Travis Armes, Eric Settles, and Debra Pennington v. State of Indiana
Court of Appeals Case No. 21A-CR-2384
Court of Appeals of Indiana
July 8, 2022
Crone, Judge.
Interlocutory Appeal from the Marion Superior Court; The Honorable James K. Snyder, Magistrate; Trial Court Cause Nos. 49D28-2101-F2-3158, -3159, -3149
Christopher Kunz
Marion County Public Defender
Appellate Division
Indianapolis, Indiana
ATTORNEYS FOR APPELLEE
Theodore E. Rokita
Attorney General
Kelly A. Loy
Assistant Section Chief Criminal Appeals
Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Crone, Judge.
Case Summary
[1] The State charged Travis Armes, Eric Settles, and Debra Pennington (collectively Defendants) with various crimes involving a Schedule I controlled substance identified as MDMB-4en-PINACA (MDMB). They filed motions to
[2] We conclude that the Emergency Rule complied with the authorizing statute, and thus added MDMB to Schedule I. However, we agree with Defendants that the Emergency Rule fails to provide adequate information for a person of ordinary intelligence to determine whether he or she is dealing a substance that contains MDMB, and therefore it is unconstitutionally vague. Defendants are entitled to dismissal of the charges on this ground, and accordingly we reverse.
Facts and Procedural History
[3] As alleged by the probable cause affidavits, in January 2021, Settles was in custody at the Marion County Jail awaiting trial. Armes worked in the jail kitchen. Settles arranged with Pennington to deliver drugs to Armes so that he could bring the drugs into the jail on January 26. On January 26, two police officers at the jail observed Armes entering the jail through the employee entrance with a plastic grocery bag in his hand. The officers asked Armes to step into the video visitation room, and as he walked into the room, he tossed a clear plastic Ziploc bag up next to one of the monitors. The bag contained
[4] On January 29, 2021, the State charged Settles and Pennington with level 2 felony conspiracy to commit dealing in a Schedule I controlled substance in violation of
Discussion and Decision
[6] Defendants contend that the trial court abused its discretion by denying their motions to dismiss. “We review a trial court’s ruling on a motion to dismiss a charging information for an abuse of discretion, which occurs only if a trial court’s decision is clearly against the logic and effect of the facts and circumstances,” or when it misinterprets the law. State v. Barnett, 176 N.E.3d 542, 551 (Ind. Ct. App. 2021), trans. denied (2022). We review questions of law de novo. Id. “[W]e review a matter of statutory interpretation de novo because it presents a question of law.” Study v. State, 24 N.E.3d 947, 950 (Ind. 2015) (quoting Sloan v. State, 947 N.E.2d 917, 920 (Ind. 2011)), cert. denied. Likewise, “[t]he constitutionality of an Indiana statute is a pure question of law we review
Section 1 – MDMB became a Schedule I controlled substance pursuant to the Emergency Rule.
[7] Defendants first argue that they are entitled to dismissal on the basis that the charging informations fail to state facts constituting an offense because MDMB was not a Schedule I controlled substance when the alleged crimes occurred. See
[8] We begin with a review of the statutory scheme designating Schedule I controlled substances.
[9] Section 4.1 grants the Board the authority to adopt emergency rules as follows:
(a) The board2 may adopt an emergency rule to declare that a substance is a synthetic drug.
(b) The board may, on its own initiative or under a written request from the state police department, the United States Drug Enforcement Administration, or a poison control center, adopt an emergency rule declaring a substance to be a synthetic drug if the board finds that the substance:
(1) has been scheduled or emergency scheduled by the United States Drug Enforcement Administration;
(2) has been scheduled, emergency scheduled, or criminalized by another state; or
(3) has:
(A) a high potential for abuse; and
(B) no accepted medical use in treatment in the United States or lacks accepted safety for use in treatment under medical supervision.
(c) In making its determination under subsection (b)(3), the board shall consider the following factors relating to the substance:
(1) The actual or relative potential for abuse.
(2) Scientific evidence of the substance’s pharmacological effect, if known.
(3) The state of current scientific knowledge regarding the substance.
(4) The history and current pattern of abuse of the substance.
(5) The scope, duration, and significance of abuse of the substance.
(6) The degree of risk to the public health.
(7) The psychic or psychological dependence liability of the substance.
