                                                                           FILED
                                                                       Dec 31 2018, 7:26 am

                                                                           CLERK
                                                                       Indiana Supreme Court
                                                                          Court of Appeals
                                                                            and Tax Court




ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
Leanna Weissmann                                          Curtis T. Hill, Jr.
Lawrenceburg, Indiana                                     Attorney General of Indiana

                                                          Justin F. Roebel
                                                          Deputy Attorney General
                                                          Indianapolis, Indiana


                                            IN THE
    COURT OF APPEALS OF INDIANA

James Alvin Trimnell,                                     December 31, 2018
Appellant-Defendant,                                      Court of Appeals Case No.
                                                          18A-CR-987
        v.                                                Appeal from the Ripley Circuit
                                                          Court
State of Indiana,                                         The Honorable Ryan King, Judge
Appellee-Plaintiff.                                       Trial Court Cause No.
                                                          69C01-1711-MR-002



Darden, Senior Judge.




Court of Appeals of Indiana | Opinion 18A-CR-987 | December 31, 2018                           Page 1 of 17
                                          Statement of the Case
[1]   James Alvin Trimnell brings this interlocutory appeal from the trial court’s
                                                                             1
      order denying his motion to dismiss a charge of felony murder. We reverse

      and remand.


                                                      Issue
[2]   Trimnell raises the following issue for our review which we restate as: whether,

      in this particular case, the trial court abused its discretion by denying his motion

      to dismiss and “holding that the felony murder statute applies to the person

      who delivers a narcotic drug to another person who later administers the

      narcotic drug to another person who subsequently dies.”


                                   Facts and Procedural History
[3]   The factual allegations contained in the charging information and the

      supporting probable cause affidavit follows. Trimnell knew Rachel and

      Nathaniel Walmsley because they had previously worked together. It appears

      that in the past, and on occasion, Trimnell had used drugs with Nathaniel and

      Rachel. Nathaniel had purchased drugs from Trimnell on six or seven

      occasions prior to the incident in question. Nathaniel would contact and tell

      Trimnell what drugs he wanted and in what quantity and would provide

      Trimnell the money for the purchase.




      1
          Ind. Code § 35-42-1-1(3)(A) (2017).


      Court of Appeals of Indiana | Opinion 18A-CR-987 | December 31, 2018       Page 2 of 17
[4]   On July 30, 2017, Nathaniel sent a text message to Trimnell, stating that he

      wanted a “G” for “100”. Appellant’s App. Vol. 2, p. 13. Nathaniel only asked

      Trimnell to purchase the drug because he had already stolen a clean needle

      from a client. Nathaniel and Rachel had planned a family barbecue for that

      afternoon and evening.


[5]   It is undisputed that at some point between 1:00 and 3:00 p.m. that day,

      Trimnell arrived at Nathaniel’s home and delivered one half gram to a gram of

      a substance to Nathaniel in a cigarette package and went home. Trimnell

      subsequently told police officers that he had bought the substance in Cincinnati,

      Ohio at a location off the Mt. Healthy exit. He also stated that he believed the

      substance he purchased was heroin.


[6]   Apparently, Rachel had been drinking alcohol excessively on the day of the

      incident. At around 3:45 to 4:00 p.m. that same day, Nathaniel “cooked the

      drug” and injected Rachel, as he was the one who always administered drugs to

      Rachel. Id. Nathaniel, subsequent to being questioned by law enforcement,

      acknowledged that he had also administered the same drug to himself, and

      recalled seeing Rachel lying on the bathroom floor and thought that she was

      probably dead. However, he was not certain because he could not detect any

      vital signs. Rachel seemed to be passed out, had a weak pulse and her

      breathing was shallow. He and his fifteen-year-old son later carried Rachel

      upstairs to her bed.




      Court of Appeals of Indiana | Opinion 18A-CR-987 | December 31, 2018    Page 3 of 17
[7]    Nathaniel then took the needle he had used out of the top drawer of the dresser,

       cut it up, and disposed of the pieces in the woods near his home. He also

       disposed of a second needle he possessed. He then flushed the remainder of the

       drug down the toilet.


