Duncan v. State

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Bruce W. Graham Steve Carter
Lafayette, Indiana Attorney General of Indiana

Matthew D. Fisher
Deputy Attorney General
Indianapolis, Indiana
______________________________________________________________________________

In the
Indiana Supreme Court
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No. 79S05-0611-CR-451

ANGELA DUNCAN,
Appellant (Defendant below),

v.

STATE OF INDIANA,
Appellee (Plaintiff below).
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Appeal from the Tippecanoe Circuit Court, No. 79C01-0407-MR-01
The Honorable Donald L. Daniel, Judge
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On Petition To Transfer from the Indiana Court of Appeals, No. 79A05-0505-CR-258
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November 21, 2006

Boehm, J.

We hold that the Court of Appeals erred in finding a defendant’s Blakely claim to be
waived when it was included in her initial brief, which was filed after this Court’s Smylie deci-
sion. We also hold that the Defendant’s relatively minor prior convictions do not justify enhanc-
ing the sentence.
 Factual and Procedural Background

In the spring of 2004, Christopher Lindsey, his fiancé, Natasha Green, Green’s two-year
old son, Noah, and the couple’s son, G.L., lived in a Lafayette apartment. Lindsey’s mother,
Angela Duncan, had recently moved into the home, primarily to help take care of the children.

Duncan had a prescription for methadone, a drug originally marketed as an analgesic, i.e.
a “painkiller,” but now best known for its use in treating heroin addicts. Duncan testified that
she took the drug for pain associated with “TMJ”—presumably temporomandibular joint syn-
drome—and a lower back disc problem.

On April 8, 2004, Duncan was home alone with the two children. She gave Noah one-
fourth of one of her methadone tablets, and Noah died the next day from methadone poisoning.
Shortly after Noah died, Duncan spoke with Lafayette Police Detective Timothy Payne but did
not implicate herself in Noah’s death. She was arrested on April 13 on outstanding warrants
from another county. Detectives Payne and Donald Davidson Mirandized her and obtained a
written waiver of rights form. After Davidson and Duncan had spoken for approximately three
hours, Davidson received a telephone call from Lieutenant Wolfe of the Lafayette Police De-
partment. Wolfe told Davidson that Lindsey had mentioned at a hearing in juvenile court that in
the past Lindsey had given Noah and G.L. methadone. Although Wolfe’s information later
turned out to be false, Davidson believed it at the time. When he relayed to Duncan what he had
just been told, Duncan began to cry. Detective Payne asked Duncan if she had “knowledge of
someone giving Noah one of her methadone pills,” and she replied that she had administered
methadone to Noah by quartering one of her pills and giving it to him. She stated she did not
think the drug would hurt Noah and that she had done this once before without any harm to the
child.

Duncan was charged on April 20, 2004 with class A felony dealing in a schedule II con-
trolled substance and class B felony neglect of a dependent. Charges of felony murder, class C
felony reckless homicide, class B felony dealing in a schedule II controlled substance, and class
C felony dealing in a schedule IV controlled substance, were added on July 15, 2004.

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 When it became apparent that Wolfe was incorrect in reporting that Lindsey had admitted
to giving methadone to the children, Duncan filed a motion to suppress her statement to the de-
tectives that she had given methadone to Noah. She claimed that her confession to the detectives
was given to protect her son as a result of the false information she had been given. She rea-
soned that the statement was therefore involuntary. The trial court denied the motion, and the
confession to the detectives was admitted at trial. At trial, Duncan maintained that she gave the
confession in an effort to protect her son and that the false information she was given caused her
to give a false confession.

The jury found Duncan guilty of felony murder, class C felony reckless homicide, class A
felony dealing in a schedule II controlled substance, and class B felony neglect of a dependent.
Duncan was sentenced on the felony murder conviction to sixty-two years in prison with ten
years suspended—two years of community corrections, three years of supervised probation, and
five years of unsupervised probation. The convictions for reckless homicide, dealing in a sched-
ule II controlled substance, and neglect of a dependent were treated by the trial court as
“merged” into the felony murder conviction. As we explained in Wright v. State, 828 N.E.2d
904, 906 (Ind. 2005), this is a common way to describe the court’s decision not to impose sen-
tence on lesser included offenses. See also Carter v. State, 750 N.E.2d 778, 781 & n.8 (Ind.
2001); Swafford v. State, 498 N.E.2d 1188, 1191 (Ind. 1986).

