Appeal from the Marion Superior Court; The Honorable Jose Salinas, Judge; 49G14-1305-FD-29521.
ATTORNEYS FOR APPELLANT: Mark W. Rutherford, Stephen R. Donham, Thrasher Buschmann & Voelkel, P.C., Indianapolis, Indiana.
ATTORNEYS FOR APPELLEE: Gregory F. Zoeller, Attorney General of Indiana; Ellen H. Meilaender, Deputy Attorney General, Indianapolis, Indiana.
May, Judge. Friedlander, J., concurs. Vaidik, C.J., dissents, with separate opinion.
[¶ 1] Aadil Ashfaque appeals the denial of his motion to dismiss Count I, Class D felony dealing in a synthetic drug and
Count II, Class D felony possession of a synthetic drug. He presents multiple issues for our review, one of which we find dispositive: whether, at the time of Ashfaque's alleged offenses, Ind. Code § 35-48-4-10(a), which prohibited dealing in a synthetic drug, and Ind. Code § 35-48-4-11, which prohibited possession of a synthetic drug, were unconstitutionally vague when the synthetic drug alleged to have been dealt in or possessed was not listed in the relevant provisions of the Indiana Code and could be found only in the Pharmacy Board Regulations?
[¶ 2] We reverse and remand.
Facts and Procedural History
[¶ 3] On May 8, 2013, the State charged Ashfaque with offenses including Class D felony dealing in a synthetic drug and Class D felony possession of a synthetic drug following a traffic stop during which XLR11 was discovered in Ashfaque's possession. On June 4, Ashfaque filed a motion to dismiss the dealing and possession counts. The trial court denied Ashfaque's motion. The trial court certified the issue for interlocutory appeal and we accepted jurisdiction.
Discussion and Decision
[¶ 4] Generally, we review the denial of a motion to dismiss for an abuse of discretion, McCown v. State, 890 N.E.2d 752, 756 (Ind.Ct.App. 2008), while taking the facts stated in the charging information as true. Delagrange v. State, 951 N.E.2d 593, 594 (Ind.Ct.App. 2011). However, when, as here, the denial rests on the trial court's interpretation of a statute, we review the decision de novo. McCown, 890 N.E.2d at 756. ...