2018 IL 122566 

IN THE
 

SUPREME COURT
 

OF
 

THE STATE OF ILLINOIS
 

(Docket No. 122566) 

THE PEOPLE OF THE STATE OF ILLINOIS, Appellee, v. 

JENNIFER N. NERE, Appellant. 

Opinion filed September 20, 2018. 

JUSTICE THOMAS delivered the judgment of the court, with opinion. 

Chief Justice Karmeier and Justices Kilbride, Garman, Burke, Theis, and 

Neville concurred in the judgment and opinion. 

OPINION 

¶ 1 A Du Page County jury convicted defendant, Jennifer N. Nere, of drug-induced 

homicide (720 ILCS 5/9-3.3(a) (West 2012)). Defendant appealed, arguing, 

inter alia, that (1) the trial court erred in refusing her proposed jury instructions on 

causation and (2) she was not proved guilty beyond a reasonable doubt. The 

appellate court affirmed her conviction and sentence. 2017 IL App (2d) 141143. 

We allowed defendant’s petition for leave to appeal, and we now affirm the 
 

 

 

 

 

 

 

 

appellate court. 

¶ 2 BACKGROUND 

¶ 3 A complete statement of facts, including a summary of all of the testimony, 

may be found in the appellate court opinion. Id. ¶¶ 3-52. We summarize here only 

those facts necessary to an understanding of our decision. 

¶ 4 On June 27, 2012, Augustina Taylor died in the bathroom of her mother’s 

apartment in Wheaton. Taylor and other family members had gathered there to 

celebrate Taylor’s release from prison the previous day. Taylor’s girlfriend, Leslie 

Walker, joined the party sometime between 1 and 3 p.m. At around 10:30 p.m., 

Taylor called defendant to arrange a ride home for Walker. When defendant 

arrived, Taylor and Walker went down to defendant’s car to meet her. According to 

defendant’s own statements, defendant gave heroin, crack cocaine, a syringe, and a 

crack pipe to Taylor.1 The pipe and syringe were wrapped in a dirty sock that had 

blood on it. 

¶ 5 Taylor then went back into the apartment, told her children that she was going 

to take a shower, and told her nephew that he needed to get out of the bathroom. 

Taylor went into the bathroom and, approximately 15 minutes later, turned on the 

shower. Walker called the apartment while Taylor was in the bathroom. Taylor’s 

son, Joshua, initially hung up on Walker, but after she called back repeatedly, he 

eventually agreed to speak her. Based on what Walker told him, Joshua alerted his 

grandmother and other family members, and several of them began trying to enter 

the locked bathroom. They eventually removed the doorknob but still could not 

open the door. Joshua called 911. 

¶ 6 Officers arrived and forced the door open. Taylor was unresponsive. The 

officers carried Taylor to the living room and performed CPR. Paramedics arrived a 

few minutes later and transported Taylor to the hospital, where she was pronounced 

dead. The officers collected from the bathroom a bloodstained sock, a glass pipe, a 

small plastic bag, cigarettes, a lighter, a drug-cooking spoon, a syringe, and two foil 

1

Although defendant acknowledged delivering both cocaine and heroin to Taylor, the State 

charged drug-induced homicide solely arising from the delivery of heroin. 

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bindles containing heroin residue. A DNA analysis of the blood on the sock came 

back as a match for defendant. 

¶ 7 The forensic pathologist who performed Taylor’s autopsy, Dr. Jeff Harkey, 

testified that Taylor died of heroin and cocaine intoxication due to intravenous drug 

use. Harkey found fresh needle puncture wounds on Taylor’s arm. Harkey testified 

that three opiates were found in Taylor’s blood—morphine, codeine, and 6-MAM. 

These opiates are associated with heroin use. The importance of 6-MAM is that it 

comes only from heroin. If a person takes pharmacological morphine, it would not 

cause codeine and 6-MAM to appear in the blood. When 6-MAM and morphine are 

found in the blood, the conclusion is usually that they both came from ingesting 

heroin. If enough time has passed, only morphine will appear in the blood. The 

significance of 6-MAM is that it shows recent use of heroin. 

¶ 8 Harkey testified that the amount of morphine in Taylor’s blood was “way 

beyond” what someone would take medically and was at an amount that is 

associated with heroin fatalities. According to Harkey, there is no “safe” amount of 

heroin to ingest, and a person can die from taking their usual amount. The amount 

of heroin ingested by Taylor could have been fatal by itself. On cross-examination, 

Harkey acknowledged that high levels of morphine in the blood could be 

accumulative and indicate heroin use over several days. 

¶ 9 Dr. Harkey testified that cocaine metabolites were also found in Taylor’s blood 

and urine. The principal one was benzoylecgonine. Harkey testified that the small 

amount of the metabolite in Taylor’s blood could have indicated either that she took 

a large amount of cocaine at an earlier time or that she had taken a smaller amount 

closer to the time of death. Thus, he could not offer an opinion as to how recently 

Taylor had used cocaine. On cross-examination, he was asked whether cocaine use 

alone could cause death: 

“Q. Now, isn’t it true, possible now, possible, that any level—any—any 

amount of cocaine could cause cardiac arrhythmia which could lead to fatal 

heart failure; isn’t that true? 

A. Yes. 

*** 

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Q. Okay. Well your testimony on direct was that it’s possible that heroin 

alone could cause a death, correct? 

A. Yes. 

Q. And your testimony is also that it’s possible that cocaine could cause a 

death; isn’t that right? 

A. Yes.” 

¶ 10 On redirect examination, Harkey reiterated that the presence of 6-MAM in the 

blood indicated recent use of heroin, and on recross-examination he explained that 

“the last dose would be the one that has 6-MAM still found in it. In accumulative 

doses, things that are taken the day before, you’re not going to find the 6-MAM.” 

¶ 11 The jury heard conflicting testimony over whether Taylor had consumed drugs 

before receiving the cocaine and heroin from defendant and also over whether 

Taylor and Walker were ever alone together at the party. Walker testified that on 

June 26, 2012, the day Taylor was released from prison, Walker picked her up at 

the Greyhound station in Chicago. Taylor wanted to get high, so Walker took her 

back to Walker’s house in Summit. Taylor went next door and bought heroin at a 

drug house. Taylor returned to Walker’s house and injected the heroin into a vein. 

Taylor also “smoked a little crack,” following which Walker took her home. The 

next day, defendant dropped Walker off at Taylor’s mother’s house at around 2 or 3 

p.m. Walker went into the house with Taylor and fell asleep. Walker remembered 

Taylor snorting heroin in the bathroom that afternoon. Walker did not remember 

anything else until Taylor woke her up when defendant arrived. 

¶ 12 On cross-examination, Walker was impeached with an interview that she gave 

to the police on December 5. On that date, Walker told the police that, when she 

picked up Taylor upon Taylor’s release from the penitentiary, they went to 

Walker’s sister’s house in LaGrange. They did not use drugs on that date. Walker 

told the police that Taylor had wanted drugs but that Walker had refused to give her 

any heroin. Later that evening, Walker dropped Taylor off at her mother’s home in 

Wheaton, and Walker did not see her again until defendant dropped her off there 

the next day at around 2 or 3 p.m. Walker acknowledged telling the police that she 

and Taylor did not do drugs that afternoon, but she claimed that she did so because 

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she had promised Taylor that she would not tell her family that she was using drugs 

again. Walker agreed that she had told the police that she was “100% sure” that 

Taylor had not used drugs that day. 

¶ 13 Members of Taylor’s family testified that Taylor arrived at her mother’s house 

on the night she was released from prison and that she was behaving normally. 

When Walker arrived at the party the next afternoon, Taylor’s family members 

observed Taylor and Walker walking on a path around the pool, and they were 

visible to the partygoers as they did so. After the partygoers moved inside, Taylor 

and Walker sat in the living room together, and Taylor braided Walker’s hair. 

Taylor and Walker were never alone during this time, and Taylor’s family members 

testified that she was acting normally until the time she escorted Walker out to 

defendant’s car. 

¶ 14 The defense brought out on cross-examination of Wheaton police officer Dan 

Salzmann that two of Taylor’s family members had told Salzmann that Taylor and 

Walker had broken off from the rest of the party and spent time alone together. 

Salzmann was also asked on cross-examination if he remembered defendant saying 

that Taylor had heroin left over from the previous day. Salzmann said he did not 

remember that. He then stated that defendant had said that she saw Taylor with a 

bag of heroin the day before, that Taylor had taken some of it, and that there was 

some left over. Salzmann said that he would “presume” that defendant still had 

some heroin left after Taylor saw her use some of it the day before. 

¶ 15 At the jury instructions conference, a dispute arose over how the jury should be 

instructed on causation. The relevant portion of the drug-induced homicide statute 

provided: 

“A person who violates Section 401 of the Illinois Controlled Substances Act or 

Section 55 of the Methamphetamine Control and Community Protection Act by 

unlawfully delivering a controlled substance to another, and any person’s death 

is caused by the injection, inhalation, absorption, or ingestion of any amount of 

that controlled substance, commits the offense of drug-induced homicide.” 720 

ILCS 5/9-3.3(a) (West 2012). 

The court instructed the jury pursuant to Illinois Pattern Jury Instructions, Criminal, 

No. 7.28 (4th ed. 2000) (hereinafter IPI Criminal 4th No. 7.28): 

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“That to sustain the charge of Drug Induced Homicide, the State must prove 

the following propositions: 

First Proposition: That the defendant knowingly delivered to another a 

substance containing heroin, a controlled substance; and 

Second Proposition: That any person injected, inhaled or ingested any 

amount of the controlled substance; and 

Third Proposition: That Augustina Taylor’s death was caused by[2] that 

injection, inhalation or ingestion. 

If you find from your consideration of all the evidence that each one of 

these propositions has been proved beyond a reasonable doubt, you should find 

the defendant guilty. 

If you find from your consideration of all the evidence that any one of these 

propositions has not been proved beyond a reasonable doubt, you should find 

the defendant not guilty.” 

