                                                                            FILED
                                                                        Jul 14 2016, 8:33 am

                                                                            CLERK
                                                                        Indiana Supreme Court
                                                                           Court of Appeals
                                                                             and Tax Court




ATTORNEYS FOR APPELLANT                                     ATTORNEYS FOR APPELLEE
Gregory F. Zoeller                                          Victoria L. Bailey
Attorney General of Indiana                                 Indianapolis, Indiana
Ellen H. Meilaender
Deputy Attorney General
Indianapolis, Indiana



                                             IN THE
    COURT OF APPEALS OF INDIANA

State of Indiana,                                           July 14, 2016
Appellant-Plaintiff,                                        Court of Appeals Case No.
                                                            49A02-1601-CR-8
        v.                                                  Appeal from the Marion Superior
                                                            Court
John K. Sturman,                                            The Honorable Lisa Borges, Judge
Appellee-Defendant.                                         Trial Court Cause No.
                                                            49G04-1508-FC-27608



Riley, Judge.




Court of Appeals of Indiana | Opinion 49A02-1601-CR-8 | July 14, 2016                           Page 1 of 37
                                     STATEMENT OF THE CASE

[1]   Appellant/Cross-Appellee-Plaintiff, the State of Indiana (State), appeals the

      trial court’s dismissal of certain criminal charges filed against Appellee/Cross-

      Appellant-Defendant, John K. Sturman (Sturman). On cross-appeal, Sturman

      appeals the trial court’s denial of his motion to dismiss additional criminal

      charges against him.


[2]   We affirm in part, reverse in part, and remand.


                                                      ISSUES

[3]   The State raises one issue on appeal, which we restate as the following two

      issues:

      (1) Whether the trial court abused its discretion by dismissing three Counts of

      reckless homicide for failing to state an offense; and

      (2) Whether the trial court abused its discretion by dismissing one Count of

      reckless homicide as being barred by the statute of limitations.


[4]   Sturman raises two issues on cross-appeal, which we restate as follows:

      (1) Whether the trial court abused its discretion by denying his motion to

      dismiss three Counts of reckless homicide and fifteen Counts of issuing an

      invalid prescription on the basis that the Information failed to allege the crimes

      with sufficient certainty; and

      (2) Whether the trial court abused its discretion by denying Sturman’s motion

      to dismiss sixteen Counts of issuing an invalid prescription on the basis that a

      provision of the Indiana Legend Drug Act is unconstitutionally vague.

      Court of Appeals of Indiana | Opinion 49A02-1601-CR-8 | July 14, 2016     Page 2 of 37
                            FACTS AND PROCEDURAL HISTORY

[5]   Sturman is a physician and has been licensed to practice medicine in Indiana

      since 2008. He is board certified in neurology, with a subspecialty in pain

      management. In 2008, Sturman was hired at a pain management clinic that is

      operated by Indiana University Hospital in Indianapolis, Indiana. In July of

      2012, Sturman left his employment at the pain management clinic after Indiana

      University Hospital suspended his medical privileges for, according to Sturman,

      “fail[ing] to complete medical charting/documentation of patient visits, a gross

      deviation from the recognized standard of care.” (Appellant’s App. p. 31).


[6]   In 2012, the Indiana Office of the Attorney General (OAG) commenced an

      investigation of Sturman after three separate complaints were filed against him

      with the Licensing Enforcement Section. Those complaints—two filed by

      former patients and one by an addictions counselor—alleged concerns that,

      between 2008 and 2012, Sturman had “prescribed a large amount of narcotics

      to pain management patients.” (Appellant’s App. p. 29). As part of its

      investigation, the OAG examined all of the controlled substance prescriptions

      that were prescribed by Sturman and filled in Indiana between 2009 and 2012.

      The list of patients for whom Sturman had prescribed controlled substances was

      provided to the Indiana State Department of Health’s Vital Statistics

      Department, which provided the OAG with death information for any

      individuals on that list. The list revealed that several of Sturman’s pain

      management patients had “died from drug intoxication, overdose, or related

      causes of death and had filled a prescription from . . . Sturman within [thirty]

      Court of Appeals of Indiana | Opinion 49A02-1601-CR-8 | July 14, 2016        Page 3 of 37
      days immediately prior to death.” (Appellant’s App. p. 31). Of Sturman’s

      now-deceased patients, three are relevant to this appeal: D.E.H., M.K.C., and

      T.A.V.


[7]   Between April 23, 2010 and July 29, 2010, Sturman issued ten prescriptions for

      controlled substances to D.E.H., including: four prescriptions for Methadone

      (Schedule II opioid); four prescriptions for Hydromorphone (i.e., Dilaudid)

      (Schedule II opioid); and two prescriptions for Diazepam (i.e., Valium)

      (Schedule IV benzodiazepine). On August 6, 2010, D.E.H. died. His autopsy

      indicated that the cause of death was “Pharmacologic Intoxication.”

      (Appellant’s App. p. 33). Dr. Timothy King (Dr. King), “a physician with a

      medical specialty in [a]nesthesiology and a [s]ubspecialty in [p]ain [m]edicine,”

      reviewed D.E.H.’s medical records and concluded that Sturman had prescribed

      controlled substances to D.E.H. “without regard for patient safety, without a

      legitimate medical purpose, and outside the usual course of medical practice.”

      (Appellant’s App. pp. 32, 35). Additionally, Dr. Michele Glinn (Dr. Glinn), a

      consultant in forensic toxicology, reviewed the summary of D.E.H.’s prescribed

      medications, the autopsy, and the toxicology findings. Dr. Glinn opined that

      D.E.H.’s “death could be considered the result of toxicity from prescribed

      medications” and that D.E.H. “was prescribed doses of methadone that were

      very high compared with a usual adult daily dose.” (Appellant’s App. p. 36).


[8]   Between July 25, 2011 and December 15, 2011, Sturman issued seventeen

      prescriptions for controlled substances to M.K.C., including: eight

      prescriptions for Hydromorphone (i.e., Dilaudid) (Schedule II opioid); three

      Court of Appeals of Indiana | Opinion 49A02-1601-CR-8 | July 14, 2016     Page 4 of 37
      prescriptions for Alprazolam (i.e., Xanax) (Schedule IV benzodiazepine); three

      prescriptions for Morphine (i.e., Oramorph SR) (Schedule II opioid); two

      prescriptions for Dronabinol (Schedule III controlled substance); and one

      prescription for Fentanyl (Schedule II opioid). On December 20, 2011, M.K.C.

      died. Her autopsy revealed that her cause of death was “Polydrug

      Intoxication.” (Appellant’s App. p. 37). After reviewing M.K.C.’s records, Dr.

      King concluded that Sturman had “prescribe[d] controlled substances without a

      legitimate medical purpose and outside the usual course of medical practice.”

      (Appellant’s App. p. 38). Dr. Glinn opined that M.K.C.’s “death could be

      considered the result of toxicity from prescribed medications. The amount of

      Hydromorphone in the postmortem toxicology was noted to be toxic.”

      (Appellant’s App. p. 36).


[9]   Between April 16, 2009 and September 21, 2011, Sturman issued eighty-one

      prescriptions for controlled substances to T.A.V., including: one prescription for

      Methadone (Schedule II opioid); one prescription for Hydrocodone (i.e.,

      Vicodon ES) (Schedule III opioid); twenty-four prescriptions for Lyrica

      (Schedule V controlled substance); twenty-nine prescriptions for Fentanyl (i.e.,

      Duragesic) (Schedule II opioid); and twenty-six prescriptions for Oxycodone

      (Schedule II opioid). On October 26, 2011, T.A.V. died. Her autopsy indicated

      that the cause of death was “Fentanyl Toxicity.” (Appellant’s App. p. 42). Dr.

