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The Court of Appeals of Indiana has affirmed a man’s conviction for dealing resulting in death, finding the trial court didn’t abuse its discretion in admitting text messages from the victim’s phone as evidence.
Maxwell Timbrook and Kurt Russell became friends after working at a Costco store together in Indianapolis. The pair exchanged hundreds of text messages that mainly consisted of acquiring heroin.
In January 2020, Russell texted Timbrook to confirm he was still interested in getting heroin from his supplier. Timbrook confirmed that he was, so Russell informed him that his supplier would only accept cash on delivery and he would only deliver if they made a substantial profit.
Timbrook drove around Russell’s neighborhood on the northwest side of Indianapolis, and when the supplier didn’t arrive on time, he texted Russell complaining about the untimeliness and said he was going to head home.
Once Timbrook received the drugs, he and Russell exchanged several text messages, including Russell telling Timbrook that the drugs were strong and Timbrook saying he thought it was fentanyl.
The next day, Timbrook’s mother, Jane, texted him several times with no response. Jane called his father, Bobby, who was in Arizona at the time. So Jane drove to Timbrook’s home in Zionsville and found him on the kitchen floor.
Jane called the police, and Zionsville Police Department officer Joshua Rupp was the first to arrive. Rupp observed cut up straws and a baggie with a yellow pill in it and a blue cylinder used to grind pills and other substances. Lab testing revealed fentanyl on one of the cut straws.
The toxicology screen showed that a combination of alprazolam, tramadol, trazadone and fentanyl resulted in Timbrook’s death. Forensic pathologist Thomas Sozio found fentanyl in Timbrook’s blood at three times the normal therapeutic level.
Detective Nicholas Johnson collected Timbrook’s phone and gave it to Whitestown Metropolitan Police Department Detective David Sellers to see if he could extract data from the phone. Sellers wasn’t able to extract much because he didn’t know the passcode. Johnson returned the phone to Bobby.
A few weeks after Timbrook’s death, Bobby remembered the passcode and an older phone that belonged to Timbrook. After charging the two phones, Bobby was able to get into the phones, took the data the Timbrook stored in Apple’s iCloud and dumped it on the phones. He then went to an AT&T store and made sure everything was going to be saved.
He delivered the older phone to Johnson, who gave it to Sellers to extract the data.
Almost a year later, the state charged Russell with Level 1 felony dealing in controlled substance resulting in death.
At the jury trial, Russell objected to admission of the second older phone and the text messages extracted from it. He argued that it ran afoul of Indiana Rule of Evidence 1002.
The Boone Superior Court overruled the objection. At the end of the state’s case-in-chief, Russell moved for a directed verdict pursuant to Trial Rule 50 but was denied.
The jury found Russell guilty, and he was sentenced to 25 years in the Indiana Department of Correction.
On appeal, the first issue Russell brought to the appellate court was whether the trial court abused its discretion by admitting evidence found on a cell phone.
“… Russell does not explain how it was unfair that the trial court admitted the contents of the second phone instead of the first when the two phones were associated with the same phone number and synced automatically with Apple iCloud,” Judge Melissa May wrote. “Detective Sellers explained ‘Apple allows you to log in to your … iCloud or your iTunes account on multiple devices.’”
Bobby explained to the court that he didn’t delete any text messages or manipulate either phone. He testified that he wanted to preserve what was on the phones.
“Thus, we hold the trial court did not abuse its discretion in admitting the text messages extracted from the second phone because there is no indication that those messages were any different from the ones on the first phone,” May wrote.
The second issue Russell brought before the appellate court was whether the trial court erred in denying his motion for a directed verdict because the state failed to present sufficient evidence to prove that he committed the crime charged.
The appellate court held that the state presented sufficient evidence that Russell delivered fentanyl to Timbrook, and he was fatally overdosed after ingesting it.
“Russell was the only one of the two who knew the supplier’s identity and communicated with the supplier. Russell was familiar with the supplier, and when Timbrook wanted heroin, he contacted Russell,” May wrote.
The case is Kurt Russell v. State of Indiana, 22A-CR-2299.
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