¶ 16 The trial court further gave Illinois Pattern Jury Instructions, Criminal, No. 7.15 

(4th ed. Supp. 2011) (hereinafter IPI Criminal 4th No. 7.15 (Supp. 2011)), which is 

titled “Causation in Homicide Cases Excluding Felony Murder.” Thus, the jury was 

instructed that: 

“In order for you to find that the acts of the defendant caused the death of 

Augustina Taylor the State must prove beyond a reasonable doubt that 

defendant’s acts were a contributing cause of the death and that the death did 

not result from a cause unconnected with the defendant. However, it is not 

2

The pattern instruction uses the phrase “That _____ died as a result of that [(injection) 

(inhalation) (ingestion)].” (Emphasis added.) IPI Criminal 4th No. 7.28. This wording reflects the 

previous version of the drug-induced homicide statute, which provided that a person commits 

drug-induced homicide when he delivers a controlled substance to another and “any person dies as a 

result of the injection, inhalation or ingestion of any amount of that controlled substance.” 720 ILCS 

5/9-3.3(a) (West 2004). The legislature modified the statute, effective in 2006, to change the 

language “any person dies as a result of” to “any person’s death is caused by.” 720 ILCS 5/9-3.3(a) 

(West 2006). The parties and the trial court agreed that the pattern instruction should be modified to 

reflect this change in the wording of the statute. 

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necessary that you find the acts of the defendant were the sole and immediate 

cause of death.” 

Defendant objected to the use of this instruction on two grounds. First, she argued 

that it was potentially misleading in that it referred to defendant’s “acts” instead of 

her delivery of heroin. Defendant contended that this could mislead the jury into 

considering her delivery of cocaine to Taylor, even though the State had charged 

drug-induced homicide solely arising out of her delivery of heroin. Second, she 

argued that by using “contributing cause” language, the instruction ran afoul of 

Burrage v. United States, 571 U.S. ___, 134 S. Ct. 881 (2014). In Burrage, the 

Supreme Court considered the meaning of the phrase “results from” in section 

841(a)(1), (b)(1)(A)-(C) of the federal Controlled Substances Act (21 U.S.C. 

§ 841(a)(1), (b)(1)(A)-(C) (2012)), which imposes a 20-year mandatory minimum 

sentence on a defendant who unlawfully distributes a Schedule I or II drug, when 

“death or serious bodily injury results from the use of such substance.” The jury 

instruction in that case required the government to prove that the defendant’s 

distribution of the controlled substance was a contributing cause of the victim’s 

death. Burrage, 571 U.S. at ___, 134 S. Ct. at 886. The Supreme Court held that the 

ordinary understanding of the phrase “results from” is “but-for” causality. Id. at 

___, 134 S. Ct. at 887-91. In other words, the government must show that “ ‘ “the 

harm would not have occurred” in the absence of—that is, but for—the defendant’s 

conduct.’ ” Id. at ___, 134 S. Ct. at 887-88 (quoting University of Texas 

Southwestern Medical Center v. Nassar, 570 U.S. ___, ___ 133 S. Ct. 2517, 2525 

(2013), quoting Restatement of Torts § 431 Comment a (1934)). The Supreme 

Court acknowledged that some jurisdictions consider a cause-in-fact to be 

something that was a “substantial” or “contributing” factor in producing a given 

result. Id. at ___, 134 S. Ct. at 890. However, the Court noted that Congress had not 

written the statute in contributing cause language but had instead used the phrase 

“results from,” which language is commonly understood to import “but-for” 

causality. Id. at ___, 134 S. Ct. at 891. 

¶ 17 In light of Burrage, defendant proposed modifying the causation instruction to 

read: 

“In order for you to find that the acts of the defendant caused the death of 

Augustina Taylor, the State must prove beyond a reasonable doubt that the 

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defendant’s act of delivering heroin and Augustina Taylor injecting that heroin 

was the proximate cause of her death and that her death did not result from a 

cause unconnected with Augustina Taylor’s injection of the heroin defendant 

delivered. However, it is not necessary that you find the act of delivering heroin 

was the sole and immediate cause of death.” 

Defendant further proposed that the jury be instructed as follows: 

“Proximate cause is a cause that directly produces an event and without 

which the event would not have occurred. Proximate cause is established if 

Augustina Taylor’s death was caused by the heroin that defendant delivered to 

her.” 

¶ 18 With respect to defendant’s first objection, the State argued that the other 

instructions in the case made it clear that only defendant’s delivery of heroin was at 

issue. The court stated that it could see counsel’s point and had wrestled with the 

issue itself, but ultimately decided not to modify the causation instruction to read 

“defendant’s act of delivering heroin.” The court explained that the appellate court 

had approved the use of IPI Criminal 4th No. 7.15 (Supp 2011) for use in 

drug-induced homicide cases in People v. Kidd, 2013 IL App (2d) 120088, and the 

court was bound by that decision. The court noted that the question of whether the 

jury should be instructed on proximate cause concepts was considered in Kidd and 

that the Kidd court had concluded that IPI Criminal 4th No. 7.15 (Supp 2011) 

correctly stated the law and that no further instruction on proximate cause was 

necessary. With respect to defendant’s second objection, the court had earlier 

explained in denying defendant’s motion for a directed verdict that it believed that 

Burrage simply resolved a question of federal statutory interpretation and was not 

binding on state courts. 

¶ 19 The jury convicted defendant of drug-induced homicide, and the trial court 

sentenced her to nine years’ imprisonment. Defendant appealed, and the Appellate 

Court, Second District, affirmed. 2017 IL App (2d) 141143. Relevant to the issues 

before us today, the court held that the trial court did not abuse its discretion in 

using the IPI on causation and that the evidence was sufficient to convict defendant 

of drug-induced homicide. Although acknowledging that Burrage was not 

controlling because it involved the construction of a federal statute, the appellate 

court stated that it agreed with defendant that Illinois courts should follow Burrage. 

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Id. ¶¶ 77-78. The court explained that it agreed with Burrage that allowing juries to 

“find causation based on an unspecified ‘contribution’ to the likelihood of death 

raises grave due-process concerns.” Id. ¶ 78. The court stated that “[t]o allow a 

person to be convicted of ‘homicide’ because she might have caused the victim’s 

death violates the traditional understanding of causality and the rule of lenity.” 

(Emphasis in original.) Id. The court then explained that, both in the tort and 

criminal cases, “contributing cause” is not well defined, and there is no consensus 

on what it means. The court found that both Illinois and out-of-state authority is 

mixed on whether or not “but-for” causation is incorporated in the concept of 

contributing causation. Id. ¶¶ 68-97. 

¶ 20 Although the court agreed with Burrage that “but-for” causation is required, it 

ultimately could not find that the trial court abused its discretion in using the IPI on 

causation and rejecting defendant’s proposed instructions. The court held this for 

several reasons. First, defendant’s proposed instructions did not accurately set forth 

the law of causation. Defendant’s instructions incorporated the concept of “but-for” 

causation, but did not explain the concept of “multiple-independent causation” 

which is a well-recognized exception to the rule of “but-for” causation. Id. ¶¶ 74, 

100. The court did not believe this error was crucial under the circumstances 

because the evidence would not have supported a finding that the heroin alone 

caused defendant’s death. Id. ¶ 75. The court believed that a more serious problem 

with defendant’s proposed instructions was that they “needlessly repeated the 

concept of proximate cause and potentially confused causation-in-fact with 

foreseeability.” Id. ¶ 100. The court noted that it had rejected proximate cause 

instructions on this basis in Kidd. Id. Second, the appellate court acknowledged that 

IPI Criminal 4th No. 7.15 (Supp. 2011) contains a correct statement of Illinois law 

and directly tracks language repeatedly used in Illinois cases. Id. ¶ 101. The court 

opined that the language of the IPI is ambiguous and probably difficult for jurors to 

apply, but it could not find that the trial court abused its discretion in choosing the 

IPI over defendant’s proffered instructions: “Nonetheless, it is difficult to fault the 

trial court for giving an instruction that was based on Illinois law instead of a set of 

instructions that deviated from it and of which we had already disapproved in part.” 

Id. However, the court stated that either the legislature or the courts should clarify 

that “but-for” causation is required to convict someone of a criminal offense. The 

court cited the Pennsylvania causation statute (18 Pa. Cons. Stat. Ann. § 303(a) 

(West 2011)) as an example of a state legislature requiring “but-for” causation and 

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State v. Christman, 249 P.30 680 (Wash. Ct. App. 2011), as an example of a court 

adopting a rule that “but-for” causation is required to establish cause-in-fact.3 2017 

IL App (2d) 141143, ¶ 107 n.3. 

¶ 21 The court next considered defendant’s argument that the trial court erred in 

failing to modify IPI Criminal 4th No. 7.15 (Supp. 2011), which referred to 

“defendant’s acts,” “the acts of the defendant,” and a “cause unconnected with the 

defendant.” Defendant contended that, as she had also delivered cocaine to 

defendant and the State had not charged that conduct, there was a risk that the jury 

would consider defendant’s uncharged conduct in finding her guilty. Defendant 

contended that the instruction should have referred to her “act of delivering heroin” 

and a cause “unconnected to her delivery of heroin.” The appellate court agreed 

with defendant’s argument and stated that the instruction “might well benefit from 

amendment in this regard as well.” 2017 IL App (2d) 141143, ¶ 110. However, the 

court ultimately found the error harmless, noting that the question is “whether the 

instructions, read as a whole, fully and fairly stated the applicable law.” Id. ¶ 111. 

Other instructions made clear that the focus was solely on defendant’s alleged 

delivery of heroin. The court thus held that any error was harmless. Id. ¶ 109. 

¶ 22 Finally, the court considered whether the evidence was sufficient to support 

defendant’s conviction. The court held that a rational trier of fact could have found 

the elements of drug-induced homicide beyond a reasonable doubt. Id. ¶¶ 122-27. 

The court explained that, assuming the State was required to prove “but-for” 

causation, it did so. The court relied on Harkey’s testimony that the cause of death 

was heroin and cocaine intoxication. The court explained that the logical inference 

from Harkey’s testimony is that the heroin and cocaine together caused Taylor’s 

3

The appellate court’s reliance on Christman for this proposition is problematic. The Christman 

court quite clearly stated that 

“[t]here are several tests for factual causation, the most common of which is the ‘but for’ test, 

although the ‘substantial factor’ test applies in some circumstances. Id. One instance in which 

the substantial factor test applies is where multiple causes could have produced the identical 

harm, thus making it impossible to prove the ‘but for’ test. The ‘substantial factor’ test is 

generally applied in multiple causation cases. Id. at 613, 953 P.2d 470 (quoting Allison v. 

Housing Auth., 118 Wash.2d 79, 94, 821 P.2d 34 (1991)). Under the substantial factor test, all 

parties whose actions contributed to the outcome are held liable.” (Emphases added.) 

Christman, 249 P.3d at 687. 

The Supreme Court in Burrage even listed Christman as an example of a state court adopting a 

“substantial” or “contributing” factor requirement instead of “but-for” causation. See Burrage, 571 

U.S. at ___, 134 S. Ct. at 890. 

