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COA upholds most of man’s spice convictions

December 17, 2014

The Indiana Court of Appeals Wednesday affirmed all but one of a man’s drug convictions related to his selling of the drug commonly referred to as “spice” in his smoke shop. The judges also chastised the deputy attorney general who handled the case for again submitting a “foul” smelling record.

Gary Elvers owned a retail smoke shop in Kokomo, where he sold a variety of products commonly known as “spice” and “bath salts.” But beginning July 1, 2011, substances containing JWH-122 and JWH-250 were banned under law from being sold. Those chemicals are often in spice.

An undercover cop bought several items from Elvers’ shop that turned out to contain those chemicals. Elvers finally removed them from his store after March 15, 2012. That’s when an amendment to the Synthetic Drug Law went into effect.

A search warrant of the shop found nearly 1,000 spice and bath salt products in the building, with most of the randomly selected items tested containing those banned chemicals.

Elvers was convicted of two counts of Class D felony dealing in the synthetic drug JWH-122, one count of Class D felony dealing in the synthetic drug JWH-250, and one count of Class D felony maintaining a common nuisance.

In Gary Elvers v. State of Indiana, he argued I.C. 35-38-4-10 is unconstitutional, the state improperly charged him, certain evidence shouldn’t have been admitted, and there isn’t sufficient evidence to support his conviction of dealing in a synthetic drug.

The judges found that although the law in question contains technical terms, Elvers still could have taken measures to ensure he was not selling merchandise with the banned drugs in them. They also found the Synthetic Drug Law’s weight enhancement was not unconstitutional as applied to his case because it is well established that the total weight of a final, deliverable drug product – and not just the pure component thereof – may be used to support a weight enhancement, Judge Patricia Riley wrote.

There is also sufficient evidence to show Elvers intended to deliver the drugs. But, he should have only been charged with one count of dealing in JWH-122 because it appears the state charged him based on the brands he had in his possession, not just that he possessed the drug. The COA ordered the trial court to vacate his conviction on Count V.

Finally, Riley noted that this court record has the same “foul odor consistent with cigarette or pipe smoke” that the judges have come across two times previously, despite the court’s request that attorneys refrain from smoking when handling the appellate record.

“It appears that our requests were disregarded because the record in the instant case is permeated with the same repugnant stench. The fact that all three of these malodorous records were handled by the same Deputy Attorney General prompts us to direct this third entreaty to the Office of the Attorney General with the demand that our request for clean, unscented records be heeded.”

 

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