MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                    FILED
this Memorandum Decision shall not be                                Aug 09 2016, 8:35 am

regarded as precedent or cited before any                                 CLERK
court except for the purpose of establishing                          Indiana Supreme Court
                                                                         Court of Appeals
                                                                           and Tax Court
the defense of res judicata, collateral
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Gary A. Cook                                             Gregory F. Zoeller
Deputy Public Defender                                   Attorney General of Indiana
Peru, Indiana
                                                         George P. Sherman
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana


                                           IN THE
    COURT OF APPEALS OF INDIANA

Michael Stewart,                                         August 9, 2016
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         34A02-1512-CR-2352
        v.                                               Appeal from the Howard Superior
                                                         Court
State of Indiana,                                        The Honorable William C.
Appellee-Plaintiff.                                      Menges, Jr., Judge
                                                         Trial Court Cause No.
                                                         34D01-1309-FD-727



Vaidik, Chief Judge.




Court of Appeals of Indiana | Memorandum Decision 34A02-1512-CR-2352 | August 9, 2016         Page 1 of 9
                                          Case Summary
[1]   Michael Stewart was charged with three drug-related crimes, and the jury

      convicted him on only one count—Class D felony dealing in a synthetic drug

      lookalike substance. Stewart now appeals, challenging the sufficiency of the

      charging information for that count. Because Stewart did not file a motion to

      dismiss this charge twenty days before the omnibus date and because he has not

      established fundamental error, we affirm the trial court.



                            Facts and Procedural History
[2]   In September 2013, United States Postal Inspector Douglas Biel examined a

      dented and partially torn package at the post office that had been sent via

      Express Mail from Las Vegas, Nevada, and was addressed to Stewart in

      Kokomo. When Biel looked inside the partially torn area of the box, he saw

      vials containing a leafy substance. Biel obtained a search warrant for the

      package. When Biel later opened the package, he found Ziploc bags that

      contained approximately 1500 vials with either yellow or white labels. The

      vials with the yellow label were marked “High Riders Herbal Incense” and the

      vials with the white label were marked “High Times Herbal Incense” (Exhibit

      7). Biel sent two vials, one of each kind, to the Indiana State Police laboratory

      for a “fast track” analysis. Tr. p. 117. The analysis revealed that the vial

      labeled High Riders contained the presence of 5-Fluoro-PB-22, a synthetic drug




      Court of Appeals of Indiana | Memorandum Decision 34A02-1512-CR-2352 | August 9, 2016   Page 2 of 9
      according to an emergency rule of the Indiana Board of Pharmacy,1 while the

      vial labeled High Times indicated the presence of AB-PINACA, a non-

      controlled substance at the time.2 Id. at 123.


[3]   After receiving the results, Biel contacted the Kokomo Police Department in

      order to do a controlled delivery of the package to Stewart. Stewart signed for

      the package, following which a search warrant was obtained for the house. In

      executing the search warrant, police found marijuana (Exhibits 18 and 19) in a

      nightstand drawer in the bedroom. Police also found incense (Exhibits 16 and

      17) in a dresser drawer in the bedroom.3 The incense contained XLR-11, a

      synthetic drug according to Indiana Code section 35-31.5-2-321(1)(XXX),4 as

      well as AB-PINACA and AB-FUBINACA, both non-controlled substances at

      the time.5 Tr. p. 154.


[4]   The State charged Stewart with the following three counts:




      1
       5-Fluoro-PB-22 was added to the synthetic-drug statute effective July 1, 2016. See P.L. 168-2016, § 10; Ind.
      Code § 35-31.5-2-321(1)(EEEE). At the time of the events in this case, however, it was a synthetic drug only
      by virtue of the Pharmacy Board’s emergency rule. See Tr. p. 123.
      2
       AB-PINACA was added to the synthetic-drug statute effective July 1, 2016. See P.L. 168-2016, § 10; I.C. §
      35-31.5-2-321(1)(IIII).
      3
       The house where the package was delivered belonged to Stewart’s girlfriend, and he stayed there part-time.
      When he stayed there, they shared a bedroom.
      4
       XLR-11 was added to the synthetic-drug statute effective May 7, 2013, shortly before the events in this case.
      See P.L. 196-2013, § 16; I.C. § 35-31.5-2-321(1)(XXX).
      5
       Like AB-PINACA, AB-FUBINACA was added to the synthetic-drug statute effective July 1, 2016. See
      P.L. 168-2016, § 10; I.C. § 35-31.5-2-321(1)(JJJJ).