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death and that the evidence did not require the jury to speculate that only the 

cocaine was responsible. Id. ¶ 123. Defendant also relied on evidence that, on the 

day of Taylor’s death, Taylor might have had heroin left over from the day before. 

The court noted that the testimony defendant used to establish this possibility was 

suspect. Id. ¶¶ 124-25. Moreover, even if defendant did have heroin left over from 

the previous day, the jury could reasonably infer that it was the heroin defendant 

delivered that caused her death. The jury could infer that Taylor’s request for 

heroin on the day of her death meant that she was out of heroin at the time. Id. 

¶ 126. 

¶ 23 We allowed defendant’s petition for leave to appeal. Ill. S. Ct. R. 315 (eff. July 

1, 2017). 

¶ 24 ANALYSIS 

¶ 25 We first need to clarify what issues are properly before the court. Defendant 

elected to stand on her petition for leave to appeal as her brief to this court. See Ill. 

S. Ct. R. 315(h) (eff. July 1, 2017). There are three arguments in the brief that are 

sufficiently developed for our consideration: (1) that the appellate erred in finding 

no abuse of discretion in giving the causation instruction after concluding that the 

instruction did not comply with the principles set forth in Burrage, (2) that the trial 

court failed to modify the causation instruction to clarify that only defendant’s act 

of delivering heroin could be considered, and (3) that the State failed to prove 

defendant guilty of drug-induced homicide beyond a reasonable doubt. Defendant 

references the other issues she raised before the appellate court in a single sentence: 

“The trial [c]ourt also erred in not giving defense instructions 1 thru 7.” This 

argument is forfeited by defendant’s failure to comply with Illinois Supreme Court 

Rule 341(h)(7) (eff. July 1, 2017). See Vancura v. Katris, 238 Ill. 2d 352, 370 

(2010) (“An issue that is merely listed or included in a vague allegation of error is 

not ‘argued’ and will not satisfy the requirements of the rule.”). Thus, we will 

confine our analysis to the three issues set forth above. 

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¶ 26 I. Causation Instruction 

¶ 27 A. Contributing Cause 

¶ 28 1. The Contributing Cause Rule in Illinois 

¶ 29 We first consider whether the trial court erred in using IPI Criminal 4th No. 

7.15 (Supp. 2011) to define causation rather than instructing the jury according to 

the principles set forth by the Supreme Court in Burrage. “ ‘The sole function of 

instructions is to convey to the minds of the jury the correct principles of law 

applicable to the evidence submitted to it in order that, having determined the final 

state of facts from the evidence, the jury may, by the application of proper legal 

principles, arrive at a correct conclusion according to the law and the evidence.’ ” 

People v. Ramey, 151 Ill. 2d 498, 535 (1992) (quoting People v. Gambony, 402 Ill. 

74, 81-82 (1948)). In general, whether the trial court erred in refusing a particular 

jury instruction is reviewed under an abuse of discretion standard. People v. 

McDonald, 2016 IL 118882, ¶ 69. Whether a particular jury instruction accurately 

conveyed to the jury the law applicable to the case, however, is an issue that we 

review de novo. People v. Pierce, 226 Ill. 2d 470, 475 (2007). 

¶ 30 The appellate court viewed the principal issue solely as a discretionary one. For 

the following reason, we believe that de novo review is appropriate. Illinois 

Supreme Court Rule 451(a) (eff. Apr. 8, 2013) provides that, when there is an 

applicable IPI instruction, the trial court is required to use it unless the trial court 

determines that the IPI instruction does not accurately state the law. Here, the 

pattern instructions contain an instruction specifically for “Causation in Homicide 

Cases Excluding Felony Murder.” See IPI Criminal 4th No 7.15 (Supp. 2011). 

Thus, the trial court was required to use this instruction rather than defendant’s 

proposed causation instructions if it contained a correct statement of the law. The 

principal question we must address, therefore, is whether IPI Criminal 4th No. 7.15 

(Supp. 2011) properly sets forth the law of causation applicable to defendant’s 

case. We review this question de novo. See Pierce, 226 Ill. 2d at 475. 

¶ 31 There is no question that IPI Criminal 4th No. 7.15 (Supp. 2011) is a correct 

statement of Illinois causation principles. Generally, when a crime requires both an 

act by defendant and a specified result of that act, the defendant’s act must be both 

the “cause in fact” of the result and the “proximate” or “legal” cause of the result. 1 

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Wayne R. LaFave, Substantive Criminal Law § 6.4, at 628 (3d ed. 2018). The first 

requirement means that the defendant’s act must be an actual cause of the result. 

Id. § 6.4(a), at 630. The second requirement means that the result that actually 

occurs “must be enough similar to, and occur in a manner enough similar to, the 

result or manner which the defendant intended (in the case of crimes of intention), 

or the result or manner which his reckless or negligent conduct created a risk of 

happening (in the case of crimes of recklessness and negligence) that the defendant 

may fairly be held responsible for the actual result.”4 Id. § 6.4(a), at 630-31. 

¶ 32 The easiest way to establish cause-in-fact or “actual” cause is through the 

“but-for” test. This is established by showing that “but for the conduct the result 

would not have occurred.” Id. § 6.4, at 628. As the Supreme Court noted in 

Burrage, however, some jurisdictions apply either a “substantial factor” or 

“contributing cause” test to determine cause-in-fact. Burrage, 571 U.S. at ___, 134 

S. Ct. at 890. Illinois has consistently stated causation requirements in terms of 

contributing causation. See, e.g., People v. Brown, 169 Ill. 2d 132, 152 (1996); 

People v. Gacho, 122 Ill. 2d 221, 244 (1988); People v.Brackett, 117 Ill. 2d 170, 

176 (1987); People v. Love, 71 Ill. 2d 74, 81 (1978); Cunningham v. People, 195 Ill. 

550, 572-73 (1902). IPI Criminal 4th No. 7.15 (Supp. 2011) spells out causation 

principles the way they have been consistently defined by the Illinois courts. Again, 

the instruction provides: 

“In order for you to find that the acts of the defendant caused the death of 

___, the State must prove beyond a reasonable doubt that defendant’s acts were 

4

Barring unusual circumstances, it would seem that only cause-in-fact will be at issue in 

drug-induced homicide cases. The statute already spells out what act a defendant must commit, what 

harm must occur, and how the harm must occur, and the only mental state requirement is the 

defendant’s knowing delivery of a controlled substance. See People v. Faircloth, 234 Ill. App. 3d 

386, 391 (1992) (“[t]he defendant just needs to make a knowing delivery of a controlled substance, 

and if any person then dies as a result of taking that substance, the defendant is responsible for that 

person’s death”). Moreover, the federal courts in construing the analogous portion of the federal 

Controlled Substances Act (21 U.S.C. § 841(a)(1), (b)(1)(A)-(C) (2012)) have concluded both 

before and after Burrage that there is no foreseeability requirement. See United States v. Harden, 

893 F.3d 434, 447-48 (7th Cir. 2018); United States v. Burkholder, 816 F.3d 607, 617-20 (10th Cir. 

2016); United States v. Alvarado, 816 F.3d 242, 249 (4th Cir. 2016); United States v. Webb, 655 

F.3d 1238, 1250-55 (11th Cir. 2011); United States v. De La Cruz, 514 F.3d 121, 137 (1st Cir. 

2008); United States v. Houston, 406 F.3d 1121, 1124-25 (9th Cir. 2005); United States v. Carbajal, 

290 F.3d 277, 284-85 (5th Cir. 2002); United States v. McIntosh, 236 F.3d 968, 972 (8th Cir. 2001), 

abrogated on other grounds by Burrage, 571 U.S. ___, 134 S. Ct. 881; United States v. Robinson, 

167 F.3d 824, 832 (3d Cir. 1999); United States v. Patterson, 38 F.3d 139, 145 (4th Cir. 1994). 

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a contributing cause of the death and that the death did not result from a cause 

unconnected with the defendant. However, it is not necessary that you find the 

acts of the defendant were the sole and immediate cause of death.” 

Each of these propositions is taken directly from this court’s case law. In Brown, 

169 Ill. 2d at 152, this court stated: 

“In order to prove a defendant guilty of murder (other than by accountability), 

the prosecution must prove, inter alia, that an act of the defendant contributed 

to the victim’s death. (People v. Brackett (1987), 117 Ill. 2d 170, 177.) The 

defendant’s act, however, need not be the sole or immediate cause of death; 

rather, it is sufficient if the defendant’s act contributed to cause the death.” 

In Brackett, 117 Ill. 2d at 176, this court stated: 

“The courts in Illinois have repeatedly held that an intervening cause 

completely unrelated to the acts of the defendant does relieve a defendant of 

criminal liability. [Citations.] The converse of this is also true: when criminal 

acts of the defendant have contributed to a person’s death, the defendant may be 

found guilty of murder. [Citations.] It is not the law in this State that the 

defendant’s acts must be the sole and immediate cause of death.” 

Thus, IPI Criminal 4th No. 7.15 (Supp. 2011) is a correct statement of Illinois 

causation principles. 

¶ 33 In most cases, even though cause-in-fact requirements are stated in terms of 

“contributing cause,” the defendant’s act will be a “but-for” cause of the victim’s 

death. It is clear, nevertheless, that in Illinois the concept of “contributing 

causation” is broader than “but-for” causation. In Brown, the defendant was 

convicted of murder and sentenced to death. Brown, 169 Ill. 2d at 138. The 

evidence showed that the victim had died after being shot with two different 

weapons, a 9-millimeter handgun and a .45-caliber Uzi. Id. at 139. The victim had 

received a total of three gunshot wounds, and one 9-millimeter bullet and one 

.45-caliber bullet were retrieved from his body. Id. The wounds were in his back, 

buttocks, and leg. Id. The pathologist testified that the gunshot wounds were the 

cause of the victim’s death, but he could not say which of the three wounds had 

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caused the death. He stated that “ ‘any three [sic] of them’ ” could have killed the 

victim.5 Id. 