[8]    Nathaniel’s mother had arrived at the house for the family barbecue around

       5:00 p.m. and thought that Rachel was taking a nap. Nathaniel’s father arrived

       sometime after her. Nathaniel’s mother told an officer that at around 8:15 p.m.

       that evening she became aware that Nathaniel and his son had loaded Rachel in

       the car so Nathaniel could take her to Margaret Mary Hospital. She stated that

       Rachel did not appear to be conscious when she observed them place her in the

       car. An apparent drug overdose was reported to police at around 8:37 p.m. that

       evening by Margaret Mary Hospital. Rachel had died at the hospital that

       evening and during an autopsy the following day, her cause of death was

       determined to be “acute fentanyl and ethanol intoxication.” Id. at 13.


[9]    Nathaniel consented to a search of his residence. Officers located a wooden

       box in the bathroom closet. Inside the box was a spoon with burn marks on the

       bottom and residue in the “scoop part of the spoon.” Id. at 12.


[10]   On November 9, 2017, the State charged Trimnell with felony murder. On

       December 29, 2017, Trimnell filed a motion to dismiss and a hearing was held

       on the motion. The trial court took the motion under advisement and later

       denied it on March 19, 2018. At the request of both parties, the trial court




       Court of Appeals of Indiana | Opinion 18A-CR-987 | December 31, 2018     Page 4 of 17
       certified its order for interlocutory appeal. This court accepted jurisdiction of

       the appeal.


                                     Discussion and Decision
                                           Standard of Review
[11]   In State v. Thakar, our Supreme Court set forth the appropriate standard of

       review as follows:


               We review a trial court’s ruling on a motion to dismiss a charging
               information for an abuse of discretion . . . [and a] trial court []
               abuses its discretion when it misinterprets the law. A challenge
               to the constitutionality of a statute is a pure question of law,
               which we review de novo. [A]ll statutes are presumptively
               constitutional, and the court must resolve all reasonable doubts
               concerning a statute in favor of constitutionality. That being
               said, unlike the higher burden faced by those making a facial
               constitutional challenge, those challenging the statute as applied
               need only show the statute is unconstitutional on the facts of the
               particular case.


       82 N.E.3d 257, 259 (Ind. 2017) (internal quotations and citations omitted).


[12]   Generally, when a defendant files a motion to dismiss an information, the facts

       alleged in the information are to be taken as true. State v. Gill, 949 N.E.2d 848,

       850 (Ind. Ct. App. 2011). Questions of fact to be decided at trial or facts

       constituting a defense are not properly raised by a motion to dismiss. Id. The

       hearing held on a motion to dismiss is not a trial of the defendant on the offense

       charged. Id.



       Court of Appeals of Indiana | Opinion 18A-CR-987 | December 31, 2018      Page 5 of 17
                                        Felony Murder Statute
[13]   The version of the felony murder statute in effect at the time of the alleged

       offense provided in pertinent part as follows:


               A person who [] kills another human being while committing or
               attempting to commit [] dealing in or manufacturing cocaine or a
               narcotic drug (IC 35-48-4-1) [] commits murder, a felony.


       Ind. Code § 35-42-1-1(3)(A). Heroin is a schedule I controlled substance. Ind.

       Code § 35-48-2-4(c) (2017). Fentanyl is a schedule II controlled substance. Ind.

       Code § 35-48-2-6(c) (2015).


                                         Controlling Precedent
[14]   Trimnell argues that the trial court abused its discretion by denying the motion

       to dismiss because the facts alleged in the information, if taken as true, do not

       establish that he committed the criminal offense of felony murder. The State

       contends that the trial court’s denial of the motion to dismiss was proper

       because of controlling precedent announced in Duncan v. State, 857 N.E.2d 955

       (Ind. 2006), and Layman v. State, 42 N.E.3d 972 (Ind. 2015).