      Court of Appeals of Indiana | Memorandum Decision 34A02-1512-CR-2352 | August 9, 2016              Page 3 of 9
                   Count I: Class D felony dealing in a synthetic drug lookalike

                       substance under Indiana Code section 35-48-4-10.5 for possessing

                       with intent to deliver “5-Fluoro-PB-22 a substance determined to

                       be illegal by Emergency Rule 13-305(E) of the Indiana Board of

                       Pharmacy and XLR-11 in an amount greater than 2 grams”


                   Count II: Class D felony possession of marijuana


                   Count III: Class D felony dealing in a synthetic drug lookalike

                       substance under Indiana Code section 35-48-4-10.5 for possessing

                       with intent to deliver an unspecified “synthetic drug lookalike

                       substance, in an amount greater than 2 grams”


      Appellant’s App. p. 31, 36, 38. According to the probable-cause affidavit, the

      package contained 1500 vials, and about half of them contained 5-Fluoro-PB-

      22. Id. at 40. A jury found Stewart guilty of Count III but not guilty of Counts

      I and II.

[5]   Stewart now appeals his conviction for Count III.



                                 Discussion and Decision
[6]   Stewart challenges the charging information for Count III, which alleged that

      he committed Class D felony dealing in a synthetic drug lookalike substance.




      Court of Appeals of Indiana | Memorandum Decision 34A02-1512-CR-2352 | August 9, 2016   Page 4 of 9
      He argues that the charging information “did not indicate specificity of

      criminality committed by [him].”6 Appellant’s Br. p. 5.

[7]   At the time of the offenses in this case, a person who knowingly or intentionally

      possessed with intent to deliver a synthetic drug lookalike substance in an

      amount more than two grams committed Class D felony dealing in a synthetic

      drug lookalike substance. Ind. Code Ann. § 35-48-4-10.5(b)(2), (c)(1)(B) (West

      Supp. 2013). “Synthetic drug lookalike substance” means “[a] substance, other

      than a synthetic drug, which any of the factors listed in subsection (c) would lead

      a reasonable person to believe to be a synthetic drug.” Ind. Code § 35-31.5-2-

      321.5(a) (emphasis added). Subsection (c) then provides that in determining

      whether a substance is a synthetic drug lookalike substance, the following

      factors may be considered:

               (1) The overall appearance of a dosage unit of the substance,
               including its shape, color, size, markings or lack of markings,
               taste, consistency, and any other identifying physical
               characteristics.


               (2) How the substance is packaged for sale or distribution,
               including the shape, color, size, markings or lack of markings,
               and any other identifying physical characteristics of the
               packaging.




      6
       Stewart also argues that “no crime was alleged.” Appellant’s Br. p. 5. Because Stewart fails to support this
      argument with cogent reasoning, he has waived this issue for review. In any event, dealing in a synthetic
      drug lookalike substance is a crime. See Ind. Code § 35-48-4-10.5.

      Court of Appeals of Indiana | Memorandum Decision 34A02-1512-CR-2352 | August 9, 2016             Page 5 of 9
              (3) Any statement made by the owner or person in control of the
              substance concerning the substance’s nature, use, or effect.


              (4) Any statement made to the buyer or recipient of the substance
              suggesting or implying that the substance is a synthetic drug.


              (5) Any statement made to the buyer or recipient of the substance
              suggesting or implying that the substance may be resold for
              profit.


              (6) The overall circumstances under which the substance is
              distributed, including whether:


                       (A) the distribution included an exchange of, or demand
                       for, money or other property as consideration; and


                       (B) the amount of the consideration was substantially
                       greater than the reasonable retail market value of the
                       substance the seller claims the substance to be.


      Id. at (c). The charging information for Count III alleged that Stewart

      possessed with intent to deliver “a synthetic drug lookalike substance, in an

      amount greater than 2 grams.” Appellant’s App. p. 31.

[8]   Indiana Code section 35-34-1-2 sets forth the requirements for a charging

      information, including that it state “the nature and elements of the offense

      charged in plain and concise language without unnecessary repetition” and that

      it contain “a plain, concise, and definite written statement of the essential facts

      constituting the offense charged.” Ind. Code § 35-34-1-2(a)(4), (d). The

      purpose of a charging information is to advise the defendant of the particular

      Court of Appeals of Indiana | Memorandum Decision 34A02-1512-CR-2352 | August 9, 2016   Page 6 of 9
       offense charged so that he can prepare a defense and be protected from being

       twice placed in jeopardy for the same offense. Leggs v. State, 966 N.E.2d 204,

       207 (Ind. Ct. App. 2012).

[9]    The trial court may, upon the defendant’s motion, dismiss a charging

       information if it “does not state the offense with sufficient certainty” or if the

       “facts stated do not constitute an offense.” Ind. Code § 35-34-1-4(a). The

       defendant must file such motion no later than twenty days (if the defendant is

       charged with a felony) before the omnibus date. Id. at (b). The reasons for this

       rule include giving the State an opportunity to amend the charging information

       before trial, thus saving both time and expense. Brown v. State, 442 N.E.2d
1109, 1114 (Ind. 1982), reh’g denied. In addition, defendants should be required

       to promptly raise error in the trial court when it occurs “rather than remain

       silent, hoping for an acquittal, and if that does not occur, then raise the question

       of error for the first time” on appeal. Id. (quotation omitted).


