The facts may be summarized as follows: On the morning of January 18, 1984, Leotha Tyree, Oxendine’s girlfriend, who lived with him, pushed Jeffrey into the bathtub causing microscopic tears in his intestines which led to peritonitis. During a break at work that evening, Oxendine telephoned home and talked to Jeffrey, who complained of stomach pains. When Oxendine returned home from work, he saw bruises on Jeffrey and knew that Tyree had beaten the child during the day. Although Jeffrey continued to complain of a stomachache, he apparently did not tell his father how or when he received the bruises. The next morning at approximately 7:30 a.m., Oxendine went into Jeffrey’s bedroom and began screaming at him to get up.

A neighbor in the same apartment building testified to hearing sounds coming from the room of blows being struck, obscenities uttered by a male voice, and cries from a child saying, “Please stop, Daddy, it hurts.” After hearing these sounds continue for what seemed like five to ten minutes, the witness heard a final noise consisting of a loud thump, as if someone had been kicked or punched “with a great blow.” Later that day, Jeffrey’s abdomen became swollen. When Oxendine arrived home from work at about 5:00 p.m., Tyree told him of Jeffrey’s condition and urged him to take Jeffrey to the hospital. Oxendine, apparently believing that Jeffrey was exaggerating his discomfort, went out, bought a newspaper, and returned home to read it.

Upon his return, Tyree had prepared to take Jeffrey to the hospital. En route, Jeffrey stopped breathing; and was pronounced dead shortly after his arrival at the hospital. I In order to convict Oxendine of manslaughter, the State had to show that his conduct caused Jeffrey’s death. 11 Del. C. § 261 defines causation as the “antecedent but for which the result in question would not have occurred.” 11 Del. C. § 261. At trial, the State’s original theories of causation were, alternatively, (1) a “combined direct effect,” or (2) an “aggravation” theory. During its case- in- chief, the State called medical examiners Dr. Inguito and Dr. Hameli, who both testified that Jeffrey’s death was caused by intra- abdominal hemorrhage and acute peritonitis, occurring as a result of blunt force trauma to the front of the abdomen.

Similarly, each pathologist identified two distinct injuries, one caused more than twenty-four hours before death, and one inflicted less than twenty four hours before death. Dr. Inguito could not separate the effects of the two injuries. In his view, it was possible that both the older and more recent hemorrhage could have contributed to the death of the child, but he was unable to tell which of the hemorrhages caused the death of the child. Dr. Inguito could not place any quantitative value on either of the hemorrhages nor could he state whether the fresh hemorrhage or the older hemorrhage caused the death.

The prosecutor never asked, nor did Dr. Inguito give, an opinion on whether the second hemorrhage accelerated Jeffrey’s death. Dr. Hameli, on the other hand, was of the opinion that the earlier injury was the underlying cause of death. According to him, the later injury, i.e., the second hemorrhage, “was an aggravating, and probably some factors [sic] contributing,” but it was the earlier injury that was the plain underlying cause of death. The prosecutor, however, did explicitly ask Dr. Hameli if the second injury accelerated Jeffrey’s death. The relevant portion of the testimony is as follows: Prosecutor: Dr. Hameli, within a reasonable degree of medical certainty and in your expert opinion, did the second hemorrhage accelerate this child’s death? Hameli: I do not know. If you are talking about timewise—I assume that’s what you are talking about, exploration.

Prosecutor: You cannot give an opinion of that area; is that correct? Hameli: No. Oxendine moved for judgment of acquittal at the end of the State’s case-in-chief. The Trial Court, however, denied his motion.

As part of her case, codefendant Tyree called Dr. Hofman, a medical examiner, who disagreed about the number of injuries. He perceived only one injury inflicted about twelve hours before death. At the end of trial, Oxendine again moved for judgment of acquittal. The Trial Court denied the motion and instructed the jury on the elements of recklessness, causation and on various lesser included offenses. The ultimate and only theory of causation on which the jury was charged was based on “acceleration.” The Trial Court instructed the jury that “a defendant who causes the death of another . . . is not relieved of responsibility for causing the death if another later injury accelerates, that is, hastens the death of the other person. Contribution without acceleration is not sufficient.”