[15]   In Duncan, supra, Duncan lived in an apartment in Lafayette with her son,

       Lindsey and his fiancé Green, along with the couple’s infant child and Green’s

       two-year-old son. Duncan had moved in to assist the couple with child care.

       Duncan had a prescription for methadone, which she testified was to control

       pain associated with her physical ailments.



       Court of Appeals of Indiana | Opinion 18A-CR-987 | December 31, 2018      Page 6 of 17
[16]   On an occasion, Duncan was home alone with the two children. She gave

       Green’s two-year-old child one-fourth of one of her methadone tablets. The

       child died the next day from methadone poisoning. Ultimately, Duncan

       confessed to giving methadone to the child, but then moved to suppress the

       confession on various grounds after being charged with felony murder among

       other offenses. The confession was admitted at trial, and the jury found

       Duncan guilty of felony murder and other crimes.


[17]   On appeal, in addition to other issues, Duncan challenged the sufficiency of the

       evidence supporting her conviction for felony murder. The Supreme Court

       noted and addressed at the outset that among the statutory definitions of felony

       murder was the killing of another human being while committing or attempting

       to commit dealing in a schedule II controlled substance. Duncan, 857 N.E.2d at

       957. The Court also observed that methadone is a schedule II substance and

       that the statutory definition of dealing includes possession with the intent to

       deliver a schedule II controlled substance to a person under eighteen years of

       age at least three years junior to the person. Id. Therefore, her possession of

       methadone with the intent to give it to a two-year-old child constituted dealing.

       Id.


[18]   Duncan first argued that the evidence was insufficient to establish that the two-

       year-old’s death occurred during the commission of the dealing offense. She

       claimed that because the child died a day after the delivery of methadone, he

       was not killed during the felony. Duncan acknowledged the Court’s precedent,

       holding that if an injury inflicted during the commission of a felony contributes

       Court of Appeals of Indiana | Opinion 18A-CR-987 | December 31, 2018      Page 7 of 17
       “mediately or immediately” to the death of the victim, the defendant’s

       conviction for homicide could be affirmed. Id. at 958. However, she contended

       that there was no injury inflicted on the child in the course of the dealing

       because the child was not immediately harmed by the pill. She further argued

       that the moment she gave the pill to the child, she no longer possessed the

       requisite intent for the crime. Rejecting this argument, the Court held that the

       injury to the child was ingesting a controlled substance, which led directly, if

       not immediately, to the child’s death. Id. The dealing was the first step in the

       chain of events leading to the child’s death. Id. Consequently, the killing

       occurred during the felony even though the child survived for a period of time

       after the injury. Id.


[19]   Next, Duncan argued that the child’s death was not a foreseeable consequence

       of her act. Rejecting that contention as well, the Court observed that the child’s

       death was not so extraordinary that it would be unfair to hold Duncan

       responsible for the death. Id. “Duncan administered a prescription drug–

       indeed a schedule II controlled substance–to a two-year old with no

       prescription and no medical advice. Harmful consequences, including death,

       are not outside the range of predictable results.” Id.


[20]   In Layman, supra, the Court analyzed a conviction of felony murder imposed on

       two juvenile defendants charged as adults. A group of unarmed juveniles who

       had decided to burglarize a house they believed was unoccupied at that time

       enlisted the help of two other unarmed young adults to break into the home.

       The group did not realize that the homeowner was asleep in his upstairs

       Court of Appeals of Indiana | Opinion 18A-CR-987 | December 31, 2018      Page 8 of 17
       bedroom. When he awakened and heard the commotion downstairs, he

       grabbed his handgun and cell phone and loudly ran downstairs. He

       encountered the defendants, and fired his handgun, ultimately killing one of the

       young adult perpetrators.


[21]   The State charged Layman with felony murder for the death of his friend. After

       a jury trial, Layman was found guilty as charged. On appeal, Layman and

       another juvenile defendant argued that the felony murder statute was

       incorrectly applied to their cases. One of the arguments that had not been

       waived was framed by the Supreme Court as a challenge to the sufficiency of

       the evidence. Layman, 42 N.E.3d at 978. “The essence of their argument is

       that the death of their friend and co-perpetrator was not reasonably

       foreseeable.” Id.