      King concluded that Sturman was “medically inappropriate in his use of

      controlled substances in the care of [T.A.V.]. He prescribe[d] opiates without a




      Court of Appeals of Indiana | Opinion 49A02-1601-CR-8 | July 14, 2016   Page 5 of 37
       legitimate medical purpose, and outside the usual course of medical practice.”

       (Appellant’s App. p. 44). Dr. Glinn opined that T.A.V.’s

               death could be considered the result of toxicity from prescribed
               medications. The only drugs found in [T.A.V.] at her time of
               death were the drugs prescribed by [Sturman]. . . . [T.A.V.] was
               prescribed doses of oxycodone that were very high compared
               with a usual adult daily dose and the amount of Fentanyl in the
               postmortem toxicology was noted to be toxic.


       (Appellant’s App. p. 44).


[10]   In addition to the three aforementioned deceased patients, Sturman also

       prescribed controlled substances to L.D.F., R.G.R., and Z.A.R., which raised

       concerns during the OAG’s investigation. Between January 15, 2009 and

       August 23, 2010, Sturman issued seventy-seven prescriptions for controlled

       substances to L.D.F., including: thirty-three prescriptions for Methadone (i.e.,

       Methadose) (Schedule II opioid); twenty-seven prescriptions for Oxycodone

       (i.e., Percocet) (Schedule II opioid); and seventeen prescriptions for Alprazolam

       (i.e., Xanax) (Schedule IV benzodiazepine). Dr. King reviewed L.D.F.’s

       records and concluded that Sturman “prescribe[d] controlled substance

       medications without a legitimate medical purpose and outside the usual course

       of medical practice.” (Appellant’s App. p. 49). Between March 9, 2012 and

       May 16, 2012, Sturman issued six prescriptions for Oxycodone (Schedule II

       opioid) to R.G.R. Again, Dr. King concluded that Sturman had “prescribe[d]

       opiates without establishment of a legitimate medical purpose and outside the

       usual course of medical practice.” (Appellant’s App. p. 52). Lastly, between

       Court of Appeals of Indiana | Opinion 49A02-1601-CR-8 | July 14, 2016      Page 6 of 37
       December 16, 2009 and October of 2011, Sturman issued approximately fifty

       prescriptions for controlled substances to Z.A.R., including: thirteen

       prescriptions for Fentanyl (Schedule II opioid); two prescriptions for

       Hydrocodone (i.e., Norco) (Schedule III opioid); seven prescriptions for

       Morphine (i.e., Kadian) (Schedule II opioid); fourteen prescriptions for

       Oxycodone (i.e., OxyContin) (Schedule II opioid); five prescriptions for

       Diazepam (i.e., Valium) (Schedule IV benzodiazepine); four prescriptions for

       Methadone (Schedule II opioid); and five prescriptions for Hydromorphone

       (i.e., Dilaudid, Exalgo) (Schedule II opioid). Dr. King concluded that

       “Sturman did not issue controlled substances for a legitimate medical purpose. .

       . . Medications were issued outside the usual course of medical practice and

       without medical foundation.” (Appellant’s App. p. 54).


[11]   On August 5, 2015, the State filed an Information, 1 charging Sturman with

       Counts 1-3, reckless homicide of, respectively, D.E.H., M.K.C., and T.A.V.,

       Class C felonies, Ind. Code § 35-42-1-5 (2011); and Counts 4-19, issuing an

       invalid prescription for legend drugs by a practitioner, Class D felonies, I.C. §§

       16-42-19-20(b); -27(a). 2 On September 23, 2015, Sturman filed a verified




       1
         We note that the charging Information uses roman numerals to identify the Counts; however, for the sake
       of clarity, we will use standard numbers.
       2
         Counts 4-7 charge Sturman with issuing an invalid prescription to M.K.C. for, respectively, Dilaudid,
       Xanax, Morphine, and Fentanyl. Counts 8-9 charge Sturman with issuing an invalid prescription to T.A.V.
       for, respectively, Fentanyl and Oxycodone. Counts 10-12 charge Sturman with issuing an invalid
       prescription to L.D.F. for, respectively, Methadone, Oxycodone, and Xanax. Count 13 charges Sturman
       with issuing an invalid prescription to R.G.R. for Oxycodone. Counts 14-19 charge Sturman with issuing an
       invalid prescription to Z.A.R. for, respectively, Fentanyl, Morphine, Oxycodone, Dilaudid, Valium, and

       Court of Appeals of Indiana | Opinion 49A02-1601-CR-8 | July 14, 2016                         Page 7 of 37
       motion to dismiss all nineteen Counts for a variety of reasons. In particular,

       Sturman sought dismissal of Counts 1-6 and 8-19 based on a failure to “state the

       offenses with sufficient certainty so as to avoid a non-unanimous jury verdict or

       a double jeopardy violation.” (Appellant’s App. p. 102). He further requested

       dismissal of Counts 1 through 3 “because neither the facts stated in the

       Information nor the probable cause affidavit nor the two read together state

       offenses as to those [C]ounts.” (Appellant’s App. p. 102). In addition, Sturman

       claimed that Counts 1, 3, 8-12, 14-16, 18, and 19 should be dismissed “because

       conduct alleged to underlie those charges occurred outside the five-year statute

       of limitations set out in [Indiana] Code [section] 35-41-4-2.” (Appellant’s App.

       p. 102). Finally, Sturman argued for the dismissal of Counts 4-19 “because

       [Indiana] Code [section] 16-42-19-20 [of the Indiana Legend Drug Act] is

       unconstitutionally vague because the phrase ‘legitimate medical purpose’ fails

       to put an ordinary person on notice as to what conduct is prohibited as well as

       encouraging arbitrary enforcement of the statute.” (Appellant’s App. p. 103).


[12]   On November 12, 2015, the trial court conducted a hearing on Sturman’s

       motion to dismiss. On December 11, 2015, the trial court issued its Findings of

       Fact and Conclusions of Law. The trial court dismissed Counts 1 and 11 as

       being barred by the statute of limitations. The trial court also dismissed Counts

       8-10, 12, 14-16, 18, and 19 because these charges identified a range of dates




       Methadone. Although each charge alleges that only one invalid prescription was issued, the State alleges a
       different and wide range of dates in which each prescription was purportedly issued.

       Court of Appeals of Indiana | Opinion 49A02-1601-CR-8 | July 14, 2016                           Page 8 of 37
       during which an invalid prescription was allegedly issued, some of which were

       beyond the statute of limitations. However, the trial court allowed twenty days

       for the State to amend these charges to allege a singular offense within the

       statute of limitations. Finally, the trial court dismissed Counts 1-3 for failing to

       state an offense. Also, the trial court found that Indiana Code section 16-42-19-

       20 is not unconstitutionally vague and accordingly denied Sturman’s motion to

       dismiss Counts 4 through 19 on that basis. Following the trial court’s ruling,

       the only remaining charges were Counts 4-7, 13, and 17—all of which alleged

       that Sturman issued invalid prescriptions.


[13]   The State now appeals, and Sturman cross-appeals. Additional facts will be

       provided as necessary.


                                    DISCUSSION AND DECISION

                                                       I. Appeal

[14]   The State claims that the trial court erroneously dismissed Counts 1-3—i.e., the

       reckless homicide charges relating to D.E.H., M.K.C., and T.A.V. We review

       a trial court’s grant of a motion to dismiss a criminal charge under the abuse of

       discretion standard. State v. Lindsay, 862 N.E.2d 314, 317 (Ind. Ct. App. 2007),

       trans. denied. We will reverse the trial court’s decision as being an abuse of

       discretion if it “is clearly against the logic and effect of the facts and

       circumstances.” Id. To the extent that our decision requires a statutory

       interpretation, our review is de novo because it presents a question of law. Sloan

       v. State, 947 N.E.2d 917, 920 (Ind. 2011).


