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Tuesday, January 27, 2015

Ind. Decisions - Court of Appeals issues 2 today (and 6 NFP)

For publication opinions today (2):

In Christopher Tiplick v. State of Indiana , a 16-page, 2-1 opinion, Judge May writes:

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. * * *

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, 2012.12 However, Ind. Code § 25-26-13-4.1 did not authorize the Pharmacy Board to declare something a “synthetic substance” in an Emergency Rule. Instead, the Emergency Rule permits the declaration of a substance as a “synthetic drug.” While that distinction may seem trivial, we believe the technical nature of this particular statute requires precision in language. For example, the Pharmacy Board may declare a new chemical concoction used to treat a deadly disease a “synthetic substance” and such a declaration would not invoke the criminal consequences as would the Pharmacy Board’s declaration of something as a “synthetic drug.” See Brown v. State, 868 N.E.2d 464, 468 (Ind. 2007) (noting alternate, legal uses for terms and the unconstitutional vagueness stemming therefrom). This linguistic confusion only adds to the vagueness of this statutory structure. * * *

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. Ct App. 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 allegedTo 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. Ct App. 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. * * *

Kirsch, J., concurs.
Bailey, J., dissents, with separate opinion. [that begins at p.13 and that concludes] 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.

In Aadil Ashfaque v. State of Indiana , a 13-page opinion, Judge May writes:
Aadil Ashfaque appeals the denial of his motion to dismiss Count I, Class D felony dealing in a synthetic drug1 and Count II, Class D felony possession of a synthetic drug. He presents multiple issues for our review, one of which we find dispositive: whether, at the time of Ashfaque’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 provisions of the Indiana Code and could be found only in the Pharmacy Board Regulations? We reverse and remand. * * *

Ashfaque argues Ind. Code § 35-31.5-2-321(9) and by implication Ind. Code § 25-26-13-4.1 are void for vagueness because “[a]n ordinary person cannot be required to follow and understand Indiana’s synthetic drug statutory maze.” (Br. of Appellant at 25.) We agree. * * *

As Ind. Code §§ 35-48-4-10(a) and 11 form the basis for Counts I and II of Ashfaque’s charging information, 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 Ashfaque’s motion to dismiss those charges. Reversed and remanded.

Friedlander, J., concurs.
Vaidik, C.J., dissents, with separate opinion. [which begins, at p. 10] I respectfully dissent from the majority’s holding that the statutory scheme in effect at the time of Ashfaque’s alleged crimes for dealing in and possession of synthetic drugs is void for vagueness because “[a]n ordinary person cannot be required to follow and understand Indiana’s synthetic drug statutory maze.” Slip op. at 5 (quotation omitted). I do so for the same reasons identified today in Judge Bailey’s dissent in Tiplick v. State, No. 49A04-1312-CR-617 (Ind. Ct. App. Jan. 27, 2015).
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I do not share the majority’s concern that Emergency Rule 12-493(E)’s use of the term “synthetic substance” instead of “synthetic drug” causes “linguistic confusion” that “adds to the vagueness of this statutory structure.”

NFP civil opinions today (6):

Stacey E. Schwarz v. Richard Schwarz and Lisa Schwarz (Mem. Dec.)

In the Matter of G.F., a Child in Need of Services, S.F. (Father) v. Ind. Dept. of Child Services (mem.dec)

In the Matter of the Termination of the Parent-Child Relationship of S.L., a Child and A.W., the Child's Mother v. The Indiana Department of Child Services (Mem. Dec.)

Michael Grantland v. Office of Clark County Treasurer, David Reinhardt and Office of Clark County Recorder, Richard Jones (Mem. Dec.)

In Re: The Paternity of R.R., J.R. (Father) v. T.G. (Mother) (mem.dec)

Rong Fan v. Summerlakes Property Owners Association, Inc.(Mem. Dec.)

NFP criminal opinions today (0):

ILB NOTE: Yesterday, which was the first day of the new opinions format, NFPs were not listed as such on the opinions page, but were so identified in the rulings themselves. Today, opinions which have previously been identified as "(NFP)" are identified on the opinions page as either "(Mem. Dec.)" or "(mem.dec)". Apparently these changes in designation this week reflect a change in the wording of Appellate Rule 65(A) (distinguishing between COA "opinions" and COA "memorandum decisions"), which I believe went into operation Jan. 1, 2015.

Posted by Marcia Oddi on January 27, 2015 10:23 AM
Posted to Ind. App.Ct. Decisions