                                                                 Jan 27 2015, 9:28 am




ATTORNEYS FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
Mark W. Rutherford                                         Gregory F. Zoeller
Stephen R. Donham                                          Attorney General of Indiana
Thrasher Buschmann & Voelkel, P.C.
                                                           Ellen H. Meilaender
Indianapolis, Indiana
                                                           Deputy Attorney General
                                                           Indianapolis, Indiana



                                            IN THE
    COURT OF APPEALS OF INDIANA


Aadil Ashfaque,                                           January 27, 2015

Appellant-Defendant,                                      Court of Appeals Cause No.
                                                          49A02-1404-CR-286
        v.                                                Appeal from the Marion Superior
                                                          Court; The Honorable Jose Salinas,
                                                          Judge;
State of Indiana,                                         49G14-1305-FD-29521
Appellee-Plaintiff.




May, Judge.




Court of Appeals of Indiana | Opinion 49A02-1404-CR-286 | January 27, 2015               Page 1 of 13
[1]   Aadil Ashfaque appeals the denial of his motion to dismiss Count I, Class D

      felony dealing in a synthetic drug1 and Count II, Class D felony possession of a

      synthetic drug.2 He presents multiple issues for our review, one of which we

      find dispositive: whether, at the time of Ashfaque’s alleged offenses, Ind. Code

      § 35-48-4-10(a), which prohibited dealing in a synthetic drug, and Ind. Code §

      35-48-4-11, which prohibited possession of a synthetic drug, were

      unconstitutionally vague when the synthetic drug alleged to have been dealt in

      or possessed was not listed in the relevant provisions of the Indiana Code and

      could be found only in the Pharmacy Board Regulations?


[2]   We reverse and remand.


                                     Facts and Procedural History
[3]   On May 8, 2013, the State charged Ashfaque with offenses including Class D

      felony dealing in a synthetic drug and Class D felony possession of a synthetic

      drug following a traffic stop during which XLR11 was discovered in Ashfaque’s

      possession. On June 4, Ashfaque filed a motion to dismiss the dealing and

      possession counts. The trial court denied Ashfaque’s motion. The trial court

      certified the issue for interlocutory appeal and we accepted jurisdiction.




      1
          Ind. Code § 35-48-4-10(a)(2) (2012).
      2
          Ind. Code § 35-48-4-11(1) (2012).



      Court of Appeals of Indiana | Opinion 49A02-1404-CR-286 | January 27, 2015   Page 2 of 13
                                      Discussion and Decision
[4]   Generally, we review the denial of a motion to dismiss for an abuse of

      discretion, McCown v. State, 890 N.E.2d 752, 756 (Ind. Ct. App. 2008), while

      taking the facts stated in the charging information as true. Delagrange v. State,

      951 N.E.2d 593, 594 (Ind. Ct. App. 2011). However, when, as here, the denial

      rests on the trial court’s interpretation of a statute, we review the decision de

      novo. McCown, 890 N.E.2d at 756. The trial court denied Ashfaque’s motion to

      dismiss without findings of fact or conclusions of law.


[5]   Our Indiana Supreme Court stated in Brown v. State:

              A challenge to the validity of a statute must overcome a presumption
              that the statute is constitutional. State v. Lombardo, 738 N.E.2d 653,
              655 (Ind. 2000). The party challenging the statute has the burden of
              proving otherwise. Brady v. State, 575 N.E.2d 981, 984 (Ind. 1991).


              Due process principles advise that a penal statute is void for vagueness
              if it does not clearly define its prohibitions. Klein v. State, 698 N.E.2d
              296, 299 (Ind. 1998) (citing Grayned v. City of Rockford, 408 U.S. 104, 92
              S.Ct. 2294, 33 L.Ed.2d 222 (1972)). A criminal statute may be
              invalidated for vagueness for either of two independent reasons: (1)
              for failing to provide notice enabling ordinary people to understand the
              conduct that it prohibits, and (2) for the possibility that it authorizes or
              encourages arbitrary or discriminatory enforcement. City of Chicago v.
              Morales, 527 U.S. 41, 56, 119 S.Ct. 1849, 1859, 144 L.Ed.2d 67, 79-80
              (1999); Healthscript, Inc. v. State, 770 N.E.2d 810, 815-16 (Ind. 2002). A
              related consideration is the requirement that a penal statute 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.” Healthscript, Inc., 770 N.E.2d at 816 (quoting United
              States v. Harriss, 347 U.S. 612, 617, 74 S.Ct. 808, 812, 98 L.Ed. 989,
              996 (1954)). In State v. Downey, 476 N.E.2d 121, 123 (Ind. 1985), this

