“ …[T]he trial court’s instructions did not permit the jury to predicate guilt based on a finding that the drugs Price furnished to Dawson merely contributed to his death.”

Justice Kennedy, Opinion of the Court

 On October 20, 2020, the Supreme Court of Ohio handed down a merit decision in State v. Price, Slip Opinion No. 2020-Ohio-4926. In a unanimous opinion writtenby Justice Kennedy, the Court held that the trial court gave the proper jury instructions on causation in this case involving corrupting another with drugs. The case was argued June 16, 2020.

 Case Background   

In the early morning hours of August 1, 2016, James Dawson contacted his neighbor Tierra Fort to find him some heroin. Using Dawson’s money, Fort bought the drugs from the appellant Mark Price and gave them to Dawson, keeping some for herself. Later the next morning, Dawson was found dead from an apparent overdose.

After discovering Dawson’s body, the police investigation led to the arrest of Fort, which led to the arrest of Price. Tests of the powder found in Dawson’s and Fort’s apartments showed it contained heroin and fentanyl.

Price was indicted on twenty-two counts. Pertinent here are two counts of involuntary manslaughter and two counts of corrupting another with drugs.

Price’s Trial

The chief deputy medical examiner and forensic pathologist for the Cuyahoga County Medical Examiner’s office performed an autopsy on Dawson. At Price’s trial, the medical examiner testified that he initially thought Dawson’s death could have been caused by heart and lung disease, but that the toxicology evaluation revealed a high level of fentanyl and two antidepressant medications in Dawson’s system. The medical examiner opined that the cause of Dawson’s death was respiratory depression caused by acute intoxication caused by the combined  effect of the fentanyl and the antidepressants, with fentanyl as the primary cause and the two antidepressants playing a very minor role.

The defense presented an expert in pharmacology and toxicology, who opined that Dawson had not died from an overdose of the powder containing fentanyl and heroin, but rather from a heart disorder.

Before the case went to the jury, defense counsel requested the following jury instruction, taken from the U.S. Supreme Court decision in Burrage v. United States:

“Where 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 responsible unless such use was the but-for cause of death or injury.”

The trial court denied Price’s request for this specific Burrage instruction, and instead gave the standard Ohio Jury Instructions on cause, natural consequences, other causes not a defense, intervening causes, independent intervening cause of death, and the general causation instruction (conduct is the cause of a result if it is an event but for which the result in question would not have occurred.) Price did not object to the instructions that were given.

Price was acquitted of involuntary manslaughter but convicted of all the remaining counts and specifications and was sentenced to an aggregate sentence of 16 years in prison.

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 declining to give the requested Burrage instruction, and found that the trial court had actually included the but-for causation 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.)

The Supreme Court of Ohio accepted the case on conflict certification and jurisdictional appeal and consolidated the two.

Read the oral argument preview of the case here and the analysis here.

Key Statutes and Precedent

Crim.R. 30(A) (“[A] party may not assign as error the giving or the failure to give any instructions unless the party objects before the jury retires to consider its verdict, stating specifically the matter objected to and the grounds of the objection.”)

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 . . .”)

Burrage v. United States, 571 U.S. 204 (2014) (“At 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. Burnett, 93 Ohio St.3d 419 (2001) (“the Supremacy Clause binds state courts to decisions of the United States Supreme Court on questions of federal statutory and constitutional law.”)

State v. Barnes, 94 Ohio St.3d 21 (2002) (A party cannot assign as error the giving or failure to give a particular jury instruction unless that party objects before the jury retires to begin deliberating. A timely objection must specifically state the matter objected to and the grounds for the objection,)

State v. White, 2015-Ohio-492 (“A trial court has broad discretion to decide how to fashion jury instructions, but it must ‘fully and completely give the jury all instructions which are relevant and necessary for the jury to weigh the evidence and discharge its duty as the fact finder.’”)

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).)

Answer to Certified Conflict Question

The Court determines no real conflict existed but that the Eighth District simply disagreed with the reasoning in Kosto. The Court dismissed the certified-conflict case as improvidently certified.

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.

Does the Court adopt Price’s proposed proposition of law?

No. Independent sufficiency and but-for causation are not both required in this situation. Additionally, the Court found the jury was properly instructed on but-for causation in the case.

Executive Summary

The jury instructions on causation that were given did not allow the jury to find Price guilty if the drugs he furnished to Dawson merely contributed to Dawson’s death. Rather, all the causation instructions, taken together, made it clear that Price could only be convicted of corrupting another with drugs if but-for causation was proven, that is, but for Price’s sale of the drugs, Dawson would not have died.

