2
Original Proceeding Pursuant to C.A.R. 21 El Paso County
District Court Case No. 24CR1183 Honorable Marcus S. Henson,
Judge.
Attorneys for Plaintiff: Michael J. Allen, District Attorney,
Fourth Judicial District Lance Johnston, Deputy District
Attorney Doyle Baker, Senior Deputy District Attorney
Colorado Springs, Colorado.
Attorneys for Defendant: The Griffin Law Firm, P.C. William
Griffin Colorado Springs, Colorado.
Attorneys for Respondent El Paso County District Court:
Philip J. Weiser, Attorney General
3
Joseph
G. Michaels, Assistant Solicitor General Denver, Colorado.
MARQUEZ, CHIEF JUSTICE delivered the Opinion of the Court, in
which HOOD, JUSTICE, GABRIEL, JUSTICE, HART, JUSTICE and
SAMOUR, JUSTICE joined. BOATRIGHT, JUSTICE joined by
BERKENKOTTER, JUSTICE dissented.
en
banc
ORDER DISCHARGED
4
MÁRQUEZ, CHIEF JUSTICE.
¶1
In 2016, fentanyl surpassed heroin as the drug responsible
for the most opioid-related deaths nationwide. Colo.
Dep't of Law, Social Media, Fentanyl & Illegal
Drug Sales: A Report from the Colorado Department of
Law, 31 (2023),
https://coag.gov/app/uploads/2023/03/Colorado-AG-Report-Social-Media-Fentanyl-Illegal-Drug-Sales.pdf
[https://perma.cc/W8RD-38AY]. By 2021,
fentanyl-which is roughly fifty times more potent than
heroin-accounted for two-thirds of drug overdose deaths in
the United States. Id. That year, roughly half of
the overdose deaths in Colorado were related to this
synthetic opioid. Id. at 33.
¶2
In 2022, the General Assembly responded to these trends by
enacting H.B. 22-1326. Ch. 225, sec. 1, 2022 Colo. Sess. Laws
1625, 1625-26. Among other things, this bill enhanced the
penalties for those convicted of distributing drugs where the
offense is "the proximate cause of the death of another
person who used or consumed" the substance. Ch. 225,
sec. 3, § 18-18-405(2)(a)(III)(A), 2022 Colo. Sess.
Laws, 1625, 1628-29. Under the provisions of H.B. 22-1326,
defendants charged with fentanyl distribution under these
circumstances face sentences that are four times longer than
the ordinary presumptive range for fentanyl distribution
offenses. See § 18-1.3-401.5(2)(a), C.R.S.
(2024).
5
¶3
In this original proceeding under C.A.R. 21, we are asked to
determine whether evidence of a drug purchaser's suicidal
intent may be relevant to determining whether a
defendant's distribution of fentanyl was the
"proximate cause" of the drug purchaser's death
under section 18-18-405(2)(a)(III)(A), C.R.S. (2024). Here,
Defendant Patrick L. Beverly, II, sold pills containing
fentanyl to Matthew Bowen, who died after consuming them. A
coroner later determined that Bowen had died by suicide. The
People charged Beverly with distribution of less than four
grams of fentanyl where the distribution was "the
proximate cause" of Bowen's death. §
18-18-405(1)(a), (2)(a)(III)(A), (2)(c)(V).
¶4
Anticipating that Beverly would seek to introduce evidence of
Bowen's suicidal intent as a defense against section
18-18-405(2)(a)(III)(A)'s enhanced penalties, the People
filed a motion in limine to exclude such evidence. The trial
court denied the People's motion.
¶5
The People then sought relief in this court under C.A.R. 21,
contending that the trial court erred by concluding that
evidence of a drug purchaser's suicide may be relevant to
section 18-18-405(2)(a)(III)(A)'s proximate-cause
requirement. We granted the People's petition and issued
an order to show cause.
¶6
We now discharge the order for two reasons. First, we
conclude that the plain language of section
18-18-405(2)(a)(III)(A) does not preclude a court from
admitting evidence of a purchaser's suicidal intent in
taking fentanyl. The General
6
Assembly's use of the specific phrase "proximate
cause" invokes the well-established legal definition of
that term. See People v. Rockwell, 125 P.3d 410, 417
(Colo. 2005). Under that definition, conduct that might
otherwise constitute a legal or "proximate" cause
of a person's death is not a proximate cause when an
"intervening cause" instead causes the death.
E.g., People v. Stewart, 55 P.3d 107, 121
(Colo. 2002). An intervening cause is an event in which the
defendant does not participate, that is not reasonably
foreseeable, and but for which the person's death would
not have occurred. People v. Saavedra-Rodriguez, 971
P.2d 223, 226 (Colo. 1998). We conclude that a drug
purchaser's suicide by intentional overdose may
constitute an intervening cause that precludes the
defendant's act of distributing fentanyl from being the
proximate cause of a purchaser's fentanyl-related death.
Because suicide by intentional overdose may serve as an
intervening cause, and because any factual disputes regarding
proximate cause are best left for the jury to decide, we hold
that evidence of a purchaser's suicidal intent may be
relevant for the purpose of applying section
18-18-405(2)(a)(III)(A)'s proximate-cause requirement.
¶7
Second, under the facts of this case, we conclude that the
trial court did not abuse its discretion when it denied the
People's motion to exclude evidence of Bowen's
suicidal intent either as irrelevant under CRE 402 or as
unduly likely to confuse the jury under CRE 403.
7
I.
Facts and Procedural History
¶8
On the morning of August 26, 2023, Bowen sent the following
text message to his girlfriend:
Goodbye . . . I love u so much I really tell the kids that I
love them so much I hope the best for u. U were my world ur
so beautiful and amazing. I'm just not strong enough to
do this anymore. Ur always gonna be in my heart and u will
always be the greatest thing that ever happened to me. If
something happens to me my moms number is . . .
.[1]
That
night, police found Bowen's body in his car with his cell
phone in his lap and a blue pill partially melted on a piece
of foil. The police believed the pill to be counterfeit
oxycodone containing fentanyl. They found no other narcotics
at the scene.
¶9
Following an autopsy, the El Paso County Coroner concluded
that Bowen "died as a result of fentanyl
intoxication" and that the intoxication was "with
lethal intent." Accordingly, the coroner listed the
manner of death as suicide.
