State v. Morgan

• Decision Date: 16 August 2016
• Docket Number: No. 89A04–1603–CR–622.,89A04–1603–CR–622.
• Parties: STATE of Indiana, Appellant–Plaintiff, v. Yvonne S. MORGAN, Appellee–Defendant.
• Court: Indiana Appellate Court

60 N.E.3d 1121

STATE of Indiana, Appellant–Plaintiff,

v.Yvonne S. MORGAN, Appellee–Defendant.

No. 89A04–1603–CR–622.

Court of Appeals of Indiana.

Aug. 16, 2016.

Gregory F. Zoeller, Attorney General of Indiana, Justin F. Roebel, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellant.

Ronald J. Moore, The Moore Law Firm, LLC, Richmond, IN, Attorney for Appellee.

BRADFORD

, Judge.

Case Summary

[1] In September of 2014, Appellant–Plaintiff the State of Indiana charged Appellee–Defendant Yvonne Morgan with Class B felony conspiracy to commit dealing in a schedule III controlled substance and Class C felony corrupt business influence. Approximately one year later, Morgan moved to dismiss the charges against her, and the State filed an amended information charging Morgan with two counts of Class B felony conspiracy to commit dealing in a schedule III controlled substance, Class C felony corrupt business influence, and three counts of Class B felony aiding dealing in a schedule III controlled substance. Morgan filed a renewed motion to dismiss all of the charges against her, which motion the trial court granted. The State now appeals, arguing that the trial court abused its discretion in granting Morgan's motion to dismiss. Because we agree, we reverse and remand with instructions to reinstate the charges against Morgan.

Facts and Procedural History

[2] According to the probable cause affidavit filed in this case, in 2008 the United States Drug Enforcement Administration (“DEA”) began investigating Dr. Larry Ley, who oversaw the treatment of addiction at several clinics in Indiana operating as part of Drug & Opiate Recovery Network, Inc. (“DORN”) of Living Life Clean, LLC (“LLC”). The clinic in Wayne County at which Morgan worked as a registered nurse (“the Clinic”) had been affiliated with DORN since 2007. The DEA investigation into the Clinic discovered that it was run by Dr. Ronald Vierk and was open approximately three days a month from 4:00 p.m. until 6:30 p.m.

[3] Between November of 2013 and April of 2014, DEA investigators conducted several periods of surveillance on the Clinic and observed between sixty and one hundred patients enter the Clinic during each open period. On November 27, 2013, investigators observed Morgan arrive at the Clinic in a vehicle registered to DORN. No other medical personnel were observed at the Clinic, approximately eighty-nine patients entered, and records indicate that at least seventy-one Suboxone

prescriptions were issued by Dr. Vierk.

[4] On April 16, May 14, and June 11, 2014, an undercover investigator visited the Clinic. On April 16, the officer was told that Dr. Vierk had already left but had left multiple prescriptions behind. The officer met Morgan once inside the Clinic and received a prescription for Suboxone signed by Dr. Vierk. Morgan did not request identification, perform a comprehensive interview, or conduct any physical examination. On May 14, 2014, the officer visited the Clinic and received a Suboxone prescription from Morgan in exchange for $160.00. While Dr. Vierk was there, he discussed only the weather with the officer during the encounter, which lasted less than two minutes. On June 11, 2014, the officer went to the clinic and received a Suboxone

prescription from Morgan in exchange for $160.00. Dr. Vierk asked the officer if his dosage was good and how much Suboxone he was taking, but did not request identification, interview the officer, or conduct a physical examination.

[5] On September 22, 2014, the State charged Morgan with Class B felony conspiracy to commit dealing in a schedule III controlled substance and Class C felony corrupt business influence. On August 19, 2015, Morgan moved to dismiss the charges. On September 16, 2015, the State filed an amended information charging Morgan with two counts of Class B felony conspiracy to commit dealing in a schedule III controlled substance, Class C felony corrupt business influence, and three counts of Class B felony aiding dealing in a schedule III controlled substance. The six counts read as follows:

COUNT I:

[B]etween November 27, 2013, and June 11, 2014, Yvonne S. Morgan, with the intent to commit Dealing in a Schedule III Controlled Substance agreed with Ronald Vierk, M.D. to commit Dealing in a Schedule III Controlled Substance and Ronald Vierk, M.D. performed an overt act, to-wit: prescribed a Schedule III Controlled Substance outside the usual course of professional medical practice in furtherance of the agreement, contrary to Indiana law.

COUNT II:

[B]etween November 27, 2013, and June 11, 2014, Yvonne S. Morgan, with the intent to commit Dealing in a Schedule III Controlled Substance agreed with Ronald Vierk, M.D. to commit Dealing in a Schedule III Controlled Substance and Yvonne S. Morgan performed an overt act, to-wit: delivered a pre-signed prescription form to an undercover law enforcement officer which was done outside the usual course of professional medical practice in furtherance of the agreement, contrary to Indiana law.