      Court of Appeals of Indiana | Opinion 49A02-1404-CR-286 | January 27, 2015        Page 3 of 13
              Court emphasized that “there must be something in a criminal statute
              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. It cannot be left to juries, judges, and
              prosecutors to draw such lines.” Accordingly, the statutory language
              must “convey sufficiently definite warning as to the proscribed
              conduct when measured by common understanding.” Rhinehardt v.
              State, 477 N.E.2d 89, 93 (Ind. 1985).


              But a statute “is not void for vagueness if individuals of ordinary
              intelligence could comprehend it to the extent that it would fairly
              inform them of the generally proscribed conduct.” Klein, 698 N.E.2d
              at 299; accord Lombardo, 738 N.E.2d at 656. And the statute does not
              have to list specifically all items of prohibited conduct; rather, it must
              inform the individual of the conduct generally proscribed. Lombardo,
              738 N.E.2d at 656. The examination of a vagueness challenge is
              performed in light of the facts and circumstances of each individual
              case. Id.


[6]   868 N.E.2d 464, 467 (Ind. 2007). Ashfaque was charged with Class D felony

      dealing in a synthetic drug and Class D felony possession of a synthetic drug.

      By the standard articulated in Brown, the 2012 versions of Ind. Code §§ 35-48-4-

      10(a) and 11 effective at the time of Ashfaque’s alleged offenses3 were

      unconstitutionally vague to the extent they rely on the term “synthetic drug”4 as

      defined by Ind. Code § 35-31.5-2-321(9).




      3
       The relevant statutes were amended on May 7, 2013, two days after Ashfaque allegedly committed the
      offenses. We address only the statutes effective at the time of Ashfaque’s alleged crimes.
      4
       Prior to 2012, Ind. Code §§ 35-48-4-10 and 11 prohibited dealing in and the possession of a “synthetic
      cannabinoid.” “Cannabinoid” was changed to “drug” as part of Public Law 78-2012. The term “synthetic
      drug” is used in most statutes, including Ind. Code § 35-315-2-321(9). However, the term “synthetic
      substance” is used as part of Pharmacy Board Emergency Rule #12-493(E).

      Court of Appeals of Indiana | Opinion 49A02-1404-CR-286 | January 27, 2015                   Page 4 of 13
[7]    At the time Ashfaque allegedly committed the offenses, Ind. Code § 35-31.5-2-

       321 listed over sixty specific chemical compounds, and it included eleven

       sections regarding compounds “structurally derived” from other chemicals.

       Ind. Code § 35-31.5-2-321(1) - (8) (2012). It also stated a synthetic drug is

       “[a]ny compound determined to be a synthetic drug by rule adopted under IC

       25-26-13-4.1.” Ind. Code § 35-31.5-2-321(9) (2012). Ind. Code § 25-26-13-4.1

       (2012),5 which outlines the duties of the Pharmacy Board, states:

[8]            (a) The board may adopt an emergency rule to declare that a substance
               is a synthetic drug.


[9]            (b) The board may adopt an emergency rule declaring a substance to
               be a synthetic drug if the board finds that the substance:


[10]           (1) has been scheduled or emergency scheduled by the United States
               Drug Enforcement Administration; or


[11]           (2) has been scheduled, emergency scheduled, or criminalized by
               another state.


[12]           (c) A rule adopted under this section becomes effective thirty (30) days
               after it is filed with the publisher under IC 4-22-2-37.1.


[13]           (d) A rule adopted under this section expires on June 30 of the year
               following the year in which it is filed with the publisher under IC 4-22-
               2-37.1.




       5
        Ind. Code § 25-26-13-4.1 (2012) was later amended to add other criteria the Pharmacy Board must consider
       when adopting an emergency rule declaring a substance is a synthetic drug.

       Court of Appeals of Indiana | Opinion 49A02-1404-CR-286 | January 27, 2015                   Page 5 of 13
[14]           (e) The board may readopt under this section an emergency rule that
               has expired.


[15]   Ashfaque argues Ind. Code § 35-31.5-2-321(9) and by implication Ind. Code §

       25-26-13-4.1 are void for vagueness because “[a]n ordinary person cannot be

       required to follow and understand Indiana’s synthetic drug statutory maze.”

