Indiana Court of Appeals upholds Boone County jury's conviction of man who sold fentanyl that killed Zionsville man

Aug. 16—The Indiana Court of Appeals has upheld the sentence of the first man convicted of dealing in a controlled substance resulting in death in Boone County.

Kurt M. Russell, 53, provided the fentanyl that killed 28-year-old Maxwell Timbrook of Zionsville in January 2020.

An autopsy concluded that Timbrook's death was a result of acute drug intoxication and the high level of fentanyl in Timbrook's system contributed to that death. Timbrook, 28, was a U.S. Air Force A-10 Crew Chief and graduated from Covenant Christian High School in 2009, according to his Facebook page. He and Russell had worked together at Costco, 9010 Michigan Road, Indianapolis, police reported.

Russell was the first person to be convicted in Boone County under a new law that holds drug dealers responsible for deaths caused by the drugs they sell. That law took effect in July 2018, and the only higher charge in Indiana is murder.

A Boone County jury found Russell guilty in August, and Boone Superior Court I Judge Matthew Kincaid sentenced him in September to 25 years in prison. The sentence range for a level 1 felony is 20 to 40 years and up to a $10,000 fine.

Russell claimed the lower court abused its discretion by admitting evidence found on a cell phone. He also claimed the state didn't prove he delivered fentanyl to Timbrook, nor that Timbrook died after ingesting fentanyl provided by Russell.

Cell phone records revealed a multi-text conversation that indicated Russell bought heroin from his dealer, quickly sold it to Timbrook, and threw in some Xanax at no charge because Timbrook had to wait longer than expected, police reported. Timbrook paid Russell less than $100, and Russell told him, "Go easy man. Stuff is wicked strong," according to a probable cause affidavit.

"I think it's fentanyl," Timbrook texted Russell about an hour later. It was the last text he sent before his mother found him dead on the kitchen floor the next day.

Timbrook reportedly thought he was buying heroin from Russell. But he had no heroin in his body at the time of his death, according to the court of appeals' decision. Drug dealers often substitute fentanyl for heroin because it's cheaper, easier to get, and stronger. Fentanyl is a legal synthetic opioid that is 50 to 100 times more potent than morphine and used by medical professionals to treat pain.

The court of appeals concluded this month that Boone County Prosecutor Kent Eastwood's office presented sufficient evidence that Russell delivered fentanyl to Timbrook and Timbrook fatally overdosed after using it. The court also concluded that admitting evidence taken from Timbrook's phone did not abuse the court's discretion.

"We are pleased that the Indiana Court of Appeals upheld this conviction that our team fought hard to obtain," Boone County Prosecutor Kent Eastwood said. "The Boone County Prosecutor's Office and its law enforcement partners will continue to use any and all means at their disposal to hold drug dealers accountable."

Russell is imprisoned in the state's Wabash Valley Level 3 correctional facility.

Two pending

Two more men await trail on charges of dealing in a controlled substance resulting in death in Boone County.

Phone records linked Zachary P. Taylor, 28, to fentanyl sold to Heather Akers, 37, in February, according to a probable cause affidavit. Akers asked to buy heroin and the Lebanon man delivered fentanyl to her home, court records indicate.

Akers' boyfriend and the father of her 8-month-old daughter told authorities he awoke the next morning to find Akers on the kitchen floor and attempted cardiopulmonary resuscitation, Boone County Sheriff's Detective Bradley Dunn reported.

An autopsy revealed that Akers died of fentanyl poisoning, according to the affidavit. Akers was the mother of two sons and two daughters.

Taylor is being held in the Boone County Jail in lieu of $100,000 bond and is scheduled for a November trial.

Andre Johnson, 44, of Indianapolis, was charged in September 2021 with two counts of dealing in a controlled substance resulting in death after the fentanyl overdose deaths of Russell Ervin, 34, and Wesley Johnson, 28.

Ervin had lived in Lebanon. His father found him dead in his room when he attempted to wake him to go hunting, police reported, adding that he was still holding a syringe in his right hand.

Wesley Johnson's sister found his body, a syringe in the sink nearby, in the bathroom of his Thorntown home, police reported. Wesley Johnson had completed drug rehabilitation and had maintained sobriety for months.

Andre Johnson is being held in the Boone County Jail and is scheduled for a January trial.