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Indiana Court Decisions - Aug. 3-16, 2016

August 24, 2016

7th Circuit Court of Appeals

Aug. 9

Civil – Disability Benefits

Louquetta R. O’Connor-Spinner v. Carolyn W. Colvin, acting commissioner of Social Security

15-2567

Fifteen years after a woman first applied for disability benefits based on degenerative disk disease, obesity, depression, and other ailments, she continues to fight the denial of benefits by the Social Security Administration. The 7th Circuit Court of Appeals ordered the SSA take another look at her case, the second time it has done so.

Louquetta R. O’Connor-Spinner, 47, has applied several times since 2001 for disability insurance benefits and supplemental security income. In 2004, the SSA denied her request, but the 7th Circuit reversed in 2010. The court found the administrative law judge had committed two errors related to her depression. First, the ALJ had not asked a testifying vocational expert to assess how her employment prospects would be affected by her moderate limitation on concentration, persistence and pace. Second, the ALJ ignored a psychologist’s opinion that O’Connor-Spinner also faces a moderate limitation on her ability to accept instructions from, and respond appropriately to, supervisors, Circuit Judge Daniel Manion wrote in the decision.

But O’Connor-Spinner’s case was reassigned to a new ALJ who concluded that her depression is not and has never been a severe impairment. This decision was affirmed in the Southern District of Indiana.

“Had the new ALJ followed our narrow instructions to address the shortcomings in his predecessor’s decision, this appeal would be simple (if necessary at all). But instead the ALJ reevaluated O’Connor-Spinner’s condition himself and, despite new evidence that strengthens the earlier finding that she suffers from severe depression, found the opposite,” Manion wrote.

“But here the ALJ decided that ‘major depression, recurrent severe’ isn’t a severe impairment based on the opinions of two state-agency psychologists who did not even examine, let alone treat, O’Connor-Spinner. That determination is not supported by substantial evidence and, indeed, strikes us as nonsensical given the diagnosis, by definition, reflects a practitioner’s assessment that the patient suffers from ‘clinically significant distress or impairment in social, occupational, or other important areas of functioning,’” Manion wrote, citing the American Psychiatric Association.

“We have not found a published opinion from any circuit in which an ALJ declared that major depression was not a severe impairment, although two unpublished decisions soundly reject this assertion. Rather than relying on the guidance of professionals and evidence from O’Connor-Spinner’s treating sources, the ALJ ‘played doctor’ by substituting his opinion for their medical judgment.”

Manion noted six years after the court remanded O’Connor-Spinner’s case with simple instructions, the matter remains unresolved because the new ALJ failed to comply with the court’s instructions. As such, the 7th Circuit vacated the judgment of the District Court and remanded the case to the agency. On remand, the ALJ should determine what limitations are caused by O’Connor-Spinner’s “major depression, recurrent severe” and fully explore with a vocational expert the effect of those limitations on her ability to engage in competitive employment.
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Aug. 10

Civil – State Debt Collection

Alphonse D. Owens v. LVNV Funding, LLC; Joshua Birtchman v. LVNV Funding LLC, et al.

15-2044, 15-2082, 15-2109

The 7th Circuit Court of Appeals was divided over whether debt collectors violated the Fair Debt Collection Practices Act when they attempted to collect stale debts in Chapter 13 bankruptcy proceedings.

In each of the three consolidated cases before the federal appellate court, the debt collector filed a proof of claim for a time-barred debt in a Chapter 13 bankruptcy proceeding. The debtors in each case successfully objected to the proof of claim and then sued the debt collectors, alleging the act of filing a proof of claim on a stale debt violates sections 1692e and 1692f of the Fair Debt Collection Practices Act.

The district courts in each of the three cases granted the debt collectors’ motions to dismiss.

A claim in bankruptcy can include a stale debt, as the statute of limitations doesn’t extinguish the debt, but merely limits the avenues of collection, the majority of Judges Joel Flaum and William Bauer held. “The Bankruptcy Code contemplates that creditors will file proofs of claim for unenforceable debts — including stale debts — and that the bankruptcy court will disallow those claims upon the debtor’s objection.” Flaum noted that the U.S. Supreme Court has repeatedly recognized that Congress intended for the term “claim” to have the broadest possible definition. Filing such a proof of claim is not inherently misleading or deceptive.