       (Br. of Appellant at 25.) We agree.


[16]   Ashfaque’s charging information indicated he allegedly sold and possessed

       XLR11. That drug was not listed as a synthetic drug under Ind. Code §§ 35-

       31.5-2-321(1-8) on May 5, 2013, and nothing in the charging information

       indicates which Pharmacy Board emergency rule declared XLR11 a synthetic

       drug pursuant to the provisions in Ind. Code § 35-31.5-2-321(9) and Ind. Code §

       25-26-13-4.1 (2012).6 A Pharmacy Board Emergency Rule, LSA Document #

       12-493(E) (“Emergency Rule”), declared XLR11 a “synthetic substance”

       effective September 15, 2012.7 However, Ind. Code § 25-26-13-4.1 did not

       authorize the Pharmacy Board to declare something a “synthetic substance” in

       an Emergency Rule. Instead, the Emergency Rule permits the declaration of a

       substance as a “synthetic drug.” While that distinction might seem trivial, we

       believe the technical nature of this particular statute requires precision in

       language. For example, the Pharmacy Board may declare a new chemical




       6
        To further confuse matters, the State cited Ind. Code § 35-41-1-26.3 as the source for the definition of
       “synthetic drug.” Ind. Code § 35-41-1-26.3 was repealed almost a year prior to Ashfaque’s alleged offenses.
       7
        The Emergency Rule was filed with the publisher on August 15, 2012. Therefore, pursuant to the language
       of Ind. Code § 25-26-13-4.1, the Emergency Rule did not go into effect until September 15, 2012.

       Court of Appeals of Indiana | Opinion 49A02-1404-CR-286 | January 27, 2015                      Page 6 of 13
       concoction used to treat a deadly disease a “synthetic substance” and such a

       declaration would not invoke criminal consequences as does the Pharmacy

       Board’s declaration of something as a “synthetic drug.” See Brown v. State, 868

       N.E.2d 464, 468 (Ind. 2007) (noting alternate, legal uses for terms and the

       unconstitutional vagueness stemming therefrom). This linguistic confusion

       only adds to the vagueness of this statutory structure.


[17]   To understand the charges against him, a person of ordinary intelligence would

       have to first find the definition of “synthetic drug” in Ind. Code § 35-31.5-2-321,

       determine the synthetic drug alleged to be illegal is not in the very long list 8 in

       the statute, and finally look to Ind. Code § 25-26-13-4.1 to determine whether

       the drug may have been declared a synthetic drug by a Pharmacy Board

       Emergency Rule, the location of which is not specified in Ind. Code § 25-26-13-

       4.1.


[18]   The burden to meticulously weave through the labyrinth of criminal statutes,

       administrative code provisions, and not-yet-codified agency rules is inconsistent




       8
         The current statute appears to list in part (1) eighty-one specific compounds. Then, in parts (2) through
       (12), it lists unnamed compounds “structurally derived from” other compounds. See, e.g., Ind. Code § 35-
       31.5-2-321(2):
                Any compound structurally derived from 3-(1-naphthoyl)indole or 1H-indol-3-yl-(1-
                naphthyl)methane by substitution at the nitrogen atom of the indole ring by alkyl,
                haloalkyl, cyanoalkyl, alkenyl, cycloalkylmethyl, cycloalkylethyl, 1-(N-methyl-2-
                piperidinyl)methyl, 2-(4-morpholinyl)ethyl, or 1-(N-methyl-2-pyrrolidinyl)methyl, 1-(N-
                methyl-3-morpholinyl)methyl, or tetrahydropyranylmethyl group, whether or not further
                substituted in the indole ring to any extent and whether or not substituted in the naphthyl
                ring to any extent.



       Court of Appeals of Indiana | Opinion 49A02-1404-CR-286 | January 27, 2015                         Page 7 of 13
       with the “process” our Founding Fathers believed we were due before being

       charged with criminal offenses. No person of ordinary intelligence could

       determine what he is prohibited to possess or deal by the term “synthetic drug”

       in Ind. Code §§ 35-48-4-10(a) and 11, based on Ind. Code §§ 35-31.5-2-321(9)

       and 25-26-13-4.1. Therefore the portions of Ind. Code §§ 35-48-4-10(a) and 11

       in effect at the time of Ashfaque’s alleged offenses are void for vagueness to the

       extent they rely on definitions, including unnamed substances “structurally

       derived” from other substances, found in Ind. Code §§ 35-31.5-2-321(9) and 25-

       26-13-4.1. See Healthscript, 770 N.E.2d at 816 (holding the requirement that a

       person search through multiple statutes, then through the administrative code,

       “lacks the ‘sufficient definiteness’ that due process requires for penal statutes.”).


