Court of Appeals of Indiana | Opinion 89A04-1603-CR-622 | August 16, 2016 Page 1 of 12

ATTORNEYS FOR APPELLANT

Gregory F. Zoeller

Attorney General of Indiana

Justin F. Roebel

Deputy Attorney General

Indianapolis, Indiana 

ATTORNEY FOR APPELLEE

Ronald J. Moore

The Moore Law Firm, LLC

Richmond, Indiana

I N T H E

COURT OF APPEALS OF INDIANA

State of Indiana,

Appellant-Plaintiff,

v.

Yvonne S. Morgan,

Appellee-Defendant.

August 16, 2016

Court of Appeals Case No.

89A04-1603-CR-622

Appeal from the Wayne Superior

Court

The Hon. Gregory A. Horn, Judge

Trial Court Cause No. 89D02-1409-

FB-48

Bradford, Judge.

Case Summary

[1] In September of 2014, Appellant-Plaintiff the State of Indiana charged 

Appellee-Defendant Yvonne Morgan with Class B felony conspiracy to commit 

dealing in a schedule III controlled substance and Class C felony corrupt 
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business influence. Approximately one year later, Morgan moved to dismiss 

the charges against her, and the State filed an amended information charging 

Morgan with two counts of Class B felony conspiracy to commit dealing in a 

schedule III controlled substance, Class C felony corrupt business influence, 

and three counts of Class B felony aiding dealing in a schedule III controlled 

substance. Morgan filed a renewed motion to dismiss all of the charges against 

her, which motion the trial court granted. The State now appeals, arguing that 

the trial court abused its discretion in granting Morgan’s motion to dismiss. 

Because we agree, we reverse and remand with instructions to reinstate the 

charges against Morgan. 

Facts and Procedural History

[2] According to the probable cause affidavit filed in this case, in 2008 the United 

States Drug Enforcement Administration (“DEA”) began investigating Dr. 

Larry Ley, who oversaw the treatment of addiction at several clinics in Indiana 

operating as part of Drug & Opiate Recovery Network, Inc. (“DORN”) of 

Living Life Clean, LLC (“LLC”). The clinic in Wayne County at which 

Morgan worked as a registered nurse (“the Clinic”) had been affiliated with 

DORN since 2007. The DEA investigation into the Clinic discovered that it 

was run by Dr. Ronald Vierk and was open approximately three days a month 

from 4:00 p.m. until 6:30 p.m. 

[3] Between November of 2013 and April of 2014, DEA investigators conducted 

several periods of surveillance on the Clinic and observed between sixty and 
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one hundred patients enter the Clinic during each open period. On November 

27, 2013, investigators observed Morgan arrive at the Clinic in a vehicle 

registered to DORN. No other medical personnel were observed at the Clinic, 

approximately eighty-nine patients entered, and records indicate that at least 

seventy-one Suboxone prescriptions were issued by Dr. Vierk. 

[4] On April 16, May 14, and June 11, 2014, an undercover investigator visited the 

Clinic. On April 16, the officer was told that Dr. Vierk had already left but had 

left multiple prescriptions behind. The officer met Morgan once inside the 

Clinic and received a prescription for Suboxone signed by Dr. Vierk. Morgan 

did not request identification, perform a comprehensive interview, or conduct 

any physical examination. On May 14, 2014, the officer visited the Clinic and 

received a Suboxone prescription from Morgan in exchange for $160.00. While 

Dr. Vierk was there, he discussed only the weather with the officer during the 

encounter, which lasted less than two minutes. On June 11, 2014, the officer 

went to the clinic and received a Suboxone prescription from Morgan in 

exchange for $160.00. Dr. Vierk asked the officer if his dosage was good and 

how much Suboxone he was taking, but did not request identification, 

interview the officer, or conduct a physical examination. 

[5] On September 22, 2014, the State charged Morgan with Class B felony 

conspiracy to commit dealing in a schedule III controlled substance and Class 

C felony corrupt business influence. On August 19, 2015, Morgan moved to 

dismiss the charges. On September 16, 2015, the State filed an amended 

information charging Morgan with two counts of Class B felony conspiracy to 
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commit dealing in a schedule III controlled substance, Class C felony corrupt 

business influence, and three counts of Class B felony aiding dealing in a 

schedule III controlled substance. The six counts read as follows:

COUNT I:

[B]etween November 27, 2013, and June 11, 2014, Yvonne S. 