The 7th Circuit, in Phillips v. Asset Acceptance LLC, 736 F.3d 1078, held that filing a state court lawsuit to collect on a stale debt violates the FDCPA. The plaintiffs in the instant case contend that Phillips is applicable for their claims in the bankruptcy context.

Flaum acknowledged the circuit split on the issue of whether filing a proof of claim on a stale debt in bankruptcy is a misleading or deceptive act prohibited by the FDCPA. The majority sided with the 2nd Circuit Court of Appeals, citing its decision in Simmons v. Roundup Funding LLC, 622 F.3d 93, 94 (2d Cir. 2010), in which the 8th Circuit Court of Appeals also rejected a debtor’s request to extend the FDCPA to time-barred proofs of claim.

Flaum wrote the concerns identified in Phillips regarding the deceptive or misleading nature of the conduct are less acute when the proof of claim is filed in bankruptcy as opposed to a lawsuit filed in state of federal court. The proof of claim must inform the debtor of the age and origin of the debt, so the consumer doesn’t have to have a memory of it or records documenting it to file an objection. Also, debtors filing for bankruptcy usually are represented by attorneys who are familiar with the statutes of limitations for various debts.

The majority declined to follow the 11th Circuit Court of Appeals’ approach, which has held that the act of filing the proof of claim created a misleading impression to the debtor that the debt collector can legally enforce the debt.

Chief Judge Diane Wood dissented, writing she would align the 7th Circuit with the 11th Circuit. She would hold that the scheduling of a proof of claim on a debt that is undisputedly no longer collectible through judicial proceedings because the statute of limitations has expired violates the FDCPA.
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Aug. 11

Civil – Forum Non Conveniens

Ashoke Deb v. Sirva Inc., et al.

14-2484

The 7th Circuit Court of Appeals has ordered an Indianapolis federal court to take another look at a case involving a Canadian resident who sued moving companies for destroying his property he attempted to move from India to St. John’s, Canada.

Ashoke Deb contracted with Indian moving company Allied Lemuir to move his belongs from Calcutta to Canada. After signing a contract, Allied Lemuir sought more money to ship his belongings, but Deb refused. While dealing with Allied Lemuir, he contracted with the United States companies of SIRVA and Allied Van Lines to obtain his belongings. Deb learned more than three years later that Allied Lemuir had sold his property to pay the additional amounts it demanded from Deb regarding demurrage, fumigation, renewal of customs charges and sea freight.

Deb then sued SIRVA and Allied Van Lines in Indiana state court, but the case was moved to federal court. The companies, Delaware corporations, have corporate offices in Indiana.

SIRVA and Allied Van Lines filed a motion to dismiss based on the grounds of forum non conveniens, which the federal court granted in June 2014. Judge Tanya Walton Pratt held that both Indiana and Canada offered appropriate alternative forums for the action.

But this was incorrect, the 7th Circuit held.

“Combing the principles we discussed … that the district court may look beyond the bare allegations of the complaint where the defendants dispute facts related to venue, and that defendants bear the heavy burden of showing an alternate forum — we look to see whether the district court placed the burden on the defendants to demonstrate that an alternative forum was available, and whether the defendants met that burden,” Judge Ilana Rovner wrote.

“We conclude that the district court did not hold the defendants to the burden, nor did the defendants meet it. To the contrary, to the extent the defendants offered any evidence or argument at all, it was evidence that they would not, in fact, be subject to jurisdiction in India.”

The only way Deb could sue the companies in India is if they had something to do with the wrongdoing in India, but while making the argument that India has jurisdiction, the defendants refuse to acknowledge an actual legal affiliation with Allied Lemuir, Rovner pointed out.

With regard to the possibility that Canada offered a possible forum, Rovner noted the parties never briefed the issue of the Canadian court as an alternative forum and instead cited the Colorado River Doctrine, which allows courts to conserve judicial resources by not taking jurisdiction when there is a parallel proceeding elsewhere. But the district court didn’t engage in a Colorado River abstention analysis or a similar forum non conveniens analysis about Canada similar to that of India.
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Aug. 12

Civil - Habeas Corpus Petition

Walker Whatley v. Dushan Zatecky, superintendent

14-2534

A man convicted of Class A felony possession of three grams of cocaine within 1,000 feet of a “youth program center” in March 2008 will either be released from prison or resentenced after the 7th Circuit Court of Appeals granted his habeas corpus petition.