[19]   We distinguish our holding here from those in two recent decisions, Kaur v.

       State, 987 N.E.2d 164, 168 (Ind. Ct. App. 2013) and Elvers v. State, 34A02-1404-

       CR-239 (Ind. Ct. App., December 17, 2014), both which declined to hold Ind.

       Code §§ 35-31.5-2-321(1)-(8) void for vagueness. In Kaur, the State charged

       Kaur with dealing and possession of AM-2201, which is specifically referenced

       as a synthetic drug under Ind. Code § 35-31.5-2-321(1)(QQ) (2012). Our court

       affirmed Kaur’s convictions, because Kaur’s constitutional arguments centered

       around Ind. Code § 35-31.5-2-321(9), which was not the definition of “synthetic

       drug” relied upon in Kaur’s convictions. Regarding Ind. Code § 35-31.5-2-

       321(9), we stated, “We leave for another day - and express no opinion on - the

       question of whether a person charged with possession of one of the Board-

       specified synthetic drugs would have a meritorious Article II, Section 1


       Court of Appeals of Indiana | Opinion 49A02-1404-CR-286 | January 27, 2015   Page 8 of 13
       argument.” Kaur, 987 N.E.2d 164, 169 n.6. That day has come in the instant

       case, as Ashfaque was charged with dealing and possession of a synthetic drug,

       XLR11, which was specified as a “synthetic substance,” not a “synthetic drug”

       by a Pharmacy Board Emergency Rule.


[20]   Additionally, in Elvers, we clarified our decision in Kaur, holding the use of

       scientific terminology in Ind. Code § 35-31.5-2-321(1)-(8) does not render the

       statute unconstitutionally vague because the “novelty, complexity, and rapidly-

       evolving nature of synthetic drugs necessitates some scientific terminology in

       the law.” Elvers, slip op. at 3. Elvers also acknowledged his case did not

       involve those synthetic drugs defined as part of Pharmacy Board Emergency

       Rules, but only those synthetic drugs “specifically identified in the statute [Ind.

       Code § 35-31.5-2-321].” Id.


[21]   As Ind. Code §§ 35-48-4-10(a) and 11 form the basis for Counts I and II of

       Ashfaque’s charging information, and we hold those statutes are

       unconstitutionally vague based on the definition of “synthetic drug” set forth in

       Ind. Code § 35-31.5-2-321(9), the trial court erred when it denied Ashfaque’s

       motion to dismiss those charges.


[22]   Reversed and remanded.


       Friedlander, J., concurs. Vaidik, C.J., dissents, with separate opinion.




       Court of Appeals of Indiana | Opinion 49A02-1404-CR-286 | January 27, 2015   Page 9 of 13
                                                     IN THE
              COURT OF APPEALS OF INDIANA

       Aadil Ashfaque,                                             January 27, 2015

       Appellant-Defendant,                                        Court of Appeals Cause No.
                                                                   49A02-1404-CR-286
                  v.                                               Appeal from the Marion Superior
                                                                   Court; The Honorable Jose Salinas,
                                                                   Judge;
       State of Indiana,                                           49G14-1305-FD-29521
       Appellee-Plaintiff


       Vaidik, Chief Judge, dissenting.


[23]   I respectfully dissent from the majority’s holding that the statutory scheme in

       effect at the time of Ashfaque’s alleged crimes for dealing in and possession of

       synthetic drugs is void for vagueness because “[a]n ordinary person cannot be

       required to follow and understand Indiana’s synthetic drug statutory maze.”

       Slip op. at 5 (quotation omitted). I do so for the same reasons identified today

       in Judge Bailey’s dissent in Tiplick v. State, No. 49A04-1312-CR-617 (Ind. Ct.

       App. Jan. 27, 2015).