       Court of Appeals of Indiana | Opinion 49A02-1601-CR-8 | July 14, 2016        Page 9 of 37
[15]   In general, “when a defendant files a motion to dismiss an information, the

       facts alleged in the information are to be taken as true.” Delagrange v. State, 951

       N.E.2d 593, 594 (Ind. Ct. App. 2011), trans. denied. A motion to dismiss is not

       a proper vehicle for raising “[q]uestions of fact to be decided at trial or facts

       constituting a defense.” Id. at 594-95. “A hearing on a motion to dismiss is not

       a trial of the defendant on the offense charged.” Id. at 595.


                            A. Dismissal of Counts 1-3: Failure to State Offense

[16]   The State contends that the trial court erred in dismissing the three reckless

       homicide charges on the basis that they fail to state an offense. Indiana Code

       section 35-4-1-4(a)(5) provides that “[t]he court may, upon motion of the

       defendant, dismiss the . . . information” because “[t]he facts stated do not

       constitute an offense.” We will find that dismissal for failure to state an offense

       is warranted “only when an information is facially deficient in stating an

       alleged crime.” Pavlovich v. State, 6 N.E.3d 969, 974 (Ind. Ct. App. 2014), trans.

       denied.


[17]   The purpose of a “charging information is to provide a defendant with notice of

       the crime of which he is charged so that he is able to prepare a defense.” Lebo v.

       State, 977 N.E.2d 1031, 1038 (Ind. Ct. App. 2012). In order “to be sufficient, a

       charging information generally needs only contain a statement of the ‘essential

       facts constituting the offense charged,’ as well as the statutory citation, the time

       and place of the commission of the offense, the identity of the victim (if any),

       and the weapon used (if any).” Pavlovich, 6 N.E.3d at 975. See I.C. § 35-34-1-

       2(d) (requiring the information to contain “a plain, concise, and definite written

       Court of Appeals of Indiana | Opinion 49A02-1601-CR-8 | July 14, 2016       Page 10 of 37
       statement of the essential facts constituting the offense charged”). Thus, the

       State has no obligation “to include detailed factual allegations in a charging

       information.” Pavlovich, 6 N.E.3d at 975 (noting that “the State was not

       required to precisely spell out in the information how [the defendant] was

       alleged to have solicited [the minor child]”). “[A]dditional materials such as

       the probable cause affidavit supporting the charging instrument may be taken

       into account in assessing whether a defendant has been apprised of the charges

       against him.” Lebo, 977 N.E.2d at 1035.


[18]   The crime of reckless homicide, a Class C felony, requires that “[a] person . . .

       recklessly kills another human being.” I.C. § 35-42-1-5 (2011). “A person

       engages in conduct ‘recklessly’ if he engages in the conduct in plain, conscious,

       and unjustifiable disregard of harm that might result and the disregard involves

       a substantial deviation from acceptable standards of conduct.” I.C. § 35-41-2-

       2(c). In this case, the Information alleged as follows:


               COUNT [1]
               Between May 10, 2010 and August 6, 2010, [Sturman] did
               recklessly kill another human being, to wit: D.E.H., by writing
               and/or issuing prescriptions to D.E.H. for Methadone, Dilaudid,
               and/or Valium without medical legitimate purpose and outside
               the usual course of practice;

               COUNT [2]
               Between July 25, 2011 and December 20, 2011, [Sturman] did
               recklessly kill another human being, to wit: M.K.C., by writing
               and/or issuing prescriptions to M.K.C. for Dilaudid, and/or
               Xanax and/or Fentanyl without legitimate medical purpose and
               outside the usual course of practice;

       Court of Appeals of Indiana | Opinion 49A02-1601-CR-8 | July 14, 2016   Page 11 of 37
               COUNT [3]
               Between July 1, 2009 and October 26, 2011, [Sturman] did
               recklessly kill another human being, to wit: T.A.V., by writing
               and/or issuing prescriptions to T.A.V. for Fentanyl and/or
               Oxycodone without legitimate medical purpose and outside the
               usual course of practice[.]


       (Appellant’s App. p. 24). The charging Information tracks the language of the

       reckless homicide statute by alleging that Sturman recklessly killed D.E.H.,

       M.K.C., and T.A.V. Nevertheless, the trial court concluded that Counts 1-3

       required dismissal because the State failed to sufficiently allege causation.

       Specifically, Counts 1-3 “allege the criminal act as writing and/or issuing

       prescriptions,” and this act “alone cannot cause death. The prescriptions must

       be filled and the medicine ingested in some fashion for there to be any

       possibility of death.” (Appellant’s App. p. 262).


[19]   In reaching its conclusion, the trial court relied on Burrage v. United States, 134

       S.Ct. 881 (2014). In Burrage, the defendant received a twenty-year mandatory

       minimum sentence after he sold one gram of heroin to a user who subsequently

       died from a drug overdose. Id. at 885. During the trial, medical experts

       testified that “multiple drugs were present in [the decedent’s] system at the time

       of his death.” Id. The toxicologist further testified that the heroin “was a

       contributing factor” in the decedent’s death because “it interacted with the

       other drugs to cause ‘respiratory and/or central nervous system depression.’”

       Id. Because the defendant’s minimum twenty-year sentence was a “‘death

       results’ enhancement,” the fact that death resulted from the use of that drug was

       Court of Appeals of Indiana | Opinion 49A02-1601-CR-8 | July 14, 2016      Page 12 of 37
       “an element that must be submitted to the jury and found beyond a reasonable

       doubt.” Id. at 887. The Supreme Court held that where “the drug distributed

       by the defendant is not an independently sufficient cause of the victim’s death

       or serious bodily injury, a defendant cannot be liable under the penalty

       enhancement provision . . . unless such use is a but-for cause of the death or

       injury.” Id. at 892. Because there was “no evidence that [the decedent] would

       have lived but for his heroin use,” the Supreme Court reversed the defendant’s

       conviction. Id. (internal quotation marks omitted). Based on the Burrage

       holding, the trial court in the present case found that the State “bears the burden

       of showing that the drugs prescribed to the decedents by [Sturman] were the

       but-for cause of the decedents’ deaths.” (Appellant’s App. p. 262).


[20]   The State now argues that in order to sustain its burden of establishing the

       causation element it “only needs to prove that the defendant’s conduct ‘was a

       proximate cause’ of the death; it does not need to prove that it was ‘the sole

       cause of a death’ in order to support a conviction for reckless homicide.”

       (Appellant’s Br. p. 19) (quoting Barber v. State, 863 N.E.2d 1199, 1205 (Ind. Ct.

       App. 2007), trans. denied). According to the State, “[b]ut for [Sturman’s]

       conduct in providing [the decedents] with prescriptions, they would not have

       obtained possession of those fatal drugs.” (Appellant’s Br. p. 20).


[21]   Unlike the trial court, we find that, at this point in the proceedings, the State

       had no burden to prove that Sturman’s conduct caused the deaths of D.E.H.,

       M.K.C., and T.A.V. because that is a factual matter to be determined at trial.

       See Delagrange, 951 N.E.2d at 594-95. This case is distinct from Burrage

       Court of Appeals of Indiana | Opinion 49A02-1601-CR-8 | July 14, 2016     Page 13 of 37
       because, there, the Supreme Court considered whether there was sufficient

       evidence that the defendant’s conduct was the but-for cause of the decedent’s

       death after the defendant was convicted. Before trial, a motion to dismiss may

       not be based upon whether there is sufficient evidence to uphold a conviction.

       State v. Houser, 622 N.E.2d 987, 988 (Ind. Ct. App. 1993), trans. denied. As such,

       we reject Sturman’s argument that the State failed to allege that he “was the

       only source of drugs the decedents took” because this goes to the State’s burden

       of proof at trial. (Appellee’s Br. p. 15). The issue before our court is simply

       “whether the charging information adequately alleges that a crime has been

       committed.” Delagrange, 951 N.E.2d at 595. We therefore consider both the

       charging Information and the probable cause affidavit to determine whether the

       alleged facts constitute an offense.


