He traded drugs with an 18-year-old who died. Is he a murderer?

Nathan Windham walked into the courtroom wearing an orange jumpsuit, handcuffs and a scruffy beard.

The 43-year-old had a history of court hearings for misdemeanors: four driving under the influence convictions, the last three years ago.

But this was different. This time Windham was charged with killing an 18-year-old who died after using heroin Windham had given him in exchange for marijuana. His attorney was asking a judge to reduce his $600,000 bail to $100,000.

It’s the first time someone has been charged with second-degree murder by drug distribution in Orange County. It is the first homicide investigation in the town of Hillsborough in a decade.

The case joins what appears to be a growing number of cases in which prosecutors are using second-degree murder charges to fight the opioid epidemic that claimed more than 10,000 lives in North Carolina from 2008 to 2017, including 74 in Orange County.

Windham, of Hillsborough, was also charged with selling Kevin Cummings heroin and a counterfeit controlled substance, brown sugar packaged as two bundles of heroin, an arrest warrant states.

At the start of the bail-reduction hearing last week, Assistant District Attorney Jeff Nieman said Windham provided heroin-laced fentanyl to Cummings, an Orange High School graduate who was found dead by his father on Nov. 12. Windham was charged March 26.

“Mr. Windham is 43 years of age,” Nieman said. “Mr. Cummings was two or three days past his 18th birthday at the time.”

That age difference, Cummings’ mother said in an interview, makes this overdose a crime.

“This wasn’t another high school kid who bought some for himself and had some extra and gave it to my son,” said Christie Barker-Cummings, an epidemiologist for a small research firm. “This is a man who is doing this to supplement his own addiction and a livelihood.”

Barker-Cummings said drug dealers should know better considering the widespread media coverage of the opioid epidemic. Everyone involved in the cycle, from traffickers and dealers to pharmaceutical companies, must be held accountable.

“Kevin is responsible for seeking it and snorting it; he owns it,” she said. “But he paid the ultimate price for his bad decisions, his choices and his disease.”

Death by distribution

If Windham is convicted of second-degree murder due to drug distribution, he could spend up to 26 years in prison. Donald Dickerson, Windham’s attorney, said the maximum his client would face would more likely be 21 years.

According to a UNC School of Government blog by Shea Denning, a professor of public law and government, the Class B2 felony requires prosecutors to prove:

▪ The person’s death was caused by ingesting opium, cocaine or methamphetamine.

▪ The defendant intentionally distributed the drugs.

▪ The distribution was the cause of the death.

▪ The defendant acted with a standard of malice.

“Murder that doesn’t involve a specific intent to kill but involves such a disregard for the foreseeable consequence of one’s conduct,” Nieman explained in an interview.

A similar standard is used in vehicular homicides, he said.

Other charging options could include involuntary manslaughter, in which prosecutors would have to prove negligence, not malice. If convicted of that charge, Windham could face up to 42 months for the Class F felony.

If Windham is convicted of just drug distribution, he would face up to 25 months for the Class G felony.

State legislators are considering a “death by distribution law” that could give prosecutors a middle ground. It would allow prosecutors to charge a dealer whose sale resulted in a death with a Class C felony that could result in a more than 10-year sentence for someone with no prior convictions.

Under that charge, prosecutors wouldn’t have to prove malice.

Whether it is a good idea to put people who are likely addicted to drugs in jail is up for debate. Some argue that incarcerating people addicted to drugs is cruel and ineffective, while others, like Barker-Cummings, say dealers should be held accountable.

First meeting

Windham met Cummings in the Orange County jail in May 2018.

Cummings, then 17 and in a cycle of addiction, had poured two jugs of milk, a jar of Alfredo sauce and crumbled food on his mother and across his home, and had broken furniture, Barker-Cummings said.

Police charged him with simple assault, and he sat in jail about 10 days while his family looked for a treatment center that specialized in teens and took their insurance.

Windham was in jail for a probation violation on a 2016 DWI.

Cummings was hyper-intelligent, hyper-sensitive and hyper-anxious, Barker-Cummings said. By the end of his junior year, Cummings only needed a two classes to graduate, which allowed him to get his degree while he was in rehab and still get college acceptance letters and two scholarship offers.

He loved fishing, baseball and Bald Head Island.

Cummings’ parents started to have concerns after he was cited twice for marijuana possession within four months his junior year. They enrolled him in a treatment program with counseling sessions and drug testing.

The drug tests were positive for marijuana and benzodiazepine, a prescription medication used to treat anxiety and other health issues.

Cummings’ family learned he was illegally obtaining and taking Xanax bars, a thin rectangle of a pill divided into multiple doses. Xanax helps many, according to WebMD, but it can be addictive and cause withdrawal reactions if used over long periods of time or in high doses.

Barker-Cummings believes her son turned to the Xanax trying to self-medicate at a time his parents’ marriage was failing apart and among other disappointments, she said. He was later diagnosed with an anxiety disorder and depression.

“I feel like it was just the perfect storm where we weren’t really aware necessary of what he was feeling or dealing with or the things he was doing,” his mother said. “He was hiding things from us, and we just didn’t know.”

Cummings was involuntarily committed to the hospital three times and spent two stints in Louisiana and Florida rehabs.

He might go a week or two without using pills, but he would always devolve into days-long binges that left him with zombie eyes and slurred speech.

Barker-Cummings said she and her husband struggled between wanting to keep their son safe and show him he was loved, and putting their foot down when he continued to use drugs and come and go among fights and tears.

Barker-Cummings used to say if her kid was an addict she would just chain him to a bed.

“It doesn’t work that way,” she said. “You can’t do that legally.”

You also can’t kick them out of your house until they are 18, she said. And when they do turn 18, they can just walk out the door or sign themselves out of a rehabilitation center.

Before Cummings was found dead in November, he and Windham arranged via text to exchange marijuana for heroin.

Police questioned Windham, said Dickerson, his defense attorney, and he cooperated with them.

“What does that mean, he admitted to what he did?” said Orange County District Court Judge Lunsford Long said about the transaction of heroin for marijuana.

“He admitted what he did,” Dickerson said.

Windham, a married building contractor with a 16-year-old daughter and stepdaughter, has struggled with substance abuse, “most of it being alcohol,” Dickerson said.

He had been working with a methadone clinic “to get things under control,” the attorney said.

“He seemed to know how to get heroin,” Long said.

The initial evidence indicates this was Windham’s first time buying heroin, Dickerson said.

Dickerson said his client isn’t a flight risk and only has a history of a few misdemeanor DUI charges.

Nieman said the charge shouldn’t be taken lightly.

“That is putting other people in danger for your impaired substance abuse,” he said.

Dickerson asked the judge to consider that Windham is innocent until proven guilty and said people don’t generally hire him to be their lawyer and run.

“Anybody who has a substance-abuse problem of his own and he’s trading drugs with basically an adolescent is a danger to the community,” Long said.

There is a lot of evidence that will come out in this case, Dickerson said, that will create some issues.

Long set the bail at $300,000. To get out of jail, Windham would either need to put up property or cash worth the amount of the bail amount, which would be returned after the case is resolved. Windham could also turn to a private bond agent, who can charge up to 15 percent of the bail as a nonreturnable fee.

“That’s as low as I can go in good conscience,” the judge said.

This story was originally published April 8, 2019 at 9:27 AM with the headline "He traded drugs with an 18-year-old who died. Is he a murderer?."