What’s On Their Minds: 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 26, 2020

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

“So, what should the judge have said?”

Justice DeWine to counsel for Price

On June 16, 2020, the Supreme Court of Ohio heard 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, 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, that the antidepressants played only a very small role in the fatality, and that the fentanyl was the primary cause of death. Price’s expert toxicologist opined that the victim’s death was not caused by fentanyl.

In instructing the jury, the trial court declined to give Price’s requested instruction on causation taken from United States v. Burrage. The court 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, the Eighth District 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 the 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.)

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.”)

Price’s Proposition of Law Accepted for Review

Read the oral argument preview here.

Key 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.”)

*cited by counsel at argument

At Oral Argument

Each side shared its oral argument time with its amicus counsel

Arguing Counsel

Susan J. Moran, Cleveland, for Appellant Mark Price

Robert B. McCaleb, Assistant Public Defender, Office of the Cuyahoga County Public Defender, for amicus Cuyahoga County Public Defender’s Office in support of Appellant Mark Price

Katherine E. Mullin, Assistant Prosecuting Attorney, Office of the Cuyahoga County Prosecutor, for Appellee State of Ohio

Diane R. Brey, Deputy Solicitor General, Columbus, for amicus Ohio Attorney General Dave Yost in support of Appellee State of Ohio

Price’s Argument

What the defense wants to ensure in this case is that the individual who gave the victim the drugs which killed him is the one who is convicted. In cases like this one, where there are multiple sources of potential injury, merely reciting the general causation instruction is inadequate and incorrect. The instructions in this case were inadequate because they failed to distinguish between actions that merely contribute to the victim’s injury and those which are independently sufficient or necessary for the serious physical harm to have occurred. A trial court that refuses to give or even consider an instruction on this concept when requested to do so abuses its discretion.

The defendant seeks clarification of what constitutes criminal culpability when but-for causation is at play, so that an accused is only held responsible for what he actually did. The defense does not dispute that but-for causation is the rule of law in Ohio. But what is needed is an additional definition to a lay jury in cases like this where there are multiple potential causes of injury. Mr. Price proposes something like this:

“‘But for’ is defined as meaning that you must find that the conduct of the defendant was either independently sufficient to cause the serious physical harm or was necessary for the serious physical harm to have occurred regardless of the contributing actions of others.”

In this case, there were multiple possibilities for the cause of death. The deceased suffered from cardiomyopathy and decreased lung function and there was some evidence that perhaps he had committed suicide by purposefully ingesting drugs that may not have even been furnished by Mr. Price. What is needed is the testimony of an expert, likely the coroner, to say which specific drug was independently sufficient or necessary to have caused the death in this case. That is exactly what happened in Burrage. There were multiple drugs in that case, and the testimony was that a certain drug did not cause the death and the other one did. Here, the question is, was the fentanyl independently sufficient to have caused the death? What is needed is a toolkit for the jury to draw upon to discern all the possible contributing causes. This jury was not given the tools to discern what is independently sufficient or necessary when there are multiple causes. This jury did not find but-for causation because they were not given the particulars of what but-for means.

There were two competing potential causes of death that were submitted to the jury. There was testimony from the assistant medical examiner that the decedent had a very sick heart and very sick lungs but died from fentanyl in the heroin. The defense expert opined that the defendant did not die from the fentanyl but in fact died from his heart and lung conditions. What went wrong here was in between the definitions of causation there were about five other pages of instructions and then a mild reference to causation with regard to the instruction with corrupting another with drugs, and the court said the same causation instruction applies. But-for causation was not clarified. The instructions on causation did not emphasize enough that the jury had to go through a very complex legal analysis to determine culpability.

Amicus Cuyahoga County Public Defender’s Argument

While the instructions in this case may be a literally correct recitation of what is in the Ohio Jury Instructions, they are so contextually inadequate as to be incorrect for this case. Those instructions have not significantly changed since at least 1992, which was before the opioid epidemic, at a time when mixed drug fatal overdoses were comparatively rare. These instructions may adequately prepare a jury to decide causation in a simple case like a gunshot murder. But in a case like this, where there are multiple causes or potential causes of varying degrees, it is simply not sufficient just to give the baseline instructions and nothing more.

