Pursuant to Ind. Appellate Rule 65(D), this

Memorandum Decision shall not be regarded as precedent or cited before any court except for the purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case.

ATTORNEY S FOR APPELLANT : ATTORNEY FOR APPELLEE : GREGORY F. ZOELLER MARYLYN K. L. ERNSBERGER Attorney General of Indiana Stout Law Group, P.C. Angola, Indiana CYNTHIA L. PLOUGHE Deputy Attorney General Indianapolis, Indiana


## IN THE

COURT OF APPEALS OF INDIANA

STATE OF INDIANA, ) ) Appellant

- Plaintiff , ) ) vs. ) No. 76A03

- 1311

- CR

- 421 ) RANDALL SCOTT STIVERSON, ) ) Appellee

- Defendant

. )

APPEAL FROM THE STEUBEN CIRCUIT COURT The Honorable Allen N. Wheat, Judge Cause No. 76C01

- 1208

- FD

- 764

June 19, 2014

MEMORANDUM DECISION
- NOT FOR PUBLICATION
CRONE, Judge2 Case Summary Randall S. Stiverson was involved in a car crash and was taken to the hospital. Randall consented to a blood draw and admitted that he had previously smoked “spice

. ” The standard drug panel came back with no positive results. The prosecutor requested th at the blood be tested for synthetic cannabinoids, and the test showed that AM

- 2201, a synthetic cannabinoid , was present in Stiverson’s blood . T h e State charged Stiverson with class D felony operating a vehicle while intoxicated causing serious bodily in jury and class A misdemeanor operating a vehicle while intoxicated in a ma nner that endangered a
person. Stiverson filed a motion to dismiss the charges contending that AM

- 2201 was legal for him to use at the time of the accident

. The trial court granted the motion to dismiss on the basis that AM

- 2201 was not listed in a statute outlawing the inhalation of toxic vapors. On appeal, the State contends that the trial court erred in granting Stiverson’s motion to dismiss on that basis. We agree. Therefore, we reverse and remand for further proceeding s. Facts and Procedural H istory At the hearing on Stiverson’s motion to dismiss, the parties stipulated to the following facts. On December 1, 2011, Stiverson was involved in a car crash in which he was the driver. While at the hospital, Stiverson consented to a blood draw. The standard drug panel came back with no positive results. An additional test was taken to account for synthetic cannabinoids. The tox icology tests revealed that Stiverson had a synthetic cannabinoid , AM

- 2201 , in his blood

.3

On August 10, 2012, the State charged Stiverson with class D felony operating a vehicle while intoxicated causing serious bodily injury under Indiana Code S ection 9

- 30

- 5

- 4(a)(3) and class A misdemeanor operating a vehicle while intoxicated in a ma nner that endangered a person under Indiana C ode S ection 9

- 30

- 5

- 2(a). The term “intoxicated” is defined by Indiana Code S ection 9

- 13

- 2

- 86 (2011) as be ing under the influence of any of the following: (1) alcohol; (2) a controlled substance (as defined in IC 35

- 48

- 1); (3) a drug other than alcohol or a controlled substance; (4) a substance described in IC 35

- 46

- 6

- 2 or IC 35

- 46

- 6

- 3; or (5) a combination of substances described in subdivisions (1) through (4); so that there is an impaired condition of thought and action and the los s of normal control of a person’ s faculties. [ 1 ] On May 10, 2013, Stiverson filed a motion to dis miss the charges contending that
AM

- 2201 was not illegal for him to use at the time of the accident. On October 2, 2013, a hearing was held on Stiverson’s motion to d ismiss. At the hearing , the State noted that
Dr. Scott Kriger , the director of the Indiana Department of Toxicology , had stated that
AM

- 2201 is a “toxin that releases toxic vapors

. ” Tr

. 5

. The State argued that AM

- 2201 is a chemical that emits a toxic vapor as contemplated by Indiana C ode S ection 35

