Erik D. Flynn v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: February 21, 2020
• Docket: 19A-CR-1757
• Status: Published

Opinion

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any Feb 21 2020, 9:26 am

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

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Elizabeth A. Bellin Curtis T. Hill, Jr. Elkhart, Indiana Attorney General of Indiana

Justin F. Roebel Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Erik D. Flynn, February 21, 2020 Appellant-Defendant, Court of Appeals Case No. 19A-CR-1757 v. Appeal from the Elkhart Superior Court State of Indiana, The Honorable Stephen R. Appellee-Plaintiff Bowers, Judge Trial Court Cause No. 20D02-1812-F5-367

May, Judge.

Court of Appeals of Indiana | Memorandum Decision 19A-CR-1757 | February 21, 2020 Page 1 of 12 [1] Erik D. Flynn appeals his conviction of Level 5 felony aiding trafficking in a

controlled substance with an inmate. 1 He raises two issues for our review,

which we restate as: (1) whether the charging information was so deficient it

amounted to fundamental error, and (2) whether the State presented sufficient

evidence Flynn committed Level 5 felony aiding trafficking in a controlled

substance with an inmate. We affirm.

Facts and Procedural History [2] Investigator Fred Mock of the Elkhart County Sheriff’s Department learned

contraband was being brought into the Elkhart County Jail and delivered to

inmates working in the jail’s kitchen. On July 10, 2018, officers searched the

inmate kitchen workers as they left the kitchen to return to their housing pod.

The officers found a cylindrical package tightly wrapped in cellophane

containing a green leafy substance and cigarette rolling papers on inmate James

Woodard. The Indiana State Police tested the substance and determined that it

contained Fluoro ADB, a chemical compound found in synthetic marijuana. 2

Flynn was an inmate kitchen worker, but he was absent from work on July 10,

2018, because he had an appointment in the jail’s medical ward.

1 Ind. Code §§ 35-44.1-3-5; 35-41-2-4. 2 The spelling of the substance varies throughout the record. The chemical name of the substance is methyl 2- (1-(5-fluroopentyl)-1H-indazole-3-carboxamido)-3,3-dimethylbutanote [5F-ADB; 5F-MDMB-PINACA]. (Tr. Vol. II at 113; State’s Ex. 6.) For the sake of simplicity and consistency, we refer to the substance as “Fluoro ADB.” (App. Vol. II at 16.)

Court of Appeals of Indiana | Memorandum Decision 19A-CR-1757 | February 21, 2020 Page 2 of 12 [3] The jail housed all the kitchen workers in the same pod at the jail, and on July

11, 2018, jail officers searched their housing unit. The inmates were instructed

to line up against the wall, and Corrections Officer Tim Lechlitner of the

Elkhart County Sheriff’s Office ran his police dog past the inmates. The dog

alerted that Flynn might be in possession of contraband. Officers then removed

Flynn from the unit to strip search him. Officer Lechlitner then had his dog

sniff all the bunks on the unit. The dog indicated that a few of the bunks,

including Flynn’s bunk, might contain contraband. Officers searched Flynn’s

possessions and found cigarettes.

[4] Officers performed an initial strip search of Flynn and found a note in his shoe.

The note stated:

Yeah, we got popped off yesterday. Lost an ounce of Toon + 30 strips. I hate rats. I was over at medical waitin to see the Dr. yesterday too, trying to see you, but I . . .was askin about you. I am trying to let you C who I am. Im also trying get ahold of my sis to get some pics, she ain’t answering her phone, Ill get em tho. So tell me, how you get involved in a robbery? How you get caught? Look, I got 2 □’s 4 you but, can you get a lite? Or you can sell em. Matter of fact, here they are, ma. I don’t want you 2 think I just be talkin. I don’t play games. I’m tryin to get you somethin better. Its gonna be hard now tha my plug got popped off. But Ill keep tryin. Soon as I touch it, you got it, thats my word.

(State’s Ex. 2) (errors in original). Investigator Mock then interviewed Flynn.

During the interview with Investigator Mock, Flynn stated he knew a civilian

jail employee was bringing contraband into the jail and delivering it to inmate

Court of Appeals of Indiana | Memorandum Decision 19A-CR-1757 | February 21, 2020 Page 3 of 12 Craig Green. Flynn acknowledged writing the note and said he planned to

deliver it to a female inmate. Flynn told Investigator Mock that the

“somethin[g] better” referred to in the note meant “tune.” 3 (State’s Ex. 4 at

9:37:45-9:38:19.) 4 Flynn also said his reference in the note to a “plug” meant

Green. (Id. at 9:38:25-9:38:39.) Following Investigator Mock’s interview with

Flynn, Officer Lechlitner performed a second strip search. Before the second

strip search, Flynn handed over tobacco to Officer Lechlitner that Flynn had

hidden in his pants.

