                                                                                     FILED
                                                                                 Mar 02 2018, 9:00 am

                                                                                     CLERK
                                                                                 Indiana Supreme Court
                                                                                    Court of Appeals
                                                                                      and Tax Court




      ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
      Brian A. Karle                                            Curtis T. Hill, Jr.
      Ball Eggleston, PC                                        Attorney General of Indiana
      Lafayette, Indiana
                                                                Ellen H. Meilaender
                                                                Supervising Deputy Attorney
                                                                General
                                                                Indianapolis, Indiana



                                                  IN THE
          COURT OF APPEALS OF INDIANA

      Gary W. Yoakum,                                           March 2, 2018
      Appellant-Defendant,                                      Court of Appeals Case No.
                                                                79A02-1706-CR-1309
              v.                                                Appeal from the Tippecanoe
                                                                Superior Court
      State of Indiana,                                         The Honorable Laura Zeman,
      Appellee-Plaintiff.                                       Judge
                                                                Trial Court Cause No.
                                                                79D04-1611-CM-4207



      Barnes, Judge.


                                              Case Summary
[1]   Gary Yoakum appeals his conviction and sentence for Class A misdemeanor

      possession of a synthetic drug or synthetic drug lookalike substance and Class C

      misdemeanor possession of paraphernalia. We affirm.
      Court of Appeals of Indiana | Opinion 79A02-1706-CR-1309 | March 2, 2018                           Page 1 of 14
                                                      Issues
[2]   Yoakum raises three issues, which we restate as:


                     I.         whether the synthetic drug lookalike substance
                                statutes are unconstitutionally vague;

                    II.         whether the evidence is sufficient to sustain
                                Yoakum’s conviction for Class A misdemeanor
                                possession of a synthetic drug or synthetic drug
                                lookalike substance; and

                   III.         whether his sentence is inappropriate.


                                                      Facts
[3]   On November 20, 2016, Yoakum was a passenger in a vehicle driven by Tracy

      VanWienen. Lafayette Police Officer Matthew Meeks attempted to stop

      VanWienen’s vehicle for failure to have a license plate light. VanWienen did

      not stop the vehicle for approximately four blocks, and Officer Meeks could see

      the passenger, Yoakum, making “furtive” movements in the car. Tr. Vol. II p.

      32. As soon as the vehicle stopped, Yoakum opened the passenger door, and

      Officer Meeks yelled at him to get back inside the vehicle. When another

      officer arrived, they ordered Yoakum to get out of the vehicle, and he refused.

      The officers removed Yoakum from the vehicle and found “spice” on the

      passenger’s seat, on the passenger floorboard, and on Yoakum’s pants. The

      officers also found a ripped plastic baggie containing “spice” and a glass pipe

      behind the passenger seat that tested positive for methamphetamine. Id. at 56.

      VanWienen was arrested for operating a vehicle while intoxicated.



      Court of Appeals of Indiana | Opinion 79A02-1706-CR-1309 | March 2, 2018     Page 2 of 14
[4]   The State charged Yoakum with Class A misdemeanor possession of a

      synthetic drug or synthetic drug lookalike substance and Class C misdemeanor

      possession of paraphernalia. At his jury trial, Yoakum testified that the drugs

      belonged to VanWienen, not him. Specifically, he testified, “[N]one of the

      drugs that were found in the car belonged to me.” Id. at 101. During closing

      arguments, Yoakum’s attorney again argued that the drugs and pipe belonged

      to VanWienen. His attorney also stated:


              Also with respect to the spice one thing I found kind of disturbing
              I wrote it down as soon as heard it because I couldn’t believe it
              that any type of plant material and any type of chemical can be
              essentially illegal in spice which I find kind of disturbing; I don’t
              dispute that this is spice in this case it just disputes the fact that of
              who had possession of that spice, certainly it was possessing
              paraphernalia and so that’s why we ask you to come back with a
              verdict of not guilty[.]


      Id. at 119. The jury found Yoakum guilty as charged. The trial court sentenced

      him to concurrent sentences of 365 days for the Class A misdemeanor

      conviction and sixty days for the Class C misdemeanor conviction. Yoakum

      now appeals.


