                                                            FILED
                                                       Aug 16 2016, 10:01 am

                                                            CLERK
                                                        Indiana Supreme Court
                                                           Court of Appeals
                                                             and Tax Court




      ATTORNEYS FOR APPELLANT                               ATTORNEY FOR APPELLEE
      Gregory F. Zoeller                                    Ronald J. Moore
      Attorney General of Indiana                           The Moore Law Firm, LLC
                                                            Richmond, Indiana
      Justin F. Roebel
      Deputy Attorney General
      Indianapolis, Indiana



                                                  IN THE
          COURT OF APPEALS OF INDIANA

      State of Indiana,                                            August 16, 2016

      Appellant-Plaintiff,                                         Court of Appeals Case No.
                                                                   89A04-1603-CR-622

              v.                                                   Appeal from the Wayne Superior
                                                                   Court

      Yvonne S. Morgan,                                            The Hon. Gregory A. Horn, Judge
                                                                   Trial Court Cause No. 89D02-1409-
      Appellee-Defendant.
                                                                   FB-48




      Bradford, Judge.



                                           Case Summary
[1]   In September of 2014, Appellant-Plaintiff the State of Indiana charged

      Appellee-Defendant Yvonne Morgan with Class B felony conspiracy to commit

      dealing in a schedule III controlled substance and Class C felony corrupt


      Court of Appeals of Indiana | Opinion 89A04-1603-CR-622 | August 16, 2016                Page 1 of 12
      business influence. Approximately one year later, Morgan moved to dismiss

      the charges against her, and the State filed an amended information charging

      Morgan with two counts of Class B felony conspiracy to commit dealing in a

      schedule III controlled substance, Class C felony corrupt business influence,

      and three counts of Class B felony aiding dealing in a schedule III controlled

      substance. Morgan filed a renewed motion to dismiss all of the charges against

      her, which motion the trial court granted. The State now appeals, arguing that

      the trial court abused its discretion in granting Morgan’s motion to dismiss.

      Because we agree, we reverse and remand with instructions to reinstate the

      charges against Morgan.



                             Facts and Procedural History
[2]   According to the probable cause affidavit filed in this case, in 2008 the United

      States Drug Enforcement Administration (“DEA”) began investigating Dr.

      Larry Ley, who oversaw the treatment of addiction at several clinics in Indiana

      operating as part of Drug & Opiate Recovery Network, Inc. (“DORN”) of

      Living Life Clean, LLC (“LLC”). The clinic in Wayne County at which

      Morgan worked as a registered nurse (“the Clinic”) had been affiliated with

      DORN since 2007. The DEA investigation into the Clinic discovered that it

      was run by Dr. Ronald Vierk and was open approximately three days a month

      from 4:00 p.m. until 6:30 p.m.


[3]   Between November of 2013 and April of 2014, DEA investigators conducted

      several periods of surveillance on the Clinic and observed between sixty and

      Court of Appeals of Indiana | Opinion 89A04-1603-CR-622 | August 16, 2016   Page 2 of 12
      one hundred patients enter the Clinic during each open period. On November

      27, 2013, investigators observed Morgan arrive at the Clinic in a vehicle

      registered to DORN. No other medical personnel were observed at the Clinic,

      approximately eighty-nine patients entered, and records indicate that at least

      seventy-one Suboxone prescriptions were issued by Dr. Vierk.


[4]   On April 16, May 14, and June 11, 2014, an undercover investigator visited the

      Clinic. On April 16, the officer was told that Dr. Vierk had already left but had

      left multiple prescriptions behind. The officer met Morgan once inside the

      Clinic and received a prescription for Suboxone signed by Dr. Vierk. Morgan

      did not request identification, perform a comprehensive interview, or conduct

      any physical examination. On May 14, 2014, the officer visited the Clinic and

      received a Suboxone prescription from Morgan in exchange for $160.00. While

      Dr. Vierk was there, he discussed only the weather with the officer during the

      encounter, which lasted less than two minutes. On June 11, 2014, the officer

      went to the clinic and received a Suboxone prescription from Morgan in

      exchange for $160.00. Dr. Vierk asked the officer if his dosage was good and

      how much Suboxone he was taking, but did not request identification,

      interview the officer, or conduct a physical examination.