¶10
Police later discovered evidence that Beverly sold Bowen
ninety dollars' worth of fentanyl pills on the day of
Bowen's death. The People charged Beverly with one count
of distributing less than four grams of fentanyl in violation
of section 18-18-405(1)(a), (2)(c)(V). The People charged the
offense as a level one drug felony under section
18-18-405(2)(a)(III)(A), which enhances the sentence
8
associated with certain drug distribution charges if the
alleged criminal conduct was "the proximate cause of the
death of another person who used or consumed" the drugs.
¶11
Anticipating that Beverly would seek to introduce evidence of
Bowen's suicidal intent to rebut the proximate-cause
element of section 18-18-405(2)(a)(III)(A), the People filed
a motion in limine to exclude such evidence. Citing the
legislative declaration accompanying the General
Assembly's enactment of section 18-18-405(2)(a)(III)(A),
the People argued that the General Assembly's intent in
passing the statute was to impose harsher penalties whenever
a purchaser dies from ingesting fentanyl that a defendant
distributed-regardless of whether the overdose was accidental
or intentional. Acknowledging that the interpretation of
section 18-18-405(2)(a)(III)(A) presented an issue of first
impression, the People cited to cases from other
jurisdictions that reached similar conclusions, albeit in
different contexts. E.g., United States v.
Camacho, CR No. 21-00109 SOM, 2024 WL 2089948, at *2 (D.
Haw. May 8, 2024) (applying a similar federal statute);
Baker v. State, No. 2469, 2021 WL 3052916, at *1
(Md. Ct. Spec. App. July 20, 2021) (unpublished opinion)
(considering a grossly negligent manslaughter charge). The
People also pointed to Colorado case law on "intervening
causes," arguing that suicide could not destroy the
causal link between the distribution of fentanyl and the
user's death because death-even by
9
suicide-is always a reasonably foreseeable consequence of
distributing fentanyl. Finally, the People asked the trial
court to exclude the evidence under CRE 403, arguing that it
would mislead jurors by focusing their attention on
Bowen's subjective intent rather than Beverly's
conduct.
¶12
In response, Beverly distinguished the case law cited by the
People as inapposite. He also argued that evidence of
Bowen's suicidal intent could support a jury instruction
on intervening cause as a defense to the People's
allegation that Beverly's conduct was the proximate cause
of Bowen's death.
¶13
At a hearing on the People's motion, Beverly called the
coroner to testify. The coroner discussed the factors he
considered in concluding that Bowen ingested fentanyl
"with lethal intent" and, thus, died by suicide. He
cited Bowen's text message to his girlfriend on the day
of his death as evidence of "suicidal ideation" and
noted that Bowen had scars on his arms indicating a history
of self-harm, which increases the risk that an individual
will die by suicide. In addition, the coroner described the
fentanyl concentration in Bowen's blood as
"exceptionally high" and as "one of the higher
levels [he had] ever seen." These high blood
concentrations, the coroner explained, "indicate[] that
the drug was taken in massive amounts with the intent to harm
[the drug user]." These toxicological testing results,
combined with Bowen's text message and the
10
evidence of previous self-harm, led the coroner to conclude
that Bowen died by suicide.
¶14
Following the coroner's testimony, the trial court heard
the parties' oral arguments. The People maintained that
evidence of a purchaser's intent in taking fentanyl is
irrelevant to determining proximate cause under section
18-18-405(2)(a)(III)(A) and that the probative value of such
evidence is substantially outweighed by the danger that it
will mislead the jury. Beverly responded that a
purchaser's conscious choice to greatly increase their
risk of death by taking a large quantity of fentanyl all at
once is not a foreseeable consequence of fentanyl
distribution. Therefore, he continued, such a choice could
constitute an intervening cause, and evidence of the
purchaser's intent to make that choice would be relevant
to the question of proximate cause.
¶15
The trial court agreed with Beverly and denied the
People's motion in limine. In a bench ruling, the court
explained that there was no evidence to suggest that Beverly
reasonably should have been aware of Bowen's suicidal
tendencies or of the amount of fentanyl he planned to take.
The court also found that Beverly could not have reasonably
foreseen that Bowen, who knew he had purchased fentanyl,
would "misuse" that fentanyl by taking such a large
quantity at once. For these reasons, the trial court denied
the People's motion to exclude
11
evidence of Bowen's suicidal intent, including the text
message and the coroner's expert opinion.
¶16
The People then sought relief in this court under C.A.R. 21.
We issued an order to show cause. We now discharge the order.
II.
Original Jurisdiction
¶17
Whether to exercise our original jurisdiction pursuant to
C.A.R. 21 is within our sole discretion. C.A.R. 21(a)(2)
("Relief under this rule . . . is a matter wholly within
the discretion of the supreme court."). But because the
relief C.A.R. 21 offers "is extraordinary in
nature," id., the scope of our jurisdiction
under this rule is "narrow," People v.
Subjack, 2021 CO 10, ¶ 12, 480 P.3d 114, 117.
¶18
Given the prevalence of fentanyl in Colorado, the
interpretation of section 18-18-405(2)(a)(III)(A)
"raises an issue of first impression that is of
significant public importance." Subjack, ¶
13, 480 P.3d at 117. Further, the People have no alternative
remedy if a jury concludes that Beverly's distribution of
fentanyl was not the proximate cause of Bowen's death,
which would preclude imposition of an enhanced sentence.
See C.A.R. 21(a)(2) (noting that relief "will
be granted only when no other adequate remedy is
available"); People v. Elmarr, 2015 CO 53,
¶ 19, 351 P.3d 431, 437 (exercising C.A.R. 21
jurisdiction when "the People have no other adequate
remedy"). For these reasons, we exercise our
jurisdiction under C.A.R. 21 to review the trial court's
ruling.
12
III.
Analysis
¶19
We first set forth our standard of review and, in so doing,
clarify the scope of the question before us. Next, we
interpret section 18-18-405(2)(a)(III)(A) and hold that
evidence of a drug-purchaser's suicidal intent may be
relevant for the purpose of evaluating the statute's
proximate-cause requirement. Finally, we consider whether the
trial court abused its discretion by denying the People's
motion to exclude evidence of Bowen's suicidal intent and
conclude that it did not.
A.
Standard of Review
¶20
Because the parties dispute the scope of the question before
us, they also dispute the standard of review. The People
argue that we should review the undisputed facts de novo to
determine whether Beverly's distribution of fentanyl was
the proximate cause of Bowen's death. In contrast,
Beverly construes the question as whether the trial court
abused its discretion by admitting evidence of Bowen's
suicidal intent. Finally, the trial court asserts that this
case presents a question of statutory interpretation that we
should review de novo. We view the question before us as
consisting of two parts.
