No. The father is not guilty of killing his son. To be guilty of manslaughter, the dad's actions had to be a direct cause of the boy's death. Since the boy was already dying from the first injury (from the girlfriend), the prosecutor had to prove that the dad's beating made the boy die *sooner*. The prosecutor's own expert doctors couldn't say for sure that this happened; they said it was only 'possible' or that they 'didn't know.' The court ruled that you can't convict someone based on a 'maybe' or a guess. Making the boy's pain worse is not the same as making him die faster, and only making him die faster would count as causing his death in this situation.

No, there wasn't enough sure evidence from doctors that Oxendine's actions made his son die faster. The doctors' opinions were not certain enough to prove that the extra injuries caused by Oxendine were the reason the child died when he did. The state's original ideas about how Oxendine caused the death were also not supported. But, Oxendine did seriously hurt his son, so he can be found guilty of a less serious crime called assault in the second degree. The court made it clear that guesses or 'maybes' about how someone died aren't enough to convict someone of manslaughter.

No, there wasn't enough sure evidence from doctors that Oxendine's actions made his son die faster. The doctors' opinions were not certain enough to prove that the extra injuries caused by Oxendine were the reason the child died when he did. The state's original ideas about how Oxendine caused the death were also not supported. But, Oxendine did seriously hurt his son, so he can be found guilty of a less serious crime called assault in the second degree. We make it clear that guesses or 'maybes' about how someone died aren't enough to convict someone of manslaughter.

<?xml version="1.0" encoding="utf-8"?> <opinion type="majority"> <author id="b936-30"> HORSEY, Justice: </author> Defendant, Jeffrey Oxendine, Sr., appeals his conviction in trial by jury in Superior Court of manslaughter (11 Del.C. § 632(1)) <a class="footnote" href="#fn1" id="fn1_ref"> 1 </a> in the beating death of his six-year-old son, Jeffrey Oxendine, Jr. Oxen- *871 dine was sentenced to twelve years’ imprisonment. <a class="footnote" href="#fn2" id="fn2_ref"> 2 </a> On appeal, Oxendine’s principal argument is that the Trial Court committed reversible error by denying his motion for a judgment of acquittal on the issue of causation. Specifically, he argues that the State’s medical testimony, relating to which of the codefendants’ admittedly repeated beatings of the child was the cause of death, was so vague and uncertain as to preclude his conviction of any criminal offense. We conclude that the evidence upon causation was insufficient to sustain Oxen-dine’s conviction of manslaughter, but that the evidence was sufficient to sustain his conviction of the lesser included offense of assault in the second degree (11 Del.C. § 612(1)). <a class="footnote" href="#fn3" id="fn3_ref"> 3 </a> Therefore, we affirm the Trial Court’s denial of Oxendine’s motion for a judgment of acquittal, direct that he be convicted of assault in the second degree, and remand for entry of judgment of conviction and resentencing for that offense. * * * The facts may be summarized as follows: On the morning of January 18, 1984, Leo-tha 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. Oxen-dine, 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. *872 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: <blockquote id="b938-6"> Prosecutor: Dr. Hameli, within a reasonable degree of medical certainty and in your expert opinion, did the second hemorrhage accelerate this child’s death? </blockquote> <blockquote id="b938-7"> Hameli: I do not know. If you are talking about timewise — I assume that’s what you are talking about, exploration. </blockquote> <blockquote id="b938-8"> Prosecutor: You cannot give an opinion of that area; is that correct? </blockquote> <blockquote id="b938-9"> Hameli: No. </blockquote> 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. Subsequently, the prosecutor asked Hofman the following hypothetical question that assumed two blows when Hofman only testified as to one blow: <blockquote id="b938-12"> Prosecutor: In your expert medical opinion within a reasonable degree of medical certainty, if this child, given his weakened state as a result of the significant trauma to his abdominal cavity, suffered subsequently another blunt force trauma to the same area, would it accelerate this child’s death? </blockquote> <blockquote id="b938-13"> ****** </blockquote> <blockquote id="b938-14"> Hofman: My opinion, as in a general statement, not knowing this child, it certainly would have an impact on shortening this child’s life. </blockquote> <blockquote id="b938-15"> Prosecutor: Is then, therefore, your answer yes? </blockquote> <blockquote id="b938-16"> Hofman: Yes. </blockquote> 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.” As previously noted, the jury returned verdicts of manslaughter against Oxendine and Tyree. II In this case, the evidence established that Oxendine inflicted a nonlethal injury upon Jeffrey after his son had, twenty-four hours earlier, sustained a lethal injury from a previous beating inflicted by Tyree. Thus, for Oxendine to be convicted of manslaughter in this factual context, the State was required to show for purposes of causation under 11 Del. C. § 261 that Oxen-dine’s conduct hastened or accelerated the child’s death. The Superior Court correctly *873 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. Riegel v. Aastad, Del.Supr., 272 A.2d 715, 718 (1970). See also Healy v. White, Conn.Supr., 173 Conn. 438, 378 A.2d 540 (1977); Gradel v. Inouye, Pa.Supr., 491 Pa. 534, 421 A.2d 674 (1980); Evans v. Liguori, R.I.Supr., 118 R.I. 389, 374 A.2d 774 (1977). A doctor’s testimony that a certain thing is possible is no evidence at all. Palace Bar, Inc. v. Fearnot, Ind.Supr., 269 Ind. 405, 381 N.E.2d 858, 864 (1978). His opinion as to what is possible is no more valid than the jury’s own speculation as to what is or is not possible. Id. Almost anything is possible, and it is improper to allow a jury to consider and base a verdict upon a “possible” cause of death. Id. Therefore, a doctor’s testimony can only be considered evidence when his conclusions are based on reasonable medical certainty that a fact is true or untrue. Id. 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 apparently abandoned its initial theories of causation and adopted the acceleration theory as the cause of death, based on the testimony of Dr. Hofman, a witness for codefendant Tyree, recalled by the State on rebuttal. That was too late to sustain the State's case-in-chief for manslaughter. 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. Furthermore, even if the State’s evidence was sufficient to sustain its original theories of causation, we could not affirm Ox-endine’s conviction because the jury was not instructed on either of these theories. Although the State may submit alternate theories of causation to the jury, if supported by the evidence, it must establish in its case-in-chief a prima facie basis for each theory that goes to the jury. <a class="footnote" href="#fn4" id="fn4_ref"> 4 </a> In this case, the State did not maintain alternate theories throughout the trial. The State abandoned and completely changed its section 261 theories of causation after it closed its *874 case-in-chief. The ultimate and only theory (“acceleration”) on which the court instructed the jury was different and not compatible with the State’s original theories of causation that it attempted to establish during its case-in-chief. 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-in-chief a prima facie case for acceleration, its case for manslaughter failed. 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 Wash.2d 117, 436 P.2d 463, 466 (1968) (en banc). “Reprehensible and repulsive as the conduct of the defendant is, nevertheless it is not proof of manslaughter.” State v. Guiles, Wash.Supr., 53 Wash.2d 386, 333 P.2d 923, 924 (1959). The Trial Court, however, properly denied Oxendine’s motion for judgment of acquittal at the close of the State’s case because its medical testimony was sufficient for a rational trier of fact to conclude beyond a reasonable doubt that Oxendine was guilty of the lesser included offense of assault in the second degree, 11 Del. C. § 612(1). Therefore, we reverse Oxen-dine’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. * * * REVERSED AND REMANDED. <div class="footnotes"><div class="footnote" id="fn1" label="1"> <a class="footnote" href="#fn1_ref"> 1 </a> . 11 DelC. § 632(1) states: <blockquote id="b936-18"> "A person is guilty of manslaughter when: (1) He recklessly causes the death of another person.” </blockquote> </div><div class="footnote" id="fn2" label="2"> <a class="footnote" href="#fn2_ref"> 2 </a> . Codefendant, Leotha Tyree, was also convicted in the same trial of manslaughter in the death of Jeffrey Oxendine, Jr. and was sentenced to nine years’ imprisonment. On direct appeal, this Court has affirmed her conviction. Tyree v. State, Del.Supr., 510 A.2d 222 (1986) (Order). </div><div class="footnote" id="fn3" label="3"> <a class="footnote" href="#fn3_ref"> 3 </a> . 11 DelC. § 612(1) states: <blockquote id="b937-14"> "A person is guilty of assault in the second degree when: (1) He intentionally causes serious physical injury to another person." </blockquote> <blockquote id="b937-15"> Assault in the Second Degree is a Class C felony for which the range of punishment is 2 to 20 years. </blockquote> </div><div class="footnote" id="fn4" label="4"> <a class="footnote" href="#fn4_ref"> 4 </a> . 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. </div></div></opinion>