[5]   On September 22, 2014, the State charged Morgan with Class B felony

      conspiracy to commit dealing in a schedule III controlled substance and Class

      C felony corrupt business influence. On August 19, 2015, Morgan moved to

      dismiss the charges. On September 16, 2015, the State filed an amended

      information charging Morgan with two counts of Class B felony conspiracy to

      Court of Appeals of Indiana | Opinion 89A04-1603-CR-622 | August 16, 2016   Page 3 of 12
commit dealing in a schedule III controlled substance, Class C felony corrupt

business influence, and three counts of Class B felony aiding dealing in a

schedule III controlled substance. The six counts read as follows:


        COUNT I:
        [B]etween November 27, 2013, and June 11, 2014, Yvonne S.
        Morgan, with the intent to commit Dealing in a Schedule III
        Controlled Substance agreed with Ronald Vierk, M.D. to commit
        Dealing in a Schedule III Controlled Substance and Ronald
        Vierk, M.D. performed an overt act, to-wit: prescribed a
        Schedule III Controlled Substance outside the usual course of
        professional medical practice in furtherance of the agreement,
        contrary to Indiana law.
        COUNT II:
        [B]etween November 27, 2013, and June 11, 2014, Yvonne S.
        Morgan, with the intent to commit Dealing in a Schedule III
        Controlled Substance agreed with Ronald Vierk, M.D. to commit
        Dealing in a Schedule III Controlled Substance and Yvonne S.
        Morgan performed an overt act, to-wit: delivered a pre-signed
        prescription form to an undercover law enforcement officer
        which was done outside the usual course of professional medical
        practice in furtherance of the agreement, contrary to Indiana law.
        COUNT III:
        [B]etween December 9, 2011, and June 30, 2014, Yvonne S.
        Morgan, was employed by or associated with an enterprise, to-
        wit: DORN a/k/a Drug & Opiate Recovery Network and
        knowingly or intentionally conducted or otherwise participated
        in the activities of that enterprise through a pattern of
        racketeering activity, to-wit: Dealing in a Schedule III
        Controlled Substance by committing two or more of the
        following overt acts:




Court of Appeals of Indiana | Opinion 89A04-1603-CR-622 | August 16, 2016   Page 4 of 12
             1) Yvonne S. Morgan served as the point of contact and/or
             office manager for the DORN Office at 801 Airport Road,
             Centerville, Indiana.
             2) On or about November 27, 2013, Yvonne S. Morgan was
             present at the DORN office at 801 Airport Road, Centerville,
             Indiana, and delivered prescriptions that had been prepared
             outside the usual course of professional medical practice,
             3) On or about January 15, 2014, Yvonne S. Morgan was
             present at the DORN office at 801 Airport Road, Centerville,
             Indiana, and delivered prescriptions that had been prepared
             outside the usual course of professional medical practice.
             4) On or about April 16, 2014, Yvonne S. Morgan was
             present at the DORN office at 801 Airport Road, Centerville,
             Indiana, and delivered prescriptions that had been prepared
             outside the usual course of professional medical practice.
             5) On or about May 14, 2014, Yvonne S. Morgan was present
             at the DORN office at 801 Airport Road, Centerville,
             Indiana, and delivered prescriptions that had been prepared
             outside the usual course of professional medical practice.
             6) On or about June 11, 2014, Yvonne S. Morgan was present
             at the DORN office at 801 Airport Road, Centerville,
             Indiana, and delivered prescriptions that had been prepared
             outside the usual course of professional medical practice.
        COUNT IV:
        [O]n or about April 16, 2014, in Wayne County, State of
        Indiana, Yvonne S. Morgan did knowingly or intentionally aid
        another person, to-wit: Dr. Ronald Vierk, M.D., to commit the
        offense of Dealing In A Schedule III Controlled Substance by
        delivering a prescription to an undercover law enforcement agent
        that had been prepared outside the usual course of professional
        medical practice, contrary to Indiana law.
        COUNT V:
        [O]n or about May 14, 2014, in Wayne County, State of Indiana,
        Yvonne S. Morgan did knowingly or intentionally aid another
Court of Appeals of Indiana | Opinion 89A04-1603-CR-622 | August 16, 2016   Page 5 of 12
              person, to-wit: Dr. Ronald Vierk, M.D., to commit the offense
              of Dealing In A Schedule III Controlled Substance by delivering
              a prescription to an undercover law enforcement agent that had
              been prepared outside the usual course of professional medical
              practice, contrary to Indiana law.
              COUNT VI:
              [O]n or about June 11, 2014, in Wayne County, State of Indiana,
              Yvonne S. Morgan did knowingly or intentionally aid another
              person, to-wit: Dr. Ronald Vierk, M.D., to commit the offense
              of Dealing In A Schedule III Controlled Substance by delivering
              a prescription to an undercover law enforcement agent that had
              been prepared outside the usual course of professional medical
              practice, contrary to Indiana law.
      Appellant’s App. pp. 33-35