Walker Whatley was arrested at his home on a warrant, and during a search, the officer discovered a bag with more than three grams of cocaine in Whatley’s pocket. That offense would be a Class C felony normally, but because he was within 1,000 feet of a “youth program center” under I.C. 35-48-4-6, his charge was elevated to a Class A felony. He was within 800 feet of Robinson Community Church, which held programs throughout the month for people under the age of 18, but most were religious-based. The church did host a Girl Scout troop twice a month on Wednesdays. The pastor of the church at the time noted no youth programs occurred on Thursdays, the day Whatley was arrested. There was also no signage to alert someone of the youth programs.

If sentenced under the Class C felony, he faced a range of two to eight years; under the Class A felony, he faced a sentence of 20 to 50 years. The trial court sentenced Whatley to 35 years.

The statute at issue involving “youth program center” has since been repealed.

Whatley appealed and was victorious in the Court of Appeals, but the Indiana Supreme Court reversed in a 3-2 decision in 2010. He was unsuccessful in his state post-conviction relief attempts, and then turned to the federal courts. The U.S. District Court for the Southern District of Indiana denied his petition for habeas relief, declining to address his claims on the merits after holding he defaulted the claim.

Whatley argued that the statute was unconstitutionally vague, and the 7th Circuit agreed, finding issues with the Indiana Supreme Court’s ruling.

“The court’s analysis pointed to no objective criteria for a reasonable person to determine whether a particular facility qualified under the statute – that is, to determine whether a facility hosted youth programs on a regular versus an irregular basis – and instead delegated to the defendant or the facility itself the determination of whether its youth programs were held on a regular basis,” Judge Ilana Rovner wrote. “This circular analysis of a subjective and standardless term was both incorrect and unreasonable under Supreme Court precedent that requires criminal statutes to be based on discernable standards.”

The 7th Circuit also ruled that the Court of Appeals’ conclusion that fair notice is not required for strict-liability statutes is inconsistent with U.S. Supreme Court precedent that requires fair notice for all criminal statutes.

“The lack of an intent element in the statute does not cure the vagueness problem; it makes it worse by making unknowing defendants absolutely liable for violating an indeterminate standard,” she wrote.

The 7th Circuit concluded that under Harrington v. Richter, 562 U.S. 86, 97-98 (2011) and Brady v. Pfister, 711 F.3d 818, 824-25 (7th Cir. 2013), nothing in the record of the state courts supports the outcome of the case. The appellate judges found the courts’ reasoning to be unreasonable.

“Had Whatley possessed drugs within 1000 feet of a YMCA or a Boys and Girls Club, there would be no doubt that his conduct was within the core of the law. The State conceded in its argument to the Indiana Supreme Court that churches are not inherently places where children gather, and a handful of weekly events does nothing to provide fair notice or to discourage arbitrary enforcement of the statute,” Rovner wrote.

The 7th Circuit reversed the denial of his petition and remanded with instructions to grant the writ ordering that, within 60 days, Whatley either be released or he resentenced under the Class C felony statute. If he is resentenced, he should be given credit for the time served under the Class A felony conviction.

Indiana Court of Appeals

Aug. 4

Criminal – Cellphone Tracking/Warrant

Marcus Zanders v. State of Indiana

15A01-1509-CR-1519

A divided Indiana Court of Appeals ruled that cellphone users have a reasonable expectation to the privacy of their location information that’s tracked and collected by phone service providers. The majority’s holding reversed armed robbery convictions of an Ohio man found guilty of holding up two Dearborn County liquor stores.

Judges Patricia Riley and Rudolph R. Pyle III held that vacating Marcus Zanders’ convictions was necessary after police, without a warrant, sought and were provided data that pinpointed his location around the time of the robberies. This information was crucial to the prosecution in a case the majority wrote was otherwise largely circumstantial.

“Zanders had a reasonable expectation of privacy in the cell-site location data stored by Provider and obtained by (Dearborn County Sheriff’s Department) Detective (Garland) Bridges and his expectation was one that society considers reasonable and legitimate,” Riley wrote. “Cell-site data is not the type of information which spoils or perishes during the short time it takes to get a warrant and, as such, imposing the requirements for a warrant under these circumstances would hardly shackle law enforcements from conducting effective investigations.

“We require police officers to do what they have done for decades when seeking to intrude upon a reasonable expectation of privacy: get a warrant,” the majority wrote. “As Detective Bridges neglected to get a warrant, we reverse and order the trial court to vacate Zanders’ convictions.” The majority observed in a footnote, however, that the state did not make a “harmless error” argument, so the panel did not perform that analysis in this case.

