Gary Elvers v. State of Indiana, 22 N.E.3d 824

Elvers owned Elvie’s, a Kokomo shop selling spice/bath salts and related items; several products contained banned synthetic drugs after 2011 law updates.
The Synthetic Drug Law was amended on March 15, 2012, expanding the list of prohibited substances; a March 19, 2012 search warrant and later searches yielded numerous spice/bath salt packages and cash.
Undercover detectives purchased multiple packets in 2011–2012; lab tests confirmed presence of JWH-122, JWH-250, alpha-PVP, and pentylone in seized items.
Elvers was charged July 5, 2012 with six counts of dealing in synthetic drugs and one count of maintaining a common nuisance; he moved to dismiss and for suppression, which the court denied.
At trial, the jury convicted Elvers on Counts III, IV and V (dealing in JWH-122/JWH-250) and Count VI (common nuisance); Counts I, II, VII acquitted.
On appeal, the court vacated Count V (double-count issue) and remanded for correction; otherwise affirmed the convictions and held the law constitutional.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Constitutionality of the Synthetic Drug Law	State argues law is sufficiently definite as to banned substances.	Elvers contends law is unconstitutionally vague.	Law not vague; valid construction; notice given.
Weight-based enhancement applicability	State asserts weight enhancement valid for adulterated products.	Elvers claims enhancements unlawful when based on mix of proscribed/non-proscribed substance.	Weight-based enhancement upheld; total weight of adulterated drug can be used.
Charging information adequacy	Information adequately charged possession with intent to deliver synthetic drugs.	Information described plant material rather than the illicit compound itself.	Information sufficiently charged the crime; not misled.
Merging of multiple counts	Counts III and V were properly separate due to multiple products.	Counts should merge because single possession involved multiple products.	Counts III and V should have merged; remand to vacate Count V.
Admissibility of evidence from multi-warrant searches	First warrant form defect could taint subsequent warrants and evidence.	Warrant form and execution defective; fruits of poisonous tree.	Warrants valid; evidence properly admitted.

Salter v. State, 906 N.E.2d 212 (Ind. Ct. App. 2009) (statutory vagueness reviewed de novo)
Lee v. State, 973 N.E.2d 1207 (Ind. Ct. App. 2012) (presumption of constitutionality; burden on challenger)
Lock v. State, 971 N.E.2d 71 (Ind. 2012) (statutes presumed constitutional)
Brown v. State, 868 N.E.2d 464 (Ind. 2007) (due process requires clear prohibitions)
Tooley v. State, 911 N.E.2d 721 (Ind. Ct. App. 2009) (issue may be raised sua sponte)
Kaur v. State, 987 N.E.2d 164 (Ind. Ct. App. 2013) (vagueness challenge resolved when statute lists specific substances)
Welsh v. Sells, 192 N.E.2d 753 (Ind. 1963) (statute capable of intelligible construction satisfies Article 4, §20)
Conner v. State, 626 N.E.2d 803 (Ind. 1993) (penalties proportioned to offense; traces matter)
Cline v. State, 860 N.E.2d 647 (Ind. Ct. App. 2007) (delivery includes transfer of control; possession sustained by quantities)
Davis v. State, 863 N.E.2d 1218 (Ind. Ct. App. 2007) (sufficiency review; evidence to support conviction)
Gilliland v. State, 979 N.E.2d 1049 (Ind. Ct. App. 2012) (charging information must provide notice of offense)
Brannon v. State, 801 N.E.2d 750 (Ind. Ct. App. 2004) (warrant form defects not fatal where sufficient content)
Goodner v. State, 685 N.E.2d 1058 (Ind. 1997) (probable cause form and suppression standards)