Thus, for Oxendine to be convicted of manslaughter in this factual context, the State was required to show for purposes of causation that Oxendine’s conduct hastened or accelerated the child’s death. The Superior Court correctly instructed the jury that “contribution[or aggravation] without acceleration is insufficient to establish causation.” We do not equate aggravation with acceleration. It is possible to make the victim’s pain more intense, i.e., aggravate the injury, without accelerating the time of the victim’s death. Thus, in terms of section 261, and as applied to defendant, the relevant inquiry is: but for his infliction of the second injury, would the victim have died when he died?

If the second injury caused his son to die any sooner, then defendant, who inflicted the second injury, would be deemed to have caused his son’s death within the definition of section 261. A finding of medical causation may not be based on speculation or conjecture. The State’s expert medical testimony, even when viewed in the light most favorable to the State, was (1) insufficient to sustain the State’s original theories of causation (a “combined direct effect” or an “aggravation” theory); and (2) insufficient to sustain the State’s ultimate theory of causation (“acceleration”) on which the court instructed the jury.

Both of the State’s expert witnesses, Dr. Inguito and Dr. Hameli, were unable to state with any degree of medical certainty that the second injury contributed to the death of the child. Dr. Inguito could only testify that it was possible that both the older and more recent hemorrhage could have contributed to the death of the child. As for Dr. Hameli, he testified that the second injury independent of the first injury could have caused death but probably would not cause death. Furthermore, Dr. Hameli explicitly stated that he could not give an opinion as to whether the second injury accelerated Jeffrey’s death. Similarly, Dr. Inguito was neither asked nor did he offer an opinion about acceleration.

The record establishes that the only theory of causation under which the State submitted the case to the jury was the acceleration theory. The State concedes that when it closed its case-in-chief it did not have a prima facie case to support acceleration. Therefore, even though the State could, based on Dr. Hofman’s testimony, establish a prima facie case of acceleration at the end of the trial, Oxendine’s conviction of manslaughter must be set aside for insufficiency of the evidence to establish that his conduct accelerated Jeffrey’s death.

As previously noted, acceleration is not synonymous with either aggravation or the combined effects of two injuries. Thus, when the State was unable to establish at the end of its case-inchief a prima facie case for acceleration, its case for manslaughter failed. This practice is often employed in murder cases when the State is unsure as to what type of murder, i.e., intentional, second degree, felony murder, etc., has taken place. It is extremely “difficult to be objective about the death of a child. . . . Those responsible ought to be punished. Nevertheless, there must be proof as to who, if anyone, inflicted the injuries that resulted in death.” State v. Lynn, Wash.Supr., 73 Wn.2d “Reprehensible and repulsive as the conduct of the defendant is, nevertheless it is not proof of manslaughter.” State v. Guiles, Wash.Supr., 53 Wn.2d 386. Therefore, we reverse Oxendine’s conviction of manslaughter and remand the case to Superior Court for entry of a judgment of conviction and resentence of defendant for the lesser included offense of assault in the second degree.

Delaware Supreme Court Decisions, Selections from “Oxendine v. State, 528 A.2d 870,” 1987.

At 2:00 a.m. on November 23, 2003, defendant was driving his SUV east on 17 Mile Road in northern Kent County. He attempted to turn north onto Edgerton Avenue and drove into the path of an oncoming car driven by Jason Reichelt. Reichelt’s car hit defendant’s SUV and spun 180 degrees, coming to rest on the centerline of 17 Mile Road.

Reichelt and his passenger, Jonathan Keiser, were not seriously injured, but Reichelt’s car was severely damaged and the headlights stopped working. Both men left the car and walked to the SUV to determine if anyone was injured. After speaking briefly with defendant, the two men walked back to Reichelt’s car. Reichelt indicated that he was aware that oncoming cars could hit his darkened car and that he wanted to determine if he could turn on the flashers. As Reichelt and Keiser stood by the car, oncoming car driven by Tonya Welch hit Keiser, killing him.