[22]   As to Count 1, according to the Information, Sturman recklessly killed D.E.H.

       by issuing prescriptions “for Methadone, Dilaudid, and/or Valium without

       medical legitimate purpose and outside the usual course of practice.”

       (Appellant’s App. p. 24). The probable cause affidavit more specifically states

       that Sturman issued four prescriptions for Methadone, four prescriptions for

       Dilaudid, and two prescriptions for Valium to D.E.H. during a three-month

       period. Approximately one week after issuing the last set of Methadone,

       Dilaudid, and Valium prescriptions, D.E.H. died of “Pharmacologic

       Intoxication.” (Appellant’s App. p. 33). The toxicology report identified

       Diazepam (i.e., Valium), Methadone, and Hydromorphone (i.e., Dilaudid),

       among other substances, in D.E.H.’s system at the time of death. Dr. King


       Court of Appeals of Indiana | Opinion 49A02-1601-CR-8 | July 14, 2016    Page 14 of 37
       reviewed D.E.H.’s medical records and noted, in part, that D.E.H.

       demonstrated a history of substance abuse and drug-seeking behavior, as well as

       that Sturman failed to identify a “legitimate medical diagnosis” to warrant “the

       use of opiates for pain control.” (Appellant’s App. p. 34). He concluded that

       Sturman “prescribe[d] controlled substances without regard for patient safety,

       without a legitimate medical purpose, and outside the usual course of medical

       practice.” (Appellant’s App. p. 35). Furthermore, Dr. Glinn found that D.E.H.

       “was prescribed doses of methadone that were very high compared with a usual

       adult daily dose,” and his “death could be considered the result of toxicity from

       prescribed medications.” (Appellant’s App. pp. 35-36).


[23]   Regarding Count 2, the Information charges Sturman with reckless homicide as

       to M.K.C. based on the fact that he issued prescriptions “for Dilaudid, and/or

       Xanax and/or Fentanyl without legitimate medical purpose and outside the

       usual course of practice.” (Appellant’s App. p. 24). According to the probable

       cause affidavit, Sturman prescribed eight prescriptions for Dilaudid, three

       prescriptions for Xanax, and one prescription for Fentanyl to M.K.C. in a five-

       month span. Five days after Sturman wrote the last prescription for Dilaudid,

       M.K.C. died as a result of “Polydrug Intoxication.” (Appellant’s App. p. 37).

       The toxicology report detected Alprazolam (i.e., Xanax), Fentanyl, and

       Hydromorphone (i.e., Dilaudid) in M.K.C.’s system at the time of death. Upon

       review of M.K.C.’s medical records, Dr. King found, in part, that Sturman’s

       examination “did not define a legitimate pathology that warranted the use of

       escalating opiates.” (Appellant’s App. p. 38). Moreover, Dr. King found that


       Court of Appeals of Indiana | Opinion 49A02-1601-CR-8 | July 14, 2016   Page 15 of 37
       Sturman ignored M.K.C.’s mental health contraindications as well as her

       complaints indicating negative opiate side effects. Dr. King concluded that

       Sturman had “prescribe[d] controlled substances without a legitimate medical

       purpose and outside the usual course of medical practice.” (Appellant’s App. p.

       38). Dr. Glinn opined that M.K.C. had a “toxic” amount of Hydromorphone

       in her system, and her “death could be considered the result of toxicity from

       prescribed medications.” (Appellant’s App. p. 38).


[24]   Finally, as to Count 3, the Information charges Sturman with recklessly killing

       T.A.V. by issuing prescriptions “for Fentanyl and/or Oxycodone without

       legitimate medical purpose and outside the usual course of practice.”

       (Appellant’s App. p. 24). The probable cause affidavit specifies that Sturman

       prescribed twenty-nine prescriptions for Fentanyl (i.e., Duragesic) and twenty-

       six prescriptions for Oxycodone to T.A.V. over the course of two and one-half

       years. Less than one month after Sturman issued the last prescriptions for

       Fentanyl and Oxycodone, T.A.V. died due to “Fentanyl Toxicity.”

       (Appellant’s App. p. 42). The toxicology report indicated that T.A.V. had

       Fentanyl in her system at the time of death. According to Dr. King, in part,

       Sturman prescribed Fentanyl and Oxycodone “at high and dangerous doses for

       pain complaints that do not merit exclusive opiate treatment,” and he

       “ignore[d] clearly defined opiate risk factors including hospitalizations for

       excessive medication use, inconsistent urine drug testing results, and

       medication noncompliance.” (Appellant’s App. pp. 42-43). Dr. King

       concluded that Sturman was “medically inappropriate in his use of controlled


       Court of Appeals of Indiana | Opinion 49A02-1601-CR-8 | July 14, 2016    Page 16 of 37
       substances in the care of [T.A.V.] [as] [h]e prescribe[d] opiates without a

       legitimate medial purpose, and outside the usual course of practice.”

       (Appellant’s App. p. 44). Additionally, Dr. Glinn noted that T.A.V. “was

       prescribed doses of oxycodone that were very high compared with a usual adult

       daily dose and the amount of Fentanyl in the postmortem toxicology was noted

       to be toxic.” (Appellant’s App. p. 44).


[25]   While we agree with the trial court that the act of writing a prescription, by

       itself, is not a criminal offense, the charging Information in the present case

       clearly indicates that the alleged crime is that of reckless homicide. Moreover,

       considering both the Information and the probable cause affidavit, and “taking

       the facts alleged therein as true,” it is apparent that the State has charged

       Sturman with recklessly killing D.E.H., M.K.C., and T.A.V. based on the fact

       that the three decedents died after ingesting controlled substances that were

       prescribed by Sturman without a legitimate medical purpose—i.e., in “deviation

       from acceptable standards of conduct.” I.C. § 35-41-2-2(c); Houser, 622 N.E.2d

       at 988. Therefore, we find that the State has satisfied its obligation to allege

       sufficient facts to constitute the charged offense of reckless homicide. We

       conclude that the trial court abused its discretion by dismissing Counts 1-3

       based on a failure to state an offense.




       Court of Appeals of Indiana | Opinion 49A02-1601-CR-8 | July 14, 2016     Page 17 of 37
                               B. Dismissal of Count 1: Statute of Limitations 3

[26]   The State also claims that the trial court erred by dismissing Count 1 on the

       basis that it is barred by the statute of limitations. Pursuant to Indiana Code

       section 35-34-1-4(a)(8), a “court may, upon motion of the defendant, dismiss

       the . . . information . . . [if] [t]he prosecution is untimely brought.” Here, the

       State charged Sturman with the reckless homicide of D.E.H. as a Class C

       felony. For a Class C felony, “a prosecution for an offense is barred unless it is

       commenced . . . within five (5) years after the commission of the offense.” I.C.

       § 35-41-4-2(a)(1). The Information alleges that Sturman committed Count 1,

       reckless homicide, “[b]etween May 10, 2010 and August 6, 2010.” (Appellant’s

       App. p. 24). The Information was filed on August 5, 2015.


[27]   The purpose of a statute of limitations is “to insure against prejudice and

       injustice to a defendant which is occasioned by a delay in prosecution.”

       Lindsay, 862 N.E.2d at 317. Thus, “[t]he limitation period seeks to strike a

       balance between a defendant’s interest in being placed on notice so as to be able

       to formulate a defense for a crime charged and the State’s interest in having

       sufficient time to investigate and develop a case.” Id. The State bears the

       burden of proving that the charged offense was committed within the applicable

       statute of limitations. Id.




       3
         The State does not appeal the trial court’s dismissal of Count 11 on statute of limitations grounds. Nor
       does the State appeal the dismissal of Counts 8-10, 12, 14-16, 18, and 19 based on the fact that the State may
       proceed with those charges (i.e., issuing invalid prescriptions) after amendment thereof.