                                                   Analysis
                                                  I. Vagueness

[5]   Yoakum argues that Indiana Code Section 35-48-4-11.5, which criminalizes

      possession of a synthetic drug or synthetic drug lookalike substance, and

      Indiana Code Section 35-31.5-2-321.5, which defines a synthetic drug lookalike


      Court of Appeals of Indiana | Opinion 79A02-1706-CR-1309 | March 2, 2018       Page 3 of 14
      substance, are unconstitutionally vague. However, as the State points out,

      Yoakum “does not make any argument that Section 35-48-4-11.5 is

      unconstitutionally vague in and of itself.” Appellee’s Br. p. 17. Rather,

      Yoakum argues only that the definition in Indiana Code Section 35-31.5-2-

      321.5 is “unconstitutionally vague, thereby creating a derivative problem” for

      Indiana Code Section 35-48-4-11.5. Id.


[6]   Whether a statute is unconstitutional is a question of law and is reviewed de

      novo. Lee v. State, 973 N.E.2d 1207, 1209 (Ind. Ct. App. 2012), trans. denied.

      We approach such questions with the presumption that the statute is

      constitutional, and the challenger is burdened to prove otherwise. Id. “Any

      reasonable doubts and constructions as to the statute’s validity are resolved in

      favor of constitutionality.” Id. “Due process principles advise that a penal

      statute is void for vagueness if it does not clearly define its prohibitions.” Brown

      v. State, 868 N.E.2d 464, 467 (Ind. 2007) (citing Klein v. State, 698 N.E.2d 296,

      299 (Ind. 1998)). A criminal statute may be invalidated for vagueness for either

      of two independent reasons: (1) for failing to provide notice enabling ordinary

      people to understand the conduct that it prohibits, and (2) for the possibility

      that it authorizes or encourages arbitrary or discriminatory enforcement. Id.

      (citing City of Chicago v. Morales, 527 U.S. 41, 56, 119 S. Ct. 1849, 1859 (1999);

      Healthscript, Inc. v. State, 770 N.E.2d 810, 815-16 (Ind. 2002)). Although

      Yoakum raises both prongs, most of his argument seems to focus on the second

      prong.




      Court of Appeals of Indiana | Opinion 79A02-1706-CR-1309 | March 2, 2018   Page 4 of 14
[7]   Yoakum did not raise this issue to the trial court. “Generally, the failure to file

      a proper motion to dismiss raising the Constitutional challenge waives the issue

      on appeal.” Payne v. State, 484 N.E.2d 16, 18 (Ind. 1985); Lee, 973 N.E.2d at

      1209. Yoakum did not file a motion to dismiss, and he has waived the issue.


[8]   Waiver notwithstanding, “a statute is void for vagueness only if it is vague as

      applied to the precise circumstances of the present case.” Baumgartner v. State,

      891 N.E.2d 1131, 1136 (Ind. Ct. App. 2008). “The defendant is not at liberty to

      devise hypothetical situations which might demonstrate vagueness.” Id.

      Yoakum argues that the statute does not give sufficient notice of what a

      synthetic drug lookalike substance is and the lack of a clear definition invites

      arbitrary enforcement of the statute. However, whether the substance found in

      VanWienen’s vehicle was spice was not at issue during this trial. Yoakum

      admitted that the drugs found in the vehicle were spice. The only issue here

      was whether the drugs belonged to Yoakum or VanWienen. Applied to the

      precise circumstances of this case, the statute is not void for vagueness.

      Yoakum has failed to meet his burden of demonstrating that the statute is

      unconstitutionally vague.


                                      II. Sufficiency of the Evidence

[9]   Yoakum next argues that the evidence is insufficient to sustain his conviction

      for Class A misdemeanor possession of a synthetic drug or synthetic drug

      lookalike substance. When reviewing the sufficiency of the evidence needed to

      support a criminal conviction, we neither reweigh evidence nor judge witness

      credibility. Bailey v. State, 907 N.E.2d 1003, 1005 (Ind. 2009). “We consider
      Court of Appeals of Indiana | Opinion 79A02-1706-CR-1309 | March 2, 2018     Page 5 of 14
       only the evidence supporting the judgment and any reasonable inferences that

       can be drawn from such evidence.” Id. We will affirm if there is substantial

       evidence of probative value such that a reasonable trier of fact could have

       concluded the defendant was guilty beyond a reasonable doubt. Id.