¶21
First, we consider whether evidence of a drug-purchaser's
suicidal intent is relevant to evaluating the proximate-cause
requirement of section 18-18-405(2)(a)(III)(A). This is a
question of statutory interpretation that we review de novo.
Johnson v. People, 2023 CO 7, ¶ 15, 524 P.3d
36, 40. We strive to effectuate
13
the legislature's intent, "look[ing] first and
foremost at 'the language the legislature has actually
chosen to express itself'" and giving the text its
plain and ordinary meaning. People v. Lucy, 2020 CO
68, ¶ 29, 467 P.3d 332, 338 (quoting In re
People in Int. of A.A., 2013 CO 65, ¶ 10, 312 P.3d
1170, 1172). We assume that the legislature chose its
language deliberately, see People v. Guenther, 740
P.2d 971, 975 (Colo. 1987), and with "aware[ness] of the
previously expressed legal importance of the words and
phrases it uses," Rockwell, 125 P.3d at 417.
¶22
Second, we evaluate whether the trial court properly denied
the People's motion to exclude evidence of Bowen's
suicidal intent in this case. Trial courts have broad
discretion to decide the admissibility of evidence in light
of its probative value and potential prejudicial impact.
Elmarr, ¶ 20, 351 P.3d at 437. Accordingly, we
review a trial court's evidentiary ruling for an abuse of
discretion-that is, to determine whether the ruling is
manifestly arbitrary, unreasonable, or unfair, or stems from
an erroneous view of the law. Id. at ¶ 20, 351
P.3d at 437-38.
B. A
Fentanyl User's Suicidal Intent May Be Relevant to
Determining the Issue of Proximate Cause Under Section
18-18-405(2)(a)(III)(A)
¶23
Section 18-18-405(1)(a) criminalizes the distribution of a
controlled substance. If the distribution involves four grams
or less of a substance containing fentanyl, the sentencing
range varies based on the circumstances of the offense. A
14
level three drug felony carries a presumptive range of two to
four years in prison. § 18-1.3-401.5(2)(a); §
18-18-405(2)(c)(V). By contrast, a level one drug felony
carries a presumptive range of eight to thirty-two years in
prison. § 18-1.3-401.5(2)(a); §
18-18-405(2)(a)(III)(A), (B). Section 18-18-405(2)(a)(III)(A)
elevates a distribution offense to a level one drug felony if
the People prove that the defendant's distribution of
fentanyl to the purchaser was "the proximate cause"
of the purchaser's death. § 18-18-405(2)(a)(III)(A).
¶24
The term "proximate cause" carries special legal
significance. When a crime requires not merely conduct but
also a specified result, a defendant generally may not be
convicted unless their conduct is both the actual cause and
the legal (or "proximate") cause of the result.
Burrage v. United States, 571 U.S. 204, 210 (2014);
1 Wayne R. LaFave, Substantive Criminal Law §
6.4(a), Westlaw (3d ed. database updated Oct. 2024). An
"actual" or "but-for" cause is any cause
"but for" which the harm would not have occurred.
Burrage, 571 U.S. at 211. A "proximate
cause" is "any 'cause which in natural and
probable sequence produced the claimed injury.'"
Martinez v. People, 2024 CO 6M, ¶ 13, 542 P.3d
675, 679 (quoting Stewart, 55 P.3d at 116). The
proximate-cause requirement thus limits a defendant's
criminal liability for an injury to circumstances in which
there is a "causal connection" between the
defendant's conduct and the injury. People v.
Lopez, 97 P.3d 277, 280 (Colo.App. 2004).
15
¶25
Some events break this causal connection by
"interrupt[ing] the natural and probable sequence of
events following the defendant's acts." Id.
at 282. When such "intervening causes" arise, the
defendant's unlawful conduct cannot be the legal or
proximate cause of another's injury. Martinez,
¶ 13, 542 P.3d at 679. To constitute an
"intervening cause," an event must exhibit three
qualities: (1) the defendant must not have participated in
the event, (2) the event must not have been reasonably
foreseeable, and (3) the event must have been a cause but for
which the injury would not have occurred.
Saavedra-Rodriguez, 971 P.2d at 226; see also
Lopez, 97 P.3d at 282 (summarizing the three
requirements).
¶26
The parties generally agree on these principles of proximate
cause analysis and the role of intervening causes within that
analysis. They disagree, however, over whether a drug
purchaser's consumption of fentanyl with the intent to
die by suicide may serve as an intervening cause under
section 18-18-405(2)(a)(III)(A)'s proximate-cause
requirement. The People argue that the legislature intended
to subject any defendant who distributes fentanyl that causes
a user's death to an enhanced penalty, regardless of the
purchaser's intent in taking the fentanyl. Relying
largely on other jurisdictions' case law, they contend
that a purchaser's suicidal intent cannot sever the
causal connection between a defendant's distribution of
fentanyl and the purchaser's death because death is
always a foreseeable consequence of illicit fentanyl use.
16
¶27
Beverly responds that the People's interpretation of
section 18-18-405(2)(a)(III)(A) reads the term
"proximate cause" as equivalent to "but-for
cause," contrary to the statute's plain language. He
further argues that the People's proximate cause analysis
relies on inapposite cases that arose under distinguishable
legal regimes. We agree with Beverly based on our
interpretation of the statute, our understanding of the
proximate-cause requirement, and the fundamentally factual
nature of the proximate cause inquiry.
¶28
First, the plain language of section 18-18-405(2)(a)(III)(A)
expressly imposes a "proximate cause"
requirement.[2] Had the General Assembly intended to
trigger an enhanced penalty anytime a fentanyl distribution
"results in" a user's death, it could have said
so. For example, the United States Code enhances the federal
penalty for drug distribution "if death or serious
bodily injury results from the use
17
of" the drugs a defendant distributed. 21 U.S.C. §
841(b)(1)(B), (C), (E) (emphasis added). By the time of H.B.
22-1326's enactment, numerous federal courts had
interpreted section 841(b)(1) as imposing only a but-for
cause requirement. E.g., United States v.
Jeffries, 958 F.3d 517, 520-21 (6th Cir. 2020)
("The proper inquiry . . . is whether death arose as an
effect, issue, or outcome from drug use. . . . [,] not
whether death was a foreseeable result of the defendant's
[distribution] violation."); United States v.