[6]   On November 3, 2015, Morgan renewed her motion to dismiss, seeking

      dismissal of all six counts against her on the basis that the charging information

      lacked sufficient evidence to show that the alleged facts constitute offenses and

      the criminal statutes in question were void for vagueness as applied to her. The

      trial court held a hearing on Morgan’s motion to dismiss on November 17,

      2015, and granted Morgan’s motion on March 1, 2016, dismissing all six

      charges. The trial court essentially concluded that, because Morgan was not a

      licensed physician, there was no way that the State could prove the mens rea

      necessary for conviction, i.e., that she knew that hers and Dr. Vierk’s actions

      were outside the usual course of professional medical practice.


                                 Discussion and Decision


      Court of Appeals of Indiana | Opinion 89A04-1603-CR-622 | August 16, 2016   Page 6 of 12
                                                Background
[7]   The Indiana Legend Drug Act provides, in part, that “a prescription or drug

      order for a legend drug is not valid unless the prescription or drug order is

      issued for a legitimate medical purpose by a practitioner acting in the usual

      course of the practitioner’s business” and that “[a] practitioner may not

      knowingly issue an invalid prescription or drug order for a legend drug.” Ind.

      Code § 16-42-19-20. We have held that “[w]hen … a physician acts without

      any legitimate legal purpose and beyond the course of professional practice by

      selling prescriptions that allow the bearer to obtain controlled substances, his

      conduct should be treated like any street-corner pill-pusher.” Alarcon v. State,

      573 N.E.2d 477, 481 (Ind. Ct. App. 1991) (citations omitted), trans. denied.

      Thus, under Indiana law, the issuance of invalid prescriptions for controlled

      substances can support charges for dealing in a controlled substance pursuant to

      Indiana Code section 35-48-4-2. See id. Here, Morgan’s charges are all based

      on allegations that she participated with Dr. Vierk in the ongoing delivery of

      invalid prescriptions for Suboxone.


                     I. Whether Morgan’s Actions, if Proven,
                            Constitute Criminal Acts
[8]   The State argues that the trial court abused its discretion in dismissing the

      charges filed against Morgan because, if proven, her actions would constitute

      criminal offenses. Pursuant to Indiana Code section 35-38-4-2(1), the State may

      seek review of “an order granting a motion to dismiss one (1) or more counts of

      an indictment or information.” We review a trial court’s grant of a motion to
      Court of Appeals of Indiana | Opinion 89A04-1603-CR-622 | August 16, 2016   Page 7 of 12
       dismiss an information for an abuse of discretion. Zitlaw v. State, 880 N.E.2d

       724, 728 (Ind. Ct. App. 2008), trans. denied. In reviewing a trial court’s decision

       for an abuse of discretion, we reverse only where the decision is clearly against

       the logic and effect of the facts and circumstances. Id. at 728-29.