[10]   Stewart, however, did not file a motion to dismiss Count III. Failure to make a

       timely challenge to an allegedly defective charging information results in waiver

       unless fundamental error has occurred. See Hayden v. State, 19 N.E.3d 831, 840

       (Ind. Ct. App. 2014), trans. denied; Leggs, 966 N.E.2d at 207-08; Truax v. State,

       856 N.E.2d 116, 123 (Ind. Ct. App. 2006). Fundamental error is an extremely

       narrow exception to the waiver rule where the defendant faces the heavy

       burden of showing that the alleged error is so prejudicial to the defendant’s

       rights as to make a fair trial impossible. Ryan v. State, 9 N.E.3d 663, 668 (Ind.

       2014), reh’g denied. For an error in a charging information to be fundamental,

       Court of Appeals of Indiana | Memorandum Decision 34A02-1512-CR-2352 | August 9, 2016   Page 7 of 9
       “it must mislead the defendant or fail to give him notice of the charges against

       him so that he is unable to prepare a defense to the accusation.” Leggs, 966
N.E.2d at 208 (quotation omitted).

[11]   Stewart does not make such a claim here. Rather, he asserts that fundamental

       error occurred because according to the Indiana Supreme Court’s recent

       opinion in Tiplick v. State, 43 N.E.3d 1259 (Ind. 2015), neither the charging

       information for Count III nor the probable-cause affidavit referenced an

       emergency rule of the Pharmacy Board. Appellant’s Br. p. 6. Stewart’s reliance

       on this case is misplaced.

[12]   Tiplick was charged with, among other things, dealing, conspiracy to commit

       dealing, and possessing synthetic drugs. The probable-cause affidavit asserted

       that the synthetic drug was XLR-11. Although XLR-11 is listed as a synthetic

       drug today in Indiana Code section 35-31.5-2-321(1)(XXX), at that time it was

       only illegal pursuant to an emergency rule of the Pharmacy Board. Notably,

       Tiplick’s charging informations did not reference the emergency rule. Tiplick

       filed a motion to dismiss the charging informations because without reference

       to the emergency rule, “there [was] nothing to indicate with specificity the

       criminality of XLR11.” Tiplick, 43 N.E.3d at 1270. Our Supreme Court held

       that the charging informations for these counts were inadequate because they

       failed to list the emergency rule and therefore ordered them to be dismissed. Id.

       However, the Court noted that the State could re-file the charging informations

       with proper reference to the emergency rule. Id. at 1270 n.13.



       Court of Appeals of Indiana | Memorandum Decision 34A02-1512-CR-2352 | August 9, 2016   Page 8 of 9
[13]   Here, however, Count III is for a synthetic drug lookalike substance, not a

       synthetic drug. By definition, a synthetic drug lookalike substance cannot be a

       synthetic drug and would never be identified as such by the legislature or the

       Pharmacy Board. Therefore, the concerns in Tiplick are simply not at issue

       here. Moreover, Stewart does not argue that the charging information for

       Count III was inadequate because it failed to list a synthetic drug that the

       substance he was charged with dealing looked like. Because Stewart does not

       allege how the failure to include an emergency rule in the charging information

       for Count III or the probable-cause affidavit misled him or rendered him unable

       to prepare a defense, he has not established fundamental error. See Leggs, 966
N.E.2d at 208.7

[14]   Affirmed.

       Barnes, J., and Mathias, J., concur.




       7
         Stewart also argues that the trial court abused its discretion in admitting into evidence a police officer’s
       testimony about how people react when they use the substance identified as Exhibit 17 (incense containing
       XLR-11), such as having convulsions and memory loss. Tr. p. 234. Specifically, Stewart claims that the
       probative value of such testimony is substantially outweighed by the danger of unfair prejudice.
       The State responds that Stewart “has failed to show how he was harmed by this testimony [because] he was
       acquitted of the charge that alleged he had possessed XLR-11 [(Count I)].” Appellee’s Br. p. 11. We agree.
       Count I is the only charge that lists XLR-11. But even if the officer did not limit his answer to XLR-11, we
       fail to see how testimony that synthetic drugs (or substances meant to look like synthetic drugs) can have
       adverse effects on users was unduly prejudicial, given that it is common knowledge that illicit substances can
       be dangerous.

       Court of Appeals of Indiana | Memorandum Decision 34A02-1512-CR-2352 | August 9, 2016                Page 9 of 9