Merit Decision

Analysis

Burrage

Burrage involved a federal sentencing-enhancement statute, in which the victim died from an overdose which included heroin sold to him by Marcus Burrage. Burrage was charged with distributing heroin. The government attempted to prove that the victim’s death resulted from the drugs obtained from Burrage. But at Burrage’s trial, the expert testimony was that while the heroin contributed to the victim’s death, the expert witnesses could not say that the victim would have lived if he had not taken the heroin.

The government argued that as long as the drugs supplied by Burrage contributed to the victim’s death, that was good enough to establish but-for causation. The U.S. Supreme Court rejected the government’s argument, finding instead that in cases where independent sufficient cause is not established, but-for causation must specifically be proven, conceptualizing the two as mutually exclusive theories of causation. But as the Supreme Court of Ohio notes, that holding is not binding on the Ohio high court because it only interprets a specific federal penalty-enhancement statute and not a constitutional principle applicable to the states, and thus is persuasive authority only.

Jury Instructions in this Case

The Court notes that in spite of the way Price framed his argument, he never requested an instruction that “cause” as used in R.C. 2925.02(A)(3) requires a finding that his conduct was both the but-for cause of serious physical harm to the victim and an “independently sufficient cause” of that harm. The Court further finds that even if Price had requested such an instruction, his reliance on Burrage was misplaced because the U.S. Supreme Court in Burrage characterized “but-for causation” and “independently sufficient” as mutually exclusive theories of causation.  

This is the instruction Price requested at trial:

“Where 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 responsible unless such use was the but-for cause of death or injury.”

Kennedy finds that the trial court did give the essence of this instruction, albeit in different language than what Price requested, and that Price did not object to the language the trial court used in its instruction. The instructions given, which Kennedy reviews in detail, told the jury it could not convict Price of corrupting another with drugs unless it found Price’s conduct to be the but-for cause of Dawson’s death. Taken as a whole, the instructions did not allow the jury to convict Price based on a finding that the drugs he provided to Dawson merely contributed to Dawson’s death.

Bottom Line

The court rejects Price’s argument that on the charges of corrupting another with drugs, the jury should have been instructed that the sale of drugs had to be both the but-for and the independently sufficient cause of Dawson’s death.

What Wasn’t Decided in the Case

The propriety of an instruction that Price could be convicted if the jury found the drugs he furnished to Dawson were a substantial or contributing cause of Dawson death. Since the trial court did not give such an instruction in the case, the propriety of such an instruction wasn’t before the Court.

Case Disposition

The certified conflict case was dismissed as improvidently certified. The judgment of the Court of Appeals in the jurisdictional appeal was affirmed.

Trial Judge (affirmed)

Cuyahoga County Common Pleas Court Judge Sherrie Miday

Eighth District Panel (affirmed)

Opinion authored by Judge Mary J. Boyle, joined by Judges Anita Laster Mays and Frank D. Celebrezze, Jr. 

Concluding Observations

Both student contributor Liam McMillin and I correctly called this for the state.

After argument, I wrote that it looked

“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…”

While the Court found that the trial court did give the essence of what Price requested in the jury instructions, I think the Court missed an opportunity to clarify the causation jury instructions in the same way it recently did with “other acts” evidence in State v. Hartman, Slip Opinion No. 2020-Ohio-4440.  In Hartman, opinion author Justice De Wine admonished trial judges as follows:

“Going forward, courts should explain, in plain language, the purposes for which the other acts may and may not be considered. Rather than recounting to the jury every purpose listed in Evid.R. 404(B), our pattern jury instructions direct trial courts to state the specific purpose for which the other-acts evidence is being admitted in that case. See Ohio Jury Instructions, CR Section 401.25. It is important that judges do so,” DeWine wrote. 

I think Justice Kennedy missed the opportunity to write the same kind of admonition to trial judges about causation instructions.  Throwing all the causation instructions at the jury without tailoring them to the case specifics isn’t ever very helpful, and in this case is certainly wasn’t.   

I found the opinion in the case difficult to read, but it certainly was a victory for Ms. Mullin on behalf of the state. The Court’s opinion pretty much tracked her oral argument.  She first argued there was no real conflict in this case. She then argued that Price did not request the jury instruction he was now asking the Court to adopt, then observed that  Price was asking for something that Burrage never did-which was to argue that the state must prove that the drugs sold by 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. Ms. Mullin argued that even though the trial court denied Price’s request for a Burrage instruction, the trial court essentially gave the instruction that Price had requested. Finally, she argued that as the court of appeals noted, Burrage was not controlling authority here.  It was a U.S. Supreme Court decision reviewing a federal statute, and as such, only persuasive authority.  Home run for Ms. Mullin, I’d say.

Here was some of Liam’s take:

“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…. Perhaps “independently sufficient” is a better standard than a pure “but-for”? I think the Court will avoid this latter question in its decision.”