May, J.
Justin Yeary appeals following his conviction of Level 1 felony dealing in a controlled substance resulting in death. Yeary raises multiple issues on appeal, but we confine our analysis to three, which we restate as:
1. Whether Indiana Code section 35-42-1-1.5, Indiana’s drug-induced homicide (“DIH”) statute, violates the United States Constitution and/or the Indiana Constitution by eliminating the State’s burden of proving proximate causation, limiting the accused’s right to present a defense, and failing to give fair notice of the behavior it prohibits;
2. Whether the trial court erred in refusing to give Yeary’s proposed jury instructions on causation; and 3. Whether the text messages the victim sent in the days prior to his death were relevant to Yeary’s defense.
We reverse and remand.
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Yeary argues the DIH statute is unconstitutional because it infringes upon his Fourteenth Amendment right to due process of law before being deprived of life, liberty, or property.
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…[T]he plain language of subsection (a) of the DIH statute requires the State to prove a causal connection between the controlled substance delivered by the defendant and the victim’s death. In fact, Yeary acknowledges subsection (a), when read in isolation, requires the State “to prove that, but for use of the controlled substance the victim would not have died, and the victim’s death was reasonably foreseeable given the defendant’s conduct.”
However, Yeary argues subsection (d) of the DIH statute so waters down this element of the DIH offense as to effectively relieve the State of the burden of proving a causal connection. He contends: The first excluded defense precludes the defendant from being able to argue that the victim’s death was not reasonably foreseeable or that the victim’s conduct was an intervening cause that broke the chain of causation. The second excluded defense prohibits the defendant from being able to argue that any substance other than the one manufactured or delivered by the defendant was the cause of, or even a substantial factor in bringing about, the victim’s death. (Id. at 29-30.) Thus, according to Yeary’s argument, to obtain a conviction, “the State need only show the victim used a drug that at some point the defendant had manufactured or delivered, and the victim died later.” (Appellant’s Br. at 24.) The State, in contrast, asserts it was required to “prove that the controlled substance sold by the defendant was a cause-in-fact and proximate cause of the victim’s death.” (Appellee’s Br. at 22.) The State contends subsection (d) of the DIH statute holds the defendant responsible for the foreseeable consequences of drug dealing but does not remove the State’s obligation to prove causation.
Yeary reads the defense exclusions in the DIH statute too broadly. The plain language of subsection (d)(1) only precludes a defendant from raising as a complete defense that the person who died made the voluntary choice to use, inject, inhale, absorb, or ingest the drug manufactured or delivered by the defendant. See, e.g., Willis v. State, 888 N.E.2ds 177, 182-84 (defenses of parental privilege and self-defense are “complete defense[s]” eliminating culpability for an otherwise criminal act); Heyward v. State, 470 N.E.2d 63, 64 (Ind. 1984) (involuntary intoxication may be complete defense to crime); Melton v. Ousley, 925 N.E.2d 430, (Ind. Ct. App. 2010) (truth is a complete defense in civil actions for defamation and, therefore, bars recovery).
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Indiana’s DIH statute does not violate the due process clause of the Fourteenth Amendment, as Yeary has alleged, because it does not relieve the State of the burden of proving causation. See Pattison, 54 N.E.3d at 369 (holding rebuttable presumption regarding defendant’s blood-alcohol concentration at time of traffic stop based on results of breath test performed ninety minutes later did not impermissibly shift the burden of proof onto the defendant in violation of the Fourteenth Amendment’s due process clause).
Alternatively, Yeary asserts subsection (d) of the DIH statute unconstitutionally infringes upon his right to present a defense, as guaranteed by various provisions of both the United States Constitution and the Indiana Constitution…Yeary argues the excluded defenses language of the DIH statute restricts such a fundamental principle of justice in that it limits what evidence a defendant can put forward to challenge causation.
We reject Yeary’s premise because, as we noted in the prior section, subsection (d) of the DIH statute does not prevent a defendant from contesting causation.
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Yeary also asserts whether the DIH statute will apply to a particular drug transaction is unforeseeable “because application of the statute is based on too many variables, nearly all of which arise from unpredictable future actions taken by the victim.”
