*1 (W.D.N.Y.1994), Dowling Catanzano v. F.Supp. 1079. I find if that even we
were to decline to follow the lead of the
Seventh permit Cireuit and trial courts to
consider whether class certification is "neces-
sary" in addition require- to the T.R. 238
ments, nothing present there is in this case
from which the court can be assured comply
Credit Union will with the terms of injunction on a class-wide basis. Plain- suing
tiffs are for a they declaration that are
entitled coverage. to life insurance Should succeed,
the individual Plaintiffs there is
nothing to assure that the Credit Union will simply procure coverage insurance Plaintiffs,
the individual leaving the rest of
the class without benefit.
Plaintiffs have satisfied all TR.
requirements for class certification of this
matter. A appropriate class action is in this
matter, contrary to the trial court's con-
clusion, "necessary" to assure the benefit all proposed members of the class. reasons,
For these I respectfully DIS-
SENT.
Guy BEMIS, Appellant- Donald
Defendant, Indiana, Appellee-Plaintiff.
STATE of
No. 82A04-9407-CR-276. Appeals
Court of of Indiana.
June *2 pursu- all counts conviction on
judgment and jury verdict. ant to the HISTORY AND PROCEDURAL FACTS 4, 1992, Bemis met Sharon September On Mosby in Evansville. Mosby a local bar at apart- go to his with Bemis left the bar apartment, Bem- arriving at the ment. After containing mush- Mosby dried gave a bow! part Mosby one mushroom ate warning Despite Bemis' of a second one. drive, During Mosby in her car. left home, began hallucinating she Mosby's drive home, Mosby vomiting. arrived When uncontrollably. erying laughing and was she Emergency transported her to Her son Center, Mary's Medical where Room St. evening to explained the events she police officers. Evansville apart- to a search of his Bemis consented September 1992. Police officers on ment which con- Tupperware container seized a Police also seized dried mushrooms. tained Evansville, Canada, appellant. Robert growing that were other mushrooms Gen., Carter, Atty. Preston W. Pamela massive apartment, throughout Bemis's Gen., Black, Indianapolis, Deputy Atty. with his paraphernalia associated amounts of appellee. operation, and various mushroom growing and concerning mushroom literature drug cultivation. The in-home OPINION tested were later Tupperware container RILEY, Judge. and found to THE OF CASE STATEMENT August that in further reveals The record telephoned Purdue Universi- Guy Donald Defendant-Appellant educator, Larry Kap- (Bemis) county ty's of deal extension from his convictions appeals substance, lan, grow mushrooms him how to and asked I in a controlled schedule were edi- psilocybin mushrooms 1; posses and whether felony and two counts B Class during this at trial that Kaplan testified bie. a schedule I controlled sion of psilocy- 2. D felonies he informed Bemis Class conversation hallucinogenic and ille- mushrooms were bin with part and remand affirm We gal. structions. charged by amended informa- tion with one count ISSUE felony; one B a Class appeal, which we one issue Bemis raises deliver, a intent possession with count of prohibiting the statute as: re-state Whether of a schedule felony; B Class Psilocybin and Psilo- possession or sale felony. D a Class I controlled unconstitutionally vague. eyn is trial, to dismiss Bemis moved Prior to informations, under arguing that the statutes sponte: following issue sum raise the We charged were unconstitutional- entering he was which erred trial court Whether (1988). (1994). IND.CODE 35-48-4-2 motion, ly vague. The trial court denied the stance in the Illinois Controlled Substance Act. proceeded and the cause to trial. Following Dunlap, the trial court held that trial, Following jury Bemis was convicted 85-48-2-4(d)(21) 1.0. 35-48-4-2 and 1.C. are of one count of in a schedule con- *3 unambiguous prohibit possession and or possession trolled substance one count and Psilocyn, sale of materials which contain I schedule controlled substance as cluding Psiloeyn mushrooms which contain in charged in counts I and III. He was also their natural state. The trial court continued possession convicted of one count of of a by saying that I schedule controlled substance aas lesser commonly [the term "material" is used to charged included offense of in the offense refer item which is the source for years Count II. Bemis was sentenced to six something prod- else rather than a finished dealing eighteen for his conviction of and person ordinary intelligence uct. A possession, months for his convictions of amply apprised would be possession that merged
which were run and concurrent dealing containing or in mushrooms Psilo- appeals, sentence. Bemis now cyn illegal. As to mushrooms known to arguing that the trial court erred when it Psilocyn, application of 1.C. 85-48- denied his motion to charging dismiss the 4-2 is not unconstitutional. informations. prosecution A under I.C. 35-48-4-2 would process rights violate the due of a defendant who did not know the mush- AND