[24]   When Ashfaque allegedly committed the crimes on May 5, 2013, XLR-11 was

       not yet listed as a synthetic drug in Indiana Code section 35-31.5-2-321.9

       Chemical compounds can easily be altered slightly such that they no longer

       constitute the chemical structure specifically enumerated in the statute but



       9
           This section, however, was amended effective May 7, 2013, to include XLR-11. See P.L. 196-2013, Sec. 16.


       Court of Appeals of Indiana | Opinion 49A02-1404-CR-286 | January 27, 2015                     Page 10 of 13
remain equally as potent and dangerous. See, e.g., Candy Neal, Indiana Bills

Would Close Loophole in Synthetic Drug Law, Indiana Economic Digest (Feb. 9,

2012),

http://indianaeconomicdigest.com/main.asp?SectionID=31&subsectionID=13

5&articleID=63901. As a result, according to Indiana Code section 25-26-13-

4.1, the Board of Pharmacy may adopt an emergency rule to declare that a

substance is a synthetic drug. This section, in turn, refers to the statutory

procedure under which emergency rules may be published. See Ind. Code § 4-

22-2-37.1. Such rules are published in the Indiana Register in a format

determined by the publisher. I.C. § 4-22-2-37.1(d)-(f). Judge Bailey found that

this statutory scheme was not vague because each statutory cross-reference

“directs the reader to one, and only one, section of the Indiana Code.” Tiplick,

Cause No. 49A04-1312-CR-617, at 15 (Bailey, J., dissenting). Moreover, as

Judge Bailey found in Tiplick, “XLR11[] was expressly identified as a synthetic

drug under Emergency Rule 12-493(E), published in the Indiana Register,” as

early as August 2012, which is before Ashfaque allegedly committed the crimes

in this case. Id.; see also Appellant’s App. p. 63 (Emergency Rule 12-493(E)

listing XLR-11).10




10
   I do not share the majority’s concern that Emergency Rule 12-493(E)’s use of the term “synthetic
substance” instead of “synthetic drug” causes “linguistic confusion” that “adds to the vagueness of this
statutory structure.” Slip op. at 6. The emergency rule adds thirteen “synthetics,” including XLR-11,
according to “IC 25-26-13-4.1.” Appellant’s App. p. 63. Section 25-26-13-4.1, in turn, allows the Board of
Pharmacy to adopt an emergency rule to declare that a substance is a “synthetic drug.” (emphasis added).

Court of Appeals of Indiana | Opinion 49A02-1404-CR-286 | January 27, 2015                     Page 11 of 13
[25]   As Judge Bailey concludes, “[t]here are a finite number of locations in which an

       individual must have looked after August 2012 to determine whether XLR11

       was a synthetic drug covered by an Indiana Pharmacy Board rule . . . .” Tiplick,

       No. 49A04-1312-CR-617, at 15 (Bailey, J., dissenting). For this reason, this

       case is unlike Healthscript, upon which the majority relies, because in that case

       the reader was directed to an entire article of the Indiana Code comprising 280

       sections organized in 37 chapters.


[26]   Finally, I agree with Judge Bailey that such an argument is actually an attempt

       to claim ignorance of the law as a defense to criminal liability. Id. “Not having

       looked to the laws that apply to one’s actions does not excuse an individual

       from violating those laws.” Id. at 16. I, too, believe that the applicable laws

       and regulations are not so complex or overly broad as to preclude a person of

       ordinary intelligence from having fair notice of the criminal nature of XLR-11

       on vagueness grounds. Id.; see also Elvers v. State, No. 34A02-1404-CR-239, ---

       N.E.3d --- (Ind. Ct. App. Dec. 17, 2014) (“The novelty, complexity, and

       rapidly-evolving nature of synthetic drugs necessitates some scientific

       terminology in the law.”).


[27]   Because I do not believe that the statutory scheme that was in effect at the time

       of Ashfaque’s alleged crimes for dealing in and possession of synthetic drugs is




       Court of Appeals of Indiana | Opinion 49A02-1404-CR-286 | January 27, 2015   Page 12 of 13
void for vagueness, I respectfully dissent and would affirm the trial court’s

denial of Ashfaque’s motion to dismiss the dealing and possession counts.11




11
   To the extent Ashfaque raises an issue regarding the statutory cites in his charging information for the first
time on appeal, this issue was not certified and therefore cannot be addressed in this interlocutory appeal.
Moreover, the State still has the opportunity to amend the charging information.

Court of Appeals of Indiana | Opinion 49A02-1404-CR-286 | January 27, 2015                          Page 13 of 13