Zanders was convicted of two counts each of Level 3 felony robbery with a deadly weapon and Level 4 felony possession of a firearm by a serious violent felon. He also was adjudicated a habitual offender. A jury found him guilty of the armed robberies of Whitey’s Liquor in Lawrenceburg and J&J Liquor in Dillsboro within a few days in early 2015 and sentenced him to an aggregate term of 61 years in prison.

The majority relied on Riley v. California,134 S.Ct. 2473 (2014) and Wertz v. State, 41 N.E.3d 276 (Ind. 2015) to find the reasonable expectation of privacy in cellphone location data. But in dissent, Judge James Kirsch found precedent in a recent ruling from the federal Circuit Court based in Richmond, Virigina.

“In United States v. Graham, the United States Court of Appeals for the Fourth Circuit, sitting en banc, held that individuals do not have a reasonable expectation of privacy in historical cell-site location records maintained by cell phone providers. No. 12-4659, No. 12-4825, 2016 WL 3068018, at *3 (4th Cir. May 31, 2016). As a result, the government’s acquisition of such data from the defendant’s cellular providers, without a warrant, did not violate the Fourth Amendment to the United States Constitution.

“Although I share the concerns of my colleagues regarding the tensions arising from the constantly mushrooming technology, the government here did not transgress the defendant’s reasonable expectations, and I would affirm his convictions,” Kirsch wrote.

Civil Tort - Negligence

David Shelton, as Personal Representative of the Estate of Sharon K. Clearwaters v. Kroger Limited Partnership I

49A02-1601-CT-75

Kroger must face a claim that its potential negligence in filling a prescription contributed to the death of a woman after she sought treatment for acute bronchitis, the Indiana Court of Appeals ruled in a reversal.

A doctor and his employer who are unnamed in the court record prescribed Levofloxacin to Sharon K. Clearwaters despite knowing she had a chronic heart condition for which she was taking Amiodarone and Warfarin, for which Levofloxacin is counter-indicated. The drug can cause interactions including causing the heart to beat out of rhythm.

The day the prescription was filled at a Kroger pharmacy in December 2012, Clearwaters went into cardiopulmonary arrest and died after taking the Levoflaxacin. Clearwaters’ estate filed a notice of suit in November 2013 against the health care providers and Kroger.

In August 2014, the doctor and his employer settled with David Shelton, the personal representative of Clearwaters’ estate, and they were later dismissed from the complaint. Kroger amended its answer to assert a non-party defense. Kroger argued it is entitled to a credit or set-off from the health care providers’ settlement. Kroger filed a motion for partial summary judgment that was granted by Marion Superior Judge James B. Osborn.

This was error, the Court of Appeals ruled on an interlocutory appeal that was accompanied by an amicus brief on behalf of the Indiana Trial Lawyers Association.

“In this case, the (Indiana Department of Insurance) determined that Kroger was not a qualified health care provider under the Medical Malpractice Act,” Judge Cale Bradford wrote for the panel. “Kroger, therefore, was not exempted from the Comparative Fault Act.” As such, “Kroger was not entitled to receive a credit or set-off with relation to Shelton’s settlement.

“We further instruct the trial court that on remand, Kroger may only seek to limit its potential liability through its asserted non-party defense,” the panel concluded.
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Aug. 5

Criminal – Sentence Modification

William J. Woodford v. State of Indiana

20A03-1601-CR-171

An inmate’s pro se legal briefs arguing for a modification of his 70-year drug sentence impressed the Indiana Court of Appeals, who granted him another chance to make his case that he deserves leniency as a model prisoner who made the best of his time behind bars.

Woodford, 61, has been in prison for 16 years after he was convicted of Class A felony dealing in cocaine, Class D felony possession of a controlled substance, and being adjudicated a habitual offender. Elkhart Circuit Judge Terry C. Shewmaker ordered that the final 12 years of Woodford’s sentence be served on in-home detention in community corrections. Woodford appealed because Shewmaker didn’t reduce his sentence despite Woodford’s exemplary record in the Department of Correction.

In September 2015, Woodford filed a sentence modification petition that asked he be placed in community corrections. He cited his age, educational achievements, and the fact he had remained free of conduct violations during his 16 year incarceration. He argued on appeal that he was entitled to the full relief he sought and asked the court to weigh his appeal as an abuse of the trial court’s discretion, which the Court of Appeals declined to do.