[5] On December 26, 2018, the State filed an information charging Flynn with

Level 5 felony aiding trafficking with an inmate. The information provided:

The affiant of the Probable Cause Affidavit filed herewith swears that on or about July 10, 2018, at the County of Elkhart, State of Indiana, one ERIK D. FLYNN . . . did knowingly, and without prior authorization of the person in charge of the penal facility or juvenile facility, to wit: Elkhart County Jail, deliver or carry into the penal facility or juvenile facility with intent to deliver, a controlled substance to an inmate or child of the facility; all of which is contrary to the form of I.C. § 35-44.1-3-5(b)(1) and I.C. § 35-41-2-4; contrary to the form of the statute in such cases made and provided; and against the peace and dignity of the State of Indiana.

3 Investigator Mock testified, “Tune is a common name for synthetic marijuana.” (Tr. Vol. II at 71.) 4 Citations to State’s Exhibit 4 refer to the time of day the interview was recorded as indicated on the timestamp present on the top left corner of the video display.

Court of Appeals of Indiana | Memorandum Decision 19A-CR-1757 | February 21, 2020 Page 4 of 12 (App. Vol. II at 14.) The probable cause affidavit stated that the suspected

synthetic drugs recovered from inmate James Woodard contained Fluoro ADB.

[6] The trial court held a bench trial on April 9, 2019. Melinda McNair, a forensic

scientist with the Indiana State Police, testified that Fluoro ADB “was federally

controlled on April 10th, 2017, and controlled in the state of Indiana on July 7th,

2018.” (Tr. Vol. II at 112.) The court took judicial notice of the statute

authorizing state agencies to adopt emergency rules and the Indiana Board of

Pharmacy emergency rule classifying Fluoro ADB as a controlled substance.

[7] Flynn testified at trial and admitted purchasing Suboxone and cigarettes from

Craig Green. He denied giving “Tune” to anyone at the jail or asking anyone

to bring “Tune” into the jail. (Id. at 123-24.) Flynn testified that Green asked

Flynn to take a package back to the pod with him on July 10, 2018, but Flynn

refused. Flynn admitted passing notes for Green. Flynn’s counsel asked Flynn

about the note found in his shoe:

[Flynn’s Counsel:] And uh, so who got popped off that day?

[Flynn:] Uh, I said—I did say we, but I was—I—talking to her, I was talking as a whole, the whole kitchen popped off, so I couldn’t help her out.

(Id. at 127.) Flynn also testified that the square in the note referred to tobacco

cigarettes.

Court of Appeals of Indiana | Memorandum Decision 19A-CR-1757 | February 21, 2020 Page 5 of 12 [Flynn’s counsel:] Okay. So uh, next you wrote, I’m trying to get you something better. It’s going to be hard now though, my plug got popped off. What were you trying to get her that was better?

[Flynn:] Just like, if she didn’t smoke squares or uh, pretty much like, I asked her what she wanted and I could try to get it for her and that’s what I was going to do.

[Flynn’s counsel:] So it could have been Tune, it could have been Suboxone strips, it could have been a number of things?

[Flynn:] It could have been anything, but I mean, I just told her I would try to get her something better if she wanted it.

[Flynn’s counsel:] But then you said, it’s going to be hard now, my plug got popped off. What does that mean?

[Flynn:] Uhm, cause I was getting the, the, the—like the person I was getting the stuff from most of the time, when he got—Craig or Money would have stuff and everybody got caught, so I couldn’t—I couldn’t get her nothing.

(Id. at 129-130.) The court found Flynn guilty, and imposed a seven-year

sentence, with five years executed in the Indiana Department of Correction and

the remaining two years suspended to probation.

Discussion and Decision 1. The Charging Information and Fundamental Error [8] Flynn argues the State’s failure to list the Indiana Board of Pharmacy

emergency rule classifying Fluoro ADB as a controlled substance in either the Court of Appeals of Indiana | Memorandum Decision 19A-CR-1757 | February 21, 2020 Page 6 of 12 charging information or the probable cause affidavit amounts to fundamental

error because it compromised his ability to prepare a defense. Indiana Code

section 35-34-1-4 provides that a defendant may move to dismiss an inadequate

charging information no later than twenty days before the omnibus date. Flynn

did not move to dismiss the charging information, and he acknowledges that

the failure to timely challenge a defective charging information results in waiver

of the challenge, unless the defect amounts to fundamental error. Hayden v.