The criminal rules in Ohio contemplate case by case instructions. Failure to tailor the instructions to the specifics of this case is where the abuse of discretion occurred. Trial counsel brought this insufficiency to the attention of the trial court, and submitted requested instructions consistent with Burrage, but the court refused even to read Burrage until after the court had ruled. It is not acceptable for a court to acknowledge the defense concerns about the adequacy of the instructions, but then to refuse to do case specific instructions which would make these fairly difficult concepts significantly more understandable for lay jurors. The causation instructions that were given in this case were more appropriate for a slip and fall case.

State’s Argument

This appeal should either be dismissed, or the decision of the Eighth District affirmed for at least three reasons. First, there is no real conflict between the Eighth District’s decision in this case and the Fifth District’s decision in Kosto. Kosto involved a sufficiency review and the Fifth District did not reach the question of what jury instruction would be required. Furthermore, the facts of this case are readily distinguishable where it is clear from the testimony in this case that the fentanyl sold by Mr. Price is what caused Mr. Dawson’s death.

Second, Mr. Price did not request the jury instruction that he is now asking the Court to adopt. Mr. Price’s trial counsel used the verbatim holding from Burrage in the defense request for a jury instruction. The defense below did not ask for further clarification or adaptation of Burrage. Now before this Court Mr. Price is asking for something that Burrage never did-which is to argue that the state must prove that the drugs sold by Mr. Price were both independently sufficient to cause the victim’s death and that the drugs were the but-for cause of the victim’s death. Because Mr. Price did not preserve that argument below, it is waived for all but plain error, so this case would be a poor vehicle to decide that issue.

Third, the Eighth District got it right on both the facts and the law. The Eighth District largely adopted the Third District’s analysis from State v. Carpenter, which found that Burrage does not require a deviation from Ohio’s general jury instructions on causation. And even though the trial court denied Mr. Price’s request for a Burrage instruction, the trial court essentially gave the instruction that Mr. Price had requested. So even if this Court were to find that Burrage is a correct statement of Ohio law, this case will not require reversal because that instruction is what was given to the jury.

State v. Kosto is factually more similar to Burrage than this case is. In Kosto, the toxicology report showed the victim had heroin, cocaine, and some marijuana in his system when he died. The medical examiner in that case could not state that the victim would have died from the heroin use in and of itself. But that is not what we have here. The medical examiner in this case very clearly testified that the fentanyl was the primary cause and was in and of itself capable of causing Mr. Dawson’s death. (Ms. Mullin went into minute detail about the systemic interplay of the various drugs in this case but agreed after a question from Justice DeWine that there was not a challenge to the sufficiency of the evidence in this case.)

As the Eighth District noted, Burrage is not controlling authority here. It was a United States Supreme Court decision reviewing a federal statute, so it is only persuasive authority. While this Court has recognized limitations of the but-for test in the past, adoption of Mr. Price’s proposed jury instruction in not the solution.

Finally, the Eighth District found that the trial court had essentially given the instruction that Mr. Price requested. The trial court told the jury they had to apply but-for causation. That is what Burrage requires. The trial court also gave the limiting instruction for proximate cause. What Mr. Price focuses on, and what the trial court did not instruct the jury on, is contributing cause. While that may be an interesting additional issue, this is not the case in which this Court needs to decide it because it is not what the jury was instructed on. They were instructed on but-for causation.

Amicus Ohio Attorney General‘s Argument

First Mr. Price embraced Burrage but now he wants to run from it and require a causation-plus instruction that is not rooted in Burrage. The instruction from Burrage he asked for was given, but now he is moving the ball. Now the request is that it should have been repeated or something further should have been repeated later in the instruction.

It is significant that in today’s argument, Mr. Price’s lawyer concedes that the OJI instruction that he in fact received was a correct statement of Ohio law. The state wholeheartedly agrees. Mr. Price has given this Court no reason to reverse the judgment of the Eighth District.

The point of Burrage is that but-for causation is sufficient for a criminal case. There is no need to have to show independent sufficiency also. Mr. Price asks for both. But that is not rooted in Burrage. Even though it is not controlling, Ohio was perfectly in line with the Burrage case. Price wants both independent sufficiency and but-for causation to be required.