[22]   Analyzing precedent in which felony murder convictions were upheld against

       criminals whose co-perpetrators were killed by someone other than the

       defendant in the commission of felonies, the Supreme Court concluded that a

       common thread among those cases was that “an armed defendant engaged in

       violent and threatening conduct,” acting either as a principal or an accessory,

       resulting in the “mediate or immediate cause of a co-perpetrator’s death.” Id. at

       979. The Court further noted that there “was simply nothing about the

       Appellants’ conduct or the conduct of their cohorts that was ‘clearly the

       mediate or immediate cause’ of their friend’s death.” Id. at 979-80 (quoting

       Palmer v. State, 704 N.E.2d 124, 126 (Ind. 1999)). The convictions were



       Court of Appeals of Indiana | Opinion 18A-CR-987 | December 31, 2018    Page 9 of 17
       reduced to burglary convictions and remanded with instructions to sentence the

       defendants accordingly.


                          Application of Precedent to this Appeal
[23]   In this appeal, the facts alleged in the information, if taken as true, establish that

       on the date of the incident Nathaniel, via text, asked Trimnell to obtain a “G”

       for “100”, meaning the quantity of and amount of payment for the purchase of

       drugs. Nathaniel gave Trimnell the money to buy the drugs and Trimnell

       bought and delivered them to Nathaniel. It is also undisputed that on this

       occasion, Trimnell, who had made drug purchases for Nathaniel on six or

       seven previous occasions, delivered around a gram of what he believed to be

       heroin to Nathaniel at Nathaniel’s home sometime between 1:00 and 3:00 p.m.

       and then went home.


[24]   Later, at around 3:45 p.m. or 4:00 p.m., Nathaniel decided to cook the drug

       and injected the drug into Rachel and then into himself. This time, Rachel

       became unresponsive, seemed to be passed out, had developed a weak pulse,

       and her breathing became shallow. Nevertheless, Nathaniel and his fifteen-

       year-old son later carried Rachel upstairs to her bed. At around 8:15 p.m. that

       evening, Nathaniel and his son then put Rachel into a car so that Nathaniel

       could take her to the hospital. At around 8:37 p.m. hospital employees notified

       law enforcement of a possible drug overdose. By the time law enforcement

       arrived at the hospital, Rachel had died, and a subsequent autopsy revealed that

       she died from acute fentanyl and ethanol intoxication.


       Court of Appeals of Indiana | Opinion 18A-CR-987 | December 31, 2018       Page 10 of 17
[25]   The Duncan case, supra, involved the statutory definition of felony murder

       involving killing another human being while committing or attempting to

       commit dealing in a schedule II controlled substance. In that case, the statutory

       definition of dealing included possession with the intent to deliver a schedule II

       controlled substance to a person under eighteen years of age at least three years

       junior to the person. Precedent established that if an injury inflicted during the

       commission of a felony contributes “mediately or immediately” to the death of

       the victim, the defendant’s conviction for homicide could be affirmed. The

       Court held that the injury to the two-year-old child was ingesting a controlled

       substance, which led directly, if not immediately, to the child’s death; the

       dealing was the first step in the chain of events leading to the child’s death; and,

       consequently, the killing occurred during the felony even though the child

       survived for a period of time after the injury.


[26]   In essence, the State contends that Trimnell’s delivery of the heroin to

       Nathaniel was the first step in the chain of events leading to Rachel’s death, and

       that the killing occurred during the felony even though it happened after he had

       left the house and was nowhere around. We believe that this stretches the

       holding in Duncan too far. Although harmful consequences, including death,

       are not outside the range of predictable results from delivering controlled

       substances to another, Rachel’s death was caused by the combination of acute

       fentanyl and ethanol intoxication. There is no indication in the record that

       Trimnell knew how much of the drug would be injected by Nathaniel in

       Rachel’s arm, or when or how frequently they would be using the drug he had


       Court of Appeals of Indiana | Opinion 18A-CR-987 | December 31, 2018       Page 11 of 17
       delivered and that Rachel had been acutely intoxicated by alcohol for a period

       of time prior to using the drug.


