MAY, Judge.
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?
We reverse and remand.
On October 18, 2012, the State charged Tiplick with: Count I, Class C felony conspiracy to commit dealing in a lookalike substance;
On January 17, 2013, Tiplick filed a motion to dismiss the counts against him, arguing:
(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.
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.
The trial court determined the statutes under which Tiplick was charged
(App. at 14-5.)
Our Indiana Supreme Court stated in Brown v. State:
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 vague
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),
Tiplick argues Ind.Code § 35-31.5-2-321(9) and by implication Ind. Code § 25-26-13-4.1 are void for vagueness because their "numerous cross-references, undefined terms, and required monitoring of Indiana statutes and promulgations of the Pharmacy Board cannot be understood by an ordinary person." (Br. of Appellant at 27.) We agree.
Tiplick's charging information indicated he allegedly sold and possessed a synthetic drug, identified in the probable cause affidavit as XLR11. That drug was not listed as a synthetic drug under Ind. Code §§ 35-31.5-2-321(1-8) on September 20, 2012, October 9, 2012, and October 10, 2012, the dates Tiplick's alleged crimes occurred, and nothing in the charging information indicates which Pharmacy Board emergency rule declared XLR11 a synthetic drug pursuant to the provisions in Ind.Code § 35-31.5-2-321(9) and Ind.Code § 25-26-13-4.1 (2012). A Pharmacy Board Emergency Rule, LSA Document # 12-493(E) ("Emergency Rule"), declared XLR11 a "synthetic substance" effective September 15, 2012.
To understand the charges against him, a person of ordinary intelligence would have to first find the definition of "synthetic drug" in Ind.Code § 35-31.5-2-321, determine the synthetic drug alleged to be illegal is not in the very long list
To require a citizen of ordinary intelligence to meticulously search through the criminal code, the administrative code, and not-yet-codified agency rules for information regarding a charge, only to be sent on a "Where's Waldo" expedition is ludicrous. See Aquila, Inc. v. C.W. Mining, 545 F.3d 1258, 1268 (10th Cir.2008) ("When a party's brief fails to provide citations in support of its factual assertions, we are left to scan volumes aimlessly for asserted facts. But reading a record should not be like a game of Where's Waldo?"). No person of ordinary intelligence could determine what behavior is prohibited by the term "synthetic drug" in Ind.Code §§ 35-48-4-10(a) and 11, based on Ind.Code §§ 35-31.5-2-321(9) and 25-26-13-4.1, and thus the portions of Ind.Code §§ 35-48-4-10(a) and 11 in effect at the time of Tiplick's alleged offenses are void for vagueness to the extent they rely on definitions in Ind.Code §§ 35-31.5-2-321(9) and 25-26-13-4.1. See Healthscript, 770 N.E.2d at 816 (holding the requirement that a person search through multiple statutes, then through the administrative code, "lacks the `sufficient definiteness' that due process requires for penal statutes.").
We distinguish our holding here from those in two recent cases, Kaur v. State, 987 N.E.2d 164, 168 (Ind.Ct.App. 2013) and Elvers v. State, 22 N.E.3d 824 (Ind.Ct.App.2014), both which declined to hold Ind.Code §§ 35-31.5-2-321(1)-(8) void for vagueness. In Kaur, the State charged Kaur with dealing and possession of AM-2201, which is specifically referenced as a synthetic drug under Ind.Code § 35-31.5-2-321(1)(QQ) (2012). We affirmed Kaur's convictions, because Kaur's constitutional arguments centered around Ind.Code § 35-31.5-2-321(9), which was not the definition of "synthetic drug" relied upon in Kaur's convictions. Regarding Ind.Code § 35-31.5-2-321(9), we stated,
In Elvers, we clarified our decision in Kaur, holding the use of scientific terminology in Ind.Code § 35-31.5-2-321(1)-(8) does not render the statute unconstitutionally vague because the "novelty, complexity, and rapidly-evolving nature of synthetic drugs necessitates some scientific terminology in the law." Elvers, 22 N.E.3d at 830. Elvers also acknowledged his case did not involve those synthetic drugs defined as part of Pharmacy Board Emergency Rules, and only those synthetic drugs "specifically identified in the statute [Ind. Code § 35-31.5-2-321]." Id.
As Ind.Code §§ 35-48-4-10(a) and 11 form the basis for Counts VII, VIII, IX, X, XI, XII, XIII, XIV, XV, XVII, and XVIII, and we hold those statutes are unconstitutionally vague based on the definition of "synthetic drug" set forth in Ind. Code § 35-31.5-2-321(9), the trial court erred when it denied Tiplick's motion to dismiss those charges.