Morgan, with the intent to commit Dealing in a Schedule III 

Controlled Substance agreed with Ronald Vierk, M.D. to commit 

Dealing in a Schedule III Controlled Substance and Ronald 

Vierk, M.D. performed an overt act, to-wit: prescribed a 

Schedule III Controlled Substance outside the usual course of 

professional medical practice in furtherance of the agreement, 

contrary to Indiana law.

COUNT II:

[B]etween November 27, 2013, and June 11, 2014, Yvonne S. 

Morgan, with the intent to commit Dealing in a Schedule III 

Controlled Substance agreed with Ronald Vierk, M.D. to commit 

Dealing in a Schedule III Controlled Substance and Yvonne S. 

Morgan performed an overt act, to-wit: delivered a pre-signed 

prescription form to an undercover law enforcement officer 

which was done outside the usual course of professional medical 

practice in furtherance of the agreement, contrary to Indiana law.

COUNT III:

[B]etween December 9, 2011, and June 30, 2014, Yvonne S. 

Morgan, was employed by or associated with an enterprise, towit: DORN a/k/a Drug & Opiate Recovery Network and 

knowingly or intentionally conducted or otherwise participated 

in the activities of that enterprise through a pattern of 

racketeering activity, to-wit: Dealing in a Schedule III 

Controlled Substance by committing two or more of the 

following overt acts:
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1) Yvonne S. Morgan served as the point of contact and/or 

office manager for the DORN Office at 801 Airport Road, 

Centerville, Indiana.

2) On or about November 27, 2013, Yvonne S. Morgan was 

present at the DORN office at 801 Airport Road, Centerville, 

Indiana, and delivered prescriptions that had been prepared 

outside the usual course of professional medical practice,

3) On or about January 15, 2014, Yvonne S. Morgan was 

present at the DORN office at 801 Airport Road, Centerville, 

Indiana, and delivered prescriptions that had been prepared 

outside the usual course of professional medical practice.

4) On or about April 16, 2014, Yvonne S. Morgan was 

present at the DORN office at 801 Airport Road, Centerville, 

Indiana, and delivered prescriptions that had been prepared 

outside the usual course of professional medical practice.

5) On or about May 14, 2014, Yvonne S. Morgan was present 

at the DORN office at 801 Airport Road, Centerville, 

Indiana, and delivered prescriptions that had been prepared 

outside the usual course of professional medical practice.

6) On or about June 11, 2014, Yvonne S. Morgan was present 

at the DORN office at 801 Airport Road, Centerville, 

Indiana, and delivered prescriptions that had been prepared 

outside the usual course of professional medical practice.

COUNT IV:

[O]n or about April 16, 2014, in Wayne County, State of 

Indiana, Yvonne S. Morgan did knowingly or intentionally aid 

another person, to-wit: Dr. Ronald Vierk, M.D., to commit the 

offense of Dealing In A Schedule III Controlled Substance by 

delivering a prescription to an undercover law enforcement agent 

that had been prepared outside the usual course of professional 

medical practice, contrary to Indiana law.

COUNT V:

[O]n or about May 14, 2014, in Wayne County, State of Indiana, 

Yvonne S. Morgan did knowingly or intentionally aid another 
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person, to-wit: Dr. Ronald Vierk, M.D., to commit the offense 

of Dealing In A Schedule III Controlled Substance by delivering 

a prescription to an undercover law enforcement agent that had

been prepared outside the usual course of professional medical 

practice, contrary to Indiana law.

COUNT VI:

[O]n or about June 11, 2014, in Wayne County, State of Indiana, 

Yvonne S. Morgan did knowingly or intentionally aid another 

person, to-wit: Dr. Ronald Vierk, M.D., to commit the offense 

of Dealing In A Schedule III Controlled Substance by delivering 

a prescription to an undercover law enforcement agent that had 

been prepared outside the usual course of professional medical 

practice, contrary to Indiana law.

Appellant’s App. pp. 33-35

[6] On November 3, 2015, Morgan renewed her motion to dismiss, seeking 

dismissal of all six counts against her on the basis that the charging information 

lacked sufficient evidence to show that the alleged facts constitute offenses and 

the criminal statutes in question were void for vagueness as applied to her. The 

trial court held a hearing on Morgan’s motion to dismiss on November 17, 

2015, and granted Morgan’s motion on March 1, 2016, dismissing all six 

charges. The trial court essentially concluded that, because Morgan was not a 

licensed physician, there was no way that the State could prove the mens rea

necessary for conviction, i.e., that she knew that hers and Dr. Vierk’s actions 

were outside the usual course of professional medical practice. 

Discussion and Decision
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Background

[7] The Indiana Legend Drug Act provides, in part, that “a prescription or drug 

order for a legend drug is not valid unless the prescription or drug order is 

issued for a legitimate medical purpose by a practitioner acting in the usual 

course of the practitioner’s business” and that “[a] practitioner may not 

knowingly issue an invalid prescription or drug order for a legend drug.” Ind. 

Code § 16-42-19-20. We have held that “[w]hen ... a physician acts without 

any legitimate legal purpose and beyond the course of professional practice by 

selling prescriptions that allow the bearer to obtain controlled substances, his 

conduct should be treated like any street-corner pill-pusher.” Alarcon v. State, 

573 N.E.2d 477, 481 (Ind. Ct. App. 1991) (citations omitted), trans. denied. 

Thus, under Indiana law, the issuance of invalid prescriptions for controlled 

substances can support charges for dealing in a controlled substance pursuant to 

Indiana Code section 35-48-4-2. See id. Here, Morgan’s charges are all based 

on allegations that she participated with Dr. Vierk in the ongoing delivery of 

invalid prescriptions for Suboxone. 

I. Whether Morgan’s Actions, if Proven, 

Constitute Criminal Acts

[8] The State argues that the trial court abused its discretion in dismissing the 

charges filed against Morgan because, if proven, her actions would constitute 

criminal offenses. Pursuant to Indiana Code section 35-38-4-2(1), the State may 

seek review of “an order granting a motion to dismiss one (1) or more counts of 

an indictment or information.” We review a trial court’s grant of a motion to 
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dismiss an information for an abuse of discretion. Zitlaw v. State, 880 N.E.2d 

724, 728 (Ind. Ct. App. 2008), trans. denied. 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 and circumstances. Id. at 728-29.

[9] The trial court dismissed the information pursuant to Indiana Code section 35-

34-1-4, which provides, in relevant part, that “[t]he court may, upon motion of 

the defendant, dismiss the indictment or information [if t]he facts stated do not 

constitute an offense.” As a general rule, when a defendant files a motion to 

dismiss an information, the facts alleged in the information are to be taken as 

true. State v. Bilbrey, 743 N.E.2d 796, 798 (Ind. Ct. App. 2001). Questions of 

fact to be decided at trial or facts constituting a defense are not properly raised 

by a motion to dismiss. State v. Isaacs, 794 N.E.2d 1120, 1122 (Ind. Ct. App.

2003). A hearing on a motion to dismiss is not a trial of the defendant on the 

offense charged. See id. (noting that the facts “permitted to be raised under 

[Indiana Code] Section 35-34-1-8 typically concern only pre-trial matters”). 

[10] As mentioned, the basis of the trial court’s dismissal of all of the charges against 

Morgan was its conclusion that it was impossible for Morgan to have known, as 

a non-physician, whether her actions and those of Dr. Vierk were outside the 

usual course of professional medical practice. The State counters that the 

question is one of fact for the jury, not appropriately addressed in a motion to 

dismiss. We agree with the State. 
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[11] Morgan cites to no authority for the proposition that a non-physician can never 

know whether certain conduct is outside the usual course of professional 

medical practice, and our research has uncovered none. Without clear and 

compelling precedent, we will not write requirements into statutes that simply 

do not appear in the text. In any event, it seems clear that, far from being 

impossible, there are many ways by which the State could prove the necessary 

mens rea in this and similar cases. 

[12] 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 

physicians1 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 

 

1

 Another question would be whether the rule should be limited to physicians or applied to other persons 

who may write prescriptions. Pursuant to the Indiana Legend Drug Act, the following may write 

prescriptions in Indiana: 

(1) A physician licensed under IC 25-22.5.

(2) A veterinarian licensed to practice veterinary medicine in Indiana.

(3) A dentist licensed to practice dentistry in Indiana.

(4) A podiatrist licensed to practice podiatric medicine in Indiana.