       Court of Appeals of Indiana | Opinion 49A02-1601-CR-8 | July 14, 2016                            Page 18 of 37
[28]   According to the probable cause affidavit, Sturman first issued prescriptions to

       D.E.H. on April 23, 2010, and he last wrote a prescription for D.E.H. on July

       29, 2010. Eight days later, on August 6, 2010, D.E.H. died. The trial court

       concluded that “[t]he Indiana statute of limitations contemplates that the

       alleged criminal act triggers the statute of limitations, rather than the alleged

       result from that alleged act—in this case the death.” (Appellant’s App. p. 259).

       Because “[t]he criminal act alleged in Count 1 clearly happened outside the

       statute of limitations even though the death occurred on August 6, 20[10],” the

       trial court determined that the filing date of August 5, 2015, was beyond the

       statute of limitations. (Appellant’s App. p. 259). It appears that the trial court

       considered Sturman’s issuance of the prescription to be the criminal act that

       triggered the statute of limitations. Thus, as the last prescription was issued on

       July 29, 2010, the State would have been required to file charges no later than

       July 29, 2015.


[29]   In turn, the State asserts that the crime of reckless homicide was completed on

       the date D.E.H. died—i.e., August 6, 2010. As such, the State maintains that

       the statute of limitations did not expire until August 6, 2015, one day after it

       filed the Information. In an apparent issue of first impression, the State now

       contends that, for reckless homicide, the statute of limitations period should be

       held to commence upon the victim’s death rather than upon “the last

       affirmative action [Sturman] took, namely the last prescription he issued to

       D.E.H.” (Appellant’s Br. p. 23). According to the State, “[b]y definition, the

       elements of reckless homicide are not satisfied and complete until a death has


       Court of Appeals of Indiana | Opinion 49A02-1601-CR-8 | July 14, 2016     Page 19 of 37
       occurred.” (Appellant’s Br. p. 23). That is, “[i]f no one dies, a person cannot

       be charged with reckless homicide no matter how reckless his conduct.”

       (Appellant’s Br. p. 23).


[30]   In support of its argument, the State looks to other jurisdictions. In particular,

       in Illinois v. Mudd, 507 N.E.2d 869, 871 (Ill. Ct. App. 1987), the defendant

       engaged in a high-speed chase with police officers, which resulted in the

       defendant colliding with another vehicle, driven by the victim. The victim lost

       “cerebral functioning,” never regained consciousness, and died more than three

       years after the accident due to respiratory problems incurred while in a coma.

       Id. Although the defendant pled guilty to charges of reckless driving and fleeing

       from law enforcement shortly after the accident, upon the victim’s death, he

       was charged with reckless homicide. Id. The defendant sought to dismiss the

       charge on the basis that it was barred by the state’s three-year statute of

       limitations. Id. The Illinois court explained that


               [t]he elements constituting the offense of reckless homicide may
               be summarized as an unintentional killing of a person by the
               defendant while operating a motor vehicle recklessly in a manner
               likely to cause death or great bodily harm. Without the existence
               of any one of . . . these elements, the crime itself has not been
               committed. There can be no homicide without a death. Unless a
               death occurs, the State cannot investigate, charge, or prosecute
               for reckless homicide.


       Id. at 873 (citation omitted). Accordingly, because statutes of limitations

       “normally begin to run only ‘when the crime is complete’ and the crime here

       was complete only upon the existence of the last element, the death of the

       Court of Appeals of Indiana | Opinion 49A02-1601-CR-8 | July 14, 2016     Page 20 of 37
       victim,” the court held that the statute of limitations for reckless homicide was

       triggered when the victim died. Id. (citation omitted).


[31]   Sturman, however, argues that the statute of limitations began running at the

       time he “committed the acts alleged [in] Count 1”—i.e., writing the

       prescriptions. (Appellee’s Br. p. 22). More specifically, in response to the

       State’s assertion that “[w]hen it comes to homicide offenses, there is no

       criminal act apart from the result,” Sturman contends that “[t]he Indiana

       General Assembly does not agree with the State’s interpretation of what

       constitutes the elements of a criminal offense when it comes to ‘homicide

       offenses’ for purposes of the statute of limitations.” (Appellant’s Br. p. 24;

       Appellee’s Br. p. 19). He directs our attention to the following provision in

       Indiana’s statute of limitations:


               A prosecution for murder may be commenced:
               (1) at any time; and
               (2) regardless of the amount of time that passes between:
               (A) the date a person allegedly commits the elements of murder;
               and
               (B) the date the alleged victim of the murder dies.


       I.C. § 35-41-4-2(d); (Appellant’s Br. pp. 23-24). Based on this subsection

       dealing with the statute of limitations for murder, the trial court found that “it is

       clear the Indiana General Assembly did not intend for the death to be an

       element of the offense of [r]eckless [h]omicide for purposes of the statute of

       limitations” because this provision would be rendered “meaningless if an

       offense involving a death was not committed until the death occurred for

       Court of Appeals of Indiana | Opinion 49A02-1601-CR-8 | July 14, 2016     Page 21 of 37
       purposes of the statute of limitations. (Appellant’s App. p. 259). 4 Sturman now

       posits that if “the General Assembly [had] intended for the statute of limitations

       to begin running on [r]eckless [h]omicide only once the alleged victim died, it

       could have indicated that as an exception to [Indiana] Code [section] 35-41-4-

       2(a)(1).” (Appellee’s Br. p. 22).


[32]   We find that the State’s argument—and the guidance of the Illinois court in

       Mudd—is more persuasive. In order to charge a defendant with reckless

       homicide, he must have “recklessly kill[ed] another human being.” I.C. § 35-

       42-1-5. To “kill” another requires the defendant “[t]o end life; to cause physical

       death.” BLACK’S LAW DICTIONARY 886 (8th ed. 2004). Therefore, until a

       death occurred as a result of Sturman issuing prescriptions for controlled

       substances without a legitimate medical purpose, the crime was not complete,

       and the State could not charge him with reckless homicide. See Alderson v. State,

       145 N.E. 572, 573 (Ind. 1924) (“A homicide consists not only of striking the

       fatal blow which produced the death, but it is not complete until the victim has

       died.”). When D.E.H. died on August 6, 2010, the statute of limitations began

       to run.




       4
         The trial court attempted to distinguish Mudd from the present case by noting that Illinois’ statute of
       limitations does not state that a prosecution for murder may be commenced at any time regardless of the
       amount of time that passes between the date a person allegedly commits the elements of murder and the date
       the alleged victim dies. However, Illinois’ statute of limitations does state that a prosecution for murder or
       manslaughter “may be commenced at any time.” Mudd, 507 N.E.2d at 871.

       Court of Appeals of Indiana | Opinion 49A02-1601-CR-8 | July 14, 2016                            Page 22 of 37
[33]   Moreover, we find that the trial court’s reliance on Indiana Code section 35-41-

       4-2(d) is misplaced. That statutory provision simply provides that there is no

       statute of limitations for the crime of murder. Conversely, there is no dispute

       that reckless homicide, as a Class C felony, is subject to a five-year statute of

       limitations. See I.C. § 35-41-4-2(a)(1). The question before our court is merely

       when that period commences, and in either the case of murder or reckless

       homicide, the crime is not complete until the victim has died. Contrary to the

       trial court’s finding, our holding that the statute of limitations for reckless

       homicide commences upon the death of the victim does not render Indiana

       Code section 35-41-4-2(d) meaningless. Rather, notwithstanding whether a

       significant amount of time passes between the infliction of an injury and death,

       Indiana Code section 35-41-4-2(d) permits the State to allege that the death was

       attributable to that injury and file a murder charge. See, e.g., Alderson, 145 N.E.

       at 574 (reciting the former standard that “[d]eath must have occurred within a

       year and a day after the wound was inflicted to make the killing either murder

       or manslaughter”). Accordingly, the State’s August 5, 2015 Information was

       not barred by the statute of limitations, and the trial court abused its discretion

       by dismissing Count 1 on this basis.