At the center of this appeal is the issue of causation. Defendant argues that not only did the trial court improperly instruct the jury on causation, there was also insufficient evidence of causation to establish defendant’s guilt. Because the two issues are intertwined with the question of what must be proven to establish causation in such a case, we shall analyze both issues together beginning with a determination of what the prosecutor must show to establish causation.

As the Supreme Court discussed in People v Schaefer, causation consists of two component. In criminal jurisprudence, the causation element of an offense is generally comprised of two components: factual cause and proximate cause. The concept of factual causation is relatively straightforward. In determining whether a defendant’s conduct is a factual cause of the result, one must ask, “but for” the defendant’s conduct, would the result have occurred? If the result would not have occurred absent the defendant’s conduct, then factual causation exists. The existence of factual causation alone, however, will not support the imposition of criminal liability. Proximate causation must also be established. As we noted in [People v] Tims, proximate causation is a “legal colloquialism.” It is a legal construct designed to prevent criminal liability from attaching when the result of the defendant’s conduct is viewed as too remote or unnatural. Thus, a proximate cause is simply a factual cause “of which the law will take cognizance.” We initially note that there is no dispute at this point that defendant was intoxicated and that his driving was the cause of the initial accident. Furthermore, there is no argument that defendant’s driving was the factual or “but-for” cause of the second accident. This analysis is relatively straightforward: but for defendant causing the initial accident, the subsequent accident would not have occurred. It must be shown that defendant was driving while intoxicated and that his driving caused the death, but the prosecutor does not have to show that it was defendant’s intoxicated driving that caused the death.

For a defendant’s conduct to be regarded as a proximate cause, the victim’s injury must be a “direct and natural result” of the defendant’s actions. In making this determination, it is necessary to examine whether there was an intervening cause that superseded the defendant’s conduct such that the causal link between the defendant’s conduct and the victim’s injury was broken.

If an intervening cause did indeed supersede the defendant’s act as a legally significant causal factor, then the defendant’s conduct will not be deemed a proximate cause of the victim’s injury. The standard by which to gauge whether an intervening cause supersedes, and thus severs the causal link, is generally one of reasonable foreseeability. For example, suppose that a defendant stabs a victim and the victim is then taken to a nearby hospital for treatment. If the physician is negligent in providing medical care to the victim and the victim later dies, the defendant is still considered to have proximately caused the victim’s death because it is reasonably foreseeable that negligent medical care might be provided. At the same time, gross negligence or intentional misconduct by a treating physician is not reasonably foreseeable, and would thus break the causal chain between The trial court gave detailed and extensive instructions on factual causation, including reinforcement of the concept that defendant had to be “a” cause of the accident, but not necessarily “the” cause of the accident.

A superseding intervening cause does not need to be the only cause. Indeed, as the Court noted in Schaefer, while the defendant’s conduct in that cause was a factual cause of the accident, the victim’s conduct may also have been a cause and, more to the point, potentially a superseding cause. The effect of the trial court’s instructions was that the jury could convict defendant if they found him to be a factual cause of the accident and that the jury could find the existence of a superseding intervening cause only if that superseding intervening cause was the only cause of the second accident. The jury was not adequately instructed on the issues of proximate and intervening causes.

The linchpin in the superseding cause analysis, therefore, is whether the intervening cause was foreseeable based on an objective standard of reasonableness. If it was reasonably foreseeable, then the defendant’s conduct will be considered a proximate cause. If, however, the intervening act by the victim or a third party was not reasonably foreseeable—e.g., gross negligence or intentional misconduct—then generally the causal link is severed and the defendant’s conduct is not regarded as a proximate cause of the victim’s injury or death.

The troubling aspect of this case is that the second accident only occurred after Keiser had reached a position of safety (the side of the road) and then chose to reenter the roadway with Reichelt to check on the car. While foreseeability is the “linchpin” of the superseding causation analysis, and it is at least arguably foreseeable that a person involved in an accident would return to their vehicle

There are no hard- and- fast rules for determining when an intervening cause supersedes the defendant’s conduct. However, there are various factors that assist the factfinder in the evaluative process. Indeed, Dressier points out that to say that foresee-ability is the “linchpin” is “a slight overstatement,” though it is of great significance. Rather, Dressier discusses six factors to be considered in determining if an intervening cause is a superseding cause.