Burkholder, 816 F.3d 607, 614-18 (10th Cir. 2016)
(explaining why the plain language of section 841(b)(1) does
not impose a proximate-cause requirement).
¶29
But the General Assembly did not follow the federal example.
Instead, section 18-18-405(2)(a)(III)(A) unambiguously
requires the defendant's distribution to be the
"proximate cause" of the drug-purchaser's death
to enhance the defendant's potential
penalty.[3] Because we assume the General Assembly
18
understands the legal import of the language it uses,
Rockwell, 125 P.3d at 417, the defendant's
distribution is not the "proximate cause" of the
purchaser's death unless it is a "cause which in
natural and probable sequence produced" that death,
Martinez, ¶ 13, 542 P.3d at 679 (quoting
Stewart, 55 P.3d at 116). And even if the
defendant's distribution satisfies this definition, it
does not constitute the "proximate cause" of the
purchaser's death if an intervening cause exists.
Saavedra-Rodriguez, 971 P.2d at 226. Therefore, the
question here is simply whether evidence of a purchaser's
suicidal intent may be relevant to establishing an
intervening cause (suicide) when the purchaser died by
overdosing on fentanyl.
¶30
Second, and in response to this question, we conclude that
evidence of a purchaser's suicidal intent may be relevant
to establishing an intervening cause when the purchaser's
suicide was unforeseeable. The People contend that a
reasonable person distributing illicit drugs should foresee
the possibility that any of their purchasers will die upon
ingesting the drugs they purchased. Like courts in other
jurisdictions, we agree with this premise to the extent it
encompasses purchasers who consume so much of a dangerous
drug that they unintentionally die as a result. See,
e.g., State v. Thomas, 211 A.3d 274, 301 (Md.
2019) ("Ingesting heroin is a foreseeable result of its
supply, and death a foreseeable consequence of
19
its ingestion." (citation omitted)); State v.
McCrorey, 896 S.E.2d 309, 313-15. (N.C. Ct. App. 2023)
(rejecting the defendant's argument that he could not
have reasonably foreseen that the purchaser would consume all
the drugs at the same time); Yeary v. State, 186
N.E.3d 662, 673 (Ind.Ct.App. 2022) (holding that the
purchaser's consumption of drugs could not be an
intervening cause because it was a foreseeable result of
distribution).
¶31
But we are not persuaded that a reasonable person who
distributes fentanyl should, as a matter of law, always
foresee the possibility that a purchaser will consume
extraordinary amounts of fentanyl with the intent to die by
suicide. True, a purchaser may overdose by accidentally
consuming more fentanyl than they intended to consume. But
when a purchaser consumes large amounts of fentanyl with the
intent to die by suicide, they make "a voluntary and
willful choice." Moore v. W. Forge Corp., 192
P.3d 427, 436 (Colo.App. 2007) (noting that suicide generally
precludes tort liability for the death of another); LaFave,
supra. § 6.4(c) (explaining that proximate
cause is typically treated in the same way in both criminal
and civil contexts). Though a fentanyl distributor should
foresee that distributing fentanyl may result in death by
accidental overdose, the distributor should not necessarily
be expected to foresee, in every case, that a purchaser will
make the "abnormal" decision to intentionally die
by way of ingesting "extraordinary" amounts of
fentanyl. Saavedra-Rodriguez, 971 P.2d at 226-27
20
(characterizing an event as "unforeseeable" for
purposes of determining whether it constitutes an intervening
cause when that event is "abnormal" or
"extraordinary").
¶32
We therefore decline to follow the example of those few
courts that have concluded that because accidental death is a
reasonably foreseeable result of drug distribution, death by
suicide is also reasonably foreseeable. E.g.,
Baker, 2021 WL 3052916, at *4-6 (holding that
evidence of a purchaser's suicidal intent would not
affect the conclusion that his death was a foreseeable result
of the defendant's distribution); State v.
Price, 135 N.E.3d 1093, 1113-14 (Ohio Ct. App. 2019)
(same). Baker's and Price's
emphasis on the fact that drug sellers reasonably should
foresee the drug-related death of a purchaser, regardless of
the manner in which that death occurs, gives insufficient
weight to the purpose of the proximate cause analysis:
"'to spell out rules of law limiting the liability
of a negligent actor'" based on foreseeability,
which represents "policy considerations of whether a
defendant's responsibility should extend to the results
in question." Boulders at Escalante LLC v. Otten
Johnson Robinson Neff & Ragonetti PC, 2015 COA 85,
¶¶ 50-51, 412 P.3d 751, 762 (quoting
Moore, 192 P.3d at 436). Because suicide strikes us
as the kind of "abnormal" behavior we should not
expect defendants to foresee, at least in some circumstances,
we conclude that a purchaser's suicide by intentional
21
overdose may sever the causal connection between a
defendant's sale of drugs and the purchaser's death.
¶33
Finally, we decline to declare that a purchaser's
suicidal intent is categorically irrelevant to section
18-18-405(2)(a)(III)(A)'s proximate-cause requirement
because proximate cause "is, at its core, a fact-based
determination." Martinez, ¶ 29, 542 P.3d
at 682. When that determination requires deciding whether a
purchaser's suicide constitutes an intervening cause, a
reasonable jury may reach different conclusions under
different circumstances.
¶34
Recall that for an event to qualify as an intervening cause,
(1) the defendant must not have participated in the event;
(2) the event must not have been reasonably foreseeable; and
(3) the event must have been a but-for cause of the injury.
Saavedra-Rodriguez, 971 P.2d at 226; see also
Lopez, 97 P.3d at 282 (summarizing the three
requirements). What if evidence showed the purchaser was
unaware that the purchased drugs contained fentanyl? See,
e.g., McCrorey, 896 S.E.2d at 313 (stating that
the purchaser believed she was buying heroin, not fentanyl);
Yeary, 186 N.E.3d 668-69 (same). In that scenario, a
reasonable jury might conclude that the defendant effectively
participated in the purchaser's suicide by distributing
drugs the defendant knew were more potent than the purchaser
believed. Saavedra-Rodriguez, 971 P.2d at 226. What
if the defendant was aware, or should have been aware, of the
purchaser's suicidal tendencies?