                                                  II. Cross-Appeal

             A. Counts 1-6 and 8-19: Failure to State the Offense with Sufficient Certainty

[34]   Sturman first claims that Counts 1-6 and 8-19 should have been dismissed

       because these charges “do not state the alleged offenses with sufficient certainty

       so as to avoid a non-unanimous jury verdict or a double jeopardy violation.”

       Court of Appeals of Indiana | Opinion 49A02-1601-CR-8 | July 14, 2016         Page 23 of 37
       (Appellee’s Br. p. 22). 5 Indiana Code section 35-34-1-4(a)(4) provides that a

       trial court may, “upon motion of the defendant,” dismiss an information

       because it fails to “state the offense with sufficient certainty.” It is long settled

       that “[a]n accused has a right to require that any crime alleged against him be

       charged with sufficient certainty to enable him to anticipate the proof which

       would be adduced against him so he could meet it.” Bickel v. State, 375 N.E.2d

       274, 275 (Ind. Ct. App. 1978). Indiana Code section 35-34-1-2(a)(4) requires

       the State to set “forth the nature and elements of the offense charged in plain

       and concise language without unnecessary repetition.”


                                                   1. Juror Unanimity

[35]   Regarding Counts 1-3—the reckless homicide charges, Sturman notes that,

       using Count 1 as an example, the State charged him with recklessly killing

       D.E.H. by writing prescriptions “for Methadone, Dilaudid, and/or Valium

       without medical legitimate purpose and outside the usual course of practice.”

       (Appellant’s App. p. 24). He posits that “some jurors may believe the State

       proved Sturman recklessly killed D.E.H. by prescribing Methadone while

       others may believe Sturman recklessly killed D.E.H. by prescribing Dilaudid

       while still others may believe Sturman recklessly killed D.E.H. by prescribing




       5
         Count 11 was dismissed based on an expired statute of limitations, and as the State has not challenged that
       dismissal, we need not address it in this section.
       In addition, Sturman points out that the trial court, in its ruling, did not address whether the State sufficiently
       alleged the offenses in terms of jury unanimity and double jeopardy. As such, we will construe the trial
       court’s silence as a deemed denial of Sturman’s motion to dismiss these Counts on this basis.

       Court of Appeals of Indiana | Opinion 49A02-1601-CR-8 | July 14, 2016                                Page 24 of 37
       Valium.” (Appellee’s Br. p. 28). He asserts that “Counts 2 and 3[] suffer from

       the same flaw and must, therefore[,] be[] dismissed.” (Appellee’s Br. p. 28).


[36]   Similarly, as to Counts 4-6 and 8-19 for issuing an invalid prescription, Sturman

       argues that

               the State has alleged time frames in which Sturman supposedly
               issued the invalid prescription to each patient for each drug set
               out in each [C]ount. However, looking at the [p]robable [c]ause
               [a]ffidavit, it becomes clear that for Counts 4-6 and 8-19,
               Sturman is alleged to have prescribed each alleged drug to each
               alleged patient on more than one occasion during each alleged
               time frame.


       (Appellee’s Br. p. 28). As an example, Sturman points out that, regarding

       Count 4, the State charged Sturman with issuing an invalid prescription to

       M.K.C. for Dilaudid between July 25, 2011, and December 15, 2011. Looking

       to the probable cause affidavit, during that same time period, Sturman

       prescribed eight prescriptions to M.K.C. for Dilaudid. Thus, Sturman argues

       that this method of charging “allows for non-unanimous jury verdicts” because

       “[s]ome jurors may find the Dilaudid prescription issued on [July 25, 2011,]

       was invalid and all the others were valid, some jurors may find the Dilaudid

       prescription issued on [September 13, 2011,] was invalid and that all others

       were valid, etc.” (Appellee’s Br. p. 29). Sturman contends that Counts 5-6 and

       8-19 suffer from the same flaw.


[37]   We first note that the trial court dismissed Counts 8-10, 12, 14-16, 18, and 19

       because “some, but not all, of the identified prescriptions were written outside

       Court of Appeals of Indiana | Opinion 49A02-1601-CR-8 | July 14, 2016    Page 25 of 37
       the statute of limitations.” (Appellant’s App. p. 260). The trial court found that

       “the State has alleged a singular act of issuance and the jury or finder of fact

       could pick one prescription issued that is barred by the statute of limitations.”

       (Appellant’s App. p. 260). As such, the trial court dismissed the charges and

       ordered the State to file an amended Information within twenty days “to allege

       specific prescriptions issued after August 5, 2010.” (Appellant’s App. p. 264).

       In so doing, the trial court has remedied the errors now asserted by Sturman

       because the State must identify the specific prescription alleged to be invalid for

       each of these Counts. Accordingly, we are left to determine whether the State

       failed to allege Counts 1-6, 13, and 17 with sufficient certainty to avoid a non-

       unanimous jury verdict.


[38]   “A jury must unanimously agree regarding which crime a defendant

       committed.” Castillo v. State, 734 N.E.2d 299, 303 (Ind. Ct. App. 2000) (citing

       Richardson v. United States, 526 U.S. 813 (1999)). Furthermore, each count of an

       information may only include a single offense. Baker v. State, 948 N.E.2d 1169,

       1175 (Ind. 2011). Therefore, “a disjunctive instruction, which allows the jury to

       find a defendant guilty if he commits either of two or more underlying acts,

       either of which is in itself a separate offense, is fatally ambiguous because it is

       impossible to determine whether the jury unanimously found that the defendant

       committed one particular offense.” Id. Nevertheless, the State is permitted to

       “allege alternative means or ‘theories of culpability’ when prosecuting the

       defendant for a single offense.” Id. In other words, “the State is permitted to

       ‘present[] the jury with alternative ways to find the defendant guilty as to one


       Court of Appeals of Indiana | Opinion 49A02-1601-CR-8 | July 14, 2016      Page 26 of 37
       element.’” Id. (alteration in original) (quoting Cliver v. State, 666 N.E.2d 59, 67

       (Ind. 1996)).


[39]   We find that Counts 1-3 charge Sturman with one offense: reckless homicide.

       Within each charge, the State alleges “alternative means” by which the reckless

       homicide was committed—i.e., that Sturman recklessly killed D.E.H. by issuing

       prescriptions “for Methadone, Dilaudid, and/or Valium without medical

       legitimate purpose and outside the usual course of practice.” (Appellant’s App.

       p. 24) (emphasis added). Thus, so long as each juror is convinced beyond a

       reasonable doubt that Sturman is guilty of reckless homicide, the jury need not

       decide unanimously by which theory he is guilty. Taylor v. State, 840 N.E.2d

       324, 333-34 (Ind. 2006).


[40]   As to the remaining charges, Counts 4-6, 13, and 17 each charge Sturman with

       issuing one invalid prescription, but the probable cause affidavit contains

       evidence of multiple instances of issuing invalid prescriptions within the same

       timeframes as alleged in the Information. We find that each of these instances

       could be considered a separate crime. In Baker, the defendant was charged with

       two counts of child molesting two of his grandchildren “from October 2000

       through August 2003” and one count of molesting an unrelated child “in or

       about 2002.” 948 N.E.2d at 1171. On appeal, Baker claimed that his

       convictions should be vacated due to lack of juror unanimity because “although

       he was charged with one count of child molesting with respect to each alleged

       victim, the jury heard evidence of multiple acts of molestation concerning each

       alleged victim.” Id. at 1177. Our supreme court held that

       Court of Appeals of Indiana | Opinion 49A02-1601-CR-8 | July 14, 2016      Page 27 of 37
               [t]he State may in its discretion designate a specific act (or acts)
               on which it relies to prove a particular charge. However, if the
               State decides not to so designate, then the jurors should be
               instructed that in order to convict the defendant they must either
               unanimously agree that the defendant committed the same act or
               acts or that the defendant committed all of the acts described by
               the victim and included within the time period charged.