¶ 34 The defendant challenged the sufficiency of the evidence supporting his 

conviction, arguing specifically that the State had failed to prove the causation 

element of murder. Id. at 151. The defendant contended that another man, Dwayne 

Macklin, had fired the Uzi and that the State had the burden of proving that the 

victim’s death did not result from the wound or wounds caused by the Uzi. Id. This 

court noted that the defendant was apparently conceding that he had fired the 

9-millimeter weapon. Id. at 151 n.1. This court rejected the defendant’s sufficiency 

argument. First, this court explained that the evidence was sufficient for the trial 

court to find that it was the defendant who had fired the Uzi and therefore 

contributed to the victim’s death in that manner. Id. at 152-53. This court next 

stated the following: 

“Further, even if the defendant’s assertion, that it was Macklin and not the 

defendant who fired the Uzi, is accurate, we would still find the evidence 

sufficient to prove the causation element of the prosecution’s case. As noted, 

the defendant’s act need only contribute to the victim’s death to prove the 

defendant guilty of murder. (Brackett, 117 Ill. 2d at 176.) The evidence 

demonstrated that Sims was wounded by shots fired from both a .45-caliber 

weapon and a 9-millimeter weapon. The defendant does not dispute that he 

fired one of the two guns which shot Sims. The pathologist testified that Sims 

died as a result of ‘any three of [the wounds].’ Thus, the evidence supported the 

inference that all three of the gunshots contributed to Sims’ death. There was 

certainly no evidence to the effect that any of the three shots did not contribute 

to Sims’ death. Thus, regardless of whether the defendant fired the Uzi or the 

9-millimeter weapon, the evidence supported the conclusion that the 

defendant’s act contributed to Sims’ death.” (Emphases in original.) Id. at 153. 

Clearly, the prosecution in Brown had not established that the defendant’s conduct 

was a “but-for” cause of the victim’s death. The pathologist stated that he could not 

say which of the wounds had caused the victim’s death and that it could have been 

5

It seems clear that the pathologist’s statement means “any one of the three.” This is the only 

interpretation that makes sense, given that there were only three total wounds and the pathologist 

also said that he could not say which of the three wounds had caused the death. 

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any of them. Yet this court still held that the evidence was sufficient to establish the 

causation element of murder. Id. 

¶ 35 Similarly, the appellate court has not always required strict “but-for” causation. 

In People v. Martinez, 348 Ill. App. 3d 521 (2004), one of the cases cited in the 

“Committee Note” to IPI Criminal 4th No. 7.15 (Supp. 2011), the victim was 

beaten to death by the defendant and several other men. The defendant argued that 

the trial court had “rejected premising defendant’s guilt on an accountability 

theory.” Id. at 530. The defendant contended that he could not be convicted of first 

degree murder as a principal because there was no evidence that he alone caused 

the victim’s death or that he had struck the victim with sufficient force to have 

alone caused his death. Id. The appellate court rejected the argument. The court 

disagreed with the defendant that the trial court had rejected his guilt based on an 

accountability theory. Rather, “the court merely recognized that the evidence was 

sufficient to prove him guilty as a principal.” Id. at 530-31. The appellate court 

agreed with the trial court that there was sufficient evidence to convict the 

defendant as a principal. The court cited the “contributing cause” rule from Brown 

and explained that a defendant’s act need not be the sole or immediate cause of 

death and also that the evidence must demonstrate “that the victim’s death was not 

caused by a source unconnected to defendant’s act.” Id. at 530 (citing People v. 

Lara, 289 Ill. App. 3d 675, 680 (1997)). There was no evidence that the victim 

would have survived the beating without the defendant’s participation, yet the court 

still held the evidence sufficient to convict the defendant of first degree murder as a 

principal.6 Id. at 530-31. 

6

Other states have also applied a contributing cause analysis to a beating by multiple assailants. 

See, e.g., State v. Woods, No. W2003-02762-CCA-R3-CD, 2005 WL 396382 (Tenn. Crim. App. 

Feb. 17, 2005) (Rule 19 of the Tennessee Rules of the Court of Criminal Appeals (Tenn. Crim. App. 

R. 19 (eff. Mar. 26, 2014)) allows citation of unpublished opinions and does not declare them to be 

nonprecedential); People v. Bailey, 549 N.W.2d 325, 334-36 (Mich. 1996). The Woods court 

explained that 

“When two or more actors are involved in a homicide, both producing injuries: 

‘If, at the moment of death, it can be said that both injuries are contributing thereto, the 

responsibility rests on both actors. In such cases, the law does not measure the effects of the 

several injuries in order to determine which is the more serious, and which contributes in 

the greater measure to bring about the death. So one of two persons who cause the death of 

another by shooting is guilty of homicide if the wound inflicted by that person contributes 

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¶ 36 2. The Burrage Holding 

¶ 37 There is no question that, under this court’s long-standing “contributing cause” 

theory of causation, strict “but-for” causation is not always required. The question 

therefore becomes whether there is any reason why the Supreme Court’s decision 

in Burrage requires this court to abandon its long-standing definition of causation 

in homicide cases. In that case, the defendant, Marcus Burrage, sold heroin to 

Joshua Banka, a longtime drug user. Burrage, 571 U.S. at ___, 134 S. Ct. at 885. 

Banka immediately began cooking and injecting the heroin. Earlier in the day, 

Banka had crushed, cooked, and injected oxycodone. Id. at ___, 134 S. Ct. at 885. 

The morning after Banka had purchased the heroin from Burrage, he was found 

dead in his bathroom. Id. at ___, 134 S. Ct. at 885. The medical evidence showed 

that Banka had in his system heroin metabolites, codeine, alprazolam, clonazepam 

metabolites, and oxycodone. Morphine, a heroin metabolite, was the only drug 

present at a level above the therapeutic range. Id. at ___, 134 S. Ct. at 885. Dr. 

Eugene Schwilke, a forensic toxicologist, testified that the heroin was a 

contributing factor in Banka’s death because it interacted with the other drugs to 

depress Banka’s respiratory and/or central nervous system. Id. at ___, 134 S. Ct. at 

885. However, Schwilke could not say whether Banka would have lived had he not 

taken the heroin. Id. at ___, 134 S. Ct. at 885. Dr. Jerri McLemore, a medical 

examiner, testified that Banka died of “ ‘mixed drug intoxication.’ ” Id. at ___, 134 

S. Ct. at 886. McLemore believed that heroin, alprazolam, oxycodone, and 

clonazepam all played a contributing role in Banka’s death. Id. at ___, 134 S. Ct. at 

886. McLemore could not say whether Banka would have lived if he had not taken 

the heroin but testified that it would have been “ ‘[v]ery less likely.’ ” Id. at ___, 

134 S. Ct. at 886. 

¶ 38 A jury convicted the defendant of distribution of heroin with death resulting 

from the use of that substance. The federal Controlled Substances Act imposes a 

20-year mandatory minimum sentence when a defendant unlawfully distributes a 

schedule I or II drug and “death or serious bodily injury results from the use of such 

substance.” 21 U.S.C. § 841(a)(1), (b)(1)(A)-(C) (2012). The jury had been 

instructed that the government needed to prove that “ ‘the heroin distributed by the 

defendant was a contributing cause of Joshua Banka’s death.’ ” Burrage, 571 U.S. 

to or hastens the death, although alone it might not be fatal.’ ” Woods, 2005 WL 396382, at 

*4 (quoting 40 Am. Jur. 2d Homicide § 14 (1999)). 

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at ___, 134 S. Ct. at 886 (quoting United States v. Burrage, 687 F.3d 1015, 1019 

(8th Cir. 2012)). The district court had rejected proposed instructions from the 

defendant that would have (1) required the government to show proximate cause 

and (2) defined “proximate cause” as a cause that played a substantial part in 

bringing about the death, meaning that “ ‘[t]he death must have been either a direct 

result of or a reasonably probable consequence of the cause and except for the 

cause the death would not have occurred.’ ” Id. at ___, 134 S. Ct. at 886 (quoting 

Burrage, 687 F.3d at 1020 n.3). The Court of Appeals for the Eighth Circuit 

affirmed. Burrage, 687 F.3d 1015. The court held that the contributing cause 

instruction was correct and that a showing of proximate cause is not required. Id. at 

1020. 

¶ 39 The Supreme Court granted certiorari on two questions: 

“Whether the defendant may be convicted under the ‘death results’ provision 

(1) when the use of the controlled substance was a ‘contributing cause’ of the 

death, and (2) without separately instructing the jury that it must decide 

whether the victim’s death by drug overdose was a foreseeable result of the 

defendant’s drug-trafficking offense.” Burrage, 571 U.S. at ___, 134 S. Ct. at 

886. 

The Court ultimately determined that it was necessary to resolve only the first 

question. Id. at ___, 134 S. Ct. at 887. The Court found that the issue turned on the 

meaning of “results from” in 21 U.S.C. § 841(b)(1)(C) (2012). The Court held that 

the common understanding of “results from” is “but-for” causation, i.e., that the 

harm would not have occurred but for the defendant’s conduct. Burrage, 571 U.S. 

at ___, 134 S. Ct. at 887-88. Moreover, this is the meaning that the Court gives to 

phrases like “results from” when there is no indication from text or context that any 

other meaning was intended. Id. at ___, 134 S. Ct. at 888. The Court further 

explained that, not only is “but-for” causality assumed from statutory phrases like 

“results from,” but that in “common talk” phrases like “based on” are understood to 

indicate a “but-for” relationship. Id. at ___, 134 S. Ct. at 889. The Court explained 

that it was against these traditional background principles that Congress had 

legislated when it enacted the statute at issue. 

¶ 40 The Court then rejected the government’s argument that a different rule was 

needed for drug overdose cases because of the reality that addicts often take drugs 

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in combination. The Court noted that one widely accepted exception to “but-for” 

cause is in those cases where multiple forces independently but concurrently 

produce a result. (For example, if someone is fatally stabbed and fatally shot at the 

same time, both are typically considered “causes” of the death.) Id. at ___, 134 S. 

Ct. at 889-90. However, the Court determined that it was unnecessary to decide the 

validity of that exception because there was no evidence in this particular case that 

Banka’s heroin use was an independently sufficient cause of his death. Id. at ___, 

134 S. Ct. at 890. The Court noted that another line of authority adopted in several 

state courts holds that something is a cause-in-fact of a result if it was a 

“substantial” or “contributing” factor in producing the result. Id. at ___, 134 S. Ct. 

at 890. However, the Court held that it was not free to adopt such a definition. The 

Court noted that Congress could have written a statute that used contributing cause 

language or followed the lead of several states and adopted a modified causation 

test for concurrent cause cases. Id. at ___, 134 S. Ct. at 891. Instead, Congress had 

used language that was understood to import “but-for” causality, and the Court held 

that it was not free to ignore that choice, particularly in a criminal statute subject to 

the rule of lenity. Id. at ___, 134 S. Ct. at 891. 

¶ 41 Having rejected the government’s argument as a matter of statutory 

construction, the Court went on to discuss why it did not favor a “contributing 

cause” test. 7 The Court explained that courts that employ “substantial” or 

“contributing” factor tests varied in their application of them. Id. at ___, 134 S. Ct. 

at 891. The Court was concerned that, “[t]aken literally, [the government’s] 

‘contributing-cause’ test would treat as a cause-in-fact every act or omission that 

makes a positive incremental contribution, however small, to a particular result.” 