22
See, e.g., Camacho, 2024 WL 2089948, at *1-2
(describing the defendant's decision to sell the
purchaser more fentanyl pills after learning that, earlier
that day, the purchaser was treated for an overdose from
those same pills). If so, a reasonable jury might conclude
that the purchaser's suicide was reasonably foreseeable
because the defendant observed signs of the purchaser's
suicidal ideation. Saavedra-Rodriguez, 971 P.2d at
226. And what if the defendant has evidence suggesting that
the purchaser would have died by suicide in some manner, even
if they had not procured drugs from the defendant? See
Camacho, 2024 WL 2089948, at *7 (requiring the defendant
to "show that, without the drug distributed by the
defendant, the [purchaser] would still have committed suicide
by other means at the same time"). A reasonable jury
would have to weigh that evidence to determine whether it
shows that suicide was a but-for cause of the purchaser's
death. Saavedra-Rodriguez, 971 P.2d at 226.
¶35
In sum, section 18-18-405(2)(a)(III)(A) plainly requires a
defendant's distribution to be the "proximate
cause" of the purchaser's death to enhance the
defendant's penalty. And contrary to the People's
contention, our review of relevant authorities does not
persuade us that suicidal intent is never, as a matter of
law, relevant to the determination of proximate cause.
Because the circumstances surrounding a purchaser's death
may render their suicidal intent relevant to section
18-18-405(2)(a)(III)(A)'s proximate-cause requirement, we
23
cannot categorically exclude evidence of suicidal intent from
the analysis the statute demands. Accordingly, we hold that
evidence of a purchaser's suicidal intent may be relevant
to determining whether a defendant's distribution of
fentanyl to a purchaser was the proximate cause of the
purchaser's death under section 18-18-405(2)(a)(III)(A).
¶36
We now turn to the question of whether the trial court abused
its discretion by denying the People's motion to exclude
such evidence here.
C. The
Trial Court Did Not Abuse its Discretion by Denying the
People's Motion to Exclude Evidence of Bowen's
Suicidal Intent
¶37
The People raise two grounds for excluding the evidence of
Bowen's suicidal intent, including the text message Bowen
sent to his girlfriend and the coroner's expert testimony
on manner of death. First, they contend that such evidence is
not relevant to the proximate cause analysis. See
CRE 402. Second, they argue that the limited probative value
of such evidence is substantially outweighed by the risk that
it will confuse the jury. See CRE 403. We are not
persuaded that the trial court abused its discretion on
either ground.
¶38
First, consistent with our holding that evidence of suicidal
intent may be relevant to the proximate-cause inquiry under
section 18-18-405(2)(a)(III)(A), the trial court properly
concluded that evidence of Bowen's suicidal intent may be
relevant here. "Evidence is relevant if it has 'any
tendency to make the existence
24
of any fact that is of consequence to the determination of
the action more probable or less probable than it would be
without the evidence.'" People v. Acosta,
2014 COA 82, ¶ 56, 338 P.3d 472, 482 (quoting CRE 401).
Bowen's text to his girlfriend describing how much he
loved her, saying goodbye, and stating that he was "just
not strong enough to do this anymore" suggests he was
contemplating suicide the morning of his death. And evidence
that the concentration of fentanyl in Bowen's blood was
among the highest the coroner had ever seen supports the
coroner's expert opinion that Bowen died by suicide.
Evidence of suicidal ideation, coupled with physical evidence
of suicide, makes more probable the fact that Bowen
intentionally consumed a very large quantity of fentanyl to
effectively guarantee his death. And Bowen's suicide may
serve as an intervening cause that severs the connection
between Beverly's actions and Bowen's death.
¶39
Second, we disagree with the People's contention that
evidence of Bowen's suicide would confuse the jury by
mistakenly suggesting that Bowen's intent in taking the
fentanyl pills is relevant here. As we have already
explained, Bowen's intent is relevant to the extent it
supports Beverly's assertion that Bowen's suicide was
an intervening cause that interrupted the causal connection
between Beverly's conduct and Bowen's death.
Furthermore, we give evidence challenged under CRE 403
"the maximum probative value attributable to it by a
reasonable factfinder and the minimum unfair prejudice that
may be reasonably expected
25
from it." People v. Vanderpauye, 2023 CO 42,
¶ 59, 530 P.3d 1214, 1228-29. Applying these principles
here, we have no difficulty concluding that Bowen's text
message and the coroner's testimony are sufficiently
probative of Bowen's suicide-and, thus, of a potential
intervening cause-to overcome any risk of confusing the jury
for purposes of CRE 403.
¶40
In sum, we hold that the trial court did not abuse its
discretion by concluding that evidence of Bowen's
suicidal intent may be admissible to counter the People's
assertion that Beverly's conduct proximately caused
Bowen's death.
IV.
Conclusion
¶41
When the General Assembly enacted H.B. 22-1326, it plainly
sought to increase penalties for those who distribute
substances containing fentanyl where that distribution is the
"proximate cause" of the consumer's death.
Affording the legislature's language its well-established
legal significance, we hold that evidence of a
purchaser's suicidal intent may be relevant in
determining whether a defendant's distribution of
fentanyl was the proximate cause of the purchaser's
death. And we hold that, here, the trial court did not abuse
its discretion by denying the People's motion to exclude
such evidence.
¶42
We stress the limited scope of our decision. Though evidence
of Bowen's suicidal intent may be admissible here, such
evidence may not always be admissible in cases brought under
section 18-18-405(2)(a)(III)(A). Even when such
26
evidence is admissible, it may not suffice for the trial
court to instruct the jury on intervening cause. See
Saaoedra-Rodriguez, 971 P.2d at 228 (requiring "a
scintilla of evidence" supporting an intervening-cause
defense for a corresponding jury instruction). And even when
the evidence is sufficient to warrant a jury instruction, a
reasonable jury may well find in the People's favor. Our
holding merely leaves the factual question of proximate cause
where it belongs - with the jury.
¶43
For these reasons, we discharge the order to show cause and
affirm the trial court's evidentiary ruling.
JUSTICE BOATRIGHT, joined by JUSTICE
BERKENKOTTER, dissented.
27
JUSTICE BOATRIGHT, joined by JUSTICE BERKENKOTTER,
dissenting.
¶44
The death of Matthew Bowen by a drug overdose was not just
foreseeable, it was practically expected. It is undisputed
that fentanyl is the "primary driver" of
drug-poisoning deaths.[4] It is also undisputed that someone
distributed fentanyl to Bowen, who then died of fentanyl
intoxication. Patrick L. Beverly, II, has been charged with
that distribution. Beverly now attempts to hide behind
evidence that Bowen took the fentanyl with the intent to end
his own life. In my view, whether Bowen died from an
accidental overdose or an intentional suicide, the fact
remains that if Beverly sold Bowen the fentanyl that led to
his overdose, then Beverly is legally responsible for
Bowen's death.
