from the Ripley Circuit Court The Honorable Ryan King, Judge
Trial Court Cause No. 69C01-1711-MR-1
Attorneys for Appellant Stacy R. Uliana Bargersville, Indiana
Dorie Maryan Maryan Law, LLC Bargersville, Indiana.
Attorneys for Appellee Curtis T. Hill, Jr. Attorney General
Justin F. Roebel Supervising Deputy Attorney General
VAIDIK, CHIEF JUDGE.
A person who kills another human being while committing one
of several enumerated felonies, including delivery of a
narcotic drug, is guilty of felony 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.
and Procedural History
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. 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.
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,
Diana Raver, Batesville Men Accused of Murder, The
Herald-Tribune (Nov. 8, 2017),
(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.").
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 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.
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 "express[ing] no opinion as to whether
Nathaniel's act of administering the drugs to Rachel
constitutes dealing or felony murder.").
Nathaniel's appeal is now before us. We held oral