The jury instruction that was given in this case simply reflects Ohio law regarding causation. While it is a mistake to assume there can be only one actual cause of an event, Ohio law and Burrage recognize that there can be multiple causes of an event. The defendant’s actions can be the straw that broke the camel’s back and still be the but-for cause of the result. There are a number of Ohio cases, such as Phillips, that involve multiple causes, but in which the fact that there were multiple causes did not absolve the defendant of liability.

What Mr. Price asks for here would fundamentally change the Ohio law on causation, potentially impacting criminal trials and drug dealing cases while society is in the midst of the opioid crisis. Mr. Price wants a sweeping instruction, a sort of meta-law of causation, that would create confusion for the trial courts in instructing juries and create reversable error in instructing juries on causation. Ohio jurors are smart enough to understand the straightforward language of the existing Ohio jury instructions on causation. Requiring more convoluted instructions such as the ones Mr. Price is asking for is more likely to confuse the jury.

Unlike the Kosto case, the facts here were clear. The testimony of the deputy chief medical examiner was that the fentanyl was the primary cause of death and that Mr. Dawson would not have died but for the fentanyl. So, this is a textbook case of but-for causation to be shown on the facts. The instruction that was given expressed that concept and expressed it clearly.

What Was On Their Minds

Burrage

Justice DeWine really got into this with defense counsel. Doesn’t Burrage say an instruction on but-for causation is enough, he asked? He then commented that he was a little lost because the judge gave an instruction on but-for causation, and one which complied with Burrage, which is what defense counsel was asking for. The two got into quite an intense back-and-forth about this, with DeWine challenging Ms. Moran about why an independently sufficient instruction was required, since that wasn’t the law or what Burrage says. He noted those kinds of instructions were only required where there is not but-for causation, but here the jury found but-for causation. He commented that he thought Ms. Moran was “horribly confused” on the law here.

The Jury Instructions That Were Given

What should the judge have said, asked Justice DeWine?

Aren’t we looking at an abuse of discretion standard by the trial court, asked Justice Fischer? If that’s the state of the law and that’s what the trial court gave, how is that an abuse of discretion?

Did trial counsel submit requested jury instructions, asked Chief Justice O’Connor? Were they more adequate than the Ohio jury instructions?

Evidence Before the Jury and Excluded from it

Wasn’t evidence that the victim had intended to buy drugs sufficient to kill himself not before the jury, asked Chief Justice O’Connor? Wasn’t what was before the jury that the victim had consumed heroin laced with fentanyl that was supplied by the defendant? Given those facts, how can a court be required to give an instruction that would be based on other potential causes of death that were not before the jury? The choices were natural causes versus heroin laced with fentanyl and they found the fentanyl? Was there testimony that the weak heart and lungs were a trigger, that this is what caused his death?

Is there an assignment of error on sufficiency of the evidence, asked Justice DeWine, adding that he was pretty sure the court was not going to decide the case on that basis.

What Is Necessary to Establish Causation

What level of evidence would have to be presented to show the type of causation the defense believes is necessary, asked Chief Justice O’Connor? Just a compilation of drugs in the body? The toxicology of the victim, in order to get that kind of clarification? Is the defense questioning whether the heroin laced with fentanyl was sufficient to have caused the death?

How it Looks from the Bleachers

To Professor Emerita Marianna Bettman

Like a win for the state, because it sounds like the trial court judge did give the but-for instruction on causation and because the testimony of the chief medical examiner supported the jury finding that the fentanyl provided by Price was the primary cause of death. Also, I agree with the Assistant Prosecutor that there may not really be a conflict with Kosto here, although the issue raised in Price’s proposition of law is certainly worth deciding.

This was a very rough argument for Price’s lawyer. I read Burrage and agree with Justice DeWine that it does say that an independently sufficient causation type of instruction (which was urged by the government in that case) is only ok when but-for causation wasn’t met, and but-for causation was met in Burrage. But I also thought Justice DeWine’s questioning of Ms. Moran for her apparent mis-reading of Burrage was unnecessarily harsh. And I also think the OJI instruction on but-for causation is not nearly as crystal clear as the assistant prosecutor and assistant deputy solicitor both seem to insist.

Ms. Mullin went into far more detail than was necessary on the pharmacokinetics of mixed drug deaths, even as she seemed to agree that wasn’t necessary in a case in which there was no challenge to the sufficiency of the evidence. Otherwise, she gave a very workmanlike and professional argument. And the deputy solicitor gave a pithy and near perfect defense of the state’s position, the reasoning of which will likely carry the day. She wasn’t asked a single question. In fact, other than the Chief and Justice DeWine, and one question at the end from Justice Fischer, no one else asked anything.