(d) A rule adopted under this section becomes effective thirty (30) days after it is filed with the publisher3 under
IC 4-22-2-37.1 .(e) A rule adopted under this section expires on June 30 of the year following the year in which it is filed with the publisher under
IC 4-22-2-37.1 .(f) The board may readopt under this section an emergency rule that has expired.
[10] The Board maintains a list of Schedule I controlled substances at
[11] The Emergency Rule at issue here provides as follows:
(a) This SECTION is supplemental to
856 IAC 2-2-2 .(b) Unless specifically excepted or unless listed in another Schedule, any of the following substances, including its analogs, isomers, esters, ethers, salts and salts of isomers, esters, and ethers whenever the existence of such analogs, isomers, esters, ethers, and salts is possible within the specific chemical designation:
(1) MDMB-4en-PINACA.
(2) 4F-MDMB-BICA; 4-fluoro MDMB-BICA, 4F-MDMB BUTICA; Methyl 2-[[1-(4-fluorobutyl)indole-3-carbonyl]amino]- 3,3- dimethyl-butanoate.
(3) Isotonitazene. Synonyms: N,N-diethyl-2-(2-(4 isopropoxybenzyl)-5-nitro-1 H- benzimidazol-1-yl)ethan-1-amine.
Ind. Reg. LSA Doc. No. 20-516(E) § 1 (filed Oct. 6, 2020), http://iac.iga.in.gov/iac/20201014-IR-856200516ERA.xml.html [https://perma.cc/63UF-GQQV]. The digest to the Emergency Rule states,
Temporarily amends
856 IAC 2-2-2 to add drug compounds to Schedule I. Repeals LSA Document #20-498(E), posted at 20200923-IR-856200498ERA. Statutory authority:IC 25-26-13-4.1 . Effective 30 days after filing with the Publisher.
Id. (emphasis added).
[12] Defendants argue that the Emergency Rule did not comply with Section 4.1 and thus failed to make MDMB a Schedule I controlled substance. They maintain that Section 4.1 authorizes the Board only to “declare that a substance is a synthetic drug[,]” not to add a substance directly to the list of Schedule I controlled substances, and the Emergency Rule does not declare that MDMB is a synthetic substance or even use the word “synthetic.” The State counters that given the limited scope of Section 4.1, it is unnecessary to use the word “synthetic” within the language of the Emergency Rule to add MDMB to Schedule I. We agree with the State.
[14] In support of their argument that the Emergency Rule fails to make MDMB a Schedule I controlled substance, Defendants compare the Emergency Rule to an earlier Board emergency rule that was the subject of an unconstitutional vagueness challenge in Tiplick. The emergency rule in Tiplick read as follows:
(f) Synthetics. Unless specifically excepted or unless listed in another schedule, any material, compound, mixture, or preparation, which contains any quantity of the following synthetic substances, or which contains any of its salts, isomers, and salts of isomers, whenever the existence of such salts, isomers, and salts of isomers is possible within the specific chemical designation (for purposes of this subsection only, “isomer” includes the optical, position, and geometric isomers):
....
(13) XLR11 [(1-(5-fluoropentyl)indol-3-yl)-(2,2,3,3- tetramethylcyclopropyl)methanone].
[15] Defendants note that the emergency rule in Tiplick explicitly designated the listed substances to be synthetics. They contend that because that rule explicitly designated the substances to be synthetics, it shows that the Board was aware that
[16] Defendants also direct us to Burk v. State, 257 Ind. 407, 275 N.E.2d 1 (1971). There, Burk was charged with using LSD under the Indiana Uniform Narcotic Drug Act (the NDA). At that time, LSD was prohibited only under the Indiana Dangerous Drug Act (the DDA). The State argued that by enacting subsection (b) of the NDA, the legislature had delegated the power to define narcotic drugs
[17] Our supreme court considered the text of the NDA and concluded that there was “no language in the [NDA] which could be construed to mean that the Indiana Board of Pharmacy ha[d] been given the authority to redefine a narcotic drug.” Id. at 411, 275 N.E.2d at 3. Furthermore, the court rejected the State’s contention that the regulation was an attempt by the Board to redefine a narcotic drug. Specifically, the court observed that the regulation “only define[d] the term ‘narcotics and other dangerous drugs’ for purposes of clarification of that term as it is used in the regulations.” Id., 275 N.E.2d at 3-4.
