Tiplick v. State

BAILEY, Judge,

dissenting.

[27] Upon review, the majority holds as void for vagueness the statutory scheme that criminalizes the dealing in and possession of synthetic drugs. The majority reasons that “[n]o person of ordinary, or even extraordinary, intelligence could determine what behavior is prohibited by the term ‘synthetic drug1 in Ind.Code §§ 35-48-4-10(a) and 11,” and that “to be sent on a ‘Where’s Waldo’ expedition is ludicrous.” Op. at 195 (citing Aquila, Inc. v. C.W. Mining, 545 F.3d 1258, 1268 (10th Cir.2008) (relating to the obligations of parties to cite to the record in support of statements of fact); Healthscript, Inc. v. State, 770 N.E.2d 810, 816 (Ind.2002) (holding as void for vagueness a statutory scheme criminalizing certain acts as Medicaid fraud)). Because I disagree with the majority’s reasoning here, I respectfully dissent.

[28] Central to the majority’s reasoning is the Indiana Supreme Court’s ruling in the Healthscript case. In Healthscript, a pharmacy was charged with Medicaid fraud “on the theory that Defendant had overcharged Medicaid for sterile water.” 770 N.E.2d at 813. Healthscript sought to dismiss the charging information, contending that the applicable criminal statute was void for vagueness because it was not “sufficiently definite to put [Healthscript] on notice that its alleged conduct was proscribed.” Id. The. charging statute defined as Medicaid fraud the “fil[ing] a Medicaid claim ... in violation of Indiana Code § 12-15.” Id. (quoting I.C. § 35-43-5-7.1(a)(1) (Supp.1997)).

[29] In reversing the trial court’s denial of Healthscript’s motion to dismiss the charges, the Healthscript Court conceded that the criminal statute “cross-references Ind.Code § 12-15.” Id. at 816. But the court observed that the cross-reference was extraordinarily broad. The reference in the criminal statute directed the reader to an entire article of the Indiana Code, “covering 50 pages of the 1993 Code and comprising 280 sections organized in 37 chapters.” Id. Many of the chapters of the *197code pertained only to state agencies responsible for administering Medicaid; others pertained to Medicaid recipients. Id. Thus, the court reasoned, “[t]he effect of the statute is to say that a provider is prohibited from filing a Medicaid claim ‘in violation of nothing more specific than this vast expanse of the Indiana Code.” Id. The Healthscript Court concluded that this was not “fair warning ... in language that the common world will understand, of what the law intends to do if a certain line is passed.” Id. (quotations omitted).

[30] I cannot agree with the majority that the statutory scheme at issue here is similarly vague. Each statutory cross-reference at issue here directs the reader to one, and only one, section of the Indiana Code. The rulemaking provision of Section 25-26-13-4.1, under which the Board of Pharmacy may make emergency rules concerning synthetic drugs, in turn refers directly to the statutory procedure under which emergency rules may be published. See I.C. § 4-22-2-37.1. Such emergency rules are published in the Indiana Register in a format determined by the publisher. I.C. §§ 4-22-2-37.1(d) — (f). The chemical substance for which Tiplick was charged here, XLR11, was expressly identified as a synthetic drug under Emergency Rule 12-493(E), published in the Indiana Register in August 2012.

[31] There 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: four statutory provisions and a set number of Indiana Pharmacy Board rules. Unlike the facts in Healthscript, the substantive provisions at issue here do not implicate a broad variety of possible parties and sets of statutory and regulatory provisions, almost all of which are irrelevant to a defendant like Tiplick. I thus cannot agree with the majority’s “Where’s Waldo” characterization of the statutory scheme.

[32] It seems to me that Tiplick’s void-for-vagueness challenge is more akin to an attempt to claim ignorance of the law as a defense to criminal liability. “[I]t is well-settled that ignorance of the law is no excuse for criminal behavior.”. Dewald v. State, 898 N.E.2d 488, 493 (Ind.Ct.App.2008), trans. denied. While “ignorance or mistake in point of fact” may in some circumstances excuse “acts honestly done while so misled,” nevertheless “every man is presumed to know the laws of the country in which he dwells.” Marmont v. State, 48 Ind. 21, 31 (1874).

[33] Not having looked to the laws that apply to one’s actions does not excuse an individual from violating those laws. Ti-plick was alleged to have engaged in the sale of a drug; he does not claim that the drug was not subject to an emergency regulation. The applicable laws and regulations are not so complex or overly broad as to preclude a person of ordinary intelligence from having fair notice of the crimR nal nature of the sale of XLR11 on the basis of vagueness.14

[34] I therefore respectfully dissent.

. Of particular note is that Tiplick was not charged as the result of a street-corner sting. The probable cause affidavit indicates that he was instead working at a retail establishment known as the “Smoke Shop" in 2012, at least one year after the Indiana General Assembly first passed legislation to respond to the sale of synthetic drugs at retail establishments. See Kaur v. State, 987 N.E.2d 164, 167 (Ind.Ct.App.2013), trans. denied; App’x at 27.