But when all was said and done, I think the most practical suggestion in the case was made by Robert McCaleb, amicus counsel from the Public Defender’s office, namely that the official Ohio jury instruction on this needs a fresh look in light of these mixed drug death cases and the opioid crisis. Maybe a special new causation instruction is needed in cases where the charge is corrupting another with drugs. And I think Mr. McCaleb fairly called out the trial judge for refusing to tailor the causation instructions to the particulars of this case, after defense trial counsel specifically requested this. But giving standard OJI instructions tends to be common because it is usually reversal-proof on appeal, especially when the standard of review is abuse of discretion, as Justice Fischer pointed out. I do have to call Mr. McCaleb out, though, for repeatedly referring to the trial judge as “he” when “he” was in fact a “she.”

In an unrelated civil context, I was reminded of the argument over causation in asbestos cases where a plaintiff in a tort action alleges an injury or loss resulting from exposure to asbestos as a result of the tortious acts of more than one defendant. In that situation, the Ohio legislature codified a substantial factor test of causation. If interested, take a look at Schwartz v. Honeywell Internatl., Inc., 2018-Ohio-474. When I was teaching torts, both but-for causation and proximate cause always gave my students a lot of trouble.

To Student Contributor Liam McMillin

While Price dove headfirst into the complexities of causation and raised important questions as to adequate jury instructions in cases such as this, I believe the Court will dodge the bigger causation question and rule in favor of the State on the specifics of this case. Price’s counsel, Ms. Moran, was nearly immediately derailed by Justice DeWine, who frankly seemed to have little patience for Price’s argument. Throughout her argument, Price’s counsel argued the inadequacy of the jury instructions provided to the jury, claiming that the complexities of this case should have required the trial judge to vary from the Ohio Jury Instructions (OJI) for causation. Ms. Moran attempted to argue that “but-for” causation requires evidence that, in this case, the drugs provided by Price were “independently sufficient” to cause Dawson’s death, but Justice DeWine was quick to note that “independently sufficient” is a replacement for situations where there is no clear “but-for” cause. Justice DeWine at one point even remarked that Price’s counsel was “horribly confused.”

Yet, I believe Price’s counsel is not the only one confused, and in short, perhaps Price’s best argument is that the jury instructions provided were inadequate because causation is too difficult and complex, and the jury was confused. Ms. Moran’s distilled argument seems to be that the jury did not find “but-for” causation because they were not given the particulars of “but-for” cause, despite the fact that the jury instructions used “but-for” in the instructions. This raises an important question: how should causation be presented to a jury? Should the instructions provide a detailed standard for “but-for,” or should we rely on the jury’s direct interpretation of the literal meaning of “but-for”? Beyond that, what is the appropriate standard for causation in a corrupting-another-with-drugs charge? Perhaps “independently sufficient” is a better standard than a pure “but-for”? I think the Court will avoid this latter question in its decision.

Ms. Mullins and Ms. Brey for the State largely steered away from the complexities of causation in the abstract, and instead focused on the specifics of the case at hand, and I believe this provides a way out for the Justices. Rather than rule on the generalities and complications of causation, I think this case will likely be decided on the particulars. As Justice Fischer highlights, the Court’s standard of review is an abuse of discretion standard, and because the trial judge used the OJI instruction on causation, which is in-line with Ohio law, this Court could not rule it was an abuse of discretion. Additionally, Price’s amicus counsel Mr. McCaleb concedes that even the Burrage instructions requested by Price’s trial counsel were inadequate. This perhaps was the nail in the coffin: Ms. Moran and Mr. McCaleb are raising an argument and a definition that was not brought up at trial, and seems to leave their argument untethered to the case at hand.

I do not believe this is the last time causation will be questioned in this Court, specifically regarding charges such as corrupting-another-with-drugs. The OJI instructions, as Mr. McCaleb points out, are better utilized in “stabbings or shootings,” and have not been updated since 1992, before the Opioid Crisis. However, with the procedural particularities of this case, coupled with the inherent complexities of causation, I predict the Court will rule in favor of the State, focusing on the specifics of the case, and will not make a broad ruling on causation in corrupting-another-with drugs.