DISCUSSION DECISION Psilocyn rooms contained because under (1994) Bemis contends that I.C. 35-48-2-4 35-48-4-2, 1.C. has the burden of and vagueness I.C. 35-48-4-2 are void for proving that the knowledge defendant had they Psilocybin relate to Spe- possessed. of the nature of the substances cifically, argues that LC. 85-48-2- The facts of distinguishable this cause are 4(d)(20) (21) adequately fails to inform (1978), Fla., from the facts of Fiske v. State him proseribes, of the conduct it and thus is 428, upon 366 So.2d which the defendant violative of the Due Process Clause under in relies that the defendant in Fiske was the Federal Constitution and the Indiana in apparently found wild Constitution. mushrooms, whereas the defendant in this case was the confiscated mush- argues express Bemis further ex- "drug" clusion of food from the definition of (R. 45). (1994) in coupled with the prosecuted for a violation of fact that I.C. 35-48-24 fails to mention which, 1.C. 35-48-4-2 at the time Bemis was mushrooms, renders the statute constitution- charged, pertinent part read in as follows: ally vagueness regard psilo- void for with (1) A knowingly who: or intention- cybin mushrooms. ally manufactures or delivers a controlled substantially argu Bemis raised the same adulterated, pure or classified in denying ment his motion to dismiss. In I, II, III, except marijuana, in schedule or motion, heavily the trial his court relied (2) oil, hashish; possesses hash or or with People Dunlap App.3d 110 Ill. deliver, intent to manufacture or a con- 66 Ill.Dec. 442 N.E.2d wherein the adulterated, pure trolled or Appellate I, II, III, Illinois found the Illinois except Court classified schedule or oil, hashish; marijuana, hash or commits language unambiguous. Spe to be I, II, cifically, Dunlap court found that mush or III con- felony. trolled a Class B rooms which in their natural state contain (1988).3 1.C. 35-48-4-2 Psilocyn, category are included in the broad Psilocyn. Any of materials which include A schedule controlled substance is de- Psilocyn in the fined Indiana Controlled Substance material which includes is within the controlled sub- Act as follows: definition of a Schedule provide pertinent part 3. The statute has been amended to since as follows: section (a) The controlled [*] are included # "k substances in schedule # listed [*] I. in this impose criminal less laws. vagueness Helton, in them than penalties, we will at 506. in other types of tolerate (d) Any mate- Hallucinogenicsubstances. he concedes that mixture, preparation rial, or compound, Psilocyn; how which contained of the follow- any quantity which contains did not ever, at the time he argues that he psycho- or hallucinogenic, psychedelic, Psilo- contained the mushrooms know isomers, salts, substances, their genic however, Indiana, knowledge of the cyn. In isomers, except- specifically unless salts of possessed is sold or of the substance nature unless listed board or by ed rule of the sub dealing in a controlled an element *4 schedule, the existence whenever another a controlled sub possession of and stance salts, isomers, and salts of isomers of these 85-48-4-2; 1.C. 85-48-4-7. I.C. stance. See specific chemical des- the possible is within (1988), Ind.App., N.E.2d 528 In v. State Kail ignation: denied, was con 799, the defendant trans.
ik
[*]
##
[*]
[*]
#k
victed of
possession of
Psilocyn
and
inter
argument
to the
argument
similar
posed
(20) Psilocybin
pos
by
Kail admitted
Bemis.
advanced
(21) Psilocyn
that
the
claimed
sessing
but
"drug"
defined
term
is
The
1.C. 35-48-2-4.
knowingly
he
establish that
failed to
State
Act as
Substance
in the Indiana Controlled
Psilocyn occurs
Psilocyn,
the
since
in
meaning set forth
"Drug" has the
follows:
We affirmed
naturally in the mushrooms.
not include devices
"It does
I.C. 16-42-19-2.
jury
conviction, concluding that
the
Kail's
accessories,
parts, or
components,
or their
from the
knowing possession
infer his
could
I.C. 85-48-1-16.
nor does it include food."
Kail,
surrounding
cireumstances.
at 809-810.
N.E.2d
Challenged
Constitutionality
Statutes
of the
include scien-
statutes
Because the Indiana
challenged on con
is
a statute
When
offense,
no
there is
pre
ter as an element
begin with the
grounds, we
stitutional
be convicted
danger that a
would
constitutionality
place the
and
sumption of
psilocyn mush-
innocently possessing the
party
challenging
to show
the
burden on
us,
the
(1994),
before
Ind.App.,
In the case
Jackson v. State
otherwise.
532,
the
from which
sufficient evidence
634 N.E.2d
introduced
knowledge of the
jury could infer
state
the outset
that
note at
We
he
Psilocyn in the mushrooms
presence of
same,
analysis
the
vagueness
is
federal
and
possessed.
Id.,
claims
address both
and thus we will
(1978), Fla.,
on Fiske v. State
pro
Bemis relies
of due
principles
basic
together. Under
423,
Supreme
the Florida
wherein
366 So.2d
if its
cess,
vagueness
is void
a statute
under
Fiske's
conviction
held that
Helton Court
clearly defined.
prohibitions are not
Due
statutory
violated the
scheme
(1998),
Florida's
Ind.App., 624 N.E.2d
v. State
Florida
the federal and
unconstitutionally
Process Clauses
A
is not
statute
pos
makes
Florida's statute
intelligence
constitutions.
ordinary
vague
persons
if
contains the
any material which
them session
adequately inform
interpret
it to
would
felony
psilocybin,
hallucinogenic substance
McIntosh v. State
conduct.
proscribed
the
1269, 1277,
Psilocybin is a schedule
(1994),
degree.
N.E.2d
Ind.App., 638
in the third
Florida,
as
substance
issue
controlled
statutes at
Because the
trans. denied.
(1)
(a)
knowingly
substance,
or intention-
of; a controlled
person who:
A
finance
delivery
manufactures;
(B)
(A)
finances the manu-
ally:
I, II,
classified in schedule
adulterated,
or
pure
(D)
(C)
finances
delivers;
or
marijuana,
of;
hashish;
oil,
facture
hash
or
III,
or
except
of;
pure or
delivery
a controlled
or
III
I,
II,
in a schedule
commits
III,
I, II, or
in schedule
adulterated,
classified
B
a Class
except
controlled
felony,
hashish;
(2)
oil,
or
except marijuana,
or
hash
(b).
provided in subsection
as
(B)
(A) manufacture;
to:
with intent
possesses,
(1994).
of;
deliver;
(D)
(C)
or
the manufacture
finance
Fiske,
psilocybic
illegal
Indiana.
at 424. The court Bemis that
So.2d
mushrooms were
statutory
hallucinogenic.
in Fiske
found that Florida's
regarding Psilocybin
scheme
was not uncon-
Bemis also relies on State v. Wohlever
face; however,
stitutionally vague on its
App.3d
27 Ohio
unconstitutionally
court found that
it was
wherein the court held that defendant's mo-
vague
applied
The court
Fiske.
said:
tion to
dismiss
indictment should have
Wohilever, however,
granted.
In
been
nei-
psilocybic
The statute makes no mention of
particular
ther the
controlled substance nor
or,
matter,
any
mushrooms
for that
type
hallucinogen
was stated in the
psilocybic organic
grows
other
form that
indictment, and thus the indictment failed to
specify
wild.
If the
that
statute were to
charging
state a crime. The information
psilocybin
was contained
certain identifi-
clearly charges delivery
posses-
able mushrooms and were to name those
sion of a schedule
thereby apprising
prospec-
wit:
The case before us is distin-
tive defendant
that
of those
guishable from Wohlever.
unlawful,
it would not be
applied.
unconstitutional as
The statute as
We find
the Indiana
framed, however,
presently
gives
infor-
no
regarding psilocyn
psilocybin
scheme
*5
plants may
psilo-
mation as to what
sufficiently explicit
mushrooms is
so as to
cybin in
particular-
its natural state. More
conduct,
proscribed
inform individuals of the
ly,
the statute does not advise a
process.
and thus is consistent with due
ordinary
intelligence
and common
that this
Several other states have addressed this is
particular
substance is contained in a
vari-
sue and have found that their state statutes
statute,
therefore,
ety of mushroom. The
unconstitutionally vague.
People
are not
See
may
applied constitutionally
ap-
not be
to
1379;
Dunlap, 442
v.
N.E.2d
State v. Justice
pellant.
(1985),
1012;
Kan.App.2d
704 P.2d
(1984),
Wash.App.
v. Patterson
Fiske,
424.
possession as convictionsand sentence respect to the JACOBS, Appellant-Defendant, With Karen L. af- the trial court OF The BOARD OF COMMISSIONERS firmed. Morgan COUNTY, The Coun MORGAN County Morgan ty and The Council FRIEDLANDER, J., concurs. Appellees-Plain Highway Department, tiffs. J., CHEZEM, separate dissents with
opinion. No. 49A04-9411-CV-468.
CHEZEM, dissenting. Judge, Appeals of Indiana. Court majority's to the respectfully dissent 22, June pos- of Bemis of one conviction vacation Nov. Transfer Denied sup- sufficient The evidence is session. Bemis commit- jury's findings that
port the The possession. separate acts of
ted two reveal favorable to the verdicts
facts most I, dealing convicted of Count
that Bemis was substance, for his I controlled
in a schedule Mosby. delivering the mushrooms to
act of III, possession of Count
Bemis was convicted substance, for his I controlled
of a schedule Tupper- in the
possession of the mushrooms II, convicted on count
ware bowl. *6 sub- a schedule
possession of posses- included offense as a lesser
stance deliver, for his intent to sion with growing mushrooms large quantity of sep- two apartment.
in his in the bow! those
arate sets of throughout apartment. growing his
and those jury found there was Simply because intent to deliv- of Bemis'
insufficient evidence mushrooms, it does not follow
er the posses- jury's finding that his act of the same as its mushrooms is
sion of those possessed the mushrooms
finding possessed two sets
in the bowl. Bemis the intent to deliv- one set with growing. Two
er; was still the other set two different
groups mushrooms with Young See equal two crimes.
tentions should Ind.App., 564 N.E.2d v. State
(Chezem, J., concurring part and dissent- part).