¶45
The legal question presented is whether the distribution of
fentanyl was the proximate cause of the death in this case as
required by section 18-18-405(2)(a)(III), C.R.S. (2024). If
it was, then Bowen's intent in taking the drugs is
irrelevant and any evidence regarding that intent should be
excluded. Under the majority's construction of the
proximate cause requirement, Bowen's suicide, if proven
at trial, may qualify as an independent intervening cause.
Maj. op. ¶¶ 30-32. Thus, in the majority's
view, evidence of Bowen's intent to end his life is
relevant as to
28
whether Beverly's distribution of fentanyl was the
proximate cause of Bowen's death. Id. at
¶¶ 33-35.
¶46
I disagree. Given the danger inherent in illegal fentanyl
use, the risk of death to Bowen was foreseeable at the time
of distribution, regardless of whether the death was an
intentional suicide or an accidental overdose. Selling
fentanyl obtained on the black market is the equivalent of
selling someone a gun and bullets, knowing that the purchaser
plans to repeatedly play Russian Roulette. Death of the
person buying the gun and bullets, under those circumstances,
is not only foreseeable, but virtually inevitable.
¶47
The same is true under the facts of this case. As alleged,
Bowen purchased illicit fentanyl from Beverly. There was no
prescription indicating the proper dosage. There was no way
to know the pills' potency, or even if each pill
contained comparable amounts of fentanyl. What is known is
that Bowen was sold a lethal amount of fentanyl at a cost of
$90; there was enough fentanyl that Bowen could ingest it in
"massive amounts"; this ingestion resulted in a
fentanyl concentration in Bowen's blood that was
"exceptionally high"[5]; and the fentanyl caused
Bowen's death. In my view, the act of selling Bowen
fentanyl is the proximate cause of Bowen's death, and
Bowen's mindset is irrelevant. Hence, I respectfully
dissent.
29
I. The
Facts of This Case Do Not Implicate an Independent
Intervening Cause
¶48
"Proximate cause" requires a causal connection
between a defendant's conduct and the claimed injury;
conduct that is interrupted by an intervening cause cannot be
the proximate cause of another's death. People v.
Stewart, 55 P.3d 107, 120-21 (Colo. 2002). "An
independent intervening cause is an act of an independent
person or entity that destroys the causal connection between
the defendant's act and the victim's injury and,
thereby becomes the cause of the victim's injury."
People v. Saavedra-Rodriguez, 971 P.2d 223, 225-26
(Colo. 1998).
¶49
I agree with the test applied by the majority, Maj. op.
¶ 25, which requires that, in order to establish an
intervening cause defense, three elements be satisfied:
"(1) the defendant must not participate in the
intervening cause; (2) the intervening cause is one but for
which the death would not have occurred; and (3) the
intervening cause must not have been reasonably
foreseeable." People v. Lopez, 97 P.3d 277, 282
(Colo.App. 2004). A defendant's failure to establish even
one of these elements "deprives him of the affirmative
defense." People v. Counterman, No. 21CA1982,
¶ 18 (Feb. 13, 2025).
¶50
In my view, Beverly fails on all three. First, under the
alleged facts of this case, Beverly cannot fairly be
characterized as a non-participant-he sold Bowen a lethal
quantity of fentanyl that Bowen then consumed. Second,
irrespective of Bowen's intent, the cause of his death
was the consumption of a large quantity of
30
fentanyl allegedly distributed by Beverly. Moreover, the
lethal quantity sold-coupled with the conspicuous trail of
deaths fentanyl has left nationwide-demonstrate that the
victim's death could easily have occurred irrespective of
his mental state. And lastly, as to the third element, the
misuse of fentanyl obtained illegally cannot logically be
deemed unforeseeable; rather, the misuse of fentanyl under
such circumstances is expected. In fact, there is no
"ordinary" or "normal" use of fentanyl
purchased illegally. See Maj. op. ¶ 31. Again,
the failure to satisfy any of these three elements causes an
intervening cause defense to fail. Accordingly, establishing
an intervening cause is a high bar.
¶51
Courts have generally been reluctant to allow an intervening
cause defense absent sufficiently extreme conduct. For
example, in the context of inadequate medical care, we held
in People v. Fite, 627 P.2d 761, 767 (Colo. 1981),
that there was no evidence to support an intervening cause.
There, the defendant shot her husband, who then underwent
extensive medical care to address his injuries. Id.
at 763. Unaware of a developing liver abscess, the attending
physician discontinued antibiotics-the husband later died
from infection and multiple organ failure, more than a month
after the shooting. Id. The defendant argued that
the victim's laboratory tests clearly indicated the
presence of an infection that was left untreated; thus, the
discontinuation of antibiotic treatment in spite of such
signs constituted an intervening cause relieving her of
criminal responsibility for
31
her husband's death. Id. at 766-67. This court
disagreed, concluding that the record did not support a
finding of gross negligence by the attending physician
sufficient to break the causal chain. Id. Fite
demonstrates that, even though the defendant did not directly
participate in the events following the shooting-i.e., the
victim's medical care-the natural consequences of a
defendant's conduct extend well beyond the initial act.
See id. If the facts in Fite do not
implicate an intervening cause, certainly we cannot find one
here.
¶52
The majority concludes that evidence of Bowen's mental
state may be relevant to establishing an intervening cause,
Maj. op. ¶¶ 30, 32; yet, the caselaw is clear that
a defendant must take his victim as he finds them.
Hamrick v. People, 624 P.2d 1320, 1324 (Colo. 1981).
In Hamrick, this court concluded that an instruction
on intervening cause was not warranted where the defendant
had attacked an individual with epilepsy. Id. at
1323-24. In that case, after the defendant assaulted the
victim with a club, the victim died of cardiac arrest due to
an epileptic seizure. Id. at 1321-22. The parties
disputed whether the seizure was caused by the trauma
inflicted by the defendant, or by the victim's ingestion
of alcohol and failure to take anti-convulsant medication.
Id. at 1322. In concluding that the facts of the
case did not give rise to an intervening cause, we noted that
"it is no defense that the victim is suffering from
physical infirmities." Id. at 1324. Today,
however, the majority allows Beverly to rely on what is
arguably Bowen's
32
mental health condition to potentially avoid responsibility.
Just as in Hamrick, Bowen's pre-existing medical
condition here is no defense.
