Tiplick v. State

• Citation: 25 N.E.3d 190
• Decision Date: 27 January 2015
• Docket Number: No. 49A04–1312–CR–617.,49A04–1312–CR–617.
• Parties: Christopher TIPLICK, Appellant–Defendant, v. STATE of Indiana, Appellee–Plaintiff.
• Court: Indiana Appellate Court

25 N.E.3d 190

Christopher TIPLICK, Appellant–Defendant

v.STATE of Indiana, Appellee–Plaintiff.

No. 49A04–1312–CR–617.

Court of Appeals of Indiana.

Jan. 27, 2015.

Mark W. Rutherford, Stephen R. Donham, Thrasher Buschmann & Voelkel, P.C., Indianapolis, IN, Attorneys for Appellant.

Gregory F. Zoeller, Attorney General of Indiana, Ellen H. Meilaender, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.

Opinion

MAY

, Judge.

[1] Christopher Tiplick appeals the denial of his motion to dismiss eleven counts of his eighteen count indictment. He presents multiple issues for our review, one of which we find dispositive: whether, at the time of Tiplick's alleged offenses, Ind.Code § 35–48–4–10(a)

, which prohibited dealing in a synthetic drug, and Ind.Code § 35–48–4–11, which prohibited possession of a synthetic drug, were unconstitutionally vague when the synthetic drug alleged to have been dealt in or possessed was not listed in the relevant definitional statutes and can be found only in the Pharmacy Board Regulations?

[2] We reverse and remand.

Facts and Procedural History

[3] On October 18, 2012, the State charged Tiplick with: Count I, Class C felony conspiracy to commit dealing in a lookalike substance;¹ Count II, Class C felony dealing in a lookalike substance;² Count III, Class C felony conspiracy to commit dealing in a lookalike substance; Count IV, Class C felony dealing in a lookalike substance; Count V, Class C felony conspiracy to commit dealing in a lookalike substance; Count VI, Class C felony dealing in a lookalike substance; Count VII, Class D felony conspiracy to commit dealing in a synthetic drug;³ Count VIII, Class D felony dealing in a synthetic drug;⁴ Count IX, Class D felony possession of a synthetic drug;⁵ Count X, Class D felony conspiracy to commit dealing in a synthetic drug; Count XI, Class D felony dealing in a synthetic drug; Count XII, Class D felony possession of a synthetic drug; Count XIII, Class D felony conspiracy to commit dealing in a synthetic drug; Count XIV, Class D felony dealing in a synthetic drug; Count XV, Class D felony possession of a synthetic drug; Count XVI, Class C felony dealing in a lookalike substance; Count XVII, Class D felony dealing in a synthetic drug; and Count XVIII, Class D felony possession of a synthetic drug. The charges were based on undercover observations and purchases at three stores owned by Tiplick on September 20, 2012, October 9, 2012, and October 10, 2012. The charging information and accompanying probable cause affidavit alleged Tiplick sold, possessed, or entered into a conspiracy to sell “spice,” (App. at 19–24), and some of the packages sold to undercover officers contained “XLR11(1–(flouropentyl)indol–3–yl)–2, 2, 3, 3,-tetramethylcyclopropy)methanone).” (Id. at 28.)

[4] On January 17, 2013, Tiplick filed a motion to dismiss the counts against him, arguing:

1) the statutes as charged, I.C. [§ 35–48–4–10(a)(1)

, I.C. § 35–48–4–10(b), I.C. § 35–48–4–11(1), and I.C. § 35–48–4–13(b)(2) ] are unconstitutionally “vague” in violation of the Fifth and Fourteenth Amendments to the United States Constitution and Article One, Sections Twelve and Thirteen of the Constitution of the State of Indiana and 2) the statutes cited violate the Distribution of Powers Clause contained in Article

Three, Section One of the Constitution of the State of Indiana.

[5] (Id. at 37.) The trial court denied Tiplick's Motion to Dismiss and his motion to reconsider, then granted his motion to certify the order on his motion to dismiss for interlocutory appeal. We accepted jurisdiction.

Discussion and Decision

[6] Generally, we review the denial of a motion to dismiss for an abuse of discretion, McCown v. State, 890 N.E.2d 752, 756 (Ind.Ct.App.2008)

, while taking the facts stated in the charging information as true. Delagrange v. State, 951 N.E.2d 593, 594 (Ind.Ct.App.2011). However, when, as here, the denial rests on the trial court's interpretation of a statute, we review the decision de novo.

McCown, 890 N.E.2d at 756.