COUNT III:

[B]etween December 9, 2011, and June 30, 2014, Yvonne S. Morgan, was employed by or associated with an enterprise, to-wit: DORN a/k/a Drug & Opiate Recovery Network and knowingly or intentionally conducted or otherwise participated in the activities of that enterprise through a pattern of racketeering activity, to-wit: Dealing in a Schedule III Controlled Substance by committing two or more of the following overt acts:

1) Yvonne S. Morgan served as the point of contact and/or office manager for the DORN Office at 801 Airport Road, Centerville, Indiana.

2) On or about November 27, 2013, Yvonne S. Morgan was present at the DORN office at 801 Airport Road, Centerville, Indiana, and delivered prescriptions that had been prepared outside the usual course of professional medical practice,

3) On or about January 15, 2014, Yvonne S. Morgan was present at the DORN office at 801 Airport Road, Centerville, Indiana, and delivered prescriptions that had been prepared outside the usual course of professional medical practice.

4) On or about April 16, 2014, Yvonne S. Morgan was present at the DORN office at 801 Airport Road, Centerville, Indiana, and delivered prescriptions that had been prepared outside the usual course of professional medical practice.

5) On or about May 14, 2014, Yvonne S. Morgan was present at the DORN office at 801 Airport Road, Centerville, Indiana, and delivered prescriptions that had been prepared outside the usual course of professional medical practice.

6) On or about June 11, 2014, Yvonne S. Morgan was present at the DORN office at 801 Airport Road, Centerville, Indiana, and delivered prescriptions that had been prepared outside the usual course of professional medical practice.

COUNT IV:

[O]n or about April 16, 2014, in Wayne County, State of Indiana, Yvonne S. Morgan did knowingly or intentionally aid another person, to-wit: Dr. Ronald Vierk, M.D., to commit the offense of Dealing In A Schedule III Controlled Substance by delivering a prescription to an undercover law enforcement agent that had been prepared outside the usual course of professional medical practice, contrary to Indiana law.

COUNT V:

[O]n or about May 14, 2014, in Wayne County, State of Indiana, Yvonne S. Morgan did knowingly or intentionally aid another person, to-wit: Dr. Ronald Vierk, M.D., to commit the offense of Dealing In A Schedule III Controlled Substance by delivering a prescription to an undercover law enforcement agent that had been prepared outside the usual course of professional medical practice, contrary to Indiana law.

COUNT VI:

[O]n or about June 11, 2014, in Wayne County, State of Indiana, Yvonne S. Morgan did knowingly or intentionally aid another person, to-wit: Dr. Ronald Vierk, M.D., to commit the offense of Dealing In A Schedule III Controlled Substance by delivering a prescription to an undercover law enforcement agent that had been prepared outside the usual course of professional medical practice, contrary to Indiana law.

Appellant's App. pp. 33–35

[6] On November 3, 2015, Morgan renewed her motion to dismiss, seeking dismissal of all six counts against her on the basis that the charging information lacked sufficient evidence to show that the alleged facts constitute offenses and the criminal statutes in question were void for vagueness as applied to her. The trial court held a hearing on Morgan's motion to dismiss on November 17, 2015, and granted Morgan's motion on March 1, 2016, dismissing all six charges. The trial court essentially concluded that, because Morgan was not a licensed physician, there was no way that the State could prove the mens rea necessary for conviction, i.e., that she knew that hers and Dr. Vierk's actions were outside the usual course of professional medical practice.

Discussion and Decision

Background

[7] The Indiana Legend Drug Act provides, in part, that “a prescription or drug order for a legend drug is not valid unless the prescription or drug order is issued for a legitimate medical purpose by a practitioner acting in the usual course of the practitioner's business” and that “[a] practitioner may not knowingly issue an invalid prescription or drug order for a legend drug.” Ind.Code § 16–42–19–20

. We have held that “[w]hen ... a physician acts without any legitimate legal purpose and beyond the course of professional practice by selling prescriptions that allow the bearer to obtain controlled substances, his conduct should be treated like any street-corner pill-pusher.” Alarcon v. State, 573 N.E.2d 477, 481 (Ind.Ct.App.1991) (citations omitted), trans. denied. Thus, under Indiana law, the issuance of invalid prescriptions for controlled substances can support charges for dealing in a controlled substance pursuant to Indiana Code section 35–48–4–2. See id. Here, Morgan's charges are all based on allegations that she participated with Dr. Vierk in the ongoing delivery of invalid prescriptions for Suboxone.

I. Whether Morgan's Actions, if Proven,...