[10]   Indiana Code Section 35-48-4-11.5(c) provides: “A person who knowingly or

       intentionally possesses a synthetic drug or synthetic drug lookalike substance

       commits possession of a synthetic drug or synthetic drug lookalike substance, a

       Class A misdemeanor.” The statute also provides that a “‘synthetic drug

       lookalike substance’ has the meaning set forth in IC 35-31.5-2-321.5(a)(2).”

       I.C. § 35-48-4-11.5(a). Indiana Code Section 35-31.5-2-321.5 then provides:


                    (a)     “Synthetic drug lookalike substance”, except as
                            provided in subsection (b), means one (1) or more of
                            the following:


                             (1)      A substance, other than a synthetic drug, which
                                      any of the factors listed in subsection (c) would
                                      lead a reasonable person to believe to be a
                                      synthetic drug.


                             (2)      A substance, other than a synthetic drug:


                                      (A)      that a person knows or should have
                                               known was intended to be consumed;
                                               and


                                      (B)      the consumption of which the person
                                               knows or should have known to be
                                               intended to cause intoxication.

       Court of Appeals of Indiana | Opinion 79A02-1706-CR-1309 | March 2, 2018       Page 6 of 14
             (b)     The term “synthetic drug lookalike substance” does not
                     include the following:


                      (1)      Food and food ingredients (as defined in IC 6-
                               2.5-1-20).


                      (2)      Alcohol (as defined in IC 7.1-1-3-4).


                      (3)      A legend drug (as defined in IC 16-18-2-199).


                      (4)      Tobacco.


                      (5)      A dietary supplement (as defined in IC 6-2.5-1-
                               16).


             (c)     In determining whether a substance is a synthetic drug
                     lookalike substance, the following factors may be
                     considered:


                      (1)      The overall appearance of a dosage unit of the
                               substance, including its shape, color, size,
                               markings or lack of markings, taste, consistency,
                               and any other identifying physical
                               characteristics.


                      (2)      How the substance is packaged for sale or
                               distribution, including the shape, color, size,
                               markings or lack of markings, and any other
                               identifying physical characteristics of the
                               packaging.




Court of Appeals of Indiana | Opinion 79A02-1706-CR-1309 | March 2, 2018         Page 7 of 14
                             (3)      Any statement made by the owner or person in
                                      control of the substance concerning the
                                      substance’s nature, use, or effect.


                             (4)      Any statement made to the buyer or recipient of
                                      the substance suggesting or implying that the
                                      substance is a synthetic drug.


                             (5)      Any statement made to the buyer or recipient of
                                      the substance suggesting or implying that the
                                      substance may be resold for profit.


                             (6)      The overall circumstances under which the
                                      substance is distributed, including whether:


                                      (A)      the distribution included an exchange of,
                                               or demand for, money or other property
                                               as consideration; and


                                      (B)      the amount of the consideration was
                                               substantially greater than the reasonable
                                               retail market value of the substance the
                                               seller claims the substance to be.


[11]   Yoakum argues that the State failed to present sufficient evidence to show that

       the substance found in VanWienen’s vehicle was a synthetic drug lookalike

       substance. According to Yoakum, there was no scientific testing of the

       substance, and the officers’ testimony did not establish that the substance was a

       synthetic drug lookalike substance.


[12]   At the jury trial, Officer Joshua Saxton testified as follows regarding spice:


       Court of Appeals of Indiana | Opinion 79A02-1706-CR-1309 | March 2, 2018            Page 8 of 14
        Q Ok. What can you tell us briefly about your understanding of
        how—what spice is made up of or how it’s made?


        A Sure. Basically what spice starts out as is any plant materials
        or herb material that you find, you know, I know it’s a
        marshmallow herb is a big one they use; it’s like a brown, green,
        just a leafy substance; looks like plant material. And from what
        they do then is they put a chemical on it that gives it the agent
        that when you consume it or smoke it or introduce it into the
        body it gives you the high with it.


        Q Is this a specific chemical, just any chemical?


        A There’s not specific chemicals, no. There’s so many of them.


                                              *****


        Q What color is it?


        A Usually a green or brown or off—yellow dirt brown color.


        Q What does it smell like?


        A It has a—it’s like a floral—if you mix like a floral, like the
        plant material and a chemical odor together that’s what you’re
        gonna get.


        Q So you get both of those smells kind of at the same time?


        A Yes ma’am.




Court of Appeals of Indiana | Opinion 79A02-1706-CR-1309 | March 2, 2018    Page 9 of 14
               Q Ok. And how would concur [sic] it through your training and
               experience visually, how would you compare say spice or
               something like marijuana?


               A What I’ve seen the difference between spice and marijuana is
               marijuana comes in kind of like buds, they’re a little bit bigger
               and the spice is just looks just like shake, basically, it’s just small
               leaves.


               Q Is it your testimony that spice can be made up of just any plant
               material mixed with any chemical?


               A Correct.


       Tr. Vol. II pp. 48-49. Officer Saxton testified that he could smell spice in

       VanWienen’s vehicle and that he found spice “all over that car.” Id. at 54. The

       officers also found a baggie containing spice that was ripped open.


[13]   Officer Shawn Verma then testified that, as he was searching VanWienen’s car,

       he saw a green leafy substance “all over the passenger seat, all over the floor.”

       Id. at 76. He testified that he knew from experience and the smell that the

       substance was spice because he quickly got a headache, which he usually gets

       from exposure to the chemicals in spice. Id. He testified that spice is a

       “synthetic marijuana” and that it has a “bitter chemically smell” that is distinct

       from marijuana. Id.


[14]   At the trial, Yoakum also testified and claimed that the drugs belonged to

       VanWienen, not him. Specifically, he testified, “[N]one of the drugs that were

       found in the car belonged to me.” Id. at 101. During closing arguments,

       Court of Appeals of Indiana | Opinion 79A02-1706-CR-1309 | March 2, 2018      Page 10 of 14
       Yoakum’s attorney stated: “I don’t dispute that this is spice in this case it just

       disputes the fact that of who had possession of that spice[.]” Id. at 119.


[15]   “For offenses involving controlled substances, the State is not required to

       introduce the subject contraband to obtain a conviction for dealing or

       possession.” Boggs v. State, 928 N.E.2d 855, 865 (Ind. Ct. App. 2010), trans.

       denied. The identity of a controlled substance may be established through

       witness testimony and circumstantial evidence. Helton v. State, 907 N.E.2d

       1020, 1024 (Ind. 2009). Our supreme court has held that, although “chemical

       analysis is one way, and perhaps the best way, to establish the identity of a

       compound,” the testimony of “someone sufficiently experienced with the drug

       may establish its identity, as may other circumstantial evidence.” Vasquez v.

       State, 741 N.E.2d 1214, 1216 (Ind. 2001).


[16]   In considering whether the State met its burden, we consider the definition of

       synthetic drug lookalike substance in Indiana Code Section 35-31.5-2-321.5.

       The officers that testified at Yoakum’s trial had significant experience dealing

       with synthetic marijuana, which is otherwise known as “spice.” They testified

       that spice is consumed to get “high.” Id. at 48. They further testified that the

       substance’s appearance and smell was consistent with spice and that some of it

       was packaged in a ripped baggie. During his testimony, Yoakum did not

       dispute that the substance was spice, and during closing argument, his attorney

       did not dispute that it was spice. We conclude that the State presented

       sufficient evidence to demonstrate that Yoakum knowingly or intentionally



       Court of Appeals of Indiana | Opinion 79A02-1706-CR-1309 | March 2, 2018   Page 11 of 14
       possessed a synthetic drug lookalike substance. The evidence is sufficient to

       sustain his conviction.


                                                   III. Sentence

[17]   Yoakum argues that his sentence is inappropriate. Indiana Appellate Rule 7(B)

       provides that we may revise a sentence authorized by statute if, after due

       consideration of the trial court’s decision, we find that the sentence is

       inappropriate in light of the nature of the offenses and the character of the

       offender. When considering whether a sentence is inappropriate, we need not

       be “extremely” deferential to a trial court’s sentencing decision. Rutherford v.

       State, 866 N.E.2d 867, 873 (Ind. Ct. App. 2007). Still, we must give due

       consideration to that decision. Id. We also understand and recognize the unique

       perspective a trial court brings to its sentencing decisions. Id. Under this rule,

       the burden is on the defendant to persuade the appellate court that his or her

       sentence is inappropriate. Childress v. State, 848 N.E.2d 1073, 1080 (Ind. 2006).


[18]   The principal role of Rule 7(B) review “should be to attempt to leaven the

       outliers, and identify some guiding principles for trial courts and those charged

       with improvement of the sentencing statutes, but not to achieve a perceived

       ‘correct’ result in each case.” Cardwell v. State, 895 N.E.2d 1219, 1225 (Ind.

       2008). We “should focus on the forest—the aggregate sentence—rather than

       the trees—consecutive or concurrent, number of counts, or length of the

       sentence on any individual count.” Id. When reviewing the appropriateness of

       a sentence under Rule 7(B), we may consider all aspects of the penal

       consequences imposed by the trial court in sentencing the defendant, including
       Court of Appeals of Indiana | Opinion 79A02-1706-CR-1309 | March 2, 2018    Page 12 of 14
       whether a portion of the sentence was suspended. Davidson v. State, 926 N.E.2d

       1023, 1025 (Ind. 2010).


[19]   The trial court here imposed a one-year sentence for Yoakum’s Class A

       misdemeanor conviction and a concurrent sixty-day sentence for the Class C

       misdemeanor conviction. Under Indiana Code Section 35-50-3-2, a person

       convicted of a Class A misdemeanor “shall be imprisoned for a fixed term of

       not more than one (1) year. . . .” Indiana Code Section 35-50-3-4 provides for a

       fixed term of not more than sixty days for a Class C misdemeanor conviction.

       Yoakum argues that he inappropriately received the maximum sentence.


[20]   Regarding the nature of the offense, Yoakum argues that he was found with a

       small amount of the “leafy substance.” Appellant’s Br. p. 18. The State

       presented evidence that Yoakum possessed spice and a pipe that field-tested

       positive for methamphetamine. When he attempted to stop the vehicle, the

       officer saw Yoakum moving around in the passenger seat. In the vehicle,

       officers found a ripped baggie containing a small amount of spice, and spice

       was scattered on the passenger seat and floorboard. The officers also found

       spice sticking to Yoakum’s pants.


[21]   As for Yoakum’s character, fifty-four-year-old Yoakum has amassed a

       substantial criminal history. He has five prior felony convictions for operating

       while intoxicated, dealing marijuana, maintaining a common nuisance,

       conspiracy to deal cocaine, and escape. He also has seven misdemeanor

       convictions for operating while intoxicated, battery (three times), public


       Court of Appeals of Indiana | Opinion 79A02-1706-CR-1309 | March 2, 2018   Page 13 of 14
       intoxication, and disorderly conduct. Yoakum argues that the vast majority of

       his criminal offenses were committed decades before the instant offense.

       However, his probation was revoked four times since 2005, and he has failed to

       take advantage of multiple substance abuse treatment opportunities that were

       provided to him at that time.


[22]   We acknowledge that Yoakum’s offense is not egregious. However, his

       criminal history and failure to correct his behavior certainly justified the

       sentence imposed by the trial court. Given Yoakum’s criminal history, we

       cannot say that the one-year sentence is inappropriate.


                                                  Conclusion
[23]   Yoakum has failed to demonstrate that the synthetic drug lookalike substance

       statutes are unconstitutionally vague as applied in this case. The evidence is

       sufficient to sustain his conviction for Class A misdemeanor possession of a

       synthetic drug or synthetic drug lookalike substance, and we cannot say that his

       sentence is inappropriate. We affirm.


[24]   Affirmed.


       Najam, J., and Mathias, J., concur.




       Court of Appeals of Indiana | Opinion 79A02-1706-CR-1309 | March 2, 2018   Page 14 of 14
