Oral Argument Preview: Causation Conflation: What is the Appropriate Test for Cause in a Corrupting-Another-With-Drugs Death Case? State of Ohio v. Mark A. Price.

By Marianna Bettman on June 8, 2020

Update: On October 20, 2020 the Supreme Court of Ohio handed down a merit decision in this case. Read the analysis here.

Read an analysis of the oral argument here.

On June 16, 2020, the Supreme Court of Ohio will hear oral argument in State of Ohio v. Mark A. Price, 2019-0729; 2019-0822 At issue in this case is what standard of causation should be applied to the element of causing serious physical harm to another to prove the crime of corrupting another with drugs. The case was accepted on conflict certification and jurisdictional appeal, and the cases were consolidated.

Case Background

On August 2, 2016, James Dawson (“Dawson”) contacted Tierra Fort (“Fort”) to purchase drugs. Using Dawson’s money, Fort obtained a gram of heroin laced with an unknown amount of fentanyl from the defendant Mark A. Price (“Price”) and gave it to Dawson, keeping some for herself. Later that day, Dawson died from an alleged overdose.

A toxicology report revealed that Dawson had several drugs in his system, including fentanyl and two antidepressants. Additionally, before his death, Dawson had suffered from heart and lung disease and had a history of substance abuse.

After discovering Dawson’s body, the police investigation led to the arrest of Fort, which led to the arrest of Price. Price was indicted on twenty-two counts. Pertinent here are two counts of involuntary manslaughter and two counts of corrupting another with drugs.

During a jury trial before Cuyahoga County Common Pleas Court Judge Sherrie Miday, the deputy chief medical examiner and forensic pathologist for the Cuyahoga County Medical Examiner’s Office, who had performed the autopsy on the victim, testified for the State that the victim had a history of substance abuse as well as some heart and lung disease. He testified as to the results of the toxicology report, and opined that the victim’s death was accidental, caused by a combination of the antidepressant medications and fentanyl, and that that the antidepressants played only a very small role in the fatality. Price’s expert toxicologist opined that the victim’s death was not caused by fentanyl.

In instructing the jury, Judge Miday declined to give Price’s requested instruction on causation taken from United States v. Burrage. She instructed the jury that “cause is an act or failure to act which in a natural and continuous sequence directly produces the death of a person, and without which, it would not have occurred,” and that “conduct is the cause of a result if it is an event but for which the result in question would not have occurred. ”

The jury found Price not guilty of involuntary manslaughter, but guilty of all the remaining charges, including corrupting another with drugs, which are the charges at issue in this appeal. Price was sentenced to an aggregate prison term of sixteen years.

Price appealed this judgment.

The Appeal

In a unanimous decision authored by Judge Mary J. Boyle, joined by Judges Anita Laster Mays and Frank D. Celebrezze, Jr. the appellate court affirmed in part and reversed in part. On the issue pertinent to this appeal, the appeals court held the trial court did not abuse its discretion in the causation instructions given and found that the trial court had actually included a but-for test requested by Price. The appeals court also sua sponte certified a conflict between its decision and the decision in State v. Kosto, 2018-Ohio-1925 (5th Dist.)

Votes to Accept the Case

Yes: Chief Justice O’Connor and Justices French, Fischer, Donnelly, and Stewart.

No: Justices Kennedy and DeWine.

Price’s Proposition of Law Accepted for Review

The jury must be instructed that a distributor of drugs is only responsible for causing death to the user of those drugs when the evidence proves that the ingestion of the drugs provided by the distributor was an independent cause of death and that, but for the ingestion of those drugs, the user would not have died.

Certified Conflict Question

“Whether the ‘but—for causality’ rationale of Burrage v. United States, 571 U.S. 204, 134 S.Ct. 881, 187 L.Ed.2d 715 (2014), applies to the ‘cause serious physical harm to [another]’ element of R.C. 2925.02(A)(3).”

Certified Conflict Case

State v. Kosto, 2018-Ohio-1925 (5th Dist.) (The “but-for” causality rationale of Burrage must be applied to the causation element of R.C. 2925.02(A)(3).)

Other Conflict Cases

State v. Carpenter, 2019-Ohio-58 (3rd Dist.) (“The United States Supreme Court’s interpretation of a federal statute is not binding on this court’s interpretation of Ohio statutes.” A death from a drug overdose is a “foreseeable consequence of selling substances containing fentanyl . . .”)

State v. Leffel, 2019-Ohio-1840 (11th Dist.) (The term “proximate cause” in relation to the crime of involuntary manslaughter mandates that a person is criminally responsible where the “consequences of his conduct are direct, normal, and reasonably inevitable when viewed in the light of ordinary experience.”)

