Kimberly J. Brook v. State of Indiana

FILED

Oct 20 2023, 8:37 am

CLERK

Indiana Supreme Court

Court of Appeals

and Tax Court

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE

Caroline B. Briggs Theodore E. Rokita

Lafayette, Indiana Attorney General of Indiana

Evan Matthew Comer

Deputy Attorney General

Indianapolis, Indiana

IN THE

COURT OF APPEALS OF INDIANA

Kimberly J. Brook, October 20, 2023

Appellant-Defendant, Court of Appeals Case No.

22A-CR-2110

v. Appeal from the

Cass Superior Court

State of Indiana, The Honorable

Appellee-Plaintiff. James K. Muehlhausen, Judge

Trial Court Cause No.

09D01-1910-F6-384

Opinion by Judge Foley

Judge Vaidik concurs in part and dissents in part with separate opinion.

Judge Tavitas concurs in part and dissents in part with separate opinion.

Foley, Judge.

Court of Appeals of Indiana | Opinion 22A-CR-2110 | October 20, 2023 Page 1 of 40

[1] Kimberly J. Brook (“Brook”) was convicted after a jury trial of resisting law

enforcement 1 as a Class A misdemeanor, driving while suspended 2 as a Class A

misdemeanor, unlawful possession or use of a legend drug3 as a Level 6 felony,

and obstruction of justice 4 as a Level 6 felony. The trial court sentenced Brook

to an aggregate sentence of two years with one year executed in the Indiana

Department of Correction (“DOC”) and one year served on Community

Corrections. On appeal, Brook raises several issues, which we consolidate and

restate as:

I. Whether, as a matter of first impression, the trial court

abused its discretion when it denied her request to

bifurcate her trial as to her driving while suspended

charge, which was elevated due to a prior infraction and

not a prior criminal conviction;

II. Whether Lorazepam’s status as a legend drug is a question

of law that could be determined by the trial court;

III. Whether the admission of testimony from Brook’s prior

attorney concerning her attempt to manufacture evidence

to avoid her conviction for unlawful possession of a legend

drug violated attorney-client privilege; and

1

Ind. Code § 35-44.1-3-1(a)(1).

2

I.C. § 9-24-19-2.

3

I.C. § 16-42-19-13; I.C. § 16-42-19-27.

4

I.C. § 35-44.1-2-2(a)(4).

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IV. Whether Brook’s two-year aggregate sentence is

inappropriate in light of the nature of the offense and the

character of the offender.

[2] Finding no error, we affirm the trial court.

Facts and Procedural History

[3] On October 27, 2019, Logansport Police Officer Tanner Prentice (“Officer

Prentice”) was working patrol duty when he observed a gold car being driven

by a woman later identified as Brook. As the car drove past him, Officer

Prentice conducted a license-plate check on the vehicle, which returned

information indicating that the driver’s license of the car’s registered owner had

been suspended. Officer Prentice reviewed the license photo of the car’s owner

and determined that the picture matched the physical description of the woman

he observed driving the car. Based on this information, Officer Prentice

initiated a traffic stop of the car.

[4] After the car stopped in an alleyway, Officer Prentice approached the driver’s

side of the car, and the driver told him that her name was Kimberly Brook. At

that time, Brook told Officer Prentice that “she wasn’t driving” and that “the

keys weren’t in the ignition anymore.” Tr. Vol. 2 p. 59. When Officer Prentice

returned to his police car to enter Brook’s information into the system, a Bureau

of Motor Vehicles records check for Brook revealed that Brook was subject to

two active license suspensions, one for excessive points on her license and the

other for a repeat insurance violation. Id. at 62. Brook’s suspensions became

effective on May 22, 2019, and July 14, 2019, respectively, and the latest of

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them did not expire until July 13, 2020. Id. at 62–63; Ex. Vol. p. 5. While

Officer Prentice was in his police car, Brook exited her vehicle and began

yelling at him, telling him, “I don’t have time for this.” Tr. Vol. 2 p. 64. Brook

then began to walk away from the scene of the traffic stop although the traffic

stop was still ongoing.

[5] Officer Prentice got out of his car and ordered Brook to stop. However, Brook

did not stop and, instead, began running faster. Officer Prentice chased Brook

and caught up to her in the front yard of a nearby home. When Officer Prentice

attempted to take Brook into custody, she tried to back away from him and

continued to “rip and wrestle her arms away” from him. Id. at 65. At that

time, Officer Prentice used a leg sweep to get Brook on the ground and allow

him to take her into custody. Once Officer Prentice had placed Brook in

custody, she continued to yell profanities at him, including calling him a “punk

bitch.” Id. at 66.

[6] Brook was transported to the Cass County Jail and searched during intake.

Correctional Officer Bryce Hamilton (“Officer Hamilton”) performed the

search of Brook’s clothing. When Officer Hamilton looked through Brook’s

purse, he found a pill bottle containing multiple pills, one of which was marked

EP904. A subsequent search on the website Drugs.com led Officer Hamilton to

suspect that the pill with the EP904 marking was the drug Lorazepam. The

other pills were determined to be hydrocodone. The label on the front of the

pill bottle did not contain prescription information for Lorazepam. Officer

Hamilton seized the pills and pill bottle and contacted Officer Prentice so that

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he could retrieve the evidence. Later laboratory testing confirmed that the

EP904 pill was positive for Lorazepam, which is a controlled substance.

[7] The State initially charged Brook with (1) two counts of Level 6 felony

possession of a Schedule I, II, III, or IV controlled substance, (2) Class A

misdemeanor resisting law enforcement, (3) Class A misdemeanor driving

while suspended, and (4) Class B misdemeanor disorderly conduct. The State

later amended the charging information to reflect charges of (1) Class A

misdemeanor resisting law enforcement, (2) Class A misdemeanor driving

while suspended, (3) Class B misdemeanor disorderly conduct, and (4) Level 6

felony unlawful possession or use of a legend drug. After this amended

charging information was filed, the State filed a notice under Evidence Rule

404(b), which stated that it intended to introduce evidence that Brook

“produced and provided to the State a forged prescription in an attempt to

manufacture a defense to” the unlawful possession or use of a legend drug

charge against her. Appellant’s App. Vol. II p. 50. Prior to trial, the trial court

conducted a hearing on the State’s Rule 404(b) notice, during which the State

called Brook’s former attorney, Andrew Achey (“Achey”), to testify about

statements made by Brook regarding a falsified prescription for Lorazepam she

had provided to him during the course of his representation in the case. Brook

objected to Achey being allowed to testify to these statements based upon the

attorney-client privilege.

[8] The parties also addressed an issue raised by Brook about a “lack of clarity” in

the distinction between the law regarding possession of a “controlled

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substance” and possession of a “legend drug.” Supp. Tr. Vol. 2 pp. 16–17. The

State responded, “We’re just here to talk about legend drugs and [L]orazepam

is unequivocally a legend drug.” Id. at 17. Two days later, the State moved to

amend its charging information to include a count of Level 6 felony obstruction

of justice based on the information conveyed by Achey in the hearing.

[9] On May 6, 2022, the trial court issued an order, in which it addressed both

issues raised at the hearing. As to Brook’s assertion of attorney-client privilege

over her communications with Achey, the trial court found that the State made

a prima facie showing that Brook had violated the law through her

communications and “also established a relationship between the

communication at issue and the prima facie violation.” Appellant’s App. Vol. II

p. 73. The trial court also referenced that it may be willing to reconsider its

previous order issued in April 2022, where it determined that Brook could not

introduce evidence about whether “[ ][L]orazepam is a legend drug.” Id. The

trial court expressed a willingness to reconsider the ruling if Brook’s witness

“qualifies as an expert and his testimony is limited to the statutory definition of

a legend drug found at [Indiana Code section] 16-18-2-199.” Id. The trial court

further stated that “at this stage” it “still believes the question of whether . . .

[L]orazepam[ ] is a legend drug is a question of law for the [c]ourt, J.P. v. State,

878 N.E.2d 415 ([Ind. Ct. App.] 2007).” Id.

[10] On July 12, 2022, a jury trial was held. That morning, Brook filed a motion in

limine requesting that the State be prohibited from introducing testimony from

Achey, and the trial court, after noting its ruling at the prior hearing, concluded

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that the State had made a prima facie showing that a “serious crime or fraud

occurred” and that the State had connected the communication between Brook

and Achey to the violation. The parties also addressed the trial court’s

proposed preliminary jury instructions. Brook objected to the State’s proposed

instruction regarding the driving-while-suspended charge, which stated that a

person was guilty of driving while suspended if she “operates a motor vehicle

on a highway less than ten years after the date on which judgment was entered

for a prior unrelated violation of this section.” Tr. Vol. 2 p. 10. Brook argued

that the instruction should be stricken and that the proceedings should be

bifurcated with a second phase to prove the prior driving violation, asserting

that “having the prior conviction in front of the jury would just, it leads them to

believe that she committed the crime more so.” Id.

[11] The State opposed Brook’s request for bifurcation, arguing that “the driving

while suspended statute elevates what’s normally an infraction, a civil

judgment, to an A misdemeanor” and the “prior that we’re relying on is a civil

judgment, so it is not a conviction.” Id. The trial court asked defense counsel if

putting the word civil before judgment in the instruction would address the

concern, and defense counsel responded that he would still have an objection

“even though it’s not a criminal conviction, it’s still a driving while suspended

and it’s still something that would leave the jury to believe that she’s more likely

to have done this even if it was a civil judgment.” Id. at 11. The trial court

stated it would take the bifurcation request under advisement.

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[12] Brook also objected to the proposed preliminary instruction regarding the

elements for unlawful possession or use of a legend drug, which provided in

relevant part:

The crime of unlawful possession or use of a legend drug is

defined by statute as follows:

A person who knowingly possesses or uses a legend drug unless

the person has a valid prescription to do so or has the order of a

practitioner acting in the course of his professional practice to do

so, or was provided the drug by a practitioner or is a pharmacist,

commits unlawful possession or use of a legend drug, a level 6

Felony.

To convict the Defendant[,] the State must have proved each of

the following beyond a reasonable doubt:

1. The Defendant

2. knowingly

3. possessed

4. Lorazepam which the Court instructs you was classified at the time

as a legend drug.

Appellant’s App. Vol. II p. 106 (emphasis added).

[13] Brook asserted that the language of the instruction essentially amounted to an

instruction that “the [c]ourt is telling you [Lorazepam] is a legend drug.” Tr.

Vol. 2 p. 12. Brook further stated that the drug’s status as a legend drug was

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“something the State must prove,” and the “[c]ourt just can’t give that element

away.” Id. The State responded by noting that the challenged instruction was

taken from the pattern instruction and that the language had been previously

litigated by the parties. The State explained that the issue of whether

Lorazepam qualified as a legend drug was “an issue of law,” and it noted that

the trial court had “actually already ruled that it was an issue of law

previously.” Id.

[14] During the jury trial, the State moved to introduce Brook’s driving record as

State’s Exhibit 1, and Brook objected to the admission of the records only on

the basis that the State failed to lay an adequate foundation. The trial court

overruled the objection and ordered Exhibit 1 admitted into evidence. The

State also called Brook’s former physician, Dr. Carolyn Kochert (“Dr.

Kochert”), who testified that she began treating Brook around the year 2017

and that she prescribed multiple medications for Brook but denied ever writing

a prescription for Lorazepam. Tr. Vol. 2 p. 102. Dr. Kochert testified that she

reviewed Brook’s medical charts and the State’s INSPECT database, which

contains information about all prescriptions for controlled substances filled by

pharmacies for a person, and found that neither indicated that Brook had been

prescribed Lorazepam. Id. at 102–03.

[15] Over a continuing objection by the defense based on privilege, the State later

called Brook’s former counsel, Achey, as a witness, who testified that he

represented Brook in the instant case and that he withdrew in 2020. Achey

stated that, while he was serving as Brook’s attorney, she provided him with a

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copy of a receipt indicating that a prescription for Lorazepam had been filled at

the Pay Less Pharmacy in Lafayette, Indiana. At that time, Brook informed

Achey that the pharmacy’s labels were not on her pill bottles because she did

not like to carry pills in their original bottles while at work because she was

afraid her pills would be stolen.

[16] Based on this information, Achey initially requested that the State dismiss the

unlawful possession or use of a legend drug charge. Achey further testified that,

after deposing Dr. Kochert, who denied writing the prescription, Achey

contacted Brook and asked whether the prescription she provided contained

false information. Id. at 125. Achey testified that Brook became “very

apologetic” and admitted to Achey that she did not have a prescription for

Lorazepam. Id. Brook also told Achey that the document she provided had

been created either by her or by another individual. Id. at 126. Shortly

thereafter, Achey withdrew from his representation of Brook.

[17] At the conclusion of the trial, the jury found Brook guilty of Class A

misdemeanor resisting law enforcement, Class A misdemeanor driving while

suspended, Level 6 felony unlawful possession or use of a legend drug, and

Level 6 felony obstruction of justice. The jury acquitted Brook of Class B

misdemeanor disorderly conduct. At Brook’s sentencing hearing, the trial court

sentenced Brook to one year executed for Class A misdemeanor resisting law

enforcement, sixty days executed for Class A misdemeanor driving while

suspended, two years executed for Level 6 felony unlawful possession or use of

a legend drug, and two years executed for Level 6 felony obstruction of justice.

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All of the sentences were to be served concurrently, resulting in an aggregate

sentence of two years executed with one year to be served in the DOC and the

second year to be served on Community Corrections, if eligible. Brook now

appeals.

Discussion and Decision

I. Bifurcation

[18] Brook argues that the trial court abused its discretion when it denied her request

to bifurcate the proceedings with respect to her driving while suspended charge.

More specifically, Brook argues that bifurcation is required under Indiana Code

section 35-38-1-2 even though her enhancement was based upon a prior civil

infraction and not a prior offense. 5 This is a matter of first impression.

5

In challenging the denial of her request for bifurcation, Brook takes particular issue with State’s Exhibit 1,

which was her driving record that the State admitted into evidence to establish her prior driving while

suspended infractions. She argues that it was highly prejudicial and that if bifurcation had been granted, the

exhibit would not have been admitted into evidence. We agree that one of the purposes of bifurcation is to

keep prior convictions away from the jury in their initial determination of guilt for the substantive crime

charged. Hines v. State, 794 N.E.2d 469, 472 (Ind. Ct. App. 2003), adopted and incorporated by Hines v. State,

801 N.E.2d 634 (Ind. 2004). Brook argues that the admission of her entire driving record, consisting of

twenty-seven prior acts of poor driving, suspensions, or misconduct, deprived her of due process and

portrayed her as someone with bad character. Brook conflates the issue of the admissibility of Exhibit 1 with

her argument for bifurcation. Brook argues that Exhibit 1, as admitted in its entirety, was not relevant to

prove her prior driving while suspended infractions and was violative of Evidence Rules 403 or 404 as being

prejudicial due to its overbreadth. However, when the State sought to admit the exhibit at trial, Brook only

objected as to foundation for the exhibit, which was overruled by the trial court. Therefore, to the extent that

Brook is arguing that the exhibit and its contents were not relevant to her present offenses or overly

prejudicial because of the overly broad contents, she has waived such argument by not raising it to the trial

court. Leatherman v. State, 101 N.E.3d 879, 885 (Ind. Ct. App. 2018) (“It is well-established that we generally

will not address an argument that was not raised in the trial court and is raised for the first time on appeal.”)

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[19] A trial court’s decision whether to bifurcate or trifurcate a trial is subject to an

abuse of discretion standard. Russell v. State, 997 N.E.2d 351, 354 (Ind. 2013).

One of the purposes of bifurcation is to keep prior convictions away from the

jury in its initial determination of guilt for the substantive crime charged. Hines

v. State, 794 N.E.2d 469, 472 (Ind. Ct. App. 2003), adopted and incorporated by

Hines v. State, 801 N.E.2d 634 (Ind. 2004).

[20] Here, prior to trial, when the trial court was discussing the jury instruction for

Brook’s charge of driving while suspended with the parties, Brook requested

that part of the instruction be stricken and that the trial be bifurcated so that her

prior driving while suspended infractions could be proven in a second phase.

Tr. Vol. 2 p. 10. The State responded that, because Brook’s priors were not

convictions but were instead, civil infractions, bifurcation was not required.

The trial court took the issue under advisement, and although the trial court

never explicitly ruled on the request, the trial was not bifurcated.

[21] Brook was charged under Indiana Code section 9-24-19-2, which states:

An individual who:

(1) knows that the individual’s driving privileges, driver’s license,

or permit is suspended or revoked; and

(2) operates a motor vehicle upon a highway less than ten (10)

years after the date on which judgment was entered against the

individual for a prior unrelated violation of section 1 of this

chapter . . .;

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commits a Class A misdemeanor.

(emphasis added). Brook’s driving while suspended charge was elevated to a

Class A misdemeanor based upon her prior civil infraction judgment, not a

prior criminal offense.

[22] Brook relies on Landis v. State, which found that when the State must prove a

prior conviction in order to elevate the present offense, a bifurcated trial must

be held where the evidence of the defendant’s prior conviction and the acts

which culminated in that prior conviction cannot be introduced until the jury

has first decided whether the defendant is guilty of the present charge. 693

N.E.2d 570, 572 (Ind. Ct. App. 1998), aff’d in part and vacated in part, 704

N.E.2d 113 (Ind. 1998). Landis concerned the elevation of a stalking offense

based upon a prior conviction for stalking the same victim. Id. at 571–72. The

instant matter is distinguishable because the elevation of Brook’s offense is

based upon a prior civil infraction judgment.

[23] Here, we are presented with a case of first impression of whether bifurcation is

required where a defendant is charged with a criminal offense that is elevated

due to a prior judgment of an infraction and not a prior conviction of a criminal

offense. We find no case law conclusively deciding whether bifurcation is

required in such circumstances. In Nasser v. State, 727 N.E.2d 1105 (Ind. Ct.

App. 2000), trans. denied, this court was faced with the specific situation we are

faced with where the defendant was charged with driving while suspended as a

Class A misdemeanor, which was elevated because of a prior judgement for

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driving while suspended in the previous ten years. Id. at 1107–09. However,

there, the defendant did not object to the unitary proceedings and did not

request bifurcation. Id. at 1108. In determining that the defendant could not

succeed on his claim that his due process rights were violated when he did not

receive bifurcated proceedings, this court held “[i]nasmuch as the evidence at

trial was offered to enhance the infraction to a Class A misdemeanor, and [the

defendant] did not object to the nature of the proceedings, there is no merit to

Nasser’s contention under these circumstances that he was entitled to a

bifurcated proceeding.” Id. at 1109. We, therefore, found there was no merit to

the defendant’s contention and left “for another day the issue of whether a

defendant is entitled to a bifurcated proceeding with regard to a previous

adjudication for an infraction when he makes a specific and timely request for

such a proceeding.” Id. at 1109 n.2.

[24] It seems that day has come, as we conclude that Brook made a timely request

for bifurcation. We begin by examining Indiana’s bifurcation statute, Indiana

Code section 35-34-1-2.5, which provides “if the penalty for an offense is . . .

increased because the person was previously convicted of the offense, the State

may seek to have the person sentenced to receive the increased penalty by

alleging, on a page separate from the rest of the charging instrument, that the

person was previously convicted of the offense.” (emphases added). Indiana

Code section 35-38-1-2 requires bifurcation where: “(1) the State in the manner

prescribed by IC 35-34-1-2.5 sought an increased penalty by alleging that the

person was previously convicted of the offense”; and “(2) the person was

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convicted of the subsequent offense in a jury trial.” Ind. Code § 35-38-1-2(c)

(emphases added). Therefore, pursuant to statute, bifurcation is required when

the State seeks to elevate an offense because a defendant has been previously

convicted of the offense.

[25] However, under Indiana Code section 35-31.5-2-215, the term “offense” means

a crime and does not include an infraction. Here, Brook was charged with

driving while suspended elevated to a Class A misdemeanor due to the fact that

judgment had been previously entered against her for a prior unrelated violation

of Indiana Code section 9-24-19-1. That statute provides that an individual

who operates a motor vehicle upon a highway while the individual’s driver’s

license is suspended commits a Class A infraction. Thus, although her current

criminal charge was for Class A misdemeanor driving while suspended, it was

not elevated because she was previously convicted of the offense. Instead, her

current offense was elevated because she previously had a civil judgment

entered against her for Class A infraction driving while suspended, which is not

a conviction for a criminal offense. See State v. Hurst, 688 N.E.2d 402, 405 (Ind.

1997) (traffic violations are considered civil proceedings), overruled on other

grounds; Schumm v. State, 866 N.E.2d 781, 792 (Ind. Ct. App. 2007) (infractions

are civil matters).

[26] Therefore, because bifurcation is only required under the statute when the State

seeks to elevate an offense because a defendant has been previously convicted of

the offense, and the term offense means crime and not infraction, we hold that

when a defendant is charged with a crime elevated based upon a prior

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infraction, the trial court is not required to bifurcate the proceedings. We limit

our holding here to state only that bifurcation under Indiana Code section 35-

38-1-2 is not required where the State seeks to elevate an offense based upon a

prior civil infraction judgment. Because Brook’s Class A misdemeanor driving

while suspended charge was elevated due to her prior judgment for an

infraction, she was not entitled to bifurcation, and the trial court did not abuse

its discretion in denying her request.

II. Lorazepam’s Status as a Legend Drug

[27] Brook next argues that the trial court’s jury instruction for the offense of

unlawful possession or use of a legend drug was clearly erroneous. The trial

court determined that, as a matter of law, Lorazepam is a legend drug and

incorporated that conclusion in its instruction. Brook contends that the jury

instruction relieved the State from its burden of proof as to a material element

of the offense, and because the State failed to present evidence on that element,

the evidence was not sufficient to support the conviction.

[28] Indiana Code Chapter 16-42-19, Indiana’s Legend Drug Act, criminalizes

various forms of possession, use, and sale of certain prescription drugs, which

are known as “legend drugs.” Knutson v. State, 103 N.E.3d 700, 702 (Ind. Ct.

App. 2018). Indiana Code section 16-42-19-13 of the Legend Drug Act, which

is the statute under which Brook was charged, makes it a crime for a person to

“possess or use a legend drug or a precursor” without first obtaining the drug

“(1) on the prescription or drug order of a practitioner; (2) in accordance with

section 11(a)(2) or 21 of this chapter; or (3) in accordance with the rules

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adopted by the board of pharmacy under IC 25-26-23.” The term “legend

drug” is statutorily defined within the Legend Drug Act under Indiana Code

Section 16-18-2-199, which provides:

“Legend drug,” for purposes of IC 16-42, means a drug that is:

(1) subject to 21 U.S.C. 353(b)(1); or

(2) listed in the Prescription Drug Product List as:

(A) published in United States Department of Health and

Human Services Approved Drug Products with Therapeutic

Equivalence Evaluations, Tenth Edition, (1990); and

(B) revised in United State [sic] Department of Health and

Human Services, Approved Drug Products with Therapeutic

Equivalence Evaluations, Cumulative Supplement to the Tenth

Edition, Number 10 (1990).

The publication referred to in subsection (2) is commonly known as the

“Orange Book.” 6 J.P. v. State, 878 N.E.2d 415, 417 (Ind. Ct. App. 2007).

6

“The publication Approved Drug Products with Therapeutic Equivalence Evaluations (commonly known as the

Orange Book) identifies drug products approved on the basis of safety and effectiveness by the Food and Drug

Administration (FDA) under the Federal Food, Drug, and Cosmetic Act (the Act) and related patent and

exclusivity information.” See https://www.fda.gov/drugs/drug-approvals-and-databases/approved-drug-

products-therapeutic-equivalence-evaluations-orange-book [https://perma.cc/SSC8-FKL3] (last visited Aug. 2,

2023).

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[29] Therefore, depending on the nature of the drug at issue, the State can prove that

a particular substance satisfies the definition of legend drug under the statute in

one of two ways. First, if a drug is identified in court by a name specifically

designated as a legend drug or controlled substance by the Indiana Code, then

the State has proven as a matter of law the drug is a legend drug. Id. (citing

White v. State, 316 N.E.2d 699, 702 (Ind. Ct. App. 1974)). “If a drug is

identified in court by a name specifically designated as a controlled substance

by the Indiana Code, then the State has proven as a matter of law the drug is a

controlled substance.” Barnett v. State, 579 N.E.2d 84, 86 (Ind. Ct. App. 1991),

trans. denied. Second, if the substance is not specifically enumerated by the

Indiana Code as a legend drug or a controlled substance, the State must offer

extrinsic evidence to prove the substance falls within the Indiana Code’s

definition. Id.

[30] Here, Lorazepam’s status as a legend drug fits within the first of these

categories. This particular issue was addressed by this court in J.P. v. State,

where the defendant argued that the State did not present sufficient evidence at

trial to prove that the drug Ritalin satisfied the definition of legend drug under

the Legend Drug Act. 878 N.E.2d at 417. The defendant claimed that,

although the State presented evidence that “Ritalin is a legend drug,” it failed to

meet its burden of proof because it did not submit a copy of the Orange Book

into evidence at her trial. Id. This court, in rejecting this claim, noted that it

had previously been held that “where the Uniform Narcotic Drug Act identifies

a specific drug by name and designates it a narcotic, ‘a conviction may be

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upheld as the trial court need only refer to the exact words of the statutory

definition and determine the substance is a narcotic as a matter of law.’” Id. at

417–18 (citing White, 316 N.E.2d at 702). This court recognized that Indiana

Code section 16-18-2-199 “incorporates by reference” both 21 U.S.C. §

353(b)(1) and “the Orange book, which expressly includes Ritalin in its list of

drugs.” Id. at 418. While the Orange Book is not a statute, this court reasoned

that it was “promulgated by a federal agency” and held that “the statute

properly incorporates the Orange Book by reference.” Id. Therefore, the court

concluded that “Ritalin is, as a matter of law, specifically listed as a legend drug

under Indiana Code Section 16-1-8-2-199,” and the State presented sufficient

evidence by having the trial court look to the statutory definition and determine

that the substance met that definition. Id.

[31] The holding in J.P. compels a similar conclusion here. At trial, evidence was

presented that one of the pills found inside Brook’s purse during intake at the

jail contained the inscription EP904, was identified as Lorazepam, and was

later tested and found to be Lorazepam, a controlled substance. Like the drug

at issue in J.P., Lorazepam appears in the Orange Book. See Federal Drug

Administration, Orange Book: Approved Drug Products with Therapeutic Equivalence

Evaluations, https://www.fda.gov/drugs/drug-approvals-and-

databases/approved-drug-products-therapeutic-equivalence-evaluations-orange-

book#Publications [https://perma.cc/FMK6-EJVZ] (last visited Aug. 2, 2023).

Therefore, under J.P., the trial court in the present case could find that the State

established Lorazepam’s status as a legend drug as a matter of law because

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Lorazepam is a legend drug under the definition contained in Indiana Code

section 16-18-2-199. There is no dispute in this case that Lorazepam appeared

in the Orange Book, so the drug falls within the class of medications

incorporated by reference into Indiana’s statutory definition for the term legend

drug. See I.C. § 16-18-2-199. Whether Lorazepam meets the statutory

definition of “legend drug” was not a question of fact that the State was

required to prove to the jury, but instead a matter of law that the trial court

could decide by referring to the statutory language. See J.P., 878 N.E.2d at 417;

Barnett, 579 N.E.2d at 86.

[32] Accordingly, because Lorazepam’s status as a legend drug was not an issue of

fact, the trial court did not erroneously invade the province of the jury by giving

instructions that created a mandatory presumption indicating that the substance

was classified as a legend drug. The purpose of jury instructions is to inform

the jury about the law without misleading the jury and to help it arrive at a just,

fair, and correct verdict. Wallen v. State, 28 N.E.3d 328, 330–31 (Ind. Ct. App.

2015), trans. denied. We review a trial court’s instructions to the jury for an

abuse of discretion. Isom v. State, 31 N.E.3d 469, 484 (Ind. 2015), cert. denied.

An abuse of discretion arises when the instruction is erroneous, and the

instructions taken as a whole misstate the law or otherwise mislead the jury. Id.

at 484–85.

[33] “The Due Process Clause prohibits the State from relying upon an evidentiary

presumption that has the effect of relieving it of its burden to prove every

essential element of a crime beyond a reasonable doubt.” Pattison v. State, 54

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N.E.3d 361, 365 (Ind. 2016) (citing Sandstrom v. Montana, 442 U.S. 510, 524

(1979); McCorker v. State, 797 N.E.2d 257, 263 (Ind. 2003)). “A mandatory

presumption instructs the jury that it must infer the presumed facts if the State

proves certain predicate facts,” and if it amounts to a shift in the burden of

proof, it is unconstitutional. Id. (quoting Winegeart v. State, 665 N.E.2d 893, 904

(Ind. 1996)) (emphasis added).

[34] Here, the challenged jury instructions, Preliminary Instruction 8 and Final

Instruction 11, informed the jury about a matter of law—that Lorazepam was

classified as a legend drug at the time Brook committed the offense—but did

not require the jury to reach any factual inferences. Under both instructions,

the factual question of whether the State proved that the pill found in Brook’s

possession was in fact Lorazepam was left for the jurors to decide as an element

of the charged offense. Therefore, the instructions left the factual question to

the jury, while informing the jury that Lorazepam satisfied the legal definition

for the term legend drug. We conclude that the trial court’s instructions did not

impermissibly shift the State’s burden of proof as to any issue to be decided by

the jury, and the trial court did not abuse its discretion.

[35] Likewise, the State presented sufficient evidence to support Brook’s conviction

because it was not required to present additional evidence to establish

Lorazepam’s status as a legend drug. We will affirm a conviction unless,

considering only the evidence most favorable to the judgment together with all

reasonable inferences drawn therefrom, no reasonable fact-finder could find the

elements of the crime proven beyond a reasonable doubt. Love v. State, 73

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N.E.3d 693, 696 (Ind. 2017). As previously determined, the trial court was free

to find—and did find—that Lorazepam was a legend drug under Section 16-18-

2-199. Therefore, the jury did not need to decide whether Lorazepam was a

legend drug, but only whether the substance found in Brook’s possession was

Lorazepam. The evidence presented at trial was sufficient to prove this as the

forensic toxicologist’s testimony and the toxicology report both demonstrated

that the pill found in Brook’s purse tested positive for Lorazepam. Tr. Vol. 2

pp. 92–93. We conclude that sufficient evidence was presented to prove that

Brook possessed the legend drug Lorazepam and to support her conviction.

III. Admission of Testimony

[36] Brook also argues that the trial court abused its discretion when it ruled that her

prior attorney, Achey, was required to testify regarding communications related

to Brook’s attempt to present a false prescription record. The trial court has

broad discretion to rule on the admissibility of evidence. Thomas v. State, 81

N.E.3d 621, 624 (Ind. 2017). Generally, evidentiary rulings are reviewed for an

abuse of discretion, and we will reverse when admission is clearly against the

logic and effect of the facts and circumstances. Id.

[37] Brook contends that the admission of the testimony of Achey violated attorney-

client privilege and that, even if he could testify regarding Brook’s presentation

of the fraudulent prescription record, any further questioning exceeded the

fraud and was not permissible. “‘The attorney-client privilege protects against

judicially compelled disclosure of confidential information.’” Skinner v. State,

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920 N.E.2d 263, 266 (Ind. Ct. App. 2010) (quoting Lahr v. State, 731 N.E.2d

479, 482 (Ind. Ct. App. 2000)). Indiana Code Section 34-46-3-1(a) provides

that: “Except as otherwise provided by statute, the following persons shall not

be required to testify regarding the following communications: (1) Attorneys, as

to confidential communications made to them in the course of their

professional business, and as to advice given in such cases.” The harm to be

prevented is not the manner in which the confidence is revealed, but the

revelation itself. Lahr, 731 N.E.2d at 482. “The privilege is intended to

encourage ‘full and frank communication between attorneys and their clients

and thereby promote broader public interests in the observance of law and the

administration of justice.’” Id. (quoting Upjohn Co. v. United States, 449 U.S.

383, 389 (1981)). Furthermore, the privilege allows both the attorney and the

client to give complete and confidential information, so that both may be fully

advised regarding the attorney’s services to the client, and the client is assured

that confidences are not violated. Id.

[38] This privilege, however, is not absolute and “sometimes the larger societal

interest in preventing illegal conduct outweighs the equally important interest of

safeguarding confidential communications.” Id. Pertinent here, Rule of

Professional Conduct 1.6(b)(2) creates an exception to the attorney-client

privilege that allows an attorney to reveal “information relating to the

representation of a client to the extent the lawyer reasonably believes

necessary” to “prevent the client from committing a crime or from committing

fraud that is reasonably certain to result in substantial injury to the financial

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interests or property of another and in furtherance of which the client has used

or is using the lawyer’s services[.]” We use a two-part test to determine

whether the crime-fraud exception applies in a given case: (1) the moving party

is required to “make a prima facie showing that a sufficiently serious crime or

fraud occurred”; and (2) the moving party must show that “some relationship

between the communication at issue and the prima facie violation exists.” Id. at

483 (citing United States v. Collis, 128 F.3d 313, 320 (6th Cir.1997)). “In order

for the moving party to satisfy the prima facie showing, the evidence presented

must be such that a prudent person [would] have a reasonable basis to suspect

the perpetration of a crime or fraud.” Id. (quotations omitted).

[39] Here, Brook’s communications with Achey were not privileged because they

were made for the purpose of perpetrating a fraud on the State and trial court

and for the purpose of committing the crime of obstruction of justice. Achey’s

trial testimony revealed that Brook provided him with a copy of a receipt

indicating that she had been prescribed Lorazepam by Dr. Kochert and that a

prescription for Lorazepam had been filled at a Pay Less Pharmacy in

Lafayette. Tr. Vol. 2 p. 118. Brook also told Achey that she did not carry the

pills in their original pill bottle to work because she was nervous the pills would

be stolen. Id. After Dr. Kochert was deposed and testified that she had never

prescribed Lorazepam to Brook, Brook became “very apologetic” and admitted

to Achey that she did not have a valid prescription for Lorazepam and that the

document she had presented to him had been created either by herself or

another individual. Id. at 125–26. This evidence provided a reasonable basis

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upon which a prudent person could have suspected that Brook was attempting

to commit a fraud on the court system and was committing the crime of

obstruction of justice. See Lahr, 731 N.E.2d at 483. Further, the State

demonstrated a relationship between the communications and the attempted

fraud because, in providing the fraudulent prescription record to Achey, Brook

intended to use him to attempt to obtain dismissal of the unlawful possession or

use of a legend drug charge against her. We, therefore, find that both parts of

the test from Lahr were met in this case.

[40] Brook asserts that the attorney-client privilege could give way only if Achey was

involved in the perpetration of her fraud. Brook reads Lahr as only allowing the

admission of attorney-client communications when they were made for the

purpose of committing or continuing a crime or fraud. And therefore, because

the trial court found “no indication [Achey] did anything wrong,” it was an

error for the trial court to allow the statements to be admitted. Supp. Tr. Vol. 2

p. 24. However, in Lahr, the defendant forged two letters for the purpose of

bolstering his self-defense argument and enlisted the aid of his attorney in

furtherance of a continuing crime or fraud, and this court held that the

“information concerning this subterfuge is not protected by the attorney-client

privilege.” Lahr, 731 N.E.2d at 484. Both here, and in Lahr, the client used the

attorney, by presenting the forged or false documents as evidence in a criminal

proceeding, to perpetuate the crime or fraud. Lahr did not limit admission of

attorney-client communications to only situations where the attorney had

culpability for the perpetration of the crime. Therefore, we conclude that

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Brook’s communications to Achey fell within the crime-fraud exception to the

attorney-client privilege, and the trial court did not abuse its discretion when it

admitted them into evidence.

IV. Sentencing

[41] Brook argues that her two-year sentence is inappropriate. The Indiana

Constitution authorizes appellate review and revision of a trial court’s

sentencing decision. See Ind. Const. art. 7, §§ 4, 6; Jackson v. State, 145 N.E.3d

783, 784 (Ind. 2020). “That authority is implemented through Appellate Rule

7(B), which permits an appellate court to revise a sentence if, after due

consideration of the trial court’s decision, the sentence is found to be

inappropriate in light of the nature of the offense and the character of the

offender.” Faith v. State, 131 N.E.3d 158, 159 (Ind. 2019).

[42] Our review under Appellate Rule 7(B) focuses on “the forest—the aggregate

sentence—rather than the trees—consecutive or concurrent, number of counts,

or length of the sentence on any individual count.” Cardwell v. State, 895

N.E.2d 1219, 1225 (Ind. 2008). We generally defer to the trial court’s decision,

and our goal is to determine whether the defendant’s sentence is inappropriate,

not whether some other sentence would be more appropriate. Conley v. State,

972 N.E.2d 864, 876 (Ind. 2012). “Such deference should prevail unless

overcome by compelling evidence portraying in a positive light the nature of the

offense (such as accompanied by restraint, regard, and lack of brutality) and the

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defendant’s character (such as substantial virtuous traits or persistent examples

of good character).” Stephenson v. State, 29 N.E.3d 111, 122 (Ind. 2015).

[43] When determining whether a sentence is inappropriate, the advisory sentence is

the starting point the legislature has selected as the appropriate sentence for the

crime committed. Fuller v. State, 9 N.E.3d 653, 657 (Ind. 2014). Brook was

convicted of two Level 6 felonies and two Class A misdemeanors. A Level 6

felony carries a possible sentence of between six months and two-and-a-half

years with an advisory sentence of one year. I.C. § 35-50-2-7(b). A Class A

misdemeanor carries a possible maximum sentence of one year. I.C. § 35-50-3-

2. The trial court sentenced Brook to two years for her conviction for Level 6

felony unlawful possession or use of a legend drug, two years for Level 6 felony

obstruction of justice, one year for Class A misdemeanor resisting law

enforcement, and sixty days for Class A misdemeanor. All of the sentences

were ordered to run concurrently for a total of two years, with one year served

in the DOC and the second year to be served in Community Corrections, if

eligible.

[44] As to the nature of her offense, to show her sentence is inappropriate, Brook

must portray the nature of her offense in a positive light, “such as accompanied

by restraint, regard, and lack of brutality.” Stephenson, 29 N.E.3d at 122. The

circumstances of this case demonstrated that Brook engaged in several attempts

over the course of the case to avoid being held accountable for her criminal

behavior. Brook was initially pulled over for suspicion of driving while

suspended. When the officer approached her car, Brook stated that “she wasn’t

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driving” and that “the keys weren’t in the ignition anymore” although the

officer had just observed her driving the car, and no one else was in the vehicle.

Tr. Vol. 2 p. 59. When the officer entered Brook’s information into the system,

a BMV records check for Brook revealed that she was subject to two active

license suspensions. While the traffic stop was still in process, Brook exited her

vehicle and began yelling at the officer and told him that she did not “have time

for this” and began to walk away from the scene. Id. at 64. She was ordered to

stop and began running away. When the officer caught her, she continued to

resist by backing away from him and pulling her arms away from him. When

she was booked into jail, a pill was found in her purse that was later identified

as Lorazepam, for which Brook did not have a prescription. Brook lied to her

attorney and presented a false prescription document purporting to show that

she had a prescription for Lorazepam. Because of the falsified document Brook

gave to her attorney and the representations she made about its accuracy, her

attorney requested dismissal of the legend drug charge against her. Brook has

failed to portray the nature of her offenses in a positive light by showing

restraint, regard, and lack of brutality.

[45] As to her character, Brook argues that she is not one of the worst offenders and

that her criminal history does not warrant the sentence imposed by the trial

court. The character of the offender is found in what we learn of her life and

conduct. Merriweather v. State, 151 N.E.3d 1281, 1286 (Ind. Ct. App. 2020).

“A defendant’s criminal history is one relevant factor in analyzing character,

the significance of which varies based on the ‘gravity, nature, and number of

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prior offenses in relation to the current offense.’” Smoots v. State, 172 N.E.3d

1279, 1290 (Ind. Ct App. 2021) (quoting Rutherford v. State, 866 N.E.2d 867, 874

(Ind. Ct. App. 2007)). Even a minor criminal history reflects poorly on a

defendant’s character for the purposes of sentencing. Id.

[46] Looking to her criminal history, Brook has a number of criminal convictions,

including convictions for driving while suspended, operating a vehicle while

intoxicated, theft, and conversion. Several of her convictions were for driving-

related offenses and are similar to her present offense of driving while

suspended. Further, during the course of this case, Brook displayed deceitful

and dishonest behavior that reflects poorly on her character. Brook was

charged with obstruction of justice for presenting her attorney with a fraudulent

document that she purported to show that she had a prescription for the

Lorazepam pill found in her possession. This dishonesty was only discovered

when Brook’s doctor was deposed, which was after Brook’s attorney had

unknowingly presented the fake document to the State and requested a

dismissal of the charge. Additionally, Brook also repeatedly lied during her

presentence investigation, stating both that she had no close friends that have a

criminal history and that she “only uses prescribed medications,” which was

proven false since she did not have a prescription for the Lorazepam found in

her possession. Appellant’s App. Vol. II pp. 166–67. As to her relationship

with people who have criminal history, at sentencing, Brook continued to be

dishonest when she asserted that she was no longer involved in a relationship

with a person who had multiple felony convictions despite recorded phone calls

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which indicated that Brook was still in a romantic relationship with that

individual and had spoken to him recently. Tr. Vol. 2 pp. 179–82. Therefore,

during the course of her underlying prosecution, Brook engaged in numerous

dishonest acts intended to evade accountability for her criminal behavior.

Consequently, Brook has not met her burden to show “substantial virtuous

traits or persistent examples of good character” such that her requested

reduction of her sentence is warranted based on her character. Stephenson, 29

N.E.3d at 122. We do not find that her sentence is inappropriate in light of her

character.

[47] Based on the facts in the record, neither the nature of Brook’s crimes nor her

character merit a lesser sentence, and she has not shown that her two-year

sentence is inappropriate.

Conclusion

[48] We conclude that the trial court did not abuse its discretion when it denied

Brook’s request for bifurcation as her driving while suspended charge was

elevated based on a prior infraction and not a criminal offense. We also hold

that there was no abuse of discretion in instructing the jury and that the State

presented sufficient evidence to support Brook’s conviction for possession of a

legend drug because the trial court could find that the State established

Lorazepam’s status as a legend drug as a matter of law. Further, we do not find

that the trial court abused its discretion when it ruled that Brook’s prior attorney

was required to testify regarding communications related to Brook’s attempt to

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present a false prescription record. Lastly, we conclude that Brook’s sentence is

not inappropriate.

[49] Affirmed.

Vaidik, J., concurs in part and dissents in part with separate opinion.

Tavitas, J., concurs in part and dissents in part with separate opinion.

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Vaidik, Judge, concurring in part and dissenting in part.

[50] I concur with the lead opinion on the issues of jury instructions, admission of

evidence, and sentencing. However, I respectfully dissent on the issue of

bifurcating the driving-while-suspended charge.

[51] Driving while suspended is generally a Class A infraction, Ind. Code § 9-24-19-

1, but a second violation within ten years is a Class A misdemeanor, I.C. § 9-

24-19-2. Brook was charged with the Class A misdemeanor and asked for the

trial of that charge to be bifurcated so the jury wouldn’t learn about her prior

violation before deciding whether she committed the new violation. And the

trial court seemed to agree that bifurcation was appropriate. When Brook’s

attorney made the request, the court responded, “You know, he may have a

point on that one.” Tr. Vol 2 p. 10. After further discussion, the court added,

“I’m inclined to go ahead and bifurcate[.]” Id. at 11. But then, for reasons

unclear from the record, the court allowed the trial to proceed without

bifurcation. As a result, the jury was informed of Brook’s driving record, which

includes not only the prior driving-while-suspended infraction but many other

violations and suspensions.

[52] In affirming on this issue, the lead opinion focuses its discussion on Indiana

Code section 35-38-1-2(c), which provides:

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If:

(1) the state in the manner prescribed by IC 35-34-1-2.5

sought an increased penalty by alleging that the person

was previously convicted of the offense; and

(2) the person was convicted of the subsequent offense in a

jury trial;

the jury shall reconvene for the sentencing hearing. The person

shall be sentenced to receive the increased penalty if the jury (or

the court, if the trial is to the court alone) finds that the state has

proved beyond a reasonable doubt that the person had a previous

conviction for the offense.

The lead opinion correctly notes that this statute expressly requires bifurcation

only when the prior violation at issue was a criminal “offense,” which means a

felony or misdemeanor. See I.C. § 35-31.5-2-215. But it is also true that nothing

in the statute expressly limits bifurcation to that situation. The statute simply

doesn’t address whether bifurcation is required where, as here, the prior

violation is an infraction rather than a criminal offense. Therefore, we are left

with the fundamental legal principles underlying the concept of bifurcation.

And those principles—due process and the general prohibition on character

evidence—are implicated regardless of whether the prior violation is a criminal

offense or an infraction.

[53] More than fifty years ago, our Supreme Court held that a defendant had a due-

process right to bifurcation of his jury trial when he was charged with safe

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burglary and being a habitual criminal, based on prior convictions. Lawrence v.

State, 286 N.E.2d 830 (Ind. 1972). The Court explained:

To be admissible, evidence must logically tend to prove a

material fact. Accordingly, evidence of prior crimes is generally

inadmissible in a criminal case, because it has no tendency to

establish the guilt or innocence of the accused but, if effective at

all, could serve only to prejudice or mislead or excite the minds

and inflame the passions of the jury.

In the principal case no showing was made that evidence of the

defendant’s prior crimes was in any manner relevant to the safe

burglary charge. Its sole relevance lay in its support of the

habitual criminal charge.

Inherent in [allowing a combined trial on the new charge and the

habitual charge] is the belief that the jury can consider the prior

convictions for the purpose of determining the status of habitual

criminal, and at the same time make an independent

determination of guilt on the crime charged solely on their

evaluation of the evidence presented to support that charge. It is

highly improbable that twelve jurors can be found with sufficient

mental discipline to compartmentalize the evidence.

The mental manipulation required by [a combined trial] would

be difficult for one specially trained in the rules of evidence, and

we would be less than realistic to expect evidence of prior

convictions not to influence the jurors’ determination of guilt or

innocence on the principal offense.

Id. at 832–33 (cleaned up). The right to bifurcation recognized in Lawrence was

later extended from the habitual-offender context to “cases where prior

convictions serve to elevate a present crime or enhance the penalty for a present

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conviction.” Spearman v. State, 744 N.E.2d 545, 547 (Ind. Ct. App. 2001), reh’g

denied, trans. denied.

[54] The due-process concerns first articulated in Lawrence are inherent in Evidence

Rule 404, which governs the admissibility of character evidence. As relevant

here, Rule 404(b)(1) provides, “Evidence of a crime, wrong, or other act is not

admissible to prove a person’s character in order to show that on a particular

occasion the person acted in accordance with the character.” In criminal cases,

the purpose of this rule is to prevent the jury from indulging in the so-called

“forbidden inference” that the defendant’s prior bad conduct suggests present

guilt. Fairbanks v. State, 119 N.E.3d 564, 568 (Ind. 2019). As noted by the lead

opinion, the purpose of bifurcation is the same: “to keep prior convictions away

from the jury in its initial determination of guilt for the substantive crime

charged.” Slip op. at ¶19 (citing Hines v. State, 794 N.E.2d 469, 472 (Ind. Ct.

App. 2003), adopted and incorporated by Hines v. State, 801 N.E.2d 634 (Ind.

2004)). Ultimately, then, bifurcation is a 404(b) issue in a case like this.

[55] The lead opinion doesn’t meaningfully engage with these important principles,

proceeding as though Brook’s argument is limited to Section 35-38-1-2(c). Slip

op. at ¶18. I disagree. That statute was not the basis for Brook’s bifurcation

request in the trial court, and it is not the primary basis for her argument on

appeal. At trial, Brook argued that “having the prior conviction in front of the

jury would just, it leads them to believe that she committed the crime more so.”

Tr. Vol 2 p. 10. That is a 404(b) argument. And the main thrust of her

argument on appeal is that allowing evidence of her prior violations “was

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prejudicial to her fundamental rights because it was a wholesale attack on her

character in violation of clearly established law.” Appellant’s Br. p. 18. Again,

that is a 404(b) argument. Therefore, the broader due-process/404(b) argument

for bifurcation is squarely before us.

[56] That being the case, I see no reason not to apply those broad principles to

Brook’s situation merely because the prior violation at issue was an infraction

rather than a criminal offense. Based on that prior infraction, Brook’s current

driving-while-suspended charge was elevated to a Class A misdemeanor,

meaning that she faced up to a year in jail and a fine of up to $5,000 on that

count. See I.C. § 35-50-3-2. Those are real criminal consequences. And there is

little doubt that the jury was more likely to find Brook guilty on the current

driving-while-suspended charge once it learned she had previously committed

the same violation. Therefore, I would hold that due-process principles and

Evidence Rule 404(b) entitled Brook to bifurcation even though Section 35-38-

1-2(c) did not, and I would reverse her driving-while-suspended conviction.

[57] Finally, even though I believe a defendant facing an increased penalty based on

a prior infraction is entitled to bifurcation under due-process principles and

Evidence Rule 404(b), I encourage the General Assembly to expand Section 35-

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38-1-2(c) to include that situation. Such an amendment would further clarify

and solidify this crucial right. 7

7

Comparing the driving-while-suspended statutes with the driving-without-having-received-a-license statute

highlights the flaw I see in the current version of Section 35-38-1-2(c). Like a second instance of driving

while suspended, a second instance of driving without having received a license is a Class A misdemeanor.

I.C. § 9-24-18-1(a). But whereas the first instance of driving while suspended is a Class A infraction, which is

not a criminal “offense,” the first instance of driving without having received a license is a Class C

misdemeanor, id., which is a criminal “offense.” Oddly, this means that while a person charged with the

Class A misdemeanor driving without having received a license is entitled to bifurcation under Section 35-38-

1-2(c), a person charged with the Class A misdemeanor driving while suspended is not, due solely to the

classification of the prior violation. I can’t imagine the General Assembly considered and intended this

disparate outcome.

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Tavitas, Judge, concurring in part and dissenting in part.

[58] I concur with Judge Foley’s opinion regarding Issues I, III, and IV. I

respectfully dissent, however, from the majority’s holding that the trial court did

not abuse its discretion in instructing the jury with regard to the elements of the

crime of possession of a legend drug.

[59] The trial court instructed the jury that, to convict Brook of possession of a

legend drug, the State was required to prove beyond a reasonable doubt that (1)

Brook, (2) knowingly, (3) possessed, (4) “Lorazepam, which the Court instructs

you was classified as a legend drug.” Appellant’s App. Vol. II pp. 106, 138. By

instructing the jury that Lorazepam was classified as a legend drug, the trial

court relieved the State of its burden of proving each element of the offense.

This is particularly concerning here because the State presented no evidence at

all that Lorazepam is a legend drug. Instead, the State merely demonstrated to

the trial court that Lorazepam is listed in the “Orange Book” promulgated by

the federal government, and the trial court then instructed the jury that

Lorazepam was, as a matter of law, a legend drug.

[60] The majority considers this not to be a problem because this Court has

previously held that “[i]f a drug is identified in court by a name specifically

designated as a controlled substance by the Indiana Code, then the State has proven

as a matter of law the drug is a controlled substance.” J.P. v. State, 878 N.E.2d

415, 417 (Ind. Ct. App. 2007) (citing Barnett v. State, 579 N.E.2d 84, 86 (Ind. Ct.

App. 1991), trans. denied) (emphasis added). “If the substance is not specifically

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enumerated by the Code as a controlled substance, the State must offer extrinsic

evidence to prove the substance falls within the Code’s definition.” Id.

[61] Here, Lorazepam is not specifically enumerated by the Indiana Code as a

legend drug.8 It is instead listed in a federal publication that is referenced by the

Indiana Code section defining a legend drug. Accordingly, I believe that the

State was required to offer extrinsic evidence—such as the relevant portion of

the Orange Book—to prove to the jury that Lorazepam is a legend drug. See

J.P., 878 N.E.2d at 417. By instructing the jury in the manner it did, the trial

court gave the jury an impermissible mandatory instruction. Pattison v. State, 54

N.E.3d 361, 365 (Ind. 2016) (defining a mandatory presumption as an

instruction which informs the jury that it “must infer the presumed facts if the

State proves certain predicate facts,” which, “if it amounts to a shift in the

burden of proof, it is unconstitutional.”) (citations omitted). 9 The trial court

here recognized that its instruction was mandatory, stating: “The [] mandatory

8

It is, however, specifically enumerated as a Schedule IV controlled substance. See Ind. Code § 35-48-2-

10(c). The State, however, amended the charging information to allege that Brook committed possession of a

legend drug, not possession of a controlled substance.

9

Although not raised by Brook on appeal, I cannot ignore the fact that the trial court’s instruction also

invaded the constitutional role of the jury to be the exclusive judge of both the law and the facts in criminal

cases. Article I, Section 19 of the Indiana Constitution provides: “In all criminal cases whatever, the jury

shall have the right to determine the law and the facts.” Our Supreme Court has repeatedly held that “[t]his

provision requires that a jury in any criminal case be allowed to decide not only what the facts are but also

what the law is and, consequently, how the law applies to the facts.” Harris v. State, 211 N.E.3d 929, 937

(Ind. 2023). Thus, even when the State has presented incontrovertible proof of a defendant’s prior felony

convictions, the jury still has the right to determine whether the defendant is, or is not, a habitual offender as

a matter of law. Id. (citing Seay v. State, 698 N.E.2d 732, 737 (Ind. 1998)). The trial court here did properly

instruct the jury that it was the exclusive judge of the law and the facts. Tr. Vol. 2 p. 154. Yet, by informing

the jury that Lorazepam was, as a matter of law, a legend drug, the trial court invaded the role of the jury to

be the exclusive judge of the law and the facts.

Court of Appeals of Indiana | Opinion 22A-CR-2110 | October 20, 2023 Page 39 of 40

instruction o[f] the Court is telling you Lorazepam is a legend drug.” Tr. Vol. 2

p. 13.

[62] Here, the trial court’s instruction informed the jury that, if the State proved that

Brook possessed Lorazepam, the State accordingly proved that this substance

was a legend drug. Because this unconstitutionally relieved the State of its

burden of proving all the elements of the offense, and because the State

presented no evidence at all to the jury that Lorazepam is a legend drug, I

would reverse Brook’s conviction for possession of a legend drug and remand

for retrial on this issue.

Court of Appeals of Indiana | Opinion 22A-CR-2110 | October 20, 2023 Page 40 of 40