       Id. Accordingly, we find that the State has not failed to allege sufficient facts in

       the Information over concerns that the jury will not reach a unanimous verdict.

       As in Baker, the State will either have to designate a specific act to prove the

       particular charge, or the jury should be instructed that they must unanimously

       agree that Sturman committed the same act(s) or that he committed all of the

       acts included within the time period charged. The trial court did not abuse its

       discretion in denying Sturman’s motion to dismiss these charges.


                                                2. Double Jeopardy

[41]   Sturman also asserts that the drafting of the Information leaves him vulnerable

       to a double jeopardy violation. The Indiana Constitution provides that “[n]o

       person shall be put in jeopardy twice for the same offense.” IND. CONST. art. 1,

       § 14. “[T]wo or more offenses are the same offense in violation of [the Indiana

       Constitution] if, with respect to either the statutory elements of the challenged

       crimes or the actual evidence used to obtain convictions, the essential elements

       of one challenged offense also establish the essential elements of another

       challenged offense.” Garrett v. State, 992 N.E.2d 710, 719 (Ind. 2013). It is a

       double jeopardy violation if there is “a reasonable possibility that the

       evidentiary facts used by the fact-finder to establish the essential elements of

       Court of Appeals of Indiana | Opinion 49A02-1601-CR-8 | July 14, 2016      Page 28 of 37
       one offense may also have been used to establish [all of] the essential elements of

       a second challenged offense.” Id.


[42]   According to Sturman, if he is convicted of Counts 1-6 and 8-19, “there will be

       no way to know which of the specific acts (or prescriptions) or combination of

       acts (or prescriptions) the jury found him to have committed.” (Appellee’s Br.

       p. 30). Thus, Sturman posits that the State could charge him in the future “for

       exactly the same conduct.” (Appellee’s Br. p. 30). As previously noted, the

       State’s amendment of Counts 8-10, 12, 14-16, 18, and 19 will remedy this

       purported error as the State has been ordered to allege the issuance of specific

       prescriptions in the Information. Therefore, the question remains whether

       Counts 1-6, 13, and 17 have been alleged with sufficient certainty so as to avoid

       a double jeopardy issue.


[43]   Sturman contends that his case is analogous to Griffin v. State, 439 N.E.2d 160

       (Ind. 1982). In Griffin, the charging information provided that “on the 6th day

       of December, 1980, [the defendant] knowingly received the property of another

       person that had been the subject of theft and that this act constituted a felony.”

       Id. at 161. The information did not provide any facts “which indicate what

       property was stolen and from whom, nor where he had received the alleged

       stolen property or from whom.” Id. The defendant argued that the information

       “failed in any way to give him notice of the charges he was facing so that he

       might properly defend himself and further, did not adequately describe the

       charge so that he could plead this present conviction should he subsequently be

       charged with receiving the same property.” Id. Our supreme court discussed

       Court of Appeals of Indiana | Opinion 49A02-1601-CR-8 | July 14, 2016    Page 29 of 37
       that it is a denial of due process for a defendant to be uninformed as to the

       nature of the charges against him. Id. at 162. Ultimately, the Griffin court

       reversed the defendant’s conviction because he “was tried on a charge which

       was totally inadequate in informing him about what he should defend against

       and his conviction [placed] him in jeopardy should he be tried again for these

       crimes because [the court] cannot determine, from the information, what was

       the property that [the] defendant received as stolen goods.” Id.


[44]   The State, however, contends that Sturman is “at no risk of a successive

       prosecution based on [the] same prescriptions” because “[t]he charges specify

       the identity of the victim, the time period covered by the charge, and the

       identity of the drug prescribed, and the probable cause affidavit provides further

       information regarding the dates on which each of the prescriptions underlying

       the charges was issued and filled.” (Appellant’s Reply Br. pp. 16-17). We agree

       with the State and find that these details in the charging documents distinguish

       the present case from Griffin. As noted by the State, any attempt to prosecute

       Sturman again “for these reckless homicides or acts of issuing the same

       prescriptions would be clearly and easily barred by [the double jeopardy] actual

       evidence test because it could only be based on the same evidence of the same

       prescriptions relied upon by the State in this case.” (Appellant’s Reply Br. pp.

       16-17). Therefore, we find no abuse of discretion in the trial court’s denial of

       Sturman’s motion to dismiss these charges because the State has alleged the

       crimes charged with sufficient certainty so as to avoid double jeopardy.




       Court of Appeals of Indiana | Opinion 49A02-1601-CR-8 | July 14, 2016    Page 30 of 37
                                 B. Counts 4-19: Unconstitutional Vagueness

[45]   Sturman lastly claims that the trial court erred in denying his motion to dismiss

       with respect to Counts 4-19 because Indiana Code section 16-42-19-20 of the

       Indiana Legend Drug Act is unconstitutionally vague. We review a

       constitutional challenge to a statute de novo. Morgan v. State, 22 N.E.3d 570, 573

       (Ind. 2014). A statute is presumed to be constitutional, and it is the burden of

       the party challenging the statute’s validity to overcome that presumption. Id. If

       a statute is capable of two reasonable interpretations, one of which is

       constitutional, “we will choose the interpretation that will uphold the

       constitutionality of the statute.” Id. at 573-74 (quoting Sims v. United States

       Fidelity & Guar. Co., 782 N.E.2d 345, 349 (Ind. 2003)). We will “nullify a

       statute on constitutional ground only where such result is clearly rational and

       necessary.’” Id. at 574 (quoting Sims, 782 N.E.2d at 349).


[46]   A criminal statute may be found unconstitutionally vague “(1) for failing to

       provide notice enabling ordinary people to understand the conduct that it

       prohibits” or “(2) for the possibility that it authorizes or encourages arbitrary or

       discriminatory enforcement.” Id. at 573 (quoting Brown v. State, 868 N.E.2d

       464, 467 (Ind. 2007)). A criminal notice 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.’” Id. at 574 (quoting Brown, 868

       N.E.2d at 467). It is well established that “criminal statutes do not require

       absolute precision in order to pass constitutional muster. Rather, a statute

       Court of Appeals of Indiana | Opinion 49A02-1601-CR-8 | July 14, 2016     Page 31 of 37
       ‘need only inform the individual of the generally proscribed conduct, [and] need

       not list with itemized exactitude each item of conduct prohibited.” Id. at 575

       (alteration in original) (quoting State v. Lombardo, 738 N.E.2d 653, 656 (Ind.

       2000)). “There must be something in the criminal statute in question to

       indicate where the line is to be drawn between trivial and substantial things, so

       that erratic arrests and convictions for trivial acts and omissions will not occur.”

       Baumgartner v. State, 891 N.E.2d 1131, 1136 (Ind. Ct. App. 2008). A statute will

       only be found void for vagueness if it is “vague as applied to the precise

       circumstances of the present case. The defendant is not at liberty to devise

       hypothetical situations which might demonstrate vagueness.” Id. (citations

       omitted).


[47]   In this case, the challenged statute provides that “[a] practitioner may not

       knowingly issue an invalid prescription or drug order for a legend drug.” I.C. §

       16-42-19-20(b). “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.” I.C. § 16-

       42-19-20(a) (emphasis added). A violation of this provision is a Class D felony.

       I.C. § 16-42-19-27(a) (2011). Sturman asserts that “[t]he use of the phrase

       ‘legitimate medical purpose’ renders [Indiana] Code [section] 16-42-19-20

       unconstitutionally vague as applied to Sturman both because it fails to put a

       person of ordinary intelligence on notice as to what does and does not

       constitute a legitimate medical purpose and because it authorizes arbitrary

       enforcement.” (Appellee’s Br. p. 32).


