1
In Re The People of the State of Colorado, Plaintiff:
v.
Patrick L. Beverly, II., Defendant:
No. 24SA258
Supreme Court of Colorado
May 5, 2025
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
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
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).
¶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
Assembly's use of the specific phrase "proximate
cause" invokes the well-established legal definition of
that term. See People v. Rockwell,
¶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.
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
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,
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
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
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,
¶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,
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,
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,
¶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,
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
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,
¶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,
¶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.
¶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
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,
¶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
understands the legal import of the language it uses,
Rockwell,
¶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,
its ingestion." (citation omitted)); State v.
McCrorey,
¶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,
(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,
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,
See, e.g., Camacho,
¶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
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
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,
¶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
from it." People v. Vanderpauye,
¶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
evidence is admissible, it may not suffice for the trial
court to instruct the jury on intervening cause. See
Saaoedra-Rodriguez,
¶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.
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
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.
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,
¶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,
¶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
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,
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,
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
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
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,
¶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,
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
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,
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.
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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,
[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
[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,
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