Id. at ___, 134 S. Ct. at 891. The government could not specify how substantial a 

cause must be to qualify as substantial, and the Court was concerned that lower 

courts would be left to guess. The Court then stated the following: 

“One of the experts in this case, for example, testified that Banka’s death would 

have been ‘[v]ery less likely’ had he not used the heroin that Burrage provided. 

[Citation.] Is it sufficient that use of a drug made the victim’s death 50 percent 

more likely? Fifteen percent? Five? Who knows. Uncertainty of that kind 

cannot be squared with the beyond-a-reasonable-doubt standard applicable in 

7

Justice Alito did not join this portion of the Court’s opinion. 

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criminal trials or with the need to express criminal laws in terms ordinary 

persons can comprehend. See United States v. L. Cohen Grocery Co., 255 U. S. 

81, 89-90 (1921).” Id. at ___, 134 S. Ct. at 892. 

Having stated that, the Court then declared that it was a discussion for another day: 

“But in the last analysis, these always-fascinating policy discussions are 

beside the point. The role of this Court is to apply the statute as it is 

written—even if we think some other approach might ‘ “accor[d] with good 

policy.” ’ Commissioner v. Lundy, 516 U. S. 235, 252 (1996) (quoting 

Badaracco v. Commissioner, 464 U. S. 386, 398 (1984)). As we have 

discussed, it is written to require but-for cause.” Id. at ___, 134 S. Ct. at 892. 

The Court then held that, “at least where use of the drug distributed by the 

defendant is not an independently sufficient cause of the victim’s death or serious 

bodily injury, a defendant cannot be liable under the penalty enhancement 

provision of 21 U.S.C. § 841(b)(1)(C) unless such use is a but-for cause of the 

death or injury.” Id. at ___, 134 S. Ct. at 892. Because the government had 

conceded that there was no evidence that Banka would have lived but for his use of 

the heroin he received from the defendant, the Court reversed his conviction. Id. at 

___, 134 S. Ct. at 892. 

¶ 42 Nothing in Burrage requires this court to abandon its long-standing definition 

of causation in homicide cases. Initially, we note that the jury instruction given in 

Burrage was not the same as the Illinois causation instruction. The instruction used 

in Burrage stated that: 

“ ‘For you to find that a death resulted from the use of heroin, the Government 

must prove, beyond a reasonable doubt, that the heroin distributed by the 

Defendant was a contributing cause of Joshua Banka’s death. A contributing 

cause is a factor that, although not the primary cause, played a part in the 

death[.]’ ” Burrage, 687 F.3d at 1019. 

This instruction did not include the additional requirement imposed by IPI Criminal 

4th 7.15 (Supp. 2011), that the jury must find that “the death did not result from a 

cause unconnected with the defendant.” Much more importantly, however, 

Burrage was decided as a matter of federal statutory interpretation, and it is 

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therefore not binding on state courts. We are free to follow it if we find it persuasive 

and to ignore it if we do not. We find that the Burrage analysis counsels against us 

abandoning the contributing cause standard. The Supreme Court in Burrage 

identified the key question as what Congress intended by the use of the phrase 

“results from” in 21 U.S.C. § 841(b)(1)(C), and the Court explained that Congress 

had chosen language that had traditionally been given a meaning of “but-for” 

causation by the Supreme Court. Burrage, 571 U.S. at ___, 134 S. Ct. at 888-90. 

Similarly, the question facing this court is what the Illinois legislature meant when 

it used the word “caused” in the phrase “any person’s death is caused by the 

injection, inhalation, absorption, or ingestion of any amount of that controlled 

substance.” See 720 ILCS 5/9-3.3(a) (West 2012). Just as Congress was legislating 

against a backdrop of cases defining “results from” as meaning “but-for” causation, 

the Illinois legislature was legislating against a backdrop of causation in homicide 

cases meaning the “contributing cause” standard set forth by this court in cases 

such as Brown and Brackett. Thus, we presume that when the legislature used the 

phrase “caused” in section 9-3.3(a) it intended the meaning that Illinois courts have 

consistently given to this word in homicide cases. See People v. Smith, 236 Ill. 2d 

162, 167 (2010) (“if a term has a settled legal meaning, the courts will normally 

infer that the legislature intended to incorporate the established meaning”). 

Moreover, as the appellate court noted in Kidd, we have clear evidence that this was 

the legislature’s intent. The statute previously used the phrase “results from,” but 

the legislature amended the statute in 2006 to change that phrase to “caused by.” 

When the amendment was up for discussion in the House, Representative Pihos 

explained: 

“The reason for the change is to provide clarity in the law relating to 

drug-induced homicide. The causation language is the same as the other 

homicide language in the law.” 94th Ill. Gen. Assem., House Proceedings, Apr. 

5, 2005, at 85 (statements of Representative Pihos). 

The Kidd court explained that the legislative history showed that “the legislature 

intended to change the language so that it mirrored the language of other homicide 

statutes, which refer to ‘acts which cause the death’ of an individual, whether such 

act is intentional (720 ILCS 5/9-1 (West 2010) (first degree murder)), negligent 

(720 ILCS 5/9-2 (West 2010) (second degree murder)), or reckless (720 ILCS 5/9-3 

(West 2010) (involuntary manslaughter and reckless homicide)).” Kidd, 2013 IL 

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App (2d) 120088, ¶ 31. Thus, it is clear that “caused by” in the drug-induced 

homicide statute was intended to have the same meaning that “cause” has always 

had in Illinois homicide cases, and the Illinois courts have consistently used a 

“contributing cause” standard. The trial court thus did not err in using IPI Criminal 

4th No. 7.15 (Supp. 2011), which correctly sets forth the causation test used in 

Illinois. 

¶ 43 3. The Burrage Dictum 

¶ 44 The Supreme Court in Burrage, however, included two paragraphs in which it 

mused on what it considered to be problems with a contributing cause approach. 

The Court was concerned that the contributing cause approach would treat as a 

cause-in-fact any act or omission that made a “positive incremental contribution, 

however small, to a particular result.” Burrage, 571 U.S. at ___, 134 S. Ct. at 891. 

Although the government argued that such a test has always been understood to 

exclude the causes that are insubstantial, the Court was concerned that what is 

“substantial” could not be quantified and that lower courts would be left to guess. 

Id. at ___, 134 S. Ct. at 892. The Court did not believe that such “uncertainty” could 

be squared with the proof beyond a reasonable doubt standard or the need to 

“express criminal laws in terms ordinary persons can comprehend.” Id. at ___, 134 

S. Ct. at 892. The appellate court found this part of Burrage compelling, 

specifically stating that it saw “no answer” to it and that using a contributing cause 

instruction raises “grave due-process concerns.” 2017 IL App (2d) 141143, ¶ 78. 

¶ 45 Defendant denies that this part of Burrage was dictum. Defendant contends that 

this discussion was an alternative ground for the Court’s decision that is binding 

precedent on state courts. Alternatively, defendant contends that this portion of the 

Court’s position is, at worst, judicial dictum, which is entitled to much weight and 

should be followed unless erroneous. See Lebron v. Gottlieb Memorial Hospital, 

237 Ill. 2d 217, 236 (2010) (distinguishing judicial dictum from obiter dictum). 

Contrary to defendant’s assertion, this portion of Burrage is unquestionably 

dictum. The Supreme Court itself said that this discussion was “beside the point” 

and that its job was to apply the statute as written. Burrage, 571 U.S. at ___, 134 S. 

Ct. at 892. We think it obvious that the Supreme Court did not intend this 

two-paragraph discussion that it dismissed as “beside the point” to invalidate the 

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contributing cause standard in every jurisdiction in the United States. This is 

particularly so, given that the Court had earlier implied that it would have respected 

Congress’s choice to enact a statute using “contributing cause” language. Burrage, 

571 U.S. at ___, 134 S. Ct. at 891. 

¶ 46 After careful consideration, we have chosen not to abandon our contributing 

cause standard based on the Burrage dictum. We disagree with the Supreme Court 

and the appellate court below that the contributing cause standard raises due 

process concerns. The Supreme Court merely raised this point as an assertion and 

failed to develop it. If we drill down on what the Supreme Court said, it is difficult 

to understand the Court’s position. For instance, the Supreme Court stated that the 

contribution test’s uncertainty would violate the need to “express criminal laws in 

terms that ordinary persons can comprehend.” Id. at ___, 134 S. Ct. at 892. The 

Court cited L. Cohen Grocery Co., 255 U.S. at 89-90, in support. The Supreme 

Court has explained the reason for such a rule as follows: “No one may be required 

at peril of life, liberty or property to speculate as to the meaning of penal statutes. 

All are entitled to be informed as to what the State commands or forbids.” Lanzetta 

v. New Jersey, 306 U.S. 451, 453 (1939). In Cohen, the Supreme Court considered 

whether section 4 of the Lever Act was unconstitutionally vague. That statute 

provided, in relevant part: 

“ ‘That it is hereby made unlawful for any person willfully . . . to make any 

unjust or unreasonable rate or charge in handling or dealing in or with any 

necessaries; to conspire, combine, agree, or arrange with any other person . . . 

(e) to exact excessive prices for any necessaries. . . . Any person violating any 

of the provisions of this section upon conviction thereof shall be fined not 

exceeding $5,000 or be imprisoned for not more than two years, or both: . . .’ ” 

L. Cohen Grocery Co., 255 U.S. at 86 (quoting Food Control and the District of 

Columbia Rents Act, Pub. L. No. 66-63, ch. 80, tit. 1, § 2, 41 Stat. 297 (1919)). 

The Court held that the statute was not “adequate to inform persons accused of 

violation thereof of the nature and cause of the accusation against them,” because it 

“forbids no specific or definite act.” Id. at 89. Thus the statute left open “the widest 

conceivable inquiry, the scope of which no one can foresee and the result of which 

no one can foreshadow or adequately guard against.” Id. 

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¶ 47 It is difficult to see how these concerns are implicated by using a contributing 

cause standard with either 21 U.S.C. § 841(a)(1), (b)(1)(A)-(C) (2012) or the 

Illinois drug-induced homicide statute. Both the federal and the Illinois statute state 

in no uncertain terms what conduct is forbidden: the unlawful delivery of 

controlled substances. Both statutes subject defendants to a greater penalty if a 

person dies from using the controlled substances they deliver. The Illinois statute 

accomplishes this by making the delivery a homicide, the federal statute by 

subjecting the defendant to a sentencing enhancement. But the only statutory 

element that a defendant has any control over is the delivery of the controlled 

substance. Both statutes are crystal clear as to what conduct is forbidden, and 

persons of ordinary intelligence do not have to guess at what conduct is proscribed. 