“The 2015 sentence modification statute gives the court authority to ‘reduce or suspend the sentence and impose a sentence that the court was authorized to impose at the time of sentencing,” Judge L. Mark Bailey wrote, citing I.C. § 35-38-1-17(e)(Supp. 2015). “Based on our review of the hearing transcript and the court’s written order, it is unclear whether the trial court was operating under the 2015 sentence modification statute when it modified Woodford’s placement rather than reduce or suspend his sentence. Accordingly, we will not review the trial court’s modification order for abuse of discretion as Woodford requests, but instead remand the petition for consideration under Indiana Code § 35-38-1-17 (Supp. 2015).”

The court made this observation in a footnote: “Woodford obtained a legal assistance/paralegal diploma, earned a computer operator apprenticeship, and completed an associate degree in organizational leadership with a 3.917 GPA. Given the quality of Woodford’s written briefs in this case, we are not surprised by Woodford’s academic achievements.”

The court also rejected the state’s arguments that Woodford could not seek a modification without the consent of the prosecutor. Consent was not required because Woodford’s convictions were not for violent offenses, the panel wrote.

Post Conviction – Ineffective Assistance of Counsel

Jason Dean Hubbell v. State of Indiana

03A01-1511-PC-1927

A man convicted of killing a female co-worker whose skeletal remains were found in a Johnson County marsh was denied an opportunity to use the court record to plead his counsel was ineffective as he sought post-conviction relief, the Indiana Court of Appeals ruled.

Jason Dean Hubbell was convicted in November 1999 of the strangulation murder of Sharon Myers, with whom he had worked at an Arvin Industries plant in Columbus. Myers had disappeared on the morning of May 13, 1997; her remains weren’t discovered until nearly six months later.

Hubbell’s convictions for murder and criminal confinement and his 75-year sentence were affirmed by the Indiana Supreme Court in 2001, after which he began the first of a number of post-conviction relief petitions.

In this case, he argued ineffective assistance of counsel, but prosecutors objected to his questioning of a former defender by referring to court records that were not certified. The judge sustained those objections and denied Hubbell’s request for the court to obtain the certified record — something Hubbell could not do from the Department of Correction.

“Rather than obtaining the Record of Proceedings for Hubbell, the post-conviction court imposed on Hubbell ‘the affirmative duty to get the [R]ecord [of Proceedings] to the PCR Court,’” Judge Elaine Brown wrote for the panel. “It is not apparent how Hubbell could have accomplished that task when he is not a licensed lawyer, he is proceeding pro se, and he is indigent. Nor does there appear to be a published procedure that allows him to do so.”

“Under these facts, it is difficult to see what more could be expected of Hubbell as he was attempting to present his post-conviction arguments,” Brown wrote. “Until such time as electronic transcripts and records make this issue moot for all petitioners, pro se petitioners need to know how they may ensure the Records of Proceedings from their direct appeals are available for a post-conviction hearing.

“For the foregoing reasons, we reverse the post-conviction court’s denial of Hubbell’s petition for post-conviction relief, order the court to obtain the direct appeal Record, and permit Hubbell to question his witnesses and present his arguments with the benefit of a certified Record of Proceedings.”
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Aug. 9

Criminal – Release Dates

Edgardo A. Henriquez v. State of Indiana

20A04-1510-CR-1841

Two of three judges on an Indiana Court of Appeals panel urged lawmakers to revisit a requirement that trial courts advise convicts of their earliest and latest possible release dates, but a third judge dismissed the majority’s position that the requirement “imposes an impracticable burden on our trial courts.”

Chief Judge Nancy Vaidik and Judge Edward Najam asked the Legislature to look at Indiana Code 35-38-1-1(b) while affirming the Class A felony child molesting conviction and 30-year executed sentence. The statute provides, “When the court pronounces the sentence, the court shall advise the person that the person is sentenced for not less than the earliest release date and for not more than the maximum possible release date.”

Edgardo Henriquez appealed his conviction because this wasn’t done in his sentencing order. The panel agreed that Henriquez wasn’t harmed by this omission, but the majority took the opportunity to point out the practical hardships the requirement places on trial courts.

One way to interpret I.C. 35-38-1-1(b) would be to say that it requires the trial court to tell the defendant exactly what the provision says: ‘You are sentenced for not less than the earliest release date and for not more than the maximum possible release date,’“ Vaidik wrote. “In fact, this is the sort of advisement the Indiana Criminal Benchbook recommends. ... However, such an advisement provides no meaningful information to the defendant and therefore serves no purpose. Thus, we presume that the legislature did not intend for the statute to be interpreted this way.