[9]    The trial court dismissed the information pursuant to Indiana Code section 35-

       34-1-4, which provides, in relevant part, that “[t]he court may, upon motion of

       the defendant, dismiss the indictment or information [if t]he facts stated do not

       constitute an offense.” As a general rule, when a defendant files a motion to

       dismiss an information, the facts alleged in the information are to be taken as

       true. State v. Bilbrey, 743 N.E.2d 796, 798 (Ind. Ct. App. 2001). Questions of

       fact to be decided at trial or facts constituting a defense are not properly raised

       by a motion to dismiss. State v. Isaacs, 794 N.E.2d 1120, 1122 (Ind. Ct. App.

       2003). A hearing on a motion to dismiss is not a trial of the defendant on the

       offense charged. See id. (noting that the facts “permitted to be raised under

       [Indiana Code] Section 35-34-1-8 typically concern only pre-trial matters”).


[10]   As mentioned, the basis of the trial court’s dismissal of all of the charges against

       Morgan was its conclusion that it was impossible for Morgan to have known, as

       a non-physician, whether her actions and those of Dr. Vierk were outside the

       usual course of professional medical practice. The State counters that the

       question is one of fact for the jury, not appropriately addressed in a motion to

       dismiss. We agree with the State.




       Court of Appeals of Indiana | Opinion 89A04-1603-CR-622 | August 16, 2016   Page 8 of 12
[11]   Morgan cites to no authority for the proposition that a non-physician can never

       know whether certain conduct is outside the usual course of professional

       medical practice, and our research has uncovered none. Without clear and

       compelling precedent, we will not write requirements into statutes that simply

       do not appear in the text. In any event, it seems clear that, far from being

       impossible, there are many ways by which the State could prove the necessary

       mens rea in this and similar cases.


[12]   There are other practical issues with the trial court’s position. For instance, the

       trial court’s ruling, if taken to its logical conclusion, does not just mean that

       physicians1 are the only persons who could ever be convicted under the type of

       circumstances alleged in this case. If one accepts that non-physicians cannot

       know, as a matter of law, whether conduct falls outside the usual course of

       professional medical practice, then they cannot be judges or jurors sitting in

       judgment of physicians accused of acting in such a manner. As a practical



       1
         Another question would be whether the rule should be limited to physicians or applied to other persons
       who may write prescriptions. Pursuant to the Indiana Legend Drug Act, the following may write
       prescriptions in Indiana:

               (1) A physician licensed under IC 25-22.5.
               (2) A veterinarian licensed to practice veterinary medicine in Indiana.
               (3) A dentist licensed to practice dentistry in Indiana.
               (4) A podiatrist licensed to practice podiatric medicine in Indiana.
               (5) An optometrist who is:
                        (A) licensed to practice optometry in Indiana; and
                        (B) certified under IC 25-24-3.
               (6) An advanced practice nurse who meets the requirements of IC 25-23-1-19.5.
               (7) A physician assistant licensed under IC 25-27.5 who is delegated prescriptive
               authority under IC 25-27.5-5-6.

       Ind. Code § 16-42-19-5.


       Court of Appeals of Indiana | Opinion 89A04-1603-CR-622 | August 16, 2016                       Page 9 of 12
       matter,2 pursuant to the trial court’s ruling, no person, physician or otherwise,

       could ever be convicted in Indiana of a crime involving a question of whether

       certain conduct fell outside the usual course of professional medical practice.

       We conclude that the trial court abused its discretion in dismissing Morgan’s

       charges on the basis that she is not a physician.