This Court further noted that "[a] doctor's opinion about what is possible is no more valid than the jury's own speculation as to what or is not possible." Id

The Supreme Court has observed that "a doctor's testimony that a certain thing is possible is no evidence at all

Although Dr. Villa Bona's expert opinions were not stated as being based upon the required evidentiary standard of a reasonable medical certainty or probability, there was no trial objection by the State to his expert opinion evidence

—in which the court reports that the homicide victim, a six-yearold boy, was heard by a neighbor crying, "Please stop, Daddy, it hurts

Thus if there is not evidence that the defendant' s reprehensible act caused or accelerated the victim' s death, he will not be liable.

The acceleration test also deals with two independent actors, but is concerned with an inevitable result and focuses on when the result occurred

Delaware law requires a medical expert to testify that the opinions promulgated are to a reasonable degree of medical probability

Even when expert witnesses are unable to say whether a defendant' s contribution was decisive, they often will be able to say—as was an expert in Oxendine—that the defendant' s conduct “certainly would have an impact on shortening this [victim' s] life

Almost anything is possible, and it is thus improper to allow a jury to consider and base a verdict upon a "possible" cause of death.

If the jury believed Schmitz's trial testimony, there was a basis to conclude that Banther was liable as a principal and Schmitz was liable as an accomplice to Banther for at least hastening Ravers' death by placing a plastic bag over his head and then shoving him, still breathing, into the burn barrel

No. For a defendant to be criminally liable for homicide when inflicting a nonlethal injury upon a victim who has already suffered a lethal blow from another person, the prosecution must prove beyond a reasonable doubt that the defendant's act hastened or accelerated the victim's death. The State's medical experts failed to establish this causal link. One expert could only testify that it was 'possible' Oxendine's beating contributed to the death, while the other explicitly stated he did not know if it accelerated the death. A finding of medical causation cannot be based on speculation or conjecture; testimony as to a mere possibility is not evidence. The court distinguished 'aggravation' of an injury, which makes a victim's pain more intense, from 'acceleration' of death, which makes it occur sooner. Only acceleration satisfies the 'but for' causation standard in this context. Because the State failed to present sufficient evidence in its case-in-chief that Oxendine's beating accelerated his son's death, his manslaughter conviction cannot stand.

No, the State's medical testimony was insufficient to establish with reasonable medical certainty that Oxendine's conduct accelerated his son's death. The evidence did not support the State's original theories of causation or the 'acceleration' theory instructed to the jury. The State's expert witnesses were unable to state with any degree of medical certainty that the second injury contributed to or accelerated the child's death. However, the evidence was sufficient to support a conviction for the lesser included offense of assault in the second degree. The court emphