                                                                                FILED
                                                                            Aug 29 2019, 5:53 am

                                                                                CLERK
                                                                            Indiana Supreme Court
                                                                               Court of Appeals
                                                                                 and Tax Court



      ATTORNEYS FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
      Stacy R. Uliana                                            Curtis T. Hill, Jr.
      Bargersville, Indiana                                      Attorney General
      Dorie Maryan                                               Justin F. Roebel
      Maryan Law, LLC                                            Supervising Deputy Attorney
      Bargersville, Indiana                                      General
                                                                 Indianapolis, Indiana



                                                  IN THE
          COURT OF APPEALS OF INDIANA

      Nathaniel Walmsley,                                        August 29, 2019
      Appellant-Defendant,                                       Court of Appeals Case No.
                                                                 18A-CR-2506
              v.                                                 Appeal from the
                                                                 Ripley Circuit Court
      State of Indiana,                                          The Honorable
      Appellee-Plaintiff                                         Ryan King, Judge
                                                                 Trial Court Cause No.
                                                                 69C01-1711-MR-1



      Vaidik, Chief Judge.



                                           Case Summary
[1]   A person who kills another human being while committing one of several

      enumerated felonies, including delivery of a narcotic drug, is guilty of felony


      Court of Appeals of Indiana | Opinion 18A-CR-2506 | August 29, 2019                           Page 1 of 11
      murder. In this case, the State charged Nathaniel Walmsley with felony

      murder after he injected his wife Rachel with a drug and she died of an

      overdose, claiming that the injection constituted “delivery” of the drug.

      Nathaniel filed a motion to dismiss, which the trial court denied. Because the

      evidence shows that Nathaniel and Rachel jointly acquired possession of the

      drug for their own use, Nathaniel did not “deliver” the drug to Rachel when he

      injected her. We therefore reverse the trial court’s denial of Nathaniel’s motion

      to dismiss the felony-murder charge.



                             Facts and Procedural History
[2]   On July 30, 2017, Nathaniel texted James Alvin Trimnell asking for a “G” for

      “100.” Appellant’s App. Vol. II p. 18. Later that day, Trimnell delivered either

      fentanyl or a combination of heroin and fentanyl to Nathaniel and Rachel’s

      Batesville home.1 After Trimnell left the Walmsley home, Nathaniel and

      Rachel went into the bathroom, where Nathaniel cooked the drug. Nathaniel

      injected Rachel with her consent and then injected himself. Shortly thereafter,

      Rachel passed out on the bathroom floor. Hours later, Nathaniel took Rachel

      to the hospital, where she was pronounced dead.




      1
       Rachel’s cause of death was acute fentanyl and ethanol intoxication. It’s unclear whether the substance
      was heroin and fentanyl or just fentanyl.



      Court of Appeals of Indiana | Opinion 18A-CR-2506 | August 29, 2019                            Page 2 of 11
[3]   Following a three-month investigation, on November 9, 2017, the State charged

      Trimnell and Nathaniel with felony murder. Nathaniel’s charging information

      provides as follows:


              On or about July 30, 2017, Nathaniel Walmsley, while
              committing the crime of Dealing a Narcotic Drug, which is to
              knowingly or intentionally deliver a narcotic drug, that is: heroin
              (pure or adulterated), did kill another human being, that is:
              Rachel Walmsley[.]


      Id. at 21 (formatting altered). The charges against Trimnell and Nathaniel were

      newsworthy, as it was believed to be the first time in Indiana that someone had

      been charged with felony murder for the overdose death of a consenting adult.

      See, e.g., 2 Charged with Felony Murder in Batesville OD Death, The Indiana Lawyer

      (Nov. 9, 2017), https://www.theindianalawyer.com/articles/45338-charged-

      with-felony-murder-in-batesville-od-death; Diana Raver, Batesville Men Accused

      of Murder, The Herald-Tribune (Nov. 8, 2017),

      https://www.batesvilleheraldtribune.com/news/local_news/batesville-men-

      accused-of-murder/article_6e5f6a73-bddd-5b67-ba73-ff6dbedb61d6.html

      (Ripley County Prosecutor: “This is the first felony murder charge based on an

      overdose case in Ripley County and possibly the first in Indiana. . . . A lot of

      people will be watching to see how this case unfolds.”).


[4]   Thereafter, Trimnell and Nathaniel filed motions to dismiss pursuant to Indiana

      Code section 35-34-1-4(a)(5), alleging that the facts recited in their charging

      informations did not constitute felony murder. Pursuant to Indiana Code

      section 35-34-1-8(a)—which allows a defendant to submit affidavits and
      Court of Appeals of Indiana | Opinion 18A-CR-2506 | August 29, 2019       Page 3 of 11
      documentary evidence with a motion to dismiss—Nathaniel designated

      Trimnell’s police interview (Exhibit A) as well as his police interview (Exhibit

      B) and affidavit (Exhibit C). Tr. pp. 8-10. Nathaniel’s affidavit alleges as

      follows: (1) on the day of Rachel’s death, Nathaniel and Rachel agreed to

      purchase heroin from Trimnell; (2) Nathaniel and Rachel “used Rachel’s tip

      money that she retrieved from her purse to buy what [they] believed to be

      heroin from Trimnell”; and (3) Trimnell handed Nathaniel the drugs “in

      Rachel’s presence [and] with her knowledge.” Ex. C. Although Section 35-34-

      1-8(b) allows the State to submit documentary evidence to refute the allegations

      in a motion to dismiss, the State did not do so here. Following a hearing, the

      trial court denied Trimnell’s and Nathaniel’s motions to dismiss and certified

      the orders for interlocutory appeal. We accepted jurisdiction in each case.


[5]   On December 31, 2018, this Court reversed the trial court’s denial of Trimnell’s

      motion to dismiss. The majority held that Trimnell could not be tried for felony

      murder for the overdose death of Rachel based on the facts and circumstances

      of the case. Trimnell v. State, 119 N.E.3d 92 (Ind. Ct. App. 2018), trans. not

      sought. This author concurred in the result, reasoning that the felony-murder

      statute, as a matter of law, cannot apply when the death “occurs after—not

      during—the delivery of drugs.” Id. at 98 (Vaidik, C.J., concurring in result and




      Court of Appeals of Indiana | Opinion 18A-CR-2506 | August 29, 2019       Page 4 of 11
      “express[ing] no opinion as to whether Nathaniel’s act of administering the

      drugs to Rachel constitutes dealing or felony murder.”).2


[6]   Nathaniel’s appeal is now before us. We held oral argument in this case on

      August 6, 2019.



                                    Discussion and Decision
[7]   Nathaniel contends that the trial court erred in denying his motion to dismiss

      the felony-murder charge. We review a trial court’s ruling on a motion to

      dismiss a charging information for an abuse of discretion, which occurs only if a

      trial court’s decision is clearly against the logic and effect of the facts and

      circumstances. Gutenstein v. State, 59 N.E.3d 984, 994 (Ind. Ct. App. 2016),

      trans. denied.




      2
        After Rachel’s death, the legislature created a new offense—dealing in a controlled substance
      resulting in death—effective July 1, 2018. Ind. Code § 35-42-1-1.5; P.L. 198-2018. This statute
      provides, in part:
             (a) A person who knowingly or intentionally manufactures or delivers a controlled substance or
             controlled substance analog, in violation of:
               (1) IC 35-48-4-1 (dealing in cocaine or a narcotic drug);
               (2) IC 35-48-4-1.1 (dealing in methamphetamine);
               (3) IC 35-48-4-1.2 (manufacturing methamphetamine); or
               (4) IC 35-48-4-2 (dealing in a schedule I, II, or III controlled substance);
             that, when the controlled substance is used, injected, inhaled, absorbed, or ingested, results in
             the death of a human being who used the controlled substance, commits dealing in a controlled
             substance resulting in death, a Level 1 felony.
      I.C. § 35-42-1-1.5. Although this statute cannot be applied to Trimnell (since it was passed after the
      events in this case), it does apply to people who, like Trimnell, deliver a drug that results in the user’s
      death.

      Court of Appeals of Indiana | Opinion 18A-CR-2506 | August 29, 2019                                    Page 5 of 11
[8]   A person who “kills another human being while committing or attempting to

      commit” dealing in a narcotic drug commits murder. Ind. Code § 35-42-1-

      1(3)(A). As relevant here, “dealing” is committed when a person knowingly or

      intentionally “delivers” a Schedule I or II narcotic drug. Ind. Code § 35-48-4-

      1(a)(1)(C). Nathaniel doesn’t dispute that the drug is a Schedule I or II narcotic

      drug. Rather, Nathaniel argues that he didn’t “deliver” the drug to Rachel

      when he injected her. “Delivery” is defined as:


              (1) an actual or constructive transfer from one (1) person to
              another of a controlled substance, whether or not there is an
              agency relationship; or


              (2) the organizing or supervising of an activity described in
              subdivision (1).


      Ind. Code § 35-48-1-11.


[9]   The State argues that the Indiana Supreme Court’s decision in Duncan v. State,

      857 N.E.2d 955 (Ind. 2006), controls this case. In Duncan, the defendant had a

      prescription for methadone. She gave 1/4 of a tablet to Noah, a two-year-old in

      her care, and Noah died the next day from methadone poisoning. The State

      charged the defendant with felony murder for killing Noah while committing or

      attempting to commit dealing in a Schedule II controlled substance, and the

      jury found her guilty. On appeal, our Supreme Court recognized that applying

      the felony-murder statute to the facts presented was “unusual.” Id. at 958. It

      stated that although the defendant’s conduct in administering the methadone to

      Noah satisfied “the technical requirements of a dealing conviction,” it

      Court of Appeals of Indiana | Opinion 18A-CR-2506 | August 29, 2019       Page 6 of 11
       “seem[ed] at the margins of the conduct targeted by the statute.” 3 Id. at 960; see

       also id. at 958 (“The jury found that [the defendant] administered the drug and

       therefore committed the felony of ‘dealing.’”).


[10]   Nathaniel argues that Duncan is distinguishable because it involved a “two-year-

       old who did not voluntarily choose to ingest methadone,” while this case

       involves “an adult who dies after choosing to use drugs.” Appellant’s Br. p. 23.

       We agree with Nathaniel: an adult choosing to do drugs is much different than

       a two-year-old being given drugs. Because the State concedes that Rachel

       consented to the injection, Duncan does not control this case.


[11]   Nathaniel then argues that the felony-murder statute does not apply to him

       because “[a] husband who jointly purchase[s] and possess[es] drugs with his

       wife cannot thereafter deliver the drugs to her.” Appellant’s Br. p. 11.

       Nathaniel cites cases from other jurisdictions to support this proposition.


[12]   In United States v. Swiderski, 548 F.2d 445 (2d Cir. 1977), an engaged couple

       purchased cocaine from an informant, and each of them was charged in federal

       court with possession of cocaine with intent to distribute, as opposed to simple

       possession, for sharing the cocaine with each other. The Second Circuit held:


                [W]here two individuals simultaneously and jointly acquire
                possession of a drug for their own use, intending only to share it



       3
         The issue on appeal was whether Noah was killed during the commission of the dealing, since he died the
       next day. Our Supreme Court held, “Although Noah died the next day, the dealing was the first step in a
       chain of events that led to his death. This rendered the act ‘killing’ that occurred ‘during’ the felony even
       though the victim survived for some period of time.” Duncan, 857 N.E.2d at 958.

       Court of Appeals of Indiana | Opinion 18A-CR-2506 | August 29, 2019                               Page 7 of 11
               together, their only crime is personal drug abuse—simple joint
               possession, without any intent to distribute the drug further.
               Since both acquire possession from the outset and neither intends
               to distribute the drug to a third person, neither serves as a link in
               the chain of distribution. [T]hey must therefore be treated as
               possessors for personal use rather than for further distribution.


       Id. at 450. Accordingly, the Second Circuit vacated the couple’s convictions

       and ordered that convictions be entered on the lesser-included offense of simple

       possession.


[13]   The Seventh Circuit cited Swiderski with approval in Weldon v. United States, 840

       F.3d 865 (7th Cir. 2016), a case similar to this one. There, the defendant, his

       girlfriend Andrea, and their friend David pooled their money to buy heroin

       from the defendant’s dealer. David drove the trio to meet up with the dealer,

       and the defendant got out of David’s car and into the dealer’s car, where he

       exchanged money for heroin. The defendant got back into David’s car, and

       David drove them to his house, where Andrea injected all three of them with

       the heroin. David died. The defendant was charged with distributing an illegal

       drug resulting in death. (Andrea was also charged for her role in David’s death

       but argued to the jury that what she did in injecting David was not distribution,

       and the jury acquitted her). The Seventh Circuit noted the Second Circuit’s

       holding in Swiderski:


               United States v. Swiderski, 548 F.2d 445, 450 (2d Cir. 1977), holds
               that individuals who “simultaneously and jointly acquire
               possession of a drug for their own use, intending only to share it
               together,” are not distributors, “since both acquire possession

       Court of Appeals of Indiana | Opinion 18A-CR-2506 | August 29, 2019           Page 8 of 11
        from the outset and neither intends to distribute the drug to a
        third person,” and so “neither serves as a link in the chain of
        distribution.” This reasoning has been approved in several cases,
        see United States v. Layne, 192 F.3d 556, 569 (6th Cir. 1999);
        United States v. Hardy, 895 F.2d 1331, 1334-35 (11th Cir. 1990);
        United States v. Rush, 738 F.2d 497, 514 (1st Cir. 1984); cf. United
        States v. Mancuso, 718 F.3d 780, 798 and n.10 (9th Cir. 2013),
        though our court has had no occasion to opine on it.


Weldon, 840 F.3d at 866-67. Judge Posner described the situation in common-

sense fashion:


        Suppose you have lunch with a friend, order two hamburgers,
        and when your hamburgers are ready you pick them up at the
        food counter and bring them back to the table and he eats one
        and you eat the other. It would be very odd to describe what you
        had done as “distributing” the food to him. It is similarly odd to
        describe what either [the defendant] or [Andrea] did as
        distribution. They had agreed to get high together, they shared
        the expense, they all went together to the drug dealer, and they
        shared the drug that they bought from him. It’s true that only
        [the defendant] transferred the money for the drug to the dealer,
        but it was the pooled money that he was handing over, although
        his contribution to the pool had been slight. It’s true that having
        paid he carried the drug back to [David’s] car. But it would have
        been absurd for all three to have gone up to the dealer and each
        pay him separately, and even more absurd for them to have
        carried the minute package, containing less than half a gram of
        powder, together to the car and from the car to [David’s]
        residence.


Id. at 866 (emphasis added). Other courts have reached similar conclusions.

See, e.g., People v. Coots, 968 N.E.2d 1151 (Ill. App. Ct. 2012) (collecting cases);

State v. Lopez, 819 A.2d 486, 492-93 (N.J. Super. Ct. App. Div. 2003) (“[O]ne

Court of Appeals of Indiana | Opinion 18A-CR-2506 | August 29, 2019         Page 9 of 11
       cannot acquire something one already possesses. Having an object with the

       intent to distribute presumes that the intended recipient does not have

       possession of it. Therefore, as a matter of law, two or more defendants cannot

       intend to distribute to each other drugs they jointly possess.”); People v. Edwards,

       702 P.2d 555, 559 (Cal. 1985) (“The distinction . . . between one who sells or

       furnishes heroin and one who simply participates in a group purchase seems to

       be a valid one, at least where the individuals involved are truly ‘equal partners’

       in the purchase and the purchase is made strictly for each individual’s personal

       use. Under such circumstances, it cannot reasonably be said that each

       individual has ‘supplied’ heroin to the others.”).


[14]   We agree with the rationale of these courts and likewise hold that, as a matter

       of law, two or more people cannot deliver to each other drugs that they jointly

       possess. In other words, when two or more people jointly acquire possession of

       a drug for their own use, intending only to share it together, they do not

       “deliver” the drug when they inject or hand the drug to the other person, since

       they acquired possession from the outset and did not intend to distribute the

       drug to a third person. Here, the basis of the State’s felony-murder charge

       against Nathaniel is that he delivered the drug to Rachel by injecting her.

       Nathaniel’s affidavit, however, provides that Nathaniel and Rachel agreed to

       purchase heroin from Trimnell, they used Rachel’s tip money to purchase it,

       and Trimnell handed the drug to Nathaniel “in Rachel’s presence [and] with

       her knowledge.” Ex. C. The State did not submit any evidence to dispute these

       allegations and at oral argument maintained that Rachel’s involvement in the


       Court of Appeals of Indiana | Opinion 18A-CR-2506 | August 29, 2019       Page 10 of 11
       purchase of the drug was not “relevant.” Oral Arg. Video at 27:20. Because

       the evidence shows that Nathaniel and Rachel jointly acquired possession of the

       drug for their own use the moment Trimnell dropped it off at their house,

       Nathaniel did not “deliver” the drug to Rachael when he injected her.4

       Therefore, he can’t be charged with felony murder for injecting her.5 We

       therefore reverse the trial court’s denial of Nathaniel’s motion to dismiss the

       felony-murder charge.


[15]   Reversed.


       Kirsch, J, and Altice, J. concur.




       4
        As noted above, delivery is defined as “an actual or constructive transfer from one (1) person to another of a
       controlled substance, whether or not there is an agency relationship.” I.C. § 35-48-1-11 (emphasis added).
       In its brief, the State didn’t make any argument based on the emphasized language. After oral argument, the
       State filed a notice of additional authority citing two cases in which the courts discussed this language in
       upholding convictions for “delivery” of drugs to co-users. See Graham v. State, 971 N.E.2d 713 (Ind. Ct. App.
       2012), trans. denied; State v. Moore, 529 N.W.2d 264 (Iowa 1995). Swiderski considered this same issue,
       holding that the language “whether or not there exists an agency relationship” did not mean that joint
       possessors who share drugs are guilty of distributing the drugs: “Purchasers who simultaneously acquire a
       drug jointly for their own purpose, however, do not perform any service as links in the chain; they are the
       ultimate users.” 548 F.2d at 451. To the extent that Graham and Moore conflict with the Swiderski line of
       cases, we think that Swiderski got it right.
       5
        This doesn’t mean that Nathaniel didn’t commit a crime. As defense counsel conceded at oral argument,
       Nathaniel could be convicted of drug possession or even reckless homicide (depending on what the
       developed facts showed). Oral Arg. Video at 40:22-41:20.

       Court of Appeals of Indiana | Opinion 18A-CR-2506 | August 29, 2019                              Page 11 of 11