                                          II. Void for Vagueness
[13]   Morgan also contends that the criminal statutes in question are void for

       vagueness as applied to her. Although this particular argument was not

       reached by the trial court, we address it in the interest of finality and judicial

       economy. The State charged Morgan with two counts of Class B felony

       conspiracy to commit dealing in a schedule III controlled substance, 3 Class C

       felony corrupt business influence,4 and three counts of Class B felony aiding

       dealing in a schedule III controlled substance. 5


                  Upon a challenge that a statute is unconstitutional, we presume
                  the statute is constitutional. Baumgartner v. State, 891 N.E.2d
                  1131, 1136 (Ind. Ct. App. 2008). The burden is on the defendant
                  to rebut this presumption, and we resolve all reasonable doubts in
                  favor of the constitutionality of the statute. Id. A criminal statute
                  may be void for vagueness for either of two independent reasons:




       2
         Although it might be theoretically possible to seat a jury composed entirely of physicians, it seems to us to
       be a practical impossibility.
       3
           Ind. Code §§ 35-41-5-2; 35-48-4-2(a)(1)(C).
       4
           Ind. Code §§ 35-45-6-2(3); 35-45-6-1(d); 35-45-6-1(e).
       5
           Ind. Code §§ 35-41-2-4; 35-48-4-2(a)(1)(C).


       Court of Appeals of Indiana | Opinion 89A04-1603-CR-622 | August 16, 2016                         Page 10 of 12
               (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. Brown v. State, 868 N.E.2d 464, 467
               (Ind. 2007). With regard to notice to ordinary people, the statute
               need only inform people of the generally proscribed conduct; it
               need not list specifically each item of prohibited conduct.
               Baumgartner, 891 N.E.2d at 1136. Additionally, in order to avoid
               arbitrary or discriminatory enforcement of the statute, there must
               be in the statute a line of demarcation between trivial and
               substantial acts. Id. Assessment of a vagueness challenge is
               limited to the facts and circumstances of each case. Brown, 868
               N.E.2d at 467.
       Houston v. State, 898 N.E.2d 358, 362 (Ind. Ct. App. 2008), trans. denied.


[14]   Morgan’s argument is, as with her previous one, based on her status as a non-

       physician, specifically that she cannot possibly know what conduct is

       proscribed because she cannot know whether conduct falls outside the usual

       course of professional medical practice, a fact the State is required to establish

       to prove each of the six charges against Morgan. For the reasons explained

       above, we have rejected this premise. To reiterate, there is no legitimate legal

       reason to conclude that a non-physician could not—under any circumstances—

       be made to understand that certain conduct falls outside the usual course of

       professional medical practice.


[15]   That said, we have little trouble concluding that the statutes in question are not

       void for vagueness as applied to Morgan. The Indiana Supreme Court has

       concluded that “[a] statute is not void for vagueness if individuals of ordinary

       intelligence could comprehend it to the extent that it would fairly inform them


       Court of Appeals of Indiana | Opinion 89A04-1603-CR-622 | August 16, 2016   Page 11 of 12
       of the generally proscribed conduct.” Brown, 868 N.E.2d at 467 (citation

       omitted). Reading the statutes at issue in this case, a person of ordinary

       intelligence would easily understand that agreeing with or assisting a physician

       to distribute prescriptions for controlled substances—prescriptions that person

       knows to be invalid—is proscribed conduct. As mentioned, any allegation that

       the prescriptions were known to be issued outside the usual course of

       professional medical practice would have to be proved, just as any other

       element of a criminal charge. Morgan has failed to establish that the statutes

       used to charge her are void for vagueness as to her.


[16]   We conclude that the trial court abused its discretion in dismissing the criminal

       charges against Morgan on the basis that the facts alleged did not constitute

       criminal offenses. We further conclude that Morgan has failed to establish that

       the criminal statutes in question were void for vagueness as applied to her. We

       therefore reverse the judgment of the trial court and remand with instructions to

       reinstate the criminal charges against Morgan.


[17]   The judgment of the trial court is reversed and we remand with instructions.


       Pyle, J., and Altice, J., concur.




       Court of Appeals of Indiana | Opinion 89A04-1603-CR-622 | August 16, 2016   Page 12 of 12