(5) An optometrist who is:

(A) licensed to practice optometry in Indiana; and

(B) certified under IC 25-24-3.

(6) An advanced practice nurse who meets the requirements of IC 25-23-1-19.5.

(7) A physician assistant licensed under IC 25-27.5 who is delegated prescriptive 

authority under IC 25-27.5-5-6.

Ind. Code § 16-42-19-5. 
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matter,2 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. 

We conclude that the trial court abused its discretion in dismissing Morgan’s 

charges on the basis that she is not a physician. 

II. Void for Vagueness

[13] Morgan also contends that the criminal statutes in question are void for 

vagueness as applied to her. Although this particular argument was not 

reached by the trial court, we address it in the interest of finality and judicial 

economy. The State charged Morgan with two counts of Class B felony 

conspiracy to commit dealing in a schedule III controlled substance,3 Class C 

felony corrupt business influence,4 and three counts of Class B felony aiding 

dealing in a schedule III controlled substance.5 

Upon a challenge that a statute is unconstitutional, we presume 

the statute is constitutional. Baumgartner v. State, 891 N.E.2d 

1131, 1136 (Ind. Ct. App. 2008). The burden is on the defendant 

to rebut this presumption, and we resolve all reasonable doubts in 

favor of the constitutionality of the statute. Id. A criminal statute 

may be void for vagueness for either of two independent reasons: 

 

2

 Although it might be theoretically possible to seat a jury composed entirely of physicians, it seems to us to 

be a practical impossibility. 

3

Ind. Code §§ 35-41-5-2; 35-48-4-2(a)(1)(C). 

4

Ind. Code §§ 35-45-6-2(3); 35-45-6-1(d); 35-45-6-1(e). 

5

 Ind. Code §§ 35-41-2-4; 35-48-4-2(a)(1)(C). 
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(1) for failing to provide notice enabling ordinary people to 

understand the conduct that it prohibits, and (2) for the 

possibility that it authorizes or encourages arbitrary or 

discriminatory enforcement. Brown v. State, 868 N.E.2d 464, 467 

(Ind. 2007). With regard to notice to ordinary people, the statute 

need only inform people of the generally proscribed conduct; it 

need not list specifically each item of prohibited conduct. 

Baumgartner, 891 N.E.2d at 1136. Additionally, in order to avoid 

arbitrary or discriminatory enforcement of the statute, there must 

be in the statute a line of demarcation between trivial and 

substantial acts. Id. Assessment of a vagueness challenge is 

limited to the facts and circumstances of each case. Brown, 868 

N.E.2d at 467.

Houston v. State, 898 N.E.2d 358, 362 (Ind. Ct. App. 2008), trans. denied. 

[14] Morgan’s argument is, as with her previous one, based on her status as a nonphysician, specifically that she cannot possibly know what conduct is 

proscribed because she cannot know whether conduct falls outside the usual 

course of professional medical practice, a fact the State is required to establish 

to prove each of the six charges against Morgan. For the reasons explained 

above, we have rejected this premise. To reiterate, there is no legitimate legal 

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. 

[15] That said, we have little trouble concluding that the statutes in question are not 

void for vagueness as applied to Morgan. The Indiana Supreme Court has 

concluded that “[a] statute is not void for vagueness if individuals of ordinary 

intelligence could comprehend it to the extent that it would fairly inform them 
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of the generally proscribed conduct.” Brown, 868 N.E.2d at 467 (citation 

omitted). Reading the statutes at issue in this case, a person of ordinary 

intelligence would easily understand that agreeing with or assisting a physician 

to distribute prescriptions for controlled substances—prescriptions that person 

knows to be invalid—is proscribed conduct. As mentioned, any allegation that 

the prescriptions were known to be issued outside the usual course of 

professional medical practice would have to be proved, just as any other 

element of a criminal charge. Morgan has failed to establish that the statutes 

used to charge her are void for vagueness as to her. 

[16] We conclude that the trial court abused its discretion in dismissing the criminal 

charges against Morgan on the basis that the facts alleged did not constitute 

criminal offenses. We further conclude that Morgan has failed to establish that 

the criminal statutes in question were void for vagueness as applied to her. We 

therefore reverse the judgment of the trial court and remand with instructions to 

reinstate the criminal charges against Morgan. 

[17] The judgment of the trial court is reversed and we remand with instructions. 

Pyle, J., and Altice, J., concur.