The concerns expressed in L. Cohen Grocery are simply not present here. 

¶ 48 Similarly, we fail to see how using a contributing cause standard would 

implicate the proof beyond a reasonable doubt requirement. Possibly, if the statute 

is interpreted to require “but-for” causation and the jury is instructed with a 

“contributing cause” instruction (as was the case in Burrage), then that concern 

might be valid. In that case, the jury might be misled into returning a guilty verdict 

in a case in which the prosecution had not established “but-for” causation. If the 

statute is understood as requiring contributing causation, however, and that is how 

the jury is instructed, then it is difficult to see how the proof beyond a reasonable 

doubt standard is implicated. See, e.g., People v. Brown, 57 Ill. App. 3d 528, 531 

(1978) (State’s burden is to show that “the defendant’s act was, beyond a 

reasonable doubt, a contributing cause to a death”). And, again, the Supreme Court 

stated in Burrage that Congress could have written section 841(b)(1)(C) using 

contributing cause language. Burrage, 571 U.S. at ___, 134 S. Ct. at 891. We have 

already set forth above why it is clear that the Illinois legislature intended the 

drug-induced homicide to require contributing cause, and therefore using IPI 

Criminal 4th 7.15 (Supp. 2011) in no way erodes the proof beyond a reasonable 

doubt standard. 

¶ 49 The Supreme Court was also concerned that the contributing cause standard 

would treat as a cause-in-fact “every act or omission that makes a positive 

incremental contribution, however small, to a particular result.” Burrage, 571 U.S. 

at ___, 134 S. Ct. at 891. But as the Supreme Court itself acknowledged, courts deal 

with this problem by excluding insubstantial causes. Moreover, the same criticism 

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could be made of the “but-for” test, as the Supreme Court itself acknowledged 

earlier in the opinion. The Court explained that, even if other forces are combining 

to produce a particular result, something that contributes incrementally to the 

outcome is a cause-in-fact if it was the “straw that broke the camel’s back.” Id. at 

___, 134 S. Ct. at 888. Thus, under the “but-for” test, a cause may be minor, but if 

the outcome would not have happened without it, it qualifies as a cause-in-fact. 

Some contributing cause jurisdictions deal with this problem by invoking a 

“substantial factor” requirement,8 and the government argued that its proposed test 

would exclude causes that are “ ‘too insubstantial’ ” or “ ‘not important enough.’ ” 

Id. at ___, 134 S. Ct. at 891-92. 9 But the Court was concerned with the 

government’s inability to quantify what is too insubstantial and the fact that 

“[p]resumably the lower courts would be left to guess.” Id. at ___, 134 S. Ct. at 892. 

¶ 50 Professor Eric A. Johnson of the University of Illinois College of Law has 

responded to this point well: 

“[I]t just isn’t true that terms like ‘substantial’ and ‘important’ make statutes 

unconstitutionally vague. Criminal statutes routinely use terms like 

‘substantial’ and ‘important,’ and really couldn’t do otherwise. Indeed, Justice 

Scalia acknowledged as much in his 2015 opinion for the Court in Johnson v. 

United States. In Johnson, the Court struck down as unconstitutionally vague 

the residual clause of the Armed Career Criminal Act, under which a 

defendant’s prior felonies would trigger enhanced sentencing if they involved 

‘serious potential risk.’ What made the statute vague, said Justice Scalia, was 

not its use of the phrase ‘serious potential risk.’ What made the statute vague 

was that it required the courts to apply this standard to ‘an idealized ordinary 

case of the [charged] crime.’ Justice Scalia acknowledged that ‘dozens of 

federal and state criminal laws use terms like “substantial risk,” “grave risk,” 

8

Illinois has not heretofore imposed a “substantial factor” requirement, but it does have the 

additional requirement that the State must establish that the death “did not result from a cause 

unconnected with the defendant.” IPI Criminal 4th No. 7.15 (Supp. 2011). 9

Professor LaFave has argued that the “substantial factor” test is the most accurate way to 

describe the cause-in-fact requirement: 

“So the test for causation-in-fact is more accurately worded, not in terms of but-for cause, but 

rather: Was the defendant’s conduct a substantial factor in bringing about the forbidden result? 

Of course, if the result would not have occurred but for his conduct, his conduct is a substantial 

factor in bringing about the result; but his conduct will sometimes be a substantial factor even 

thought not a but-for cause.” LaFave, supra, § 6.4(b), at 634. 

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and “unreasonable risk” ’ and that the use of phrases like these are not 

constitutionally suspect: ‘As a general matter, we do not doubt the 

constitutionality of laws that call for the application of a qualitative standard 

such as “substantial risk” to real-world conduct; “the law is full of instances 

where a man’s fate depends on his estimating rightly ... some matter of 

degree.” ’ The traditional exclusion of ‘insignificant or merely theoretical’ 

contributions from the contribution rule’s scope is not really constitutionally 

suspect, then.” Eric A. Johnson, Cause-in-Fact After Burrage v. United States, 

68 Fla. L. Rev. 1727, 1770 (2016). 

¶ 51 The Supreme Court was also concerned that application of the contributing 

cause test varies from jurisdiction to jurisdiction. Some jurisdictions require the 

defendant’s act to be sufficient to produce the result by itself, while others do not. 

See Burrage, 571 U.S. at ___, 134 S. Ct. at 891. The appellate court below had the 

same concern, referring to the contributing cause test as having a “severe identity 

crisis.” 2017 IL App (2d) 141143, ¶ 98. Once again, the exact same thing could be 

said about the “but-for” test. As Professor Johnson has noted, “[t]hough a few state 

courts appear to require but-for causation exclusively, many more state courts have 

recognized one or both of two broad exceptions to the but-for test.” Johnson, supra, 

at 1729-30. Indeed, the difficulty of adopting the “but-for” test as a necessary 

requirement of cause-in-fact can be seen just within the confines of the appellate 

court’s opinion. The appellate court quoted approvingly the Missouri Supreme 

Court’s statement in Callahan v. Cardinal Glennon Hospital, 863 S.W.2d 852, 862 

(Mo. 1993) (en banc), that “but for” is an “absolute minimum” for causation 

because it is equivalent to causation in fact. 2017 IL App (2d) 141143, ¶ 105. But 

the appellate court then recognized and approved two exceptions to the rule of 

“but-for” causation: situations in which a defendant’s act and a concurrent cause 

are independently sufficient to cause the result and situations in which a 

defendant’s act merely hastens the victim’s death. Id. ¶¶ 62, 74, 103 n.2. Once one 

acknowledges that there are situations in which the “but-for” rule does not apply 

and in which cause-in-fact can be established without it, it no longer makes sense to 

refer to “but for” as an “absolute minimum” requirement of causation or the 

equivalent of cause-in-fact. That application of the “but-for” test and the 

“contributing cause” test varies from jurisdiction to jurisdiction does not indicate a 

fatal flaw with either approach. It merely demonstrates the difficulty that courts 

face in trying to adopt a generally applicable rule for cause-in-fact. 

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¶ 52 For all of the above reasons, we disagree with the Supreme Court that a 

contributing cause standard raises due process or other concerns, and we choose not 

to follow the Burrage dictum. 

¶ 53 4. The Superiority of a Contributing Cause Approach 

¶ 54 Not only does nothing in Burrage require us to abandon our contributing cause 

standard, there are compelling reasons for a court to use a contributing cause 

approach to cause-in-fact. In the law review article cited above, Professor Johnson 

criticizes Burrage and argues that state courts should continue to apply a 

contribution rule. We discuss this article at some length because it details 

thoroughly the problems with Burrage and convinces us that our contributing cause 

standard is the correct one. The principal flaw in Burrage is that the Court treated 

causation as a simple issue. Johnson, supra, at 1771 (“Causation is complicated. 

You wouldn’t know it from the Supreme Court’s opinion in Burrage, though.”). 

Professor Johnson explains that the Court’s assertion that the “but-for” test captures 

what ordinary people mean when they say that something is a “cause” of another’s 

harm is “demonstrably false” (id.) and that the Court’s opinion “fails on its own 

terms—as an analysis of the ‘ordinary meaning’ of terms like ‘causes’ and ‘results 

from’ ” (id. at 1731). 

¶ 55 As aptly noted by Professor Johnson, the “but-for” test is useful when 

considered as a test to identify a cause as sufficient to impose criminal liability, but 

the more difficult question is whether the but-for test is necessary to trigger 

criminal liability. Id. at 1738-39. Professor Johnson argues that it should not be 

considered necessary, because it fails to capture ordinary usage in two important 

classes of cases: (1) those cases in which a defendant’s act cuts off or preempts 

another causal process that would have caused the same harm 

(“spurious-sufficiency” cases) and (2) cases in which the defendant’s act plays a 

role in the causal mechanism underlying the harm but is potentially superfluous 

(“causal-overdetermination” cases). Id. at 1739, 1743. 

¶ 56 An example of a “spurious-sufficiency” case would be A giving B a deadly dose 

of poison but C shooting B before the poison takes effect. Professor Johnson 

explains that, in this case, C is the cause-in-fact of B’s death. Id. at 1739. The 

“independently sufficient” test identified by the Supreme Court in Burrage does 

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not work here, because it would identify both A and C as causes of B’s death, when 

in fact only C was the cause-in-fact of B’s death. Id. at 1740. Meanwhile, the 

“but-for” test would say that neither A nor C was the cause of B’s death. Id. 

¶ 57 An example of a causal overdetermination case would be one in which two 

people simultaneously fatally shoot a third person. Another example would be a 

case in which three people engage in the same conduct toward the victim and the 

contribution of any two of them would have been sufficient to cause the harm. In 

these types of cases, the “but-for” test would say that the harm has no cause at all. 

Id. at 1743-46. The term “causal overdetermination” comes from the Supreme 

Court’s opinion in Price Waterhouse v. Hopkins, 490 U.S. 228, 241 (1989), in 

which the Court stated: 

“Suppose two physical forces act upon and move an object, and suppose that 

either force acting alone would have moved the object. As the dissent would 

have it, neither physical force was a ‘cause’ of the motion unless we can show 

that but for one or both of them, the object would not have moved; apparently 

both forces were simply ‘in the air’ unless we can identify at least one of them 

as a but-for cause of the object’s movement. Ibid. Events that are causally 

overdetermined, in other words, may not have any ‘cause’ at all. This cannot be 

so.” (Emphasis in original.) 

