COA reverses drug charges because person of ‘ordinary intelligence’ wouldn’t know about crime

The Court of Appeals of Indiana has tossed drug charges against three individuals because the emergency rule that made the synthetic cannabinoid a Schedule I narcotic failed to provide adequate information so that person of “ordinary intelligence” would know he or she was engaging in illegal behavior.

Eric Settles, an inmate in the Marion County Jail, devised a scheme in January 2021 with Debra Pennington and Travis Armes to get drugs into the facility. Pennington was going to supply the narcotics and Armes, who worked in the jail kitchen, was going to take the substances inside to Settles.

However, two law enforcement officers detained Armes when he arrived for work and determined the pages of the notebook he was carrying had been soaked in a synthetic cannabinoid, MDMB-4en-PINACA. Settles could have sold the pages for $400 per sheet.

Settles and Pennington were charged with Level 2 felony conspiracy to commit dealing in a Schedule I controlled substance. Armes was also charged with Level 2 felony dealing in a Schedule I controlled substance as well as Level 5 felony trafficking with an inmate in violation.

The defendants filed motions to dismiss, focusing on Emergency LSA Document #20-516(E), adopted in late 2020 by the Indiana Board of Pharmacy, which added MDMB to the Schedule I category. They argued, in part, that the emergency rule was unconstitutionally vague because it failed to provide fair notice that dealing MDMB was prohibited.

In Travis Armes, Eric Settles, and Debra Pennington v. State of Indiana, 21A-CR-2384, the Court of Appeals reversed the Marion Superior Court’s denial of the motions to dismiss.

The defendants distinguished their case from Tiplick v. State, 43 N.E.3d 1259 (Ind. 2015), by pointing out that the emergency rule did not explicitly identify the listed substances as synthetic drugs and did not provide the chemical composition of MDMB.

The unanimous appellate court agreed the emergency rule is unconstitutionally vague under the U.S. Constitution.

“In Tiplick, the court concluded that the rule provided fair notice to a person of ordinary intelligence because ‘an ordinary Hoosier, armed with this chemical formula for XLR11, could determine through appropriate testing whether he was attempting to sell any products containing it,’” Judge Terry Crone wrote for the court. “The Emergency Rule does not provide adequate information for a person of ordinary intelligence to determine whether he or she is dealing a substance that contains MDMB.

“Accordingly, the Emergency Rule fails to provide the notice required by due process under the federal constitution,” Crone continued. “Therefore, the trial court erred in denying Defendants’ motion to dismiss the charging informations.”

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