State, 19 N.E.3d 831, 841 (Ind. Ct. App. 2014), reh’g denied, trans. denied.

[9] As our Indiana Supreme Court has explained, “[t]he fundamental error

exception is extremely narrow, and applies only when the error constitutes a

blatant violation of basic principles, the harm or potential for harm is

substantial, and the resulting error denied the defendant fundamental due

process.” Brown v. State, 929 N.E.2d 204, 207 (Ind. 2010) (internal quotation

marks omitted). The claimed error must be so egregious it renders a fair trial

impossible or constitutes a blatant violation of basic and elementary principles

of due process. Id. An omission in the charging information constitutes

fundamental error if it misleads the defendant or fails to give the defendant

notice of the charges against him. Miller v. State, 634 N.E.2d 57, 61 (Ind. Ct.

App. 1994).

[10] Flynn likens his case to Tiplick v. State, 43 N.E.3d 1259 (Ind. 2015). In Tiplick,

the defendant faced charges for possessing, selling, and dealing products

containing the chemical compound XLR11 and moved to dismiss the charging

information. Id. at 1260-61. Synthetic cannabinoids are difficult to regulate

Court of Appeals of Indiana | Memorandum Decision 19A-CR-1757 | February 21, 2020 Page 7 of 12 because “minor variants in chemical structure can place the substances beyond

the reach of criminal statutes without diminishing their psychotropic effects.”

Id. at 1261. In 2012, the Indiana legislature amended the criminal code to re-

define the term “synthetic drug” to encompass a variety of compounds and

chemical analogs, “including ‘any compound determined to be a synthetic drug

by rule adopted under IC 25-26-13-4.1.’” Id. (quoting 2012 Ind. Acts 1795-99).

Indiana Code section 25-26-13-4.1 authorized the Indiana Board of Pharmacy

to declare additional compounds to be synthetic drugs via emergency rule. Id.

At the time Tiplick was charged, XLR11 was classified as a synthetic drug via

emergency rule. Id.

[11] Tiplick argued “the information was required to reference the Emergency Rule

rather than just the criminal statute, because without it, there is nothing to

indicate with specificity the criminality of XLR11.” Id. at 1270. Our Indiana

Supreme Court agreed and held that the charges related XLR11 must be

dismissed, but the court noted the State could “re-file an amended information

with proper reference to the Emergency Rule.” Id. at 1270 n.13. Initially, we

note the different procedural posture between the case at bar and Tiplick. “The

purpose of the charging information is to provide a defendant with notice of the

crime of which he is charged so that he is able to prepare a defense.” State v.

Laker, 939 N.E.2d 1111, 1113 (Ind. Ct. App. 2010), trans. denied. Tiplick

challenged the adequacy of the charging information at the beginning of the

litigation when he was still formulating a defense; whereas, Flynn challenges

the charging information after he was tried and convicted.

Court of Appeals of Indiana | Memorandum Decision 19A-CR-1757 | February 21, 2020 Page 8 of 12 [12] Flynn knew the substance that he was alleged to have aided in trafficking and

never contested the criminality of the substance. The probable cause affidavit

identified Fluoro ADB as a controlled substance, even though it did not specify

any statute or Indiana Board of Pharmacy emergency rule listing Fluoro ADB

as a prohibited substance. The Indiana State Police Certificate of Analysis also

identified Fluoro ADB as a controlled substance, and it listed the dates it was

federally controlled and controlled in Indiana. Further, when the State asked

the trial court to take judicial notice of the emergency rule, the deputy

prosecutor noted that he had spoken with Flynn’s counsel before offering the

exhibit. Therefore, the failure of the charging information and the probable

cause affidavit to list the emergency rule classifying Fluoro ADB as a controlled

substance does not amount to fundamental error. See Leggs v. State, 966 N.E.2d

204, 208 (Ind. Ct. App. 2012) (holding failure of charging information to allege

defendant acted with intent that the victim be put in fear was not fundamental

error).

2. Sufficiency of the Evidence [13] When reviewing the sufficiency of the evidence to support a conviction, we

look only to the probative evidence and the reasonable inferences supporting

the verdict. Drane v. State, 867 N.E.2d 144, 146 (Ind. 2007). The evidence does

not need to overcome every hypothesis of innocence. Id. at 147. We do not

reweigh the evidence; nor do we assess the credibility of the witnesses. Stokes v.

State, 801 N.E.2d 1263, 1271 (Ind. Ct. App. 2004), trans. denied. “The

conviction will be affirmed if there is substantial evidence of probative value to

Court of Appeals of Indiana | Memorandum Decision 19A-CR-1757 | February 21, 2020 Page 9 of 12 support the conclusion of the trier of fact.” Id. “A verdict may be sustained

based on circumstantial evidence alone if that circumstantial evidence supports

a reasonable inference of guilt.” Maul v. State, 731 N.E.2d 438, 439 (Ind. 2000).

Also, the testimony of a single eyewitness is enough to sustain a conviction.

Emerson v. State, 724 N.E.2d 605, 609-10 (Ind. 2000), reh’g denied. “It is for the

trier of fact to resolve conflicts in the evidence and to decide which witnesses to

believe or disbelieve.” Ferrell v. State, 746 N.E.2d 48, 51 (Ind. 2001). We will

reverse “only when no reasonable fact-finder could find the elements of the

crime proven beyond a reasonable doubt.” McMiller v. State, 90 N.E.3d 672,

675 (Ind. Ct. App. 2017).

[14] A person who aids, induces, or causes another to commit an offense is also

guilty of the offense. Ind. Code § 35-41-2-4. “Under the theory of accomplice

liability, ‘an accomplice is criminally responsible for all acts committed by a

confederate which are a probable and natural consequence’ of their concerted

action.” Porter v. State, 715 N.E.2d 868, 870 (Ind. 1999) (quoting McGee v. State,

699 N.E.2d 264, 265 (Ind. 1998)). The State does not need to prove “the

accomplice personally participated in the commission of each element of the

offense.” Anthony v. State, 56 N.E.3d 705, 714 (Ind. Ct. App. 2016), trans.

denied. Flynn argues the State presented insufficient evidence to support his

conviction. He contends the State presented no evidence linking him to James

Woodard or linking James Woodard to Craig Green. He argues he merely

purchased tobacco and Suboxone but denies trafficking as charged.

Court of Appeals of Indiana | Memorandum Decision 19A-CR-1757 | February 21, 2020 Page 10 of 12 [15] Nonetheless, trafficking into the jail did occur because officers found Woodard

in possession of Fluoro ADB. Flynn knew about trafficking into the kitchen

and identified the civilian kitchen worker involved. The jail did not authorize

inmates to possess tobacco, and Flynn had tobacco on his person and in his

possessions. He also acknowledged passing notes on behalf of Green because

Green did not want to get caught passing notes to other inmates. Further,

Flynn made incriminating statements in the note found in his shoe. For

example, he said, “we got popped off yesterday. Lost an ounce of Toon + 30

strips.” (State Ex. 2.) He promised the intended recipient of the note

“somethin[g] better…Soon as I touch it[.]” (Id.) Flynn also stated his “plug got

popped off.” (Id.)

[16] Flynn offered explanations for these statements in his testimony. For example,

he said the “we” referred to the kitchen staff. (Tr. Vol. II at 127.) He denied

giving tune to anyone at the jail or asking anyone to bring tune into the jail. He

said the note was his way of trying to get to know the intended recipient and

impress her. However, the factfinder was not required to believe Flynn’s

explanations. See Graves v. State, 472 N.E.2d 190, 191 (Ind. 1984) (“In a case of

conflicting evidence, the trier of fact is not obliged to believe the testimony of

the defendant or any other particular witness. It is the prerogative of the jury to

weigh the evidence and to determine who, in fact, is telling the truth.”).

[17] The trier of fact could easily infer that Flynn’s statements in the note

demonstrate Flynn’s involvement in trafficking and an offer to supply the

female inmate with tune when the substance became available. We will not

Court of Appeals of Indiana | Memorandum Decision 19A-CR-1757 | February 21, 2020 Page 11 of 12 second guess the credibility determinations of the trier of fact. McElfresh v. State,

51 N.E.3d 103, 111 (Ind. 2016). Given the evidence linking Flynn to aiding in

trafficking, a reasonable trier of fact could conclude Flynn was guilty beyond a

reasonable doubt. See Crittendon v. State, 106 N.E.3d 1100, 1103 (Ind. Ct. App.

2018) (holding sufficient evidence supported conviction for possession of

narcotic drug when defendant admitted using heroin and showed signs of

heroin overdose).

Conclusion [18] While the charging information and the probable cause affidavit were flawed

because they failed to reference the Indiana Board of Pharmacy’s emergency

rule listing Fluoro ADB as a prohibited substance, such flaw does not amount

to fundamental error. Further, there was sufficient evidence to affirm Flynn’s

conviction. Accordingly, we affirm.

[19] Affirmed.

Crone, J., and Pyle, J., concur.

Court of Appeals of Indiana | Memorandum Decision 19A-CR-1757 | February 21, 2020 Page 12 of 12