of technical terms to the extent that it is practicable. The novelty, complexity, and rapidly-evolving nature of synthetic drugs necessitates some scientific terminology in the law. As the forensic scientist from the State Police Lab explained, the chemical composition of synthetic drugs varies by manufacturers, products, and batches, so chemical analyses are necessary to discern whether a particular product contains an illegal drug. By...

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11 cases
  • Tiplick v. State
    • United States
    • Indiana Supreme Court
    • October 7, 2015
    ...complexity, and rapidly-evolving nature of synthetic drugs necessitates some scientific terminology in the law.” Elvers v. State, 22 N.E.3d 824, 830 (Ind.Ct.App.2014) (emphasis in original). Moreover, Tiplick may only challenge the chemical description of XLR11 on these grounds, not the ent......
  • Ogburn v. State
    • United States
    • Indiana Appellate Court
    • April 18, 2016
    ...or some other exception to the warrant requirement.”).4 “Spice” refers to certain synthetic forms of marijuana. See Elvers v. State, 22 N.E.3d 824, 828 (Ind.Ct.App.2014).5 An officer executing a valid search warrant may seize evidence not identified in the warrant if the item is in plain vi......
  • Tiplick v. State
    • United States
    • Indiana Appellate Court
    • January 27, 2015
    ...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(1) –(8) void for vagueness. In Kaur, the State charged Kaur with d......
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    • Indiana Appellate Court
    • October 8, 2021
    ...intent to deliver as a larger quantity creates an inference that the drugs are not held for personal consumption." Elvers v. State , 22 N.E.3d 824, 835 (Ind. Ct. App. 2014) (internal quotation omitted). " ‘The more narcotics a person possesses, the stronger the inference that he intended to......
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