[27]   Further, Trimnell had delivered drugs to Nathaniel on at least six or seven

       occasions prior to Rachel’s death. Using the Court’s rationale in Layman, there

       was nothing about Trimnell’s conduct that was clearly the mediate or

       immediate cause of Rachel’s death. Trimnell could not have anticipated or

       reasonably foreseen that Rachel would become acutely intoxicated with alcohol

       prior to or during the time that Nathaniel injected the drug in Rachel’s arm.

       Likewise, Trimnell could not have anticipated or reasonably foreseen that

       Nathaniel would not promptly seek medical attention when it became obvious

       that Rachel became unconscious, she was unresponsive and suffered difficulty

       breathing, but waited until hours later in an to attempt to obtain medical

       treatment for her. Furthermore, Trimnell could not have foreseen how much of

       the drug Nathaniel would inject in Rachel’s arm. We agree with Trimnell that

       the trial court abused its discretion in denying the motion to dismiss the felony

       murder charge by misapplying the law to the facts and circumstances in this
               2
       case.




       2
         We acknowledge that both parties have presented arguments addressing the issue whether the felony
       murder statute is unconstitutionally vague as applied to the facts of this particular case. The doctrine of
       judicial restraint persuades us to avoid a constitutional analysis when we can exhaust other options, such as
       statutory interpretation and analysis of common law, to dispose of the issue or issues. See Edmonds v. State,
       100 N.E.3d 258, 262 (Ind. 2018). Therefore, we do not address the constitutional arguments. We further
       acknowledge that the parties have discussed how the legislature’s enactment of a new law, Indiana Code
       section 35-42-1-1.5 (2018), allowing defendants to be charged with dealing in controlled substances resulting
       in death as a Level 1 felony, reflects on legislative intent vis-à-vis the application of a felony murder charge

       Court of Appeals of Indiana | Opinion 18A-CR-987 | December 31, 2018                               Page 12 of 17
                                                  Conclusion
[28]   Based on the foregoing, we reverse the decision of the trial court and remand

       for proceedings consistent with this opinion.


[29]   Reversed and remanded.


       Vaidik, C.J., concurs in result with opinion.


       Pyle, J., concurs.




       for an overdose death. We decline to address this argument, relying instead on our analysis of case law and
       the felony murder statute itself.

       Court of Appeals of Indiana | Opinion 18A-CR-987 | December 31, 2018                           Page 13 of 17
                                                     IN THE
            COURT OF APPEALS OF INDIANA

       James Alvin Trimnell,
       Appellant-Defendant,

                v.
                                                                    Court of Appeals Case No.
                                                                    18A-CR-987
       State of Indiana,
       Appellee-Plaintiff




       Vaidik, Chief Judge, concurring in result.


[30]   I reach the same result as the majority but for a different reason. I base my

       opinion on the facts agreed to by the parties. Namely, Trimnell delivered drugs

       to the Walmsley home and left. Rachel later consumed the drugs at home and

       died of an overdose.3 I conclude that the felony-murder statute, as a matter of

       law, cannot apply when a killing occurs after—not during—the delivery of

       drugs.


[31]   A person who “kills another human being while committing” dealing in a

       narcotic drug (Schedule I or II) commits felony murder. Ind. Code § 35-42-1-



       3
        Trimnell’s motion to dismiss the felony-murder charging information asserted that the facts stated did
       not constitute an offense. Appellant’s App. Vol. II p. 62 (citing Ind. Code § 35-34-1-4). It is only when
       an information is facially deficient in stating an alleged crime that dismissal for failure to state an
       offense is warranted. Gutenstein v. State, 59 N.E.3d 984, 994 (Ind. Ct. App. 2016), trans. denied.
       Nevertheless, the parties agree to the basic underlying facts of this case. In the interest of judicial
       economy, I address the issue.