- 46

- 6

- 2, which is referenced in Indiana Code Section 9

- 13

- 2

- 86(4) and reads as follows:

1 Both parties refer to Indiana Code Section 9

- 13

- 2

- 86(6), which reads, “any other substance, not including food and food ingredients (as defined in IC 6

- 2.5

- 1

- 20), tobacco (as defined in IC 6

- 2.5

- 1

- 28), or a dietary supplement (as defined in IC 6

- 2.5

- 1

- 16)[.]” We note, however, that this provision was not added to the statute until May 2013, long after Stiverson allegedly committed the charged offenses.4

A person who, with intent to cause a condition of intoxication, euphoria, excitement, exhilaration, stupefaction, or dulling of the senses, ingests or inhales the fumes of: (1) model glue; or (2) a substance that contains: (A) toluene; (B) acetone; (C) benzene; (D) N

- butyl nitrite; (E) any aliphatic nitrite, unless prescribed by a physician; (F) butane; (G) amyl butrate; (H) isobutyl nitrate; (I) freon; (J) chlorinated hydrocarbons; (K) methylene chloride; (L) hexane; (M) ether; (N) chloroform; or (O) halothane; or (3 ) any other chemical having the property of releasing toxic vapors ; commits inhaling toxic vapors, a Class B misdemeanor. (Emphasis added.) On October 4, 2013, the trial c ourt granted Stiverson’s motion to d ismiss on the basis that on December 1, 2011, AM

- 2201 was not a drug listed under Indiana Code Section 35

- 46

- 6

- 2(2) , and therefore Stiverson did not commit an offense. The State filed a motion to reconsider , which the court denied. Discussion and Decision The State contends that the trial court erred in granting Stiverson ’s motion to dismiss . On appeal, this C ourt review s a trial court ’ s ruling on a motion to dismiss for an abuse of discretion. Ingram v. State , 760 N.E.2d 615, 618 (Ind. Ct. App. 2001), trans.5

denied (2002)

. “ In reviewing a trial court’ s decision for an abuse of discretion, we reverse only where the decision is clearly against the logic and effect of the facts an d circumstances

. ” Id

. When charges are dismissed due to a challenge of insufficient facts to support a charge, this Court t akes the alleged facts as true. State v. Isaacs , 794 N.E.2d 1120, 1122 (Ind. Ct. App. 2003). “ The purpose of the information is to allege facts sufficient in law to support a conviction and to sufficiently charge the crimes so that a defendant may prepare a defense and be protected against double jeopardy in the future. ” Id

. (quoting State v. Hous er , 622 N.E.2d 987, 988 (Ind. Ct. App. 1993), trans. denied (1994) ). An information may be dismissed if the facts stated in the information do not constitute an offense. Ind. Code § 35

- 34

- 1

- 4(a)(5). The State argues that the trial court erred in granting Stiverson’s motion to dismiss on the basis that AM

- 2201 is not one of the substances listed in Indiana Code Section 35

- 46

- 6

- 2(2). We agree. Indiana Code Section 35

- 46

- 6

- 2(3) references “any other chemical having the property of releasing toxic v apors,” and Stiverson has never disputed the State’s assertion that AM

- 2201 is a chemical having the property of releasing toxic vapors. As such, it is undisputed that AM

- 2201 is “a substance described in IC 35

- 46

- 6

- 2” for purposes of Indiana Code Section 9

- 13

- 2

- 86(4), and therefore the State may prosecute Stiverson for operating a vehicle while intoxicated as a result of being under the influence of AM

- 2201. This is so even though it was not illegal for Stiverson to use A M

- 2201 at the time of the accident. Accordingly, we conclude that the trial court abused its discretion in granting6

Stiverson’s motion to dismiss and reverse and remand for further proceedings consistent with this opinion. Reversed and remanded. BAKER, J., and BARN ES, J., concur.