Duncan appealed, raising several issues, including whether there was sufficient evidence
to support Duncan’s felony murder conviction and whether her sentence violated Blakely v.
Washington, 542 U.S. 296 (2004). The Court of Appeals affirmed the conviction and sentence
in an unpublished memorandum opinion. Duncan v. State, No. 79A05-0505-CR-258, slip op. at
2 (Ind. Ct. App. December 16, 2005).

I. Sufficiency of Evidence for Felony Murder Conviction

Duncan does not challenge her convictions for reckless homicide, dealing methadone,
and neglect of a dependent, but she contends the evidence does not support the felony murder

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charge. The murder statute includes among the felony murder definitions killing another human
being “while committing or attempting to commit . . . dealing in a . . . schedule II . . . controlled
substance.” Ind. Code Ann. § 35-42-1-1(3)(C) (West Supp. 2006). 1 Methadone is a schedule II
substance. The definition of “dealing” includes possession “with intent to deliver a controlled
substance . . . classified in . . . schedule II . . . to a person under eighteen (18) years of age at least
three (3) years junior to the person.” Ind. Code. § 35-48-4-2(2)(b) (2004). Possession of metha-
done with intent to give it to a two-year old was therefore dealing.

The only issue as to this unusual form of felony murder is whether, as Duncan puts it,
Noah’s death occurred “during the commission of the dealing offense.” Duncan points out that
Noah died one day after the delivery of methadone. She argues that therefore he was not “killed
during” the felony. Duncan concedes that this Court has held that if an injury inflicted during the
commission of a felony contributes “mediately or immediately” to the death of the victim then
the defendant is guilty of homicide. Sims v. State, 466 N.E.2d 24, 25-26 (Ind. 1984); Pittman v.
State, 528 N.E.2d 67, 70 (Ind. 1988). However, Duncan contends, “no injury was inflicted upon
Noah” in the course of the dealing because Noah was not immediately harmed by the pill and the
moment Duncan administered the pill to Noah she no longer possessed it with the requisite in-
tent.

It is undisputed that Noah died of methadone poisoning. The jury found that Duncan
administered the drug and therefore committed the felony of “dealing.” In Sims, the victim died
from congestive heart failure following surgery after sustaining a fractured jaw in the course of a
burglary. 466 N.E.2d at 25-26. In Pittman, the victim died after a post-surgical complication
caused by the victim’s obesity and post-operative immobility after being stabbed also in a bur-
glary. 528 N.E.2d at 70. Both Sims and Pittman dealt with a physical injury that in concert with
other factors eventually led to death. The injury to Noah in Duncan’s case is ingesting a con-
trolled substance, and that led directly, if not immediately, to death. 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 pe-

1
The section appeared at 35-42-1-1(3)(B) at the time of Duncan’s 2005 trial. See P.L. 151-2006, § 16.

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riod of time. Indeed, in both Sims and Pittman the death occurred over two weeks after the fel-
ony. Sims, 466 N.E.2d at 25-26; Pittman, 528 N.E.2d at 70.

Duncan also argues that the death was not a foreseeable consequence of her act. She
cites this passage from Wayne R. LaFave & Austin W. Scott, Jr., Criminal Law § 35, at 246
(1972), as this Court did in Sims:

[E]ven when cause in fact is established, it must be determined that any variation
between the result intended (with intent crimes) or hazarded (with reckless or neg-
ligent crimes) and the result actually achieved is not so extraordinary that it would
be unfair to hold the defendant responsible for the actual result. Variations may
occur (a) as to the person who is harmed, or (b) as to the manner in which the
harm occurs, or (c), in felony murder and misdemeanor-manslaughter cases, as to
the type of harm.

Assuming this is a correct statement of the law, Noah’s death is “not so extraordinary
that it would be unfair to hold [Duncan] responsible.” 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.

In sum, we find sufficient evidence in the record to support the felony murder conviction.

II. Blakely Challenge to Sentencing

Duncan was sentenced under the pre-2005 version of the sentencing statute. The trial
court found Duncan’s criminal history, the victim’s young age, and the fact that Duncan was in a
relationship of “custodial trust” with the victim to be aggravating factors. Conversely, the trial
court found no mitigating circumstances. Duncan contends that her sentence was unconstitu-
tional under Blakely v. Washington, 542 U.S. 296 (2004), because the court enhanced her sen-
tence without the jury’s finding beyond a reasonable doubt that the victim was under age twelve
and that the relationship between Duncan and Noah was one of “custodial trust.” Duncan con-
cedes the conviction for dealing under the statute as charged necessarily implied a jury finding

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that Noah was under the age of eighteen, but Duncan argues that this did not constitute a finding
beyond a reasonable doubt that Noah was under the age of twelve. Similarly, although the jury
found Duncan guilty of Neglect of a Dependent, which required proof that Duncan assumed the
care of a dependent under Indiana Code section 35-46-1-4, Duncan argues there was no finding
that she was in a “position of trust.”

Smylie v. State, 823 N.E.2d 679 (Ind. 2005), held that Blakely applied to the sentencing
scheme in place at the time of Duncan’s sentencing. The Court of Appeals held that Duncan had
waived any Blakely claim because she did not raise a Blakely objection at her sentencing hear-
ing. Kincaid v. State, 837 N.E.2d 1008, 1010 (Ind. 2005), explained that “[w]hile it is, of course,
true that a claim is not normally available for review on appeal unless first made at trial, this
Court and the Court of Appeals review many claims of sentencing error without insisting that the
claim first be presented to the trial judge.” We held that appellants filing a direct appeal after
Smylie “must raise a particular sentencing claim in his or her initial brief on direct appeal in or-
der to receive review on the merits.” Id. Duncan has met this requirement and has therefore pre-
served her claim. Accordingly, her Blakely claim must be addressed.

Notwithstanding its finding of waiver, the Court of Appeals went on to conclude that
“among the aggravating circumstances considered by the trial court was Duncan’s criminal his-
tory, which is explicitly excluded from the Blakely rule.” Duncan, slip op. at 17. The court con-
tinued that because “[Duncan’s] criminal history is relevant to her crime and properly given sig-
nificant weight as an aggravator, we conclude that the trial court properly calculated and im-
posed Duncan’s sentence.” Id.

Although the Court of Appeals correctly noted that a single aggravating factor may sup-
port both an enhanced and consecutive sentence, this Court has held that the extent, if any, that a
sentence should be enhanced turns on the weight of an individual’s criminal history. Bryant v.
State, 841 N.E.2d 1154, 1156 (Ind. 2006). “This weight is measured by the number of prior
convictions and their gravity, by their proximity or distance from the present offense, and by any
similarity or dissimilarity to the present offense that might reflect on a defendant’s culpability.”
Id. In Wooley v. State, 716 N.E.2d 919, 929 n.4 (Ind. 1999), we held that although “a criminal

6
history comprised of a prior conviction for operating a vehicle while intoxicated may rise to the
level of a significant aggravator at a sentencing hearing for a subsequent alcohol-related offense.
. . . this criminal history does not command the same significance at a sentencing hearing for
murder.”
Duncan had been charged with, but not convicted of, class B misdemeanor public in-
toxication and class A criminal conversion. These two incidents are irrelevant under Blakely
because only convictions are permissible as criminal history. Blakely, 542 U.S. at 301. Dun-
can’s criminal history included convictions for misdemeanor driving under the influence, felony
disrupting public services, and class C misdemeanor contributing to the delinquency of a minor.
The Court of Appeals reasoned that because Duncan was convicted of felony murder with deal-
ing as the felony, her previous convictions of substance abuse were “relevant to the instant
crime.” Duncan, slip op. at 13. The Court of Appeals found that because “Duncan’s criminal
history evinces an escalation of involvement with alcohol and controlled substances that culmi-
nated in the death, by methadone poisoning, of Noah,” Duncan’s criminal history was properly
weighed as an aggravating factor by the trial court. Id. Duncan’s record may indicate an escalat-
ing involvement with some form of substance abuse. But a mitigating factor is the unusual na-
ture of this unusual form of felony murder. There is no evidence suggesting any intent to harm
Noah. We agree with the Court of Appeals that her action was “irresponsible and reprehensi-
ble,” but that falls far short of the conduct displayed by the vast majority of felony murders. See
e.g., Mitchell v. State, 844 N.E.2d 88, 89 (Ind. 2006) (three people die in armed robbery); West
v. State, 755 N.E.2d 173, 177-78 (Ind. 2001) (stabbing co-worker over 50 times during theft of
cash register).

In short, Duncan’s criminal history does not justify an enhanced murder sentence. There
is no dispute that Noah was two years old, and the jury undoubtedly accepted that fact. Never-
theless, it does not appear that this fact was admitted by Duncan or necessarily found by the jury.
We have not addressed whether a custodian of an infant is necessarily in a “position of trust.”
This essentially is a legal question. In view of our disposition of Duncan’s sentence in part III,
we leave this issue unresolved.

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 III. Sentence Revision

The Indiana Constitution gives this Court “in all appeals of criminal cases, the power to
review all questions of law and to review and revise the sentence imposed.” Ind. Const. Art. VII,
§ 4. We currently exercise this power under the standard set forth in Indiana Appellate Rule
7(B): “The Court may revise a sentence authorized by statute if, after due consideration of the
trial court’s decision, the Court finds that the sentence is inappropriate in light of the nature of
the offense and the character of the offender.” The presumptive sentence for murder is fifty-five
years, and the minimum is forty-five years. I.C. § 35-50-2-3. Additional years can be “added for
aggravating circumstances” but in the absence of aggravators, the presumptive sentence is ap-
propriate. Smylie, 823 N.E.2d at 684 n.3 (quoting Ind. Code §§35-50-2-3 to 7 (2004)); Hender-
son v. State, 769 N.E.2d 172, 180 (Ind. 2002). Based on aggravating circumstances, the trial
court sentenced Duncan to sixty-two years with ten years of that suspended. As explained
above, Duncan’s Blakely claim was not waived and two of the aggravating factors were not
properly presented for jury determination. Duncan’s prior convictions and charges were neither
sufficiently weighty or similar to the current offense to justify enhancing the sentence.

This case presents a clear case of reckless homicide, a class C felony with a presumptive
sentence of four years. It also meets the technical requirements of a dealing conviction, albeit
one that seems at the margins of the conduct targeted by the statute. The presumptive sentence
for dealing, a class A felony, is thirty years. By compounding the two crimes into a felony mur-
der, the presumptive reaches fifty-five years, and that presumptive sentence was enhanced to
sixty-two years based on some factors that raise Blakely issues and a relatively minor criminal
history. We cannot conclude that Duncan’s conduct was more serious than the typical murder.
Indeed, it is only through a series of stretches that her conduct falls under the murder statute.
Indiana Code section 35-50-2-2 prohibits suspending a murder sentence below the minimum sen-
tence of forty-five years. Accordingly, we conclude that the appropriate sentence for Duncan is
the minimum murder sentence of forty-five years, which is nevertheless fifteen years more than
the presumptive sentence for dealing and forty-one years more than the presumptive sentence for
reckless homicide.

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 Conclusion

Duncan’s sentence is revised to forty-five years. We summarily affirm the Court of Ap-
peals as to issues not addressed in this opinion. See Appellate Rule 58(A).

Shepard, C.J., and Sullivan and Rucker, JJ., concur.
Dickson, J., dissents without opinion.

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