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However, as we explained above, the State’s burden to prove the controlled substance sold by the defendant caused the victim’s death remains intact under the DIH statute. As the State observed at oral argument, it is a defense to the DIH statute that something other than the drug the defendant sold the user resulted in the user’s death or that the defendant did not sell a large enough quantity of drugs to the user to cause the user’s death. In both instances, the essence of the defense is that the combination of the substances did not cause the death. Thus, subsection (d)(2), which only bars a defendant from claiming non-culpability because the death resulted from a combination of the distributed drug and other specified substances, would not apply. See Sanchez v. State, 749 N.E.2d 509, 521 (Ind. 2001) (holding statute prohibiting defendants from arguing voluntary intoxication prevented them from forming requisite mens rea was constitutional).
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The last of Yeary’s constitutional arguments is that the DIH statute violates the Fourteenth Amendment because it is unconstitutionally vague.
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Even though the State did not initially charge Yeary with Level 1 felony dealing in a narcotic drug resulting in death, it is common for the State to amend the charges against a defendant in the course of litigation, and the State’s decision to do so in this case is not evidence of the arbitrary nature of the DIH statute. See Kibbey v. State, 733 N.E.2d 991, 996 (Ind. Ct. App. 2000) (recognizing the “well-established proposition” that when a defendant’s conduct violates two or more criminal statutes, the prosecutor retains general discretion to decide which charges to bring). Therefore, we hold Indiana’s DIH statute is not unconstitutionally vague. See Price v. State, 911 N.E.2d 716, 720 (Ind. Ct. App. 2009) (holding statute prohibiting cruelty to animals was not unconstitutionally vague because a person of ordinary intelligence would understand that repeatedly striking a small dog in the face and stomach with a belt violates the statute even though it exempted owners engaged in reasonable physical discipline from liability), trans. denied.
Yeary argues the trial court erred in refusing his proposed jury instructions six and seven. Yeary’s proposed preliminary instruction six stated:
The concept of causation in criminal law is like that found in tort law. The criminal act must be both 1) the actual cause (sometimes called the “cause-in-fact”); and 2) the legal cause (sometimes called the “proximate cause”).
If there is more than one cause of the result, the Accused’s action is the cause-in-fact if it is a “substantial factor” in bringing about the result.
Legal or proximate cause is a distinct concept, speaking not to the physical relationship between the Accused’s conduct and the result, but embodying a value judgment as to the extent of the physical consequences of an action for which a person should be responsible. Thus, proximate cause questions are often couched in terms of “foreseeability.”
The Accused is not criminally responsible for consequences that are unforeseeable. In Indiana, a result is seen as foreseeable if it is a “natural and probable consequence” of one’s act.
Yeary’s proposed preliminary instruction seven read:
When an action of the victim . . . affects the chain of causation, foreseeability is again a factor. Such an occurrence is called [an] “intervening cause,” and it becomes the overriding cause— breaking the chain of causation if it was not foreseeable.
If an intervening or overriding cause helped bring about the result, the Accused is not criminally liable; it would be unfair to hold him responsible for the result.
The State concedes both of Yeary’s proposed instructions correctly stated the law. The text of the proposed instructions closely tracks our discussion of causation in Bowman, 564 N.E.2d at 313. Evidence in the record also supported giving the proposed instructions because Yeary challenged whether it was the drugs he sold Tyler that caused Tyler’s death. In his closing argument, Yeary referenced the Xanax bars found in Tyler’s bedroom. He noted “fentanyl is showing up in counterfeit pills, in pills purchased off the street” and he argued the police prematurely narrowed in on him as the prime suspect. (Tr. Vol. IV at 12.).
However, with respect to the third prong of our analysis, the State argues the proposed instructions were properly refused because other instructions given to the jury adequately covered the causation requirement.
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The trial court also instructed the jury during final instructions: “‘Cause of death’ is that event which initiates a chain of events, however short or protracted, that results in the death of an individual.” (Id. at 188.) The State asserts that “[b]ecause ordinary persons understand what it means to say that one thing ‘results in’ another thing—and, specifically, understand that it means causation—there was no need for the trial court to give any further definition explaining the causation requirement.” (Appellee’s Br. at 40.)
