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 

_________________________________ 

No. 79S05-0611-CR-451 

ANGELA DUNCAN, 

 Appellant (Defendant below), 

v. 

STATE OF INDIANA, 

 Appellee (Plaintiff below). 

_________________________________ 

Appeal from the Tippecanoe Circuit Court, No. 79C01-0407-MR-01 

The Honorable Donald L. Daniel, Judge 

_________________________________ 

On Petition To Transfer from the Indiana Court of Appeals, No. 79A05-0505-CR-258 

_________________________________ 

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 decision. We also hold that the Defendant’s relatively minor prior convictions do not justify enhancing 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 syndrome—and a lower back disc problem. 

On April 8, 2004, Duncan was home alone with the two children. She gave Noah onefourth 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 Department. 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 controlled 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 detectives 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 reasoned 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 schedule 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 sentence 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 methadone 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 intent. 

 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 burglary. 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 controlled 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 felony. 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 negligent 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 unconstitutional under Blakely v. Washington, 542 U.S. 296 (2004), because the court enhanced her sentence 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 concedes 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 hearing. 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 order to receive review on the merits.” Id. Duncan has met this requirement and has therefore preserved 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 history, which is explicitly excluded from the Blakely rule.” Duncan, slip op. at 17. The court continued that because “[Duncan’s] criminal history is relevant to her crime and properly given significant weight as an aggravator, we conclude that the trial court properly calculated and imposed Duncan’s sentence.” Id. 

 Although the Court of Appeals correctly noted that a single aggravating factor may support 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 

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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 intoxication 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. Duncan’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 dealing 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 culminated 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 escalating involvement with some form of substance abuse. But a mitigating factor is the unusual nature 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 reprehensible,” 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. Nevertheless, 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 appropriate. Smylie, 823 N.E.2d at 684 n.3 (quoting Ind. Code §§35-50-2-3 to 7 (2004)); Henderson 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 murder, 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 sentence 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 Appeals 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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