¶53
If it is proven that Beverly sold Bowen the fentanyl that he
later consumed, then Beverly's act of distribution
incontrovertibly began the chain of events that caused
Bowen's death. Thus, in accordance with the caselaw
discussed above, it is my view that Beverly has failed to
present sufficient evidence to support an intervening cause
defense.
II. A
Drug Purchaser's Suicidal Intent Is Irrelevant to Section
18-18-405(2)(a)(III)'s Proximate Cause Requirement
¶54
Section 18-18-405(1)(a) provides that "it is unlawful
for any person knowingly to manufacture, dispense, sell, or
distribute . . . a controlled substance," including
fentanyl. Furthermore, section 18-18-405(2)(a)(III) dictates
that when the defendant's distribution is the proximate
cause of another person's death, the offense is elevated
to a level 1 drug felony.
¶55
Under the majority's construction of section
18-18-405(2)(a)(III), the proximate cause requirement allows
for consideration of a purchaser's intended use of
fentanyl in determining whether the death was foreseeable.
Maj. op. ¶¶ 30-32, 35, 41. From my perspective,
that conclusion has a significant logical flaw-it assumes
that a "normal" or "ordinary" use of
fentanyl obtained illegally on the black market exists in the
first instance. See Maj. op. ¶ 31. In fact,
there is
33
no such use. The reality is that any use of illicit
fentanyl carries with it the risk of death. The fentanyl that
Bowen consumed did not have a prescription explaining how to
safely use the drug. Bowen, and likely Beverly, could not
have known how much fentanyl was contained in each pill. The
coroner testified, and I address below, that a single pill
could contain a fatal dose. That is why, in my mind, selling
illicit fentanyl is tantamount to facilitating a game of
Russian Roulette.
¶56
This view aligns with the plain language of the statute.
Section 18-18-405(2)(a)(III) provides that when the
defendant's distribution of fentanyl is "the
proximate cause of the death of another person who used or
consumed" the fentanyl, the defendant is liable. The
"proximate cause" is the defendant's provision
of fentanyl. See id. In other words, the statute
subjects a distributor of fentanyl to enhanced criminal
liability when such distribution leads to the death of
another, irrespective of that person's intent in
purchasing the drug. There is nothing in the plain language
of the statute to suggest that the legislature intended for
liability to hinge on the fentanyl user's intent. In
accordance with this reading, the prosecution need only
establish that the defendant distributed fentanyl to another
person and that the person died because of that same
fentanyl. Whether the person intended to end their life is
irrelevant.
¶57
This interpretation is consistent with the legislature's
purpose in amending the statute to add the proximate cause
charge enhancers. In response to the
34
increased number of overdose deaths in Colorado, the General
Assembly sought to provide heightened penalties for
defendants whose unlawful distribution of fentanyl
"leads to the death of another person."
See Ch. 225, sec. 1(2)(b), 2022 Colo. Sess. Laws
1625, 1626. Nowhere in the statute itself or in the
corresponding legislative declaration does the General
Assembly indicate that it intended to differentiate between
accidental and intentional overdose fatalities. See
Ch. 225, sec. 1(1)(b), 2022 Colo. Sess. Laws 1625, 1625
("The increase in the number of overdose deaths
in Colorado demands a comprehensive response . . . designed
to reduce the risks of harm to all people."
(emphases added)); see also §
18-18-405(2)(a)(III).
¶58
Thus, section 18-18-405 criminalizes a defendant's act of
distributing fentanyl that causes a death-intentional or
otherwise-such that the distribution itself is the proximate
cause.
III.
The Act of Distribution Was the Proximate Cause of
Bowen's Death
¶59
The question before us is whether Beverly's distribution
of fentanyl was the proximate cause of Bowen's death. In
other words, the issue turns on whether the act of
distribution "began a chain of events the natural and
probable consequence of which was the victim's
death," Saavedra-Rodriguez, 971 P.2d at 225, or
instead whether "the causal link between conduct and
result is so attenuated that the consequence is more aptly
described as mere fortuity," Paroline v. United
States,
35
572 U.S. 434, 445 (2014). In my opinion, Beverly's
alleged act of distributing a fatal dosage of fentanyl is not
so attenuated that Bowen's death can be attributed to
mere chance. Rather, the unlawful distribution of fentanyl
initiated the causal chain without which the decedent's
injury would not have occurred. See Stewart, 55 P.3d
at 121.
¶60
The approach adopted by the majority suggests that when a
person does not communicate their specific intended usage to
a distributor, that person's subsequent misuse of
fentanyl cannot have been foreseeable. Indeed, the majority
references the trial court's finding that Beverly could
not have reasonably foreseen that Bowen would misuse the
fentanyl sold to him. Maj. op. ¶ 15. Again, I must
reiterate that illicit fentanyl has no proper use.
Any illegal drug use is a misuse.
¶61
At the hearing before the trial court, the coroner testified
about the danger inherent to fentanyl usage, noting that
"it takes smaller amounts . . . of [fentanyl] to reach
those thresholds that cause death."[6] He further
testified that in cases involving illicit drugs, there is no
way for the person taking the fentanyl to know how much of
the drug is contained in a given pill: "There could be
no fentanyl,
36
there could be no active compounds at all. Or there could be
lethal levels that even with a single pill could cause
death."[7]
¶62
Indeed, national laboratory testing performed by the Drug
Enforcement agency ("DEA") in 2023-the year of
Bowen's death-indicated that seven out of every ten
counterfeit prescription pills contained a potentially lethal
dose of fentanyl.[8] Dep't of Just. Drug Enf't Admin.,
Fake Pills Fact Sheet (Sept. 2023),
https://www.dea.gov/sites/default/files/2024-01/DEA-OPCK_FactSheet_September_2023-rdf.pdf
[https://perma.cc/NQT4-NYW6]. The DEA report further
notes that a mere two milligrams of fentanyl is considered a
deadly dose. Id. It therefore stands to reason that
where a defendant sells a sufficiently high quantity of
fentanyl, they are selling a lethal dose.
¶63
The danger inherent in unsupervised fentanyl use is further
apparent from recent trends in drug overdoses in Colorado.
The number of fentanyl-related
37
deaths reached a record high in 2023. See Christine
Demont, Trends in Fatal and Nonfatal Drug Overdoses in
Colorado, Colo. Dep't of Pub. Health & Env't
(June 21, 2024),
https://coag.gov/app/uploads/2024/08/Fatal_and_Nonfatal_Drug_Overdose_Trends_SATF.pdf
[https://perma.cc/8UVR-HB6H] (accounting for both
unintentional and intentional drug poisonings). In looking to
the total number of drug overdose deaths in Colorado for that
year, more than half were attributable to fentanyl.