In its brief in Burrage, the government adapted this hypothetical to the criminal law 

context by using the example of three people each putting one drop of poison in a 

person’s drink. Two drops of poison are sufficient to kill the person. Both the 

“but-for” test and the “independently sufficient” test would say that none of the 

three had caused the victim’s death, while common sense and ordinary 

understanding would say that all three had caused the death. 

¶ 58 Professor Johnson explains that state courts have come up with two rules to 

address spurious sufficiency and causal overdetermination cases: the acceleration 

rule and the contribution rule. Johnson, supra, at 1771. Each of the rules addresses 

both problems, but in different contexts. Id. The acceleration rule holds that a 

person is still liable for another’s death even if he merely hastens the death of 

somebody who was already dying. This court recognized the acceleration rule long 

ago. In Cunningham, 195 Ill. at 572, this court stated that, “[i]t is immaterial, in 

respect of criminal responsibility, that the injuries but hastened the death of the 

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person assaulted, for, as expressed by ancient writers and judges, ‘the offender may 

not apportion his own wrong’ ” (quoting 9 Am. & Eng. Encyclopedia of L. 534-35 

(1889)). 

¶ 59 The other way in which state courts address spurious insufficiency and causal 

overdetermination cases is through the contribution rule. Professor Johnson points 

out that the contribution rule is at least as well established as the “but-for” rule: 

“The rule appears to have been well-established even in the nineteenth century. 

Joel Prentiss Bishop, whose 1858 Commentaries on the Criminal Law was as 

influential in Bishop’s day as LaFave’s treatise is in ours, formulated the basic 

causation requirement in the law of homicide as a ‘contribution’ requirement: 

‘The general rule, both of law and of reason, is, that whenever a man 

contributes to a particular result he is holden for the result, the same as if his 

sole [act] produced it.’ Bishop wasn’t just being careless in his choice of words, 

moreover. He wasn’t just using ‘contribution’ as shorthand for but-for 

causation. Under the contribution rule, said Bishop, it doesn’t matter whether 

the victim ‘would have died from other causes, or would not have died from this 

one, had not others operated with it.’ What matters, rather, is whether the 

defendant’s conduct ‘really contributed mediately or immediately to the death, 

as it actually took place, in a degree sufficient for the law’s notice.’ ” 

(Emphasis added.) Johnson, supra, at 1759 (quoting 2 Joel Prentiss Bishop, 

Commentaries on the Criminal Law § 653 (2d ed. 1859)). 

In another criminal law treatise, the authors explain: 

“If a man bleeds to death from two wounds inflicted by different persons, acting 

quite independently, ‘both may properly be said to have contributed to his 

death.’ If at the moment of death both injuries were substantially contributing 

thereto, the ‘law does not measure the effects of the several injuries in order to 

determine which is the more serious and which contributed in greater measure 

to bring about the death,’ but imputes the loss of life to both. But suppose one 

wound severed the jugular vein whereas the other barely broke the skin on the 

hand, and as the life blood gushed from the victim’s neck, one drop oozed from 

the bruise on his finger ***. [T]he law will apply the substantial factor test and 

for juridical purposes the death will be imputed only to the severe injury in such 

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an extreme case as this.” Rollin M. Perkins & Ronald N. Boyce, Criminal Law 

779 (3d ed. 1982). 

The authors further explain: 

“If a certain act was a substantial factor in bringing about the loss of human life, 

it is not prevented from being a proximate cause of this result by proof of the 

fact that it alone would not have resulted in death, nor by proof that another 

contributory cause would have been fatal even without the aid of this act.” Id. at 

783. 

The appellate court stated that the proposition that but-for causation is required to 

convict a defendant of homicide is “widely accepted by both courts of review and 

scholars.” 2017 IL App (2d) 141143, ¶ 106. It is equally clear, however, that the 

proposition that causation may be established by showing that an act of defendant 

hastened or contributed to a victim’s death is also widely accepted by courts of 

review and legal scholars. 

¶ 60 Relevant for our purposes here is how the contribution rule addresses cases of 

causal overdetermination. Professor Johnson uses this court’s decision in Brown as 

an example. In that case, which we have already discussed, the victim died after 

being shot by two different people with two different weapons, and the pathologist 

was unable to say which of the wounds caused the victim’s death or whether each 

of the wounds had accelerated the victim’s death. Professor Johnson writes that, 

“What the Illinois Supreme Court said in Brown, and what state courts have said 

consistently in cases like Brown is that contribution is enough: ‘[T]he defendant’s 

act need only contribute to the victim’s death to prove the defendant guilty of 

murder.’ ” Johnson, supra, at 1766 (quoting Brown, 169 Ill. 2d at 153). Although 

this court has not attempted to define the word “contribute” in this situation, 

Professor Johnson notes that the California Supreme Court has formulated a 

definition that explains cases such as Brown. In People v. Jennings, 237 P.3d 474, 

496 (Cal. 2010), the court explained that a defendant contributes concurrently to a 

death if his conduct was “operative at the moment of the death and acted with 

another cause to produce the death” (internal quotation marks omitted). Professor 

Johnson explains: 

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“This definition nicely captures what courts mean by ‘contribute’ in this 

setting. If the forces set in motion by the defendant are not ‘operative in the 

moment of the result’—if they are cut off or ‘preempted’ at the last moment, 

say, or if the various conditions on which the conduct’s causal efficacy depends 

are not present—then the defendant’s conduct doesn’t really ‘contribute’ to the 

result. Nor does the defendant’s conduct ‘contribute’ in the required sense 

unless it ‘acts with another cause’—unless it complements the other events and 

conditions that, together with the defendant’s conduct, overdetermine the 

result. This twofold definition was satisfied in the Brown case, for example, 

where the blood loss from each of the victim’s wounds complemented the 

blood loss from the others, and where ‘at the very instant of death [each] wound 

was contributing to the event.’ ” Johnson, supra, at 1767 (quoting People v. 

Lewis, 57 P. 470, 473 (Cal. 1899)). 

A similar explanation was cited by the Woods court when it stated that, “ ‘[i]f, at the 

moment of death, it can be said that both injuries are contributing thereto, the 

responsibility rests on both actors.’ ” Woods, 2005 WL 396382, at *4 (quoting 40 

Am. Jur. 2d Homicide § 14 (1999)). 

¶ 61 However, Professor Johnson clarified that “lawyerly elaboration of the word 

‘contribute’ probably isn’t necessary in the usual case. The requirement that the 

defendant’s conduct complement another causal factor is implicit in the word 

‘contribute.’ ” Johnson, supra, at 1768. Moreover, problems can arise from trying 

to define what constitutes a concurrent cause. For instance, Arkansas defines 

causation by statute as follows: 

“Causation may be found where the result would not have occurred but for 

the conduct of the defendant operating either alone or concurrently with another 

cause unless: 

(1) the concurrent cause was clearly sufficient to produce the result; and 

(2) the conduct of the defendant was clearly insufficient to produce the 

result.” Ark. Code Ann. § 5-2-205 (2006). 

Under this definition, Marcus Burrage’s conviction might well have been upheld. 

Yet it would, like the “but-for” test, yield the wrong answer in the three drops of 

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poison hypothetical. In that hypothetical, the other causes were clearly sufficient 

and the defendant’s act clearly insufficient, but it seems absurd to say that the 

defendant was not a cause of the victim’s death. 

¶ 62 In the Bishop treatise cited earlier it was stated that what matters is whether the 

defendant’s conduct “really contributed mediately or immediately to the death, as it 

actually took place, in a degree sufficient for the law’s notice.” (Emphasis added). 

Bishop, supra, § 653. This framing of the inquiry makes sense of the three drops of 

poison hypothetical. Whether the victim would have died from drinking two drops 

of poison in another reality is beside the point. What happened in this reality is that 

the victim died from drinking three drops of poison, and the defendant supplied one 

of those drops. Similarly, this framing of the question would say that in the Burrage 

case we should not concern ourselves with whether, in an alternative reality, the 

oxycodone, alprazolam, and clonazepam that Joshua Banka took would have 

suppressed his central nervous system to the point where he died. In this reality, the 

heroin that Marcus Burrage sold to Joshua Banka combined with the other three 

drugs to suppress his respiratory and/or central nervous system until he died. The 

medical examiners believed that all of the drugs played a contributing role, and as 

the Supreme Court itself described the testimony, “[t]he heroin, in other words, 

contributed to an overall effect that caused Banka to stop breathing.” Burrage, 571 

U.S. at ___, 134 S. Ct. at 885-86. Dr. Schwilke testified that the heroin interacted 

with other drugs to depress Banka’s respiratory and/or central nervous systems, and 

Dr. McLemore testified that the heroin played a contributing role in Banka’s death. 

In the words of the Bishop treatise, the heroin “really contributed mediately or 

immediately to the death, as it actually took place, in a degree sufficient for the 

law’s notice.” Bishop, supra, § 653. The Supreme Court was concerned with the 

medical experts’ inability to say what the chances were of Banka dying without the 

heroin and by what percentage the heroin increased the chance of death. But that 

concern seems misplaced, given that both of the medical experts were certain that 

the heroin played a role in Banka’s death as it actually happened. Burrage, 571 

U.S. at ___, 134 S. Ct. at 885-86. 

¶ 63 For all of these reasons, we believe that a “contributing cause” standard better 

captures the ordinary meaning of “cause” than a strict “but-for” standard. Although 

establishing “but-for” cause is sufficient to establish cause-in-fact and will be 

established in the majority of cases, we do not believe that “but-for” cause is always 

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necessary to establish cause-in-fact. A contributing cause standard better comports 

with the ordinary understanding of the word “cause” in cases of multiple causation. 

It is important to clarify what a contributing cause standard does not do. The 

appellate court quoted approvingly from Callahan, 863 S.W.2d at 862, wherein the 

Missouri Supreme Court stated the following: 

“ ‘But for’ is an absolute minimum for causation because it is merely causation 

in fact. Any attempt to find liability absent actual causation is an attempt to 

connect the defendant with an injury or event that the defendant had nothing to 

do with. Mere logic and common sense dictates that there be some causal 

relationship between the defendant’s conduct and the injury or event for which 

damages are sought.” 

