Marion County files first charge of drug dealing resulting in death

For the first time in Marion County, a suspected drug dealer has been charged under a new law criminalizing dealing that leads to a drug user’s death.

Dewayne Mahone, 39, was charged Tuesday with dealing in a controlled substance resulting in death, the Marion County Prosecutor’s Office announced. The Level 1 felony charge was created by the Legislature in 2018 and codified at Indiana Code § 35-42-1-1.5.

Mahone is facing six additional charges in connection with the death of Tony Harrell, who died July 19 from an opioid overdose. The powerful opioid fentanyl was the leading cause of Harrell’s death, and prosecutors have alleged Mahone sold him the drug.

“There needs to be accountability for those who illegally sell deadly narcotics, capitalizing on addiction and contributing to the public health crisis of drug overdoses,” newly seated Marion County Prosecutor Ryan Mears said in a statement. “Our understanding of addiction has evolved as has our approach for those who are caught in the spiral of addiction. However, we will not stand down against the distribution of lethal narcotics in our community and the unnecessary loss of loved ones, as the family of Tony Harrell has experienced.”

The Level 1 felony charge – the highest brought against Mahone – carries a sentence of 20 to 40 years.

According to a probable cause affidavit filed in the case of State of Indiana v. Dewayne H. Mahone, 49G20-1907-F2-028792, Mahone was connected to Harrell through text messages that seemed to discuss a drug buy, with Mahone as the dealer. The messages were sent on the morning of July 19, and Harrell died later that afternoon.

Search warrants were subsequently executed at Mahone’s home, where drugs and paraphernalia were found. Specifically, the PCA says 25 grams of fentanyl, 4.04 grams of heroin and 0.34 grams of a mixture of the two were found, as well as marijuana and other items commonly used to adulterate and package drugs for sale. Two weapons – a revolver and a semi-automatic pistol – were also located in the home.

The boyfriend of Harrell’s daughter, Michael Hambrick, later identified Mahone in a photo array as a man known as “Jeff” from whom he had previously purchased drugs. Mahone was listed in Harrell’s phone as “Jeff” in the text messages.

Later, after he had been arrested, Mahone made a jailhouse call to a woman asking her to go to his home and dispose of certain items under the kitchen sink and on top of the cabinets. When officers learned of the call, they went to the home and learned from neighbors that individuals had already been inside and had recently left.

Mahone was previously convicted in 1998 of dealing in cocaine or a narcotic drug.

In total, Mahone is facing seven charges, including:

• Dealing in a narcotic
• Two counts of possession of a narcotic
• Two counts of unlawful possession of a firearm by a serious violent felon
• Possession of marijuana
• Dealing in a controlled substance resulting in death

Mahone’s attorney, Ranissa Dycus, did not immediately respond to a request for comment.

The Level 1 felony dealing resulting in death charge was enacted via House Enrolled Act 1359 during the 2018 General Assembly. According to the Prosecutor’s Office, the legislation – authored by Rep. Greg Steuerwald, R-Avon – was meant to “address the increase in illicit drug overdoses in the state… .”

According to the U.S. Drug Enforcement Agency, fentanyl is the most potent opioid in medical treatment, carrying a strength 100 times that of morphine and 30 to 50 times that of heroin, the MCPO said. Ingestion of as little as 0.25 mg of fentanyl can be deadly.

I.C. 35-42-1-1.5 was discussed in a recent decision from the Indiana Court of Appeals in Nathaniel Walmsley v. State of Indiana, 18A-CR-2506. In that case, the COA held that a man whose wife died after he injected her with a combination of heroin and fentanyl could not be charged with murder.

In a footnote, the appellate court said that because HEA 1359 was enacted after the woman’s death, the new law could not apply to the man who sold the drugs to the couple. But, the court continued, “it does apply to people who … deliver a drug that results in the user’s death.”

Though Mahone’s case marks the first time the Level 1 felony charge has been filed in Marion County, Delaware County announced in February that it would file a similar case under I.C. 35-42-1-1.5. It’s unclear which other counties, if any, have likewise used the new law to prosecute drug offenses.

For more on this story, check back Thursday with theindianalawyer.com.