Darden, Senior Judge.
ATTORNEY FOR APPELLANT Leanna Weissmann
Lawrenceburg, Indiana ATTORNEYS FOR APPELLEE Curtis T. Hill, Jr.
Attorney General of Indiana Justin F. Roebel
Deputy Attorney General
Indianapolis, Indiana Appeal from the Ripley Circuit Court The Honorable Ryan King, Judge Trial Court Cause No. 69C01-1711-MR-002 Darden, Senior Judge.
Statement of the Case
[1] 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.
Ind. Code § 35-42-1-1(3)(A) (2017).
Issue
[2] 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."
Facts and Procedural History
[3] The factual allegations contained in the charging information and the supporting probable cause affidavit follows. 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. Nathaniel would contact and tell Trimnell what drugs he wanted and in what quantity and would provide Trimnell the money for the purchase. certified its order for interlocutory appeal. This court accepted jurisdiction of the appeal.
Discussion and Decision
Standard of Review
[11] In State v. Thakar, our Supreme Court set forth the appropriate standard of review as follows:
We review a trial court's ruling on a motion to dismiss a charging information for an abuse of discretion . . . [and a] trial court [] abuses its discretion when it misinterprets the law. A challenge to the constitutionality of a statute is a pure question of law, which we review
de novo. [A]ll statutes are presumptively constitutional, and the court must resolve all reasonable doubts concerning a statute in favor of constitutionality. That being said, unlike the higher burden faced by those making a facial constitutional challenge, those challenging the statute as applied need only show the statute is unconstitutional on the facts of the particular case.
82 N.E.3d 257, 259 (Ind. 2017) (internal quotations and citations omitted). [12] Generally, when a defendant files a motion to dismiss an information, the facts alleged in the information are to be taken as true.
State v.
Gill, 949 N.E.2d 848, 850 (Ind. Ct. App. 2011). Questions of fact to be decided at trial or facts constituting a defense are not properly raised by a motion to dismiss.
Id. The hearing held on a motion to dismiss is not a trial of the defendant on the offense charged.
Id.
Felony Murder Statute
[13] 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.
Ind. Code § 35-42-1-1(3)(A). Heroin is a schedule I controlled substance.
Ind. Code § 35-48-2-4(c) (2017). Fentanyl is a schedule II controlled substance.
Ind. Code § 35-48-2-6(c) (2015).
Controlling Precedent
[14] Trimnell argues that the trial court abused its discretion by denying the motion to dismiss because the facts alleged in the information, if taken as true, do not establish that he committed the criminal offense of felony murder. 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). [15] In Duncan, supra, Duncan lived in an apartment in Lafayette with her son, Lindsey and his fiancé Green, along with the couple's infant child and Green's two-year-old son. Duncan had moved in to assist the couple with child care. Duncan had a prescription for methadone, which she testified was to control pain associated with her physical ailments. reduced to burglary convictions and remanded with instructions to sentence the defendants accordingly.
Application of Precedent to this Appeal
[23] In this appeal, the facts alleged in the information, if taken as true, establish that on the date of the incident Nathaniel, via text, asked Trimnell to obtain a "G" for "100", meaning the quantity of and amount of payment for the purchase of drugs. Nathaniel gave Trimnell the money to buy the drugs and Trimnell bought and delivered them to Nathaniel. It is also undisputed that on this occasion, Trimnell, who had made drug purchases for Nathaniel on six or seven previous occasions, delivered around a gram of what he believed to be heroin to Nathaniel at Nathaniel's home sometime between 1:00 and 3:00 p.m. and then went home. [24] Later, at around 3:45 p.m. or 4:00 p.m., Nathaniel decided to cook the drug and injected the drug into Rachel and then into himself. This time, Rachel became unresponsive, seemed to be passed out, had developed a weak pulse, and her breathing became shallow. Nevertheless, Nathaniel and his fifteen-year-old son later carried Rachel upstairs to her bed. At around 8:15 p.m. that evening, Nathaniel and his son then put Rachel into a car so that Nathaniel could take her to the hospital. At around 8:37 p.m. hospital employees notified law enforcement of a possible drug overdose. By the time law enforcement arrived at the hospital, Rachel had died, and a subsequent autopsy revealed that she died from acute fentanyl and ethanol intoxication. delivered and that Rachel had been acutely intoxicated by alcohol for a period of time prior to using the drug. [27] 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. Trimnell could not have anticipated or reasonably foreseen that Rachel would become acutely intoxicated with alcohol prior to or during the time that Nathaniel injected the drug in Rachel's arm. Likewise, Trimnell could not have anticipated or reasonably foreseen that Nathaniel would not promptly seek medical attention when it became obvious that Rachel became unconscious, she was unresponsive and suffered difficulty breathing, but waited until hours later in an to attempt to obtain medical treatment for her. Furthermore, Trimnell could not have foreseen how much of the drug Nathaniel would inject in Rachel's arm. 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.