       Court of Appeals of Indiana | Opinion 49A02-1601-CR-8 | July 14, 2016      Page 32 of 37
[48]   Our courts have not yet addressed whether the phrase “legitimate medical

       purpose”—which is not defined by statute—is unconstitutionally void for

       vagueness. We have long held that “[p]enal statutes should be interpreted in

       order to give efficient operation to the expressed intent of the legislature.

       Words and phrases are taken in their plain, ordinary, and usual meaning unless

       a different purpose is manifested by the statute.” Glover v. State, 760 N.E.2d

       1120, 1123 (Ind. Ct. App. 2002) (citation omitted) (quoting Becker v. State, 703

       N.E.2d 696, 698 (Ind. Ct. App. 1998)), trans. denied. Sturman, relying on the

       Merriam-Webster Online Dictionary, notes that the word “legitimate” is

       defined as “conforming to recognized principles or accepted rules and

       standards.” (Appellee’s Br. p. 33). The word “medical” means “of, relating to,

       or concerned with physicians or the practice of medicine.” (Appellee’s Br. p.

       33). Finally, the definition of the term “purpose” is “the aim or intention of

       something.” (Appellee’s Br. p. 33). Based on “the plain meaning” of these

       words, Sturman surmises that “a prescription issued for a ‘legitimate medical

       purpose’ is a prescription the aim or intention of which is to conform to

       recognized principles or accepted rules and standards relating to the practice of

       medicine.” (Appellee’s Br. p. 33) (internal quotation marks omitted). This

       presents a vagueness problem, according to Sturman, because the General

       Assembly has failed to give


               any indication [(1)] what the recognized principles or accepted
               rules and standards are[;] or [(2)] who determines when a
               principle has become recognized or when a rule or standard has
               become accepted[;] or [(3)] where one should look to determine if


       Court of Appeals of Indiana | Opinion 49A02-1601-CR-8 | July 14, 2016     Page 33 of 37
               a principle is recognized or not or whether a rule or standard is
               accepted or not.


       (Appellee’s Br. pp. 33-34). 6 We disagree.


[49]   The fact that the statute itself does not define what the accepted standards are

       does not render the provision vague because, as Sturman recognizes, the phrase

       “legitimate medical purpose” requires physicians to prescribe legend drugs in

       accordance with the commonly recognized standards of the medical field. In

       the context of medical malpractice cases, our courts have long relied on the

       expert testimony of other medical professionals to set forth the applicable

       standard of care and to offer an opinion as to whether the care that was

       rendered by a defending physician fell below that standard. See, e.g., Syfu v.

       Quinn, 826 N.E.2d 699, 704 (Ind. Ct. App. 2005). In the present case, Dr. King

       testified that physicians are held to a standard of care in prescribing controlled

       substances. Where state and federal laws do not specifically regulate

       prescribing practices, Dr. King explained that physicians are expected to look to

       learned treatises published by medical professional organizations “to determine

       the standards.” (Tr. p. 24). Dr. King also indicated that practitioners define the

       appropriate standards of care based on their experience in practicing medicine

       over time, which “leads to a spectrum of standards.” (Tr. p. 26). Thus,




       6
         We do not address Sturman’s argument that the trial court misinterpreted a federal case in determining that
       Indiana Code section 16-42-19-20 is not unconstitutionally vague because our review of the statute’s
       constitutionality is de novo. Morgan, 22 N.E.3d at 573.

       Court of Appeals of Indiana | Opinion 49A02-1601-CR-8 | July 14, 2016                          Page 34 of 37
       physicians have discretion to choose among a wide range of treatment options,

       but “there are endpoints beyond which it can be considered not to be within the

       standards.” (Tr. p. 27). In all cases though, Dr. King specified that a legitimate

       medical practice requires physicians to conduct an independent medical

       examination; establish a diagnosis; formulate a treatment plan; and monitor the

       patient for effect.


[50]   Ultimately, we find that the phrase “for a legitimate medical purpose” is clearly

       intended to permit doctors, acting within the bounds of the standards of the

       medical field, to treat patients with diagnosed medical conditions. At the same

       time, the statute is intended to prevent physicians from acting as common drug

       dealers by prescribing drugs to individuals with contraindications for controlled

       substances and without first examining the patient, establishing a diagnosis,

       formulating a treatment plan, and monitoring the effects of the prescribed

       medications. Because the statute plainly informs physicians that they must look

       to the accepted standards of care of the medical profession, we conclude that

       the statute provides sufficient notice of the prohibited conduct.


[51]   However, Sturman also argues that the statute is unconstitutionally vague

       because it authorizes arbitrary enforcement. Specifically, Sturman contends

       that “the language employed in [Indiana] Code [section] 16-42-19-20 surrenders

       too much discretion to other branches of government to decide who has

       violated them and who has not.” (Appellee’s Br. p. 37). That is, “the General

       Assembly has left to police and prosecutors and juries to decide how to define

       ‘legitimate medical purpose’ with no meaningful guidance. . . . [W]hether or

       Court of Appeals of Indiana | Opinion 49A02-1601-CR-8 | July 14, 2016   Page 35 of 37
       not a criminal defendant faces charges under [Indiana] Code [section] 16-42-19-

       20 will depend on something as arbitrary as . . . a doctor with a particular

       philosophy and opinion that some other doctor was not acting with a legitimate

       medical purpose.” (Appellee’s Br. pp. 37-38). Again, we disagree.


[52]   Like Indiana’s Legend Drug Act, the federal Controlled Substances Act (CSA)

       prohibits any person from knowingly or intentionally dispensing a controlled

       substance. See 21 U.S.C. § 841(a)(1) (2010). An exception to the CSA permits

       authorized medical professionals to prescribed controlled substances “only ‘for

       a legitimate medical purpose by an individual practitioner acting in the usual

       course of his professional practice.’” United States v. Birbragher, 603 F.3d 478,

       485 (8th Cir. 2010) (quoting 21 C.F.R. § 1306.04(a)); see 21 U.S.C. § 829(a),(b)

       (authorizing a “practitioner” to prescribe controlled substances). The Birbragher

       court found the provisions of the CSA “sufficiently clear that the speculative

       danger of arbitrary enforcement does not render it void for vagueness.”

       Birbragher, 603 F.3d at 489. This is because the statute creates a “narrow

       exception for distribution [of controlled substances] within the usual scope of

       professional practice” and “[n]either the government nor the jury is free to

       impose its own subjective views about what is and is not appropriate; rather, the

       government is obliged to prove, and the jury constrained to determine, what the

       medical profession would generally do in the circumstances.” Id. at 485

       (quoting United States v. Quinones, 536 F.Supp.2d 267, 274 (E.D. N.Y. 2008)).

       We agree with this rationale and therefore conclude that Indiana Code section

       16-42-19-20 is not unconstitutionally vague because it allows for arbitrary


       Court of Appeals of Indiana | Opinion 49A02-1601-CR-8 | July 14, 2016    Page 36 of 37
       enforcement. Because this statute is not unconstitutionally vague, the trial

       court did not abuse its discretion by denying Sturman’s motion to dismiss

       Counts 4-19.


                                                 CONCLUSION

[53]   Based on the foregoing, we conclude that the trial court abused its discretion by

       dismissing Counts 1-3 on the basis that the trial court failed to state an offense

       in the Information, and by dismissing Count 1 as being barred by the statute of

       limitations. We further conclude that the trial court did not abuse its discretion

       by denying Sturman’s motion to dismiss Counts 1-6 and 8-19 on the basis that

       the charges do not state the alleged offenses with sufficient certainty; nor did the

       trial court abuse its discretion by denying Sturman’s motion to dismiss Counts

       4-19 on the basis that Indiana Code section 16-42-19-20 is unconstitutionally

       vague.


[54]   Affirmed in part, reversed in part, and remanded.


[55]   Kirsch, J. and Pyle, J. concur




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