However, Yeary argues these instructions were insufficient because “[t]he instructions as a whole left the jury with the impression that ‘but-for’ and proximate causation were not required; or even if one or both were required, they were satisfied simply by the State showing that Tyler died after ingesting the drug.” (Appellant’s Br. at 45.) He also contends the “cause of death” instruction erroneously suggested “that any event that begins the chain of events leading to death is sufficient to prove the victim’s death resulted from the initiating act.” (Id.) This instruction did not require the victim’s death to be a reasonably foreseeable consequence of the defendant’s action. In contrast, Yeary asserts his “proposed instructions explained that where there is more than one cause of the result (i.e., the death), the result was actually caused by the defendant’s actions only where the defendant’s actions were a substantial factor in bringing about the result.”
As we explained above, the DIH statute requires the State to prove the defendant’s conduct is both the proximate cause and the actual cause of the victim’s death. We expect the jury to “rely on its collective common sense and knowledge acquired through everyday experiences[,]” but the trial court has a duty to define for the jury words “of a technical or legal meaning normally not understood by jurors unversed in the law.” “Proximate cause” is such a concept not readily understood by those unversed in the law, which is why it is defined in Indiana Criminal Pattern Jury Instruction 14.3260.10. Similarly, “intervening cause” is defined in Indiana Model Civil Jury Instruction 30311 and could be modified for use in a criminal context. Simply saying that ingestion of a controlled substance “resulted in the death of a human being who used the controlled substance” does not convey the concept of proximate causation to a lay juror. (App. Vol. IV at 64-65 & 175-76.) Likewise, saying, “‘Cause of death’ is that event which initiates a chain of events, however short or protracted, that results in the death of an individual” does not convey to a lay person that some event may break the chain of causation. (Id. at 188.) A lay person could reasonably, but erroneously, interpret these instructions to mean the State was only required to prove the victim’s death followed the drug sale because “result” and “follow” are synonyms. Merriam-Webster Thesaurus [Perma | 114 Synonyms & Antonyms of RESULT – Merriam-Webster]. Therefore, the trial court erred by not giving Yeary’s proposed instructions. See New v. State, 135 N.E.3d 619, 624 (Ind. Ct. App. 2019) (holding trial court abused its discretion in refusing defendant’s proposed jury instruction on negligence because the difference between negligence and recklessness was not adequately explained to the jury), reh’g denied.
Nonetheless, we will not reverse a conviction because of an instructional error if the error is harmless, meaning the “conviction is clearly sustained by the evidence and the instruction would not likely have affected the jury’s verdict.” Dixson v. State, 22 N.E.3d 836, 840 (Ind. Ct. App. 2014), trans. denied. Yeary does not contest selling drugs to Tyler, and text messages from Tyler to Yeary indicate Tyler was using Yeary’s product during the evening of February 8, 2019. However, Tyler references only using a small amount of Yeary’s product. (See Tr. Vol. V at 111 (“Sniffed half a point . . . I’d have spent like $30 to get where I’m at right now for $5-6[.]”) (errors in original).) Also, several hours elapsed between when these text messages were sent and when Tyler died. Tyler had more Xanax pills than he was prescribed in his possession at the time of his death and more pills were missing from the prescription bottle found in Tyler’s car than one would expect given how recently the prescription had been filled. Due to the ambiguity regarding precisely what drugs and in what quantities Tyler took over the time period leading up to his death, the jury’s verdict likely turned on its understanding of the legally required causal connection between the drugs Yeary sold Tyler and Tyler’s death. Therefore, the trial court’s instructional error cannot be called harmless, and we reverse Yeary’s conviction of dealing in a controlled substance resulting in death. See Lee v. State, 964 N.E.2d 859, 865 (Ind. Ct. App. 2012) (holding failure to give jury instruction on the presumption of innocence was reversible error), trans. denied.
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The DIH statute requires the State to prove the drugs sold by the defendant were both the proximate cause and the actual cause of the victim’s death and does not improperly inhibit a defendant’s ability to contest such proof. We therefore reject Yeary’s constitutional challenges. Nonetheless, we agree with Yeary that the text messages Tyler sent in the days immediately preceding his death are relevant to the question of whether the drugs Yeary sold Tyler caused Tyler’s death. We also agree with Yeary that the trial court’s jury instructions did not properly convey to the jury the necessity of finding Yeary’s drugs were the actual cause and proximate cause of Tyler’s death, which resulted in reversible error. The State may retry Yeary if it so chooses because the State presented sufficient evidence for a reasonable jury to find Yeary guilty. We reverse and remand for further proceedings consistent with this opinion.
Reversed and remanded.