There is much wrong with this. First, as we have already demonstrated, it is not 

accurate to describe “but-for” causation as the “absolute minimum” that must be 

proved to establish causation. There is almost universal acknowledgement that 

there are situations where cause-in-fact can be established without establishing 

“but-for” causation. Second, “but-for” causation is not the same thing as causation 

in fact. It is the easiest way to establish it, but it is not the only way. Third, while it 

may be true that an “attempt to find liability absent actual causation is an attempt to 

connect the defendant with an injury or event that the defendant had nothing to do 

with,” it is not true that this is what happens with a contributing cause rule. Again, 

remember what the Illinois causation instruction provides: 

“In order for you to find that the acts of the defendant caused the death of 

_______, the State must prove beyond a reasonable doubt that defendant’s acts 

were a contributing cause of the death and that the death did not result from a 

cause unconnected with the defendant. However, it is not necessary that you 

find the acts of the defendant were the sole and immediate cause of death.” IPI 

Criminal 4th No. 7.15 (Supp. 2011). 

It is difficult to see how this instruction creates a danger of a defendant being 

convicted of an offense that he or she had nothing to do with. Or consider the 

situations we have discussed earlier in this opinion, i.e., several persons putting 

poison in a person’s drink, two different people wounding the defendant with 

gunshots, multiple people beating a person to death, or someone providing a 

controlled substance that combines with other substances to cause a person’s death. 

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All of these situations, in which “but-for” causation often cannot be established but 

contributing causation can, are not attempts to connect the defendant with an injury 

that he or she “had nothing to do with.” Moreover, these are not, in the words of the 

appellate court, situations in which the defendant “might have caused the victim’s 

death.” (Emphasis omitted.) 2017 IL App (2d) 141143, ¶ 78.10 Rather, they are 

situations in which the defendant’s act contributed to the victim’s death as it 

actually happened. 

¶ 64 This court has defined criminal causation in terms of a contributing cause 

standard for over a century. Nothing in Burrage requires us to abandon that 

standard, and nothing in Burrage convinces us that we should abandon that 

standard. We appreciate the appellate court’s concerns and in-depth analysis of this 

issue, but we disagree with its conclusion that we should replace the contributing 

cause standard with a “but-for” requirement. We agree with the appellate court, 

however, that the trial court did not err in using IPI Criminal 4th No. 7.15 (Supp. 

2011). That instruction properly sets forth causation principles as determined by 

this court, and therefore, Illinois Supreme Court Rule 451(a) (eff. Apr. 8, 2013) 

required the trial court to use it. 

¶ 65 B. Acts of Defendant 

¶ 66 Defendant raises a second issue with respect to the trial court’s use of IPI 

Criminal 4th No. 7.15 (Supp 2011). The instruction refers to “defendant’s acts,” the 

“acts of defendant,” and “a cause unconnected with defendant.” In a drug-induced 

homicide case, the only “act” that is relevant is the defendant’s knowing delivery of 

a controlled substance. Defendant argued at the instructions conference that in a 

case in which the defendant delivered more than one controlled substance, the 

instruction will be misleading and could cause the jury to consider matters that it 

should not be considering. Thus, defendant asked the trial court to modify the 

instruction to refer specifically to defendant’s act of delivering heroin, to ensure 

10In disapproving of theories of causation where the defendant “might have caused the victim’s 

death,” the appellate court failed to address its earlier opinion in People v. Hoerer, 375 Ill. App. 3d 

148, 149-50, 156-57 (2007), where it held that the evidence was sufficient for a manslaughter 

conviction when, but for the defendant’s efforts in preventing his friends from summoning 

assistance for a victim who had overdosed, the victim “might have survived.” 

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that the jurors did not improperly consider defendant’s delivery of cocaine. 

Defendant’s proposed instruction read: 

“In order for you to find that the acts of the defendant caused the death of 

Augustina Taylor, the State must prove beyond a reasonable doubt that 

defendant’s act of delivering heroin and Augustina Taylor injecting that heroin 

was the proximate cause of her death and that her death did not result from a 

cause unconnected with Augustina Taylor’s injection of the heroin defendant 

delivered. However, it is not necessary that you find the act of delivering heroin 

was the sole and immediate cause of death.” 

The trial court denied the modification on the basis that Kidd held that IPI Criminal 

4th No. 7.15 (Supp 2011) correctly set forth the causation rule in drug-induced 

homicide cases. 

¶ 67 We agree with the appellate court that the instruction should be modified in 

limited circumstances such as these where the defendant delivered multiple 

controlled substances to the victim but is charged with drug-induced homicide on 

the basis of only one of the deliveries.11 Kidd did not speak to this issue because the 

defendant in that case delivered only one controlled substance to the victim. That 

said, we decline to find reversible error. As this court has explained: 

“We must determine whether the instructions, taken as a whole, fairly, fully, 

and comprehensively apprised the jury of the relevant legal principles. People 

v. Terry, 99 Ill. 2d 508, 516, (1984) (‘Instructions in criminal cases must be read 

as a whole. “It is sufficient if the series of instructions, considered as a whole, 

fully and fairly announce the law applicable to the respective theories of the 

People and the defense” ’), quoting People v. Kolep, 29 Ill. 2d 116, 125 (1963). 

Jury instructions are intended to guide the jury in its deliberations and to assist 

the jury in reaching a proper verdict through application of legal principles to 

the evidence and law. People v. Hester, 131 Ill. 2d 91, 98 (1989). Jury 

instructions should be construed as a whole, rather than read in isolation. 

People v. Ward, 187 Ill. 2d 249, 265 (1999).” People v. Parker, 223 Ill. 2d 494, 

501 (2006). 

11Defendant’s proposed instruction was not entirely correct. It used the proximate cause 

language that the appellate court had rejected in Kidd. 

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When read as a whole, the jury instructions clearly conveyed to the jury that 

defendant was charged only with delivering heroin to Taylor and that, to convict 

defendant, the jury had to find beyond a reasonable doubt that defendant delivered 

heroin to another person and that Taylor’s death was caused by the injection, 

inhalation, or ingestion of the heroin that defendant delivered. Thus, we agree with 

the appellate court that any error in failing to modify the instruction was harmless. 

¶ 68 II. Sufficiency of the Evidence 

¶ 69 Finally, defendant contends that the evidence was insufficient to establish her 

guilt beyond a reasonable doubt. When reviewing a challenge to the sufficiency of 

the evidence, our function is not to retry the defendant. People v. Smith, 185 Ill. 2d 

532, 541 (1999). Rather, this court considers whether, viewing the evidence in the 

light most favorable to the State, “ ‘any rational trier of fact could have found the 

essential elements of the crime beyond a reasonable doubt.’ ” (Emphasis in 

original.) People v. Collins, 106 Ill. 2d 237, 261 (1985) (quoting Jackson v. 

Virginia, 443 U.S. 307, 319 (1979)). 

¶ 70 Defendant’s sufficiency argument consists of two points raised in little more 

than summary fashion. First, she contends that the evidence showed that Taylor had 

used heroin the day before and had some left over on the day she died. Thus, no 

rational trier of fact could have concluded that it was the heroin that defendant sold 

to her that had caused her death. Second, because Dr. Harkey testified that cocaine 

alone could have caused her death, no rational trier of fact could have concluded 

beyond a reasonable doubt that the heroin defendant sold her caused her death. 

Defendant’s reasonable doubt argument turns the standard of review on its head 

and asks this court to consider the evidence in the light most favorable to defendant. 

¶ 71 The State was required to prove beyond a reasonable doubt that defendant sold 

heroin to Taylor and that the heroin was a contributing cause of Taylor’s death. Dr. 

Harkey testified that Taylor died from cocaine and heroin intoxication. Defendant 

does not contest that the evidence established that she delivered heroin to Taylor on 

the day Taylor died. The evidence was conflicting over whether Taylor had used 

heroin the day before. The evidence that Taylor used heroin the day before came 

from Walker’s testimony, and Walker was impeached with her own inconsistent 

statements. Moreover, members of Taylor’s family testified that she was acting 

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normally both on the evening that she was released from prison and on the day of 

the party before defendant arrived. In any event, Harkey testified that the presence 

of 6-MAM in Taylor’s blood established recent use of heroin. The sequence of 

events also supported an inference that it was the heroin that defendant delivered to 

Taylor that combined with cocaine to cause her death. Immediately after receiving 

the heroin from Taylor, defendant locked herself in the bathroom and was found 

unresponsive shortly thereafter. Moreover, as the appellate court noted, even if 

Taylor had used heroin the previous day and might have had some left over on the 

day she died, the jury could have reasonably inferred that Taylor’s request for 

heroin from defendant meant that she was out of heroin at the time, and the jury 

“did not need to believe that [Taylor] agreed to buy heroin that she did not need.” 

2017 IL App (2d) 141143, ¶ 126. 

¶ 72 As for evidence that cocaine alone could have caused Taylor’s death, we note 

that this is not what Dr. Harkey opined was the cause of death. Dr. Harkey 

concluded that Taylor died of heroin and cocaine intoxication. When asked about 

the possibility of cocaine alone causing a death, he was asked about this only in a 

general sense. Dr. Harkey acknowledged that cocaine can cause cardiac 

arrhythmia, which can lead to fatal heart failure. Defendant did not pursue this line 

of questioning any further and ask whether there was any evidence that Taylor died 

this way. Dr. Harkey’s testimony on this point established nothing more than the 

fact that cocaine can cause death. It in no way cast doubt on his opinion that heroin 

and cocaine combined to cause Taylor’s death. Moreover, the evidence with 

respect to cocaine use showed that Taylor had either used a large amount of cocaine 

at an earlier time or a smaller amount close to the time of death. By contrast, the 

evidence showed that the amount of morphine in Taylor’s blood was “way beyond” 

what someone would take medicinally and was at an amount associated with heroin 

fatalities. Thus, there was nothing about the evidence of Taylor’s cocaine use that 

undermined Harkey’s opinion that Taylor died of heroin and cocaine intoxication. 

The evidence was sufficient to establish beyond a reasonable doubt that the heroin 

defendant delivered to Taylor was a contributing cause of Taylor’s death. 

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¶ 73 CONCLUSION 

¶ 74 For the above reasons, we affirm the judgment of the appellate court, although 

we do not agree entirely with the appellate court’s reasoning. We hold that, as a 

matter of state law, IPI Criminal 4th 7.15 (Supp. 2011) properly sets forth the 

principles of causation established by this court and therefore the trial court did not 

err in using it. We reject the appellate court’s conclusion that use of this instruction 

raises “grave due process concerns,” and we are not convinced by the Supreme 

Court’s dictum in Burrage that we should abandon the “contributing cause” 

standard. We agree with the appellate court that the instruction should be modified 

in cases of drug-induced homicide where the defendant delivers multiple controlled 

substances to the victim but is charged based on only one of the deliveries. 

However, we hold that the trial court’s failure to do so in this case was harmless 

error. Finally, we hold that the evidence was sufficient to convict defendant beyond 

a reasonable doubt of drug-induced homicide. 

¶ 75 Affirmed. 

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