Reversed and remanded.
KIRSCH, J., concurs.
BAILEY, J., dissents, with separate opinion.
BAILEY, Judge, dissenting.
Upon review, the majority holds as void for vagueness the statutory scheme that criminalizes the dealing in and possession of synthetic drugs. The majority reasons that "[n]o person of ordinary, or even extraordinary, intelligence could determine what behavior is prohibited by the term `synthetic drug' in Ind.Code §§ 35-48-4-10(a) and 11," and that "to be sent on a `Where's Waldo' expedition is ludicrous." Op. at 195 (citing Aquila, Inc. v. C.W. Mining, 545 F.3d 1258, 1268 (10th Cir. 2008) (relating to the obligations of parties to cite to the record in support of statements of fact); Healthscript, Inc. v. State, 770 N.E.2d 810, 816 (Ind.2002) (holding as void for vagueness a statutory scheme criminalizing certain acts as Medicaid fraud)). Because I disagree with the majority's reasoning here, I respectfully dissent.
Central to the majority's reasoning is the Indiana Supreme Court's ruling in the Healthscript case. In Healthscript, a pharmacy was charged with Medicaid fraud "on the theory that Defendant had overcharged Medicaid for sterile water." 770 N.E.2d at 813. Healthscript sought to dismiss the charging information, contending that the applicable criminal statute was void for vagueness because it was not "sufficiently definite to put [Healthscript] on notice that its alleged conduct was proscribed." Id. The charging statute defined as Medicaid fraud the "fil[ing] a Medicaid claim ... in violation of Indiana Code § 12-15." Id. (quoting I.C. § 35-43-5-7.1(a)(1) (Supp.1997)).
In reversing the trial court's denial of Healthscript's motion to dismiss the charges, the Healthscript Court conceded that the criminal statute "cross-references Ind.Code § 12-15." Id. at 816. But the court observed that the cross-reference was extraordinarily broad. The reference in the criminal statute directed the reader to an entire article of the Indiana Code, "covering 50 pages of the 1993 Code and comprising 280 sections organized in 37 chapters." Id. Many of the chapters of the
I cannot agree with the majority that the statutory scheme at issue here is similarly vague. Each statutory cross-reference at issue here directs the reader to one, and only one, section of the Indiana Code. The rulemaking provision of Section 25-26-13-4.1, under which the Board of Pharmacy may make emergency rules concerning synthetic drugs, in turn refers directly to the statutory procedure under which emergency rules may be published. See I.C. § 4-22-2-37.1. Such emergency rules are published in the Indiana Register in a format determined by the publisher. I.C. §§ 4-22-2-37.1(d)-(f). The chemical substance for which Tiplick was charged here, XLR11, was expressly identified as a synthetic drug under Emergency Rule 12-493(E), published in the Indiana Register in August 2012.
There are a finite number of locations in which an individual must have looked after August 2012 to determine whether XLR11 was a synthetic drug covered by an Indiana Pharmacy Board rule: four statutory provisions and a set number of Indiana Pharmacy Board rules. Unlike the facts in Healthscript, the substantive provisions at issue here do not implicate a broad variety of possible parties and sets of statutory and regulatory provisions, almost all of which are irrelevant to a defendant like Tiplick. I thus cannot agree with the majority's "Where's Waldo" characterization of the statutory scheme.
It seems to me that Tiplick's void-for-vagueness challenge is more akin to an attempt to claim ignorance of the law as a defense to criminal liability. "[I]t is well-settled that ignorance of the law is no excuse for criminal behavior." Dewald v. State, 898 N.E.2d 488, 493 (Ind.Ct.App. 2008), trans. denied. While "ignorance or mistake in point of fact" may in some circumstances excuse "acts honestly done while so misled," nevertheless "every man is presumed to know the laws of the country in which he dwells." Marmont v. State, 48 Ind. 21, 31 (1874).
Not having looked to the laws that apply to one's actions does not excuse an individual from violating those laws. Tiplick was alleged to have engaged in the sale of a drug; he does not claim that the drug was not subject to an emergency regulation. The applicable laws and regulations are not so complex or overly broad as to preclude a person of ordinary intelligence from having fair notice of the criminal nature of the sale of XLR11 on the basis of vagueness.
I therefore respectfully dissent.
