Vaidik, CJ.
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.
On July 30, 2017, Nathaniel texted James Alvin Trimnell asking for a “G” for “100.” 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[.]
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. …
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. …
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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 argument in this case on August 6, 2019.
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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. …
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.” 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.
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.” Nathaniel cites cases from other jurisdictions to support this proposition.
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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. … Here, the basis of the State’s felony-murder charge against Nathaniel is that he delivered the drug to Rachel by injecting her. … 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. Therefore, he can’t be charged with felony murder for injecting her. …
Reversed
Kirsch, J, and Altice, J. concur.