“The only other plausible interpretation of the language is that the trial court is required to advise the defendant of specific potential release dates. However, it would be incredibly difficult, if not impossible, for a trial court to determine these dates with any certainty. The trial court would have to consider not only the term of the sentence but also the term of any other concurrent or consecutive sentence, credit time earned before sentencing, the maximum amount of credit time in the current credit class, possible educational credit time, and the possibility of parole and probation violations and revocations down the road,” the majority held. “At best, the trial court could provide an estimate. But providing estimated rather than precise release dates may lead to more confusion than clarity for the offender. Moreover, any mistake by the trial court would open the door to future collateral sentencing attacks.”

Judge John Baker agreed Henriquez was not harmed, but he dissented and would remand the matter to the trial court for entry of a new sentencing order that meets the statutory requirement.

“It may be true, as the majority opines, that this task ‘would be incredibly difficult, if not impossible,’ for trial courts to accomplish,” Baker wrote. “Nonetheless, our General Assembly has mandated this action, and it is not within our purview to exempt trial courts from a mandatory statute simply because it may be difficult to comply with its requirements.

“I certainly disagree that this task is ‘impossible.’ Yes, it is complicated, and yes, it will require consideration of multiple factors and calendars. But I am confident that the trial judges of this State are up to the task. I do not anticipate that trial courts will have to speculate whether a defendant may participate in any programs that might engender a time reduction, but I do believe that the clear statutory language requires the trial court to attempt to calculate the earliest date a defendant could be released and also the outside limit of the possible actual time of incarceration. The mere fact that a statutory requirement is difficult to fulfill cannot possibly mean that it can be ignored altogether.”
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Aug. 16

Criminal – Dealing in Controlled Substance

State of Indiana v. Yvonne S. Morgan

89A04-1603-CR-622

A registered nurse at a Wayne County clinic that treated those with addictions will face criminal charges for her role in handing out prescriptions prepared outside the usual course of professional medical practice. The Indiana Court of Appeals reversed the dismissal of those charges that was based on the fact she was not a doctor.

The United States Drug Enforcement Administration began investigating several Drug & Opiate Recovery Network Inc. clinics in Indiana, including the one in Wayne County where Yvonne Morgan worked as a registered nurse. The clinic was run by Dr. Ronald Vierk, although he was rarely at the clinic and his visits with patients did not include a thorough exam, according to the court record.

Morgan gave undercover DEA investigators prescriptions for Suboxone signed by Vierk when he did not see the patients in exchange for $160.

The state charged Morgan in 2014 with Class B felony conspiracy to commit dealing in a schedule III controlled substance and Class C felony corrupt business influence. She moved to dismiss the charges nearly a year later after which the state filed an amended information charging her with four additional counts: another class B felony conspiracy to commit dealing in a schedule III controlled substance and three counts of Class B felony aiding dealing in a schedule III controlled substance. The counts said she acted outside the usual course of professional medical practice.

The trial court granted her renewed motion to dismiss, essentially concluding that because Morgan was not a licensed physician, there was no way the state could prove the mens rea necessary for her conviction – that she knew hers and Vierk’s actions were outside the usual course of professional medical practice.

There’s no authority for the proposition that a non-physician can never know whether certain conduct is outside the usual course of professional medical practice, Judge Cale Bradford wrote.

“There are other practical issues with the trial court’s position. For instance, the trial court’s ruling, if taken to its logical conclusion, does not just mean that physicians are the only persons who could ever be convicted under the type of circumstances alleged in this case. If one accepts that non-physicians cannot know, as a matter of law, whether conduct falls outside the usual course of professional medical practice, then they cannot be judges or jurors sitting in judgment of physicians accused of acting in such a manner.

“As a practical matter, pursuant to the trial court’s ruling, no person, physician or otherwise, could ever be convicted in Indiana of a crime involving a question of whether certain conduct fell outside the usual course of professional medical practice,” Bradford continued.

The judges also rejected Morgan’s claim the criminal statutes are void for vagueness as applied to her.

“To reiterate, there is no legitimate reason to conclude that a non-physician could not – under any circumstances – be made to understand that certain conduct falls outside the usual course of professional medical practice,” Bradford wrote.•

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