Of the six factors discussed by Dressier, three are not relevant here. They are the (1) de minimis contribution to social harm factor, (2) the intended- consequences doctrine, and (3) the omissions factor. The foreseeability factor is relevant here, but its application is less than clear. As Dressier points out, a responsive intervening cause will establish proximate cause, while a coincidental intervening cause will not unless it was foreseeable. In discussing responsive intervening causes, Dressier points to the examples of a passenger in a capsized boat drowning while attempting to swim to shore and a wounded victim being negligently treated.

Whether the intervening cause is responsive or coincidental in the case at bar is arguable at best. On the one hand, the victim reentering the roadway to check on the vehicle was in direct response to the accident, though not in direct response to defendant’s having driven. On the other hand, Welch’s driving down the road when she did was entirely coincidental. In our view, Reiser’s decision to reenter the roadway renders the foreseeability factor of little value to the analysis. Rather, that decision directly involves the two remaining factors identified by Dressier that are present here. Those two factors, we behave, compel the conclusion that the intervening cause of the second accident was also superseding cause. First, there is the apparent-safety doctrine, which Dressier describes as follows: One scholar has observed that when a “defendant’s active force has come to rest in a position of apparent safety, the court will follow it no longer.” For example, consider a somewhat simplified version of the facts in State v Preslar: D threatened the life of V, his spouse. As a consequence, V was forced to leave the house on a freezing night in order to protect herself. V walked to within 200 yards of her father’s home, where she would have been welcome, but she chose to spend the night in the extreme cold, rather than bother her father by entering the house. V froze to death during the night. Clearly, D was an actual cause of V’s death: but for D’s threatening conduct, V would not have gone out into the cold. But, V’s decision to sleep outside was also a but- for cause of her own death. Is D the proximate cause of V ‘s death? The court in Preslar answered this question in the negative.

The result may be explained in terms of the apparent-safety doctrine. D did not follow V from their home. When V reached the vicinity of her father’s house, she knew that she could enter and be free from immediate harm. Therefore, her decision to sleep outside constituted a superseding intervening cause.

Similarly, in the case at bar, Keiser had reached a position of apparent safety: he had gotten out of the vehicle and was alongside the road, off the pavement. Had the second accident occurred before Keiser could extricate himself from the Reichelt vehicle and get to the side of the road, then the causal chain would have been intact. But he was able to get out of harm’s way and to a relatively safe position at the side of the road. He then made the choice to return to the roadway and place himself in a more dangerous position.

Like the victim in Preslar, Keiser made a decision regarding his actions after the immediate danger was over. And that decision, like the decision in Preslar, ended the initial causal chain and started a new one, one for which defendant was not responsible. The point of a person making a decision brings us to the remaining factor discussed in Dressier, that of voluntary human intervention: A defendant is far more apt to be relieved of criminal responsibility in the case of a “free, deliberate, and informed” a voluntary, knowing, and intelligent—human agent than in the case of an intervention of a natural force or the actions of a person whose conduct is not fully free. The result in the Preslar case, described, can be explained in terms of this factor. V chose to sleep in the cold rather than to enter her father’s home. Her decision was free, deliberate, and with full knowledge of the fact that it was exceedingly cold outside. Under these circumstances, the responsibility for her death is shifted from D to V. This outcome is consistent with the retributive principle that accords special significance to the free-will actions of human agents. Similarly, in the case at bar, Reiser made the voluntary decision to return to the vehicle on the roadway, despite the danger that it posed. He could have chosen to remain on the side of the road. He chose instead to reenter the roadway, with the danger of standing in the roadway next to an unlit vehicle in the middle of the night being readily apparent.

In sum, we conclude that the prosecution failed to present sufficient evidence to establish that defendant’s actions were a proximate cause of Reiser’s death.

Michigan Court of Appeals, Selections from “People v. Rideout, 727 N.W.2d 630,” 2006.