Id. Bowen took an inherently dangerous drug that was
provided to him, with no way of knowing the dosage, which
directly caused his death. Whether he did so with the
intention of ending his life is irrelevant to the question of
whether his death was foreseeable to Beverly.
¶64
Beverly's alleged act of distribution exposed Bowen to a
recognizable and high degree of risk of harm, the
"natural and probable consequence" of which was
death by overdose, such that evidence of intended usage
should be excluded. See Saavedra-Rodriguez, 971 P.2d
at 225. Bowen's death would have been foreseeable to
anyone who illegally sold him fentanyl, particularly where
the quantity sold was capable of leading to a fatality.
Indeed, some courts have recognized that a purchaser's
death is always a foreseeable result of the illegal
distribution of fentanyl; this is certainly true where the
distribution is of a lethal amount. See United States v.
Jeffries, 958 F.3d 517, 521 (6th Cir. 2020) ("Use
of a Schedule I or II controlled substance is inherently
dangerous. Death to the drug user is therefore
38
always foreseeable when a defendant . . . distributes . . .
those substances.").[9]Accordingly, when the use of fentanyl
results in death, "the causal link between the
defendant's proscribed conduct and the death is simply
not 'so attenuated' as to preclude criminal
liability." Id. (quoting Paroline, 572
U.S. at 445).
IV.
Conclusion
¶65
Notwithstanding the intent underlying a decedent's death,
whenever a lethal quantity of fentanyl is distributed in
violation of section 18-18-405, death is a reasonably
foreseeable result of the proscribed conduct. Here, Beverly
is accused of distributing fentanyl to Bowen immediately
before his death from fentanyl intoxication. Whether Bowen
intended to end his own life by taking the fentanyl sold to
him is irrelevant; the act of distribution was the proximate
cause of Bowen's death as a matter of law. Hence, I
respectfully dissent.
---------
Notes:
[1] We quote the text message exactly as
it appears in the record. We omit Bowen's
girlfriend's name and his mother's phone number to
maintain their privacy.
[2] During the hearing on the People's
motion, the trial court asked the parties whether the
statute's use of the term, "the proximate
cause," as opposed to "a proximate
cause," carries any significance. (Emphases added). In
its response to the People's C.A.R. 21 petition, the
trial court suggests that a ruling in Beverly's favor
assumes that a defendant may face section
18-18-405(2)(a)(III)(A)'s enhanced penalty only if their
distribution of fentanyl was the sole proximate
cause of the purchaser's death-despite precedent
indicating that there may be more than one proximate cause of
the same result. E.g., Lopez, 97 P.3d at
280. We disagree with the trial court's suggestion
because "[u]nlawful conduct that is broken by an
independent intervening cause cannot be the proximate
cause of injury to another." Martinez,
¶ 13, 542 P.3d at 679 (alteration in original) (emphasis
added) (quoting Stewart, 55 P.3d at 121). Thus, even
if section 18-18-405(2)(a)(III)(A) allows for multiple
proximate causes, fentanyl distribution is not one of them
when an intervening cause exists.
[3] Contrary to the People's
contention, nothing in the legislative declaration
conclusively establishes that the General Assembly sought to
enhance punishment for defendants who distribute drugs that a
purchaser consumes with the intent to die by suicide (rather
than by accidental overdose). At most, the legislative
declaration is ambiguous as to whether a purchaser's
intent is relevant to the proximate cause inquiry.
See 2022 Colo. Sess. Laws at 1626 (stating the
General Assembly's intent to "specifically design[]
penalties for people whose . . . distribution [of fentanyl] .
. . leads to the death of another person"). In any
event, language in a legislative declaration cannot override
the plain language chosen by the legislature in a statute.
See People in Int. of T.B., 2019 CO 53, ¶ 33,
445 P.3d 1049, 1056 (explaining that language in a
legislative declaration does not "narrow or otherwise
modify the actual elements" of an offense). Accordingly,
we ground our analysis in the unambiguous "proximate
cause" language the legislature chose to use in section
18-18-405(2)(a)(III)(A).
[4] As of 2024, fentanyl continues to be
associated with the high number of overdose fatalities in the
United States. See Dep't of Just. Drug Enf't
Admin., Fake Pills Fact Sheet (Nov. 2024),
https://www.dea.gov/sites/default/files/2024-11/DEA-OPCK_FactSheet_November_2024.pdf
[https://perma.cc/2X6T-4WQM].
[5] The coroner who performed the
decedent's autopsy testified to these facts at the
hearing on the People's motion in limine, first
referenced in Maj. op. ¶ 13.
[6] Beverly is accused of selling the
decedent $90 worth of fentanyl pills. While the defense's
witness was reluctant to speculate on the precise amount of
fentanyl required to produce the concentration observed in
Bowen, he did note that Bowen had ingested an
"exceptionally large amount" of the drug.
[7] Relatedly, the coroner conceded that
he has "no way of knowing" how many pills would
result in the concentration of fentanyl observed in Bowen.
Even in cases where pills are recovered, "We could test
those, but it doesn't mean that the pills that they
ingested had those same levels of fentanyl." Referencing
drugs that are manufactured illegally, the coroner testified
that, "when you test them, they're dramatically
different from one pill to the next. From one person to the
next, even within the same bag."
[8] More recent data from the DEA
demonstrates that counterfeit pills remain highly lethal,
with five out of every ten pills with fentanyl containing a
potentially lethal dose. Dep't of Just. Drug Enf't
Admin., Fake Pills Fact Sheet (Nov. 2024),
https://
www.dea.gov/sites/default/files/2024-11/DEA-OPCK_FactSheet_November_2024.pdf
[https://perma.cc/2X6T-4WQM].
[9] The position in Jeffries is
consistent with those adopted by other jurisdictions that
have considered the issue of foreseeability in
fentanyl-related deaths. See, e.g., State v.
Price, 135 N.E.3d 1093, 1114 (Ohio Ct. App. 2019)
(finding that whether the victim was suicidal would not
change the fact that the victim took drugs furnished by the
defendant and died as a result); see also Baker v.
State, No. 2469, 2021 WL 3052916, at *4-6 (Md. Ct. Spec.
App. July 20, 2021) (unpublished opinion) (same).
---------