Key Statutes and Precedent

U.S. Const. Amend. XI V (“No state shall . . . deprive any person of life, liberty, or property, without due process of law . . .”)

21 U.S.C. 841(b)(1)(C ) (Imposes a twenty year minimum sentence on a person if the person distributes a schedule I or II controlled substance, and death or serious bodily harm results from the use of such substance.)

R.C. 2925.02(A)(3 ) (“No person shall knowingly. . . administer or furnish to another or induce or cause another to use a controlled substance, and thereby cause serious physical harm to the other person . . .”)

State v. Losey, 23 Ohio App.3d 93 (10th Dist. 1985) (Proximate cause limits a criminal defendant’s culpability to consequences that are “direct, normal, and reasonably inevitable.”)

State v. Wolons, 44 Ohio St.3d 64 (1989) (A judge’s refusal to provide a proposed instruction to a jury is reviewed under an abuse of discretion standard, considering all facts and circumstances of the case.)

State v. Phillips, 1995-Ohio-171 (A potentially lethal injury inflicted prior to a beating that led to the death of the victim is a contributing factor to the victim’s death, but because the victim died “also as a result of the severe beating,” the defendant is still liable for the victim’s death.)

State v. Smith, 2007-Ohio-1884 (4th Dist.) (Self-inflected harm due to a victim’s weakened state is normal and does not break the causal chain.)

Burrage v. United States, 571 U.S. 204 (2014) (“[A]t least where use of the drug distributed by the defendant is not an independently sufficient cause of the victim’s death or serious bodily injury, a defendant cannot be liable under the penalty enhancement provision of 21 U. S. C. §841(b)(1)(C) unless such use is a but-for cause of the death or injury.”)

State v. Emerson, 2016-Ohio-8509 (2d Dist.) (A defendant’s actions need not be the sole cause of harm in order to convict.)

State v. Hall, 2017-Ohio-879 (12th Dist.) (“Where the defendant’s conduct was only one of multiple causes that led to the legal injury, the test for causation is whether (1) the defendant’s conduct was a “substantial factor” in bringing about the harm, and (2) there is no other rule of law that relieves the defendant of liability.”)

State v. Cunningham, 2018-Ohio-4022 (8th Dist.) (Heroin causes physical harm every time it is administered.)

State v. Stafford, 2019-Ohio-3628 (5^th Dist) (The “definition of ‘cause’ in criminal cases is identical to the definition of ‘proximate cause’ in civil cases.”)

Price’s Argument

Price’s conviction must be reversed because the trial court failed to instruct the jury properly regarding causation. To prove causation, both actual cause and legal, or proximate, cause must be shown. Actual cause requires proof that but for the defendant’s conduct the harm would not have occurred. Proximate cause is a limitation on criminal culpability to foreseeable consequences.

At Price’s trial, the instructions provided to the jury over Price’s objection were inadequate to cover both components of causation. Accordingly, the State failed to prove causation because there was reasonable doubt regarding both actual and proximate cause.

To prove that Price actually caused Dawson’s death, the drugs provided by Price must have been the “but-for” cause of death, and not merely a contributing factor. Reasonable doubt existed regarding whether Dawson actually died from a drug overdose. Additionally, even if Dawson overdosed, reasonable doubt existed regarding whether fentanyl—rather than some other drug—killed him. The trial court incorrectly instructed the jury to convict Price if the jury concluded that the drugs supplied by Price contributed to Dawson’s death. The jury should have been instructed that Price could be convicted only if Dawson’s ingestion of drugs provided by Price was an independent—not merely a contributing—cause of his death.

In Burrage, the U.S. Supreme Court rejected the government’s position that an act or omission should be considered a cause-in-fact if it was a “substantial” or “contributing” factor and held that jury instructions must define “cause” as an “independently sufficient cause.” This holding was correctly applied to Ohio law in Kosto because Burrage clarified how states should define “but-for” causation. Over the state’s objection, defense counsel requested an instruction consistent with Burrage but the trial court refused to give it. In this case, a jury could have reasonably concluded that insufficient evidence existed showing that the drugs provided by Price were the “but-for” cause of Dawson’s death. When he died, Dawson had toxic levels of prescription drugs in his system. Consequently, Dawson’s death was caused by the “combined effects” of fentanyl and Dawson’s prescribed antidepressant medication. Because the drugs supplied by Price were not the independent reason for Dawson’s death, the State did not prove actual cause in this case.

To prove that Price proximately caused Dawson’s death, Dawson’s death must have been a direct, normal, foreseeable, and reasonably inevitable consequence of Price’s criminal conduct. Moreover, there must have been no intervening act that interrupted the “causal chain.” In this case, it is possible that Dawson intentionally ingested the drugs in an attempt to commit suicide. However, the trial court refused to allow Price to introduce evidence corroborating Dawson’s possible suicide attempt. Because reasonable doubt existed regarding whether the drugs provided by Price were the proximate cause of Dawson’s death, Price did not receive due process or a fair trial. Accordingly, Price’s conviction should be reversed.

State’s Argument

Price should be held criminally liable, even if the drugs furnished by Price were not the sole cause of Dawson’s death. Price incorrectly argues that Burrage should govern this case. Because Price raises this issue for the first time on appeal, Price has waived all but plain error. But even if the argument was not waived, the Burrage decision is still not binding in this case for several reasons. First, Burrage involved a federal court interpreting a federal sentence-enhancement statute. Because states are not required to adopt Barrage’s interpretation, Burrage is merely persuasive in interpreting state statutes. Here, R.C. 2925.02(A)(3) is a state statute. Accordingly, Barrage is persuasive—not binding—in its interpretation.

Second, Ohio law defines “causation” differently than it was defined in Burrage. In Ohio, both factual and legal (proximate) cause must be proven. The but-for test is used for factual cause; legal cause is defined as it is in tort law, with the linchpin being foreseeability. The exact result need not be foreseen, only whether the harm is within the natural and logical scope of risk created by the conduct. Price’s jury was properly instructed on both.

“Cause serious physical harm” as used in R.C. 2925.02(A)(3) does not require that the controlled substances furnished by a defendant be the only cause of that harm. Ohio law recognizes that a defendant’s actions do not have to be the sole cause of harm. In Ohio, if a defendant’s conduct is one of several causes of an injury, the defendant can still be liable if the defendant’s conduct was a “substantial factor” in bringing about that harm and no other law relieves the defendant of liability.

Because Kosto did not consider these variations of Ohio law, the Kosto court misapplied Burrage. Even if Burrage does apply, the Burrage holding does not require anything different than the instructions the jury received in this case. The instructions given to the jury, taken from the standard Ohio Jury Instructions, included both factual (but-for) and legal (proximate) causation. Therefore, even if Burrage applies, the outcome of this case would not change, and Price’s conviction should be affirmed. The Court should answer the certified question in the negative, and the appeals court should be affirmed.

Price’s Proposition of Law Accepted for Review

Proposition 3

State’s Proposed Counter Proposition of Law

“Cause serious physical harm” as used in R.C. 2925.02(A)(3) does not require that the controlled substances furnished by a defendant be the sole cause of the victim’s serious physical harm.

Price’s Propositions of Law Not Accepted for Review

Proposition 1

A distributor of drugs is not responsible for causing death or serious injury when, unbeknown to the distributor, the drug user intentionally causes harm to themselves via a deliberate overdose.

Proposition 2

Evidence that the recipient of drugs intended to cause harm to themself via a deliberate overdose is relevant to determining whether the distributor of those drugs caused harm to the user.

State’s Proposition of Law Not Accepted for Review. (Cross-Appeal Not Accepted.)

A defendant can be punished separately for multiple counts of corrupting another with drugs where the defendant furnished both heroin and fentanyl.

Amicus in Support of Price

The Cuyahoga County Public Defender’s Office

The Cuyahoga County Public Defender’s Office represents many defendants charged with homicide crimes based on distributing drugs. These clients would be directly impacted by the outcome of the present litigation. The boilerplate jury instructions given in this case were inadequate and failed to take into account the complexity of the case. The Office asks the Court to order further briefing on the issue of proximate cause in this case, to adopt Price’s third proposition of law, and to reverse the decision of the appeals court.

Amicus in Support of the State

Ohio Attorney General

The Ohio Attorney General (“OAG”) is the state’s chief law enforcement officer, and here has an interest in combatting the opioid epidemic by ensuring enforcement and application of drug laws and the appropriate punishment of drug traffickers. The OAG will share oral argument time with the State.

The OAG asserts that the Ohio Jury Instructions, which were used at trial, properly stated the causation test applicable to R.C. 2925.02(A)(3). Ohio law does not require the state to prove both but-for and independent sufficiency, nor does Burrage. Additionally, Price never asked the trial court to give the instruction he now seeks. Therefore, the Court should affirm Price’s conviction.

OAG’s s Proposed Proposition of Law

A trial court properly instructs the jury on causation, for purposes of R.C. 2925.02(A)(3), when it instructs that “causation” requires proof beyond a reasonable doubt that the defendant provided drugs to another person; that the death or serious physical harm would not otherwise have occurred; and that those drugs, in a natural or continuous sequence, directly produced the death or serious physical harm.

Student Contributor: Liam McMillin