We acknowledge that both parties have presented arguments addressing the issue whether the felony murder statute is unconstitutionally vague as applied to the facts of this particular case. The doctrine of judicial restraint persuades us to avoid a constitutional analysis when we can exhaust other options, such as statutory interpretation and analysis of common law, to dispose of the issue or issues. See Edmonds v. State, 100 N.E.3d 258, 262 (Ind. 2018). Therefore, we do not address the constitutional arguments. We further acknowledge that the parties have discussed how the legislature's enactment of a new law, Indiana Code section 35-42-1-1.5 (2018), allowing defendants to be charged with dealing in controlled substances resulting in death as a Level 1 felony, reflects on legislative intent vis-à-vis the application of a felony murder charge for an overdose death. We decline to address this argument, relying instead on our analysis of case law and the felony murder statute itself.
Conclusion
[28] Based on the foregoing, we reverse the decision of the trial court and remand for proceedings consistent with this opinion. [29] Reversed and remanded. Vaidik, C.J., concurs in result with opinion. Pyle, J., concurs. 14 Vaidik, Chief Judge, concurring in result. [30] 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. [31] A person who "kills another human being while committing" dealing in a narcotic drug (Schedule I or II) commits felony murder. Ind. Code § 35-42-1- 15 1(3). A person "kills" another human being when they put into motion the death. Duncan v. State, 857 N.E.2d 955, 958 (Ind. 2006). The Indiana Supreme Court addressed what it means to kill a person "while committing" a designated felony in Eddy v. State, 496 N.E.2d 24 (Ind. 1986). In that case, the defendant argued that the offense of felony murder required the killing to occur before all the statutory elements of robbery were complete. The Court rejected this argument, finding that "a homicide committed within the res gestae of the felony charged is committed in the commission or perpetration of a felony." Id. at 28; see also Bissot v. State, 53 Ind. 408, 413 (1876) ("[W]here the homicide is committed within the res gestae of the felony charged, it is committed in the perpetration of, or attempt to perpetrate, the felony, within the meaning of the statute[.]"). In other words, the Court found that a crime that is continuous in its purpose and objective is deemed to be a single uninterrupted transaction and that "[a] homicide and [underlying felony] are deemed to be one continuous transaction when they are closely connected in time, place, and continuity of action." Eddy, 496 N.E.2d at 28. Applying the law to the facts, the Court concluded that the homicide and robbery were one continuous transaction because the defendant forcibly removed the first victim's wallet before the killing of the second victim "but prior to the asportation of this property." Id. [32] There has been only one Indiana case applying the felony-murder statute to a drug-overdose death, Duncan. In that case, 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 16 defendant with, among other things, felony murder, and the jury found her guilty. [33] The defendant appealed, arguing that the evidence did not support her felony-murder conviction because Noah died the day after she gave him the methadone. Although the opinion turned on when the "death" occurred as opposed to when the "killing" occurred, our Supreme Court affirmed the defendant's felony-murder conviction. In doing so, the Court noted that it was "only through a series of stretches that her conduct [fell] under the murder statute." Duncan, 857 N.E.2d at 960. [34] Duncan is not controlling here. In that case, the defendant administered methadone to a two-year-old, and the defendant's administration of the drug to the toddler was both the dealing and the killing. As such, the killing and the dealing were closely connected in time, place, and continuity of action and, therefore, were one continuous transaction. Here, however, Trimnell did not administer the drugs to Rachel; rather, he dropped off the drugs and left. At this point, the transaction was completed. It was not until later, when Rachel consumed the drugs, that the killing occurred. The killing and the dealing were separated by time and continuity of action. Therefore, I would hold that, as a 17 matter of law, the felony-murder statute does not apply here because the killing did not occur while the underlying felony of dealing was committed. [35] Finally, to the extent my view of the felony-murder statute means that dealers will escape punishment when their customers die from an overdose, the Indiana General Assembly addressed this when it enacted Indiana Code section 35-42-1-1.5 (effective July 1, 2018). Section 35-42-1-1.5 establishes the new offense of dealing in a controlled substance resulting in death, which does not require the killing to occur during the drug delivery: (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. For these reasons, I join in the reversal of the trial court's denial of Trimnell's motion to dismiss the felony-murder charging information.