[7] The trial court determined the statutes under which Tiplick was charged⁶ were not void for vagueness:⁷

The defendant claims the dealing statute, the possession statute, the nuisance statute and the look-a-like statute are void for vagueness. The defendant argues that the dealing statute, the possession statute and the nuisance statute include the term synthetic drug the definition of which contains a jumbled mix of chemicals and their analogs. This chemical hodgepodge within the synthetic drug definition includes cannabinoid, receptor agonists, stimulants, opiate receptor agonists, as well as anything else the Pharmacy Board decides to include. Defendant asserts that a person of common intelligence cannot be expected to understand the entire synthetic drug and [sic] definition and continuously monitor the promulgations and findings of the Board which are not yet enacted. The Court disagrees and feels that is exactly and precisely the duty of the citizens which is to monitor statutes to determine what action they might take. Each year on July 1st hundreds of new statutes go into effect and it surely cannot be a defense that the defendant cannot be expected to read all of the statutes and know what the laws are. In this case [Ind.Code § ] 35–31.5–2–321 clearly [sic] provides the definition of a synthetic drug including emergency rules promulgated by the [P]harmacy [B]oard. Furthermore the criminal statute makes it quite clear that synthetic drugs and their distribution are illegal. Before someone chooses to sell a substance that might be a synthetic drug the statutes and emergency rules are available and illegal synthetic drugs are currently listed. Before selling a substance a citizen may review the rule to determine what substances are banned. If it[']s listed they shouldn't sell it. On the other hand if they don't know what they are selling and choose to sell it any way [sic] they do so at their own risk. The Court finds that the Defendant's void for vagueness argument as to this case should be denied.

[8] (App. at 14–5.)

[9] Our Indiana Supreme Court stated in Brown v. State:

A challenge to the validity of a statute must overcome a presumption that the statute is constitutional. State v. Lombardo, 738 N.E.2d 653, 655 (Ind.2000)

. The party challenging the statute has the burden of proving otherwise. Brady v. State, 575 N.E.2d 981, 984 (Ind.1991).

Due process principles advise that a penal statute is void for vagueness if it does not clearly define its prohibitions. Klein v. State, 698 N.E.2d 296, 299 (Ind.1998)

(citing Grayned v. City of Rockford, 408 U.S. 104, 92 S.Ct. 2294, 33 L.Ed.2d 222 (1972) ). A criminal statute may be invalidated for vagueness for either of two independent reasons: (1) for failing to provide notice enabling ordinary people to understand the conduct that it prohibits, and (2) for the possibility that it authorizes or encourages arbitrary or discriminatory enforcement. City of Chicago v. Morales, 527 U.S. 41, 56, 119 S.Ct. 1849, 1859, 144 L.Ed.2d 67, 79–80 (1999) ; Healthscript, Inc. v. State, 770 N.E.2d 810, 815–16 (Ind.2002). A related consideration is the requirement that a penal statute 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.” Healthscript, Inc., 770 N.E.2d at 816 (quoting United States v. Harriss, 347 U.S. 612, 617, 74 S.Ct. 808, 812, 98 L.Ed. 989, 996 (1954) ). In State v. Downey, 476 N.E.2d 121, 123 (Ind.1985), this Court emphasized that “there must be something in a criminal statute to indicate where the line is to be drawn between trivial and substantial things so that erratic arrests and convictions for trivial acts and omissions will not occur. It cannot be left to juries, judges, and prosecutors to draw such lines.” Accordingly, the statutory language must “convey sufficiently definite warning as to the proscribed conduct when measured by common understanding.” Rhinehardt v. State, 477 N.E.2d 89, 93 (Ind.1985).

But a statute “is not void for vagueness if individuals of ordinary intelligence could comprehend it to the extent that it would fairly inform them of the generally proscribed conduct.” Klein, 698 N.E.2d at 299

; accord

Lombardo, 738 N.E.2d at 656. And the statute does not have to list specifically all items of prohibited conduct; rather, it must inform the individual of the conduct generally proscribed. Lombardo, 738 N.E.2d at 656. The examination of a vagueness challenge is performed in light of the facts and circumstances of each individual case. Id.

[10] 868 N.E.2d 464, 467 (Ind.2007)

. Tiplick was charged with multiple counts of Class D felony dealing in a synthetic drug, Class D felony conspiracy to deal in a synthetic drug, and Class D felony possession of a synthetic drug. By the standard articulated in Brown, the versions of Ind.Code §§ 35–48–4–10(a) and 11 effective at the time of Tiplick's alleged offenses were unconstitutionally vague⁸ as they related to the term “synthetic drug”⁹ as defined by Ind.Code § 35–31.5–2–321(9)

.¹⁰

[11] At the time Tiplick allegedly committed the offenses, Ind.Code § 35–31.5–2–321

listed over sixty specific chemical compounds, and it included eleven sections regarding compounds “structurally derived” from other chemicals. Ind.Code § 35–31.5–2–321(1) –(8) (2012). It provided a synthetic drug is “Any compound determined to be a synthetic drug by rule adopted under IC 25–26–13–4.1.” Ind.Code § 35–31.5–2–321(9) (2012). Ind.Code § 25–26–13–4.1 (2012),¹¹ which outlines the duties of the Pharmacy Board, states:

[12] (a) The board may adopt an emergency rule to declare that a substance is a synthetic drug.

[13](b) The board may adopt an emergency rule declaring a substance to be a synthetic drug if the board finds that the substance:

[14](1) has been scheduled or emergency scheduled by the United States Drug

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