Darden, Senior J.
James Alvin Trimnell brings this interlocutory appeal from the trial court’s order denying his motion to dismiss a charge of felony murder. We reverse and remand.
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.”
… 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. …
On July 30, 2017, Nathaniel sent a text message to Trimnell, stating that he wanted a “G” for “100”. 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.
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. … He also stated that he believed the substance he purchased was heroin.
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. 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.
….
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 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. … 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.”
….
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 certified its order for interlocutory appeal. …
….
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.
….
… 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).
….
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.
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 delivered and that Rachel had been acutely intoxicated by alcohol for a period of time prior to using the drug.
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. … 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 case.
Based on the foregoing, we reverse the decision of the trial court and remand for proceedings consistent with this opinion.
Reversed and remanded.
Vaidik, C.J., concurs in result with opinion.
Pyle, J., concurs.
Vaidik, Chief Judge, concurring in result.
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. 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.
….