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.
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[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
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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
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“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.
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[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
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“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.
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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
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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
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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
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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
Nathaniel Walmsley v. State of Indiana
Combined Opinion