       Court of Appeals of Indiana | Opinion 18A-CR-987 | December 31, 2018                              Page 14 of 17
       1(3). A person “kills” another human being when they put into motion the

       death. Duncan v. State, 857 N.E.2d 955, 958 (Ind. 2006). The Indiana Supreme

       Court addressed what it means to kill a person “while committing” a designated

       felony in Eddy v. State, 496 N.E.2d 24 (Ind. 1986). In that case, the defendant

       argued that the offense of felony murder required the killing to occur before all

       the statutory elements of robbery were complete. The Court rejected this

       argument, finding that “a homicide committed within the res gestae of the

       felony charged is committed in the commission or perpetration of a felony.” Id.

       at 28; see also Bissot v. State, 53 Ind. 408, 413 (1876) (“[W]here the homicide is

       committed within the res gestae of the felony charged, it is committed in the

       perpetration of, or attempt to perpetrate, the felony, within the meaning of the

       statute[.]”). In other words, the Court found that a crime that is continuous in

       its purpose and objective is deemed to be a single uninterrupted transaction and

       that “[a] homicide and [underlying felony] are deemed to be one continuous

       transaction when they are closely connected in time, place, and continuity of

       action.” Eddy, 496 N.E.2d at 28. Applying the law to the facts, the Court

       concluded that the homicide and robbery were one continuous transaction

       because the defendant forcibly removed the first victim’s wallet before the

       killing of the second victim “but prior to the asportation of this property.” Id.


[32]   There has been only one Indiana case applying the felony-murder statute to a

       drug-overdose death, Duncan. In that case, 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

       Court of Appeals of Indiana | Opinion 18A-CR-987 | December 31, 2018      Page 15 of 17
       defendant with, among other things, felony murder, and the jury found her

       guilty.


[33]   The defendant appealed, arguing that the evidence did not support her felony-

       murder conviction because Noah died the day after she gave him the

       methadone. Although the opinion turned on when the “death” occurred as

       opposed to when the “killing” occurred, our Supreme Court affirmed the

       defendant’s felony-murder conviction. In doing so, the Court noted that it was

       “only through a series of stretches that her conduct [fell] under the murder

       statute.” Duncan, 857 N.E.2d at 960.


[34]   Duncan is not controlling here. In that case, the defendant administered

       methadone to a two-year-old, and the defendant’s administration of the drug to

       the toddler was both the dealing and the killing.4 As such, the killing and the

       dealing were closely connected in time, place, and continuity of action and,

       therefore, were one continuous transaction. Here, however, Trimnell did not

       administer the drugs to Rachel; rather, he dropped off the drugs and left. At

       this point, the transaction was completed. It was not until later, when Rachel

       consumed the drugs, that the killing occurred. The killing and the dealing were

       separated by time and continuity of action. Therefore, I would hold that, as a




       4
        Rachel’s husband, Nathaniel, was also charged with felony murder. He filed a motion to dismiss the
       charge, which the trial court denied. Nathaniel’s interlocutory appeal is currently pending before this Court.
       See 18A-CR-02506. I express no opinion as to whether Nathaniel’s act of administering the drugs to Rachel
       constitutes dealing or felony murder.

       Court of Appeals of Indiana | Opinion 18A-CR-987 | December 31, 2018                             Page 16 of 17
       matter of law, the felony-murder statute does not apply here because the killing

       did not occur while the underlying felony of dealing was committed.


[35]   Finally, to the extent my view of the felony-murder statute means that dealers

       will escape punishment when their customers die from an overdose, the Indiana

       General Assembly addressed this when it enacted Indiana Code section 35-42-

       1-1.5 (effective July 1, 2018). Section 35-42-1-1.5 establishes the new offense of

       dealing in a controlled substance resulting in death, which does not require the

       killing to occur during the drug delivery:


               (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.


       For these reasons, I join in the reversal of the trial court’s denial of Trimnell’s

       motion to dismiss the felony-murder charging information.

       Court of Appeals of Indiana | Opinion 18A-CR-987 | December 31, 2018       Page 17 of 17