[18] Defendants contend that similar to Burk, “there is no language in [Section 4.1] that simply allows the Board of Pharmacy to add a substance to Schedule I without first declaring it to be a synthetic drug.” Appellants’ Br. at 22. We do not find Burk applicable because the regulation there is markedly different from the regulation at issue here. The regulation in Burk did not contain any
Section 2 – The Emergency Rule is unconstitutionally vague under the United States Constitution.
[19] Defendants also assert that the charging informations are defective and must be dismissed because the Emergency Rule is unconstitutionally vague. See
[21] “[A] fundamental aspect of our nation’s jurisprudence is that criminal statutes must 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.” Lock v. State, 971 N.E.2d 71, 74 (Ind. 2012). However, a statute “need only inform the individual of the generally proscribed conduct; it need not list with exactitude each item of prohibited conduct.” Baumgartner v. State, 891 N.E.2d 1131, 1136 (Ind. Ct. App. 2008). We will not find a statute to be unconstitutionally vague “if individuals of ordinary intelligence would comprehend it adequately to inform them of the proscribed conduct.” Id. In addition, “it is well established that vagueness challenges to statutes which do not involve First Amendment freedoms must be examined in light of the facts of the case at hand.” Reece v. State, 181 N.E.3d 1006, 1009 (Ind. Ct. App. 2021), trans. denied (2022).
[22] We begin with a discussion of Tiplick, in which our supreme court was asked to consider whether Sections 321 and 4.1 provided adequate notice under the
Our General Assembly is attempting to regulate a field of advanced chemistry that creates synthetic cousins of naturally occurring illegal substances like marijuana.
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.
Id. at 1263 (citation omitted). In addition, the court noted that because vagueness challenges, like Tiplick’s, that do not threaten First Amendment interests are examined on an as-applied basis, Tiplick was limited to challenging “the chemical description of XLR11,” the chemical he was charged with, not the entire text of Section 321. Id. The Tiplick court concluded,
[I]t may be that a person with ordinary experience and knowledge does not know what [(1–(5–fluoropentyl)indol-3-yl)-(2,2,3,3-
tetramethylcyclopropyl)methanone] is made of, but that is not the test; rather, it is whether a person of ordinary intelligence would understand his conduct was proscribed. Here, an ordinary Hoosier, armed with this chemical formula for XLR11, could determine through appropriate testing whether he was attempting to sell any products containing it. That is what we demand of our penal statutes.
[23] The defendant also argued that the cross-referencing of Sections 321 and 4.1 created a “statutory maze” preventing “a person of ordinary intelligence from being able to discover which conduct is proscribed.” Id. The Tiplick court rejected this argument, reasoning as follows:
“Synthetic drug” is defined in Section 321, it names the Section 4.1 emergency rules as the only additional source for prohibited substances, and Section 4.1(c) describes where to look for those published rules, based on the procedures contained in
Indiana Code section 4-22-2-37.1 (2012). This is not a “maze,” but rather a chain with three links–three discrete statutes which give clear guidance as to how to find everything falling within the definition of “synthetic drug” under Section 321. Such a statutory scheme is not unduly vague.
[24] Here, Defendants limit their federal constitutional argument to the notice provided by the Emergency Rule, which is appropriate because their vagueness claim is considered on an as-applied basis. They emphasize the difference between the Emergency Rule here and the one in Tiplick to argue that the
[25] As a final matter, Defendants also assert that the Emergency Rule and Section 4.1 are void for vagueness under the Indiana Constitution. A line of cases by this Court holds that appellate analysis of a vagueness claim is the same under both the federal and state constitutions. Bemis v. State, 652 N.E.2d 89, 92 (Ind. Ct. App. 1995); Johnson v. State, 648 N.E.2d 666, 670 (Ind. Ct. App. 1995); Jackson v. State, 634 N.E.2d 532, 535 (Ind. Ct. App. 1994); Helton v. State, 624 N.E.2d 499, 505 (Ind. Ct. App. 1993), trans. denied. However, our supreme court has not considered whether the vagueness analysis under the Indiana
[26] Defendants contend that the Indiana Constitution provides greater protection to Hoosiers than the federal constitution, and therefore the vagueness analysis under the Indiana Constitution requires higher scrutiny than the federal constitution. In particular, they point to
[27] The comments in support of
[28] Based on the foregoing, we reverse the trial court’s denial of Defendants’ motions to dismiss.
[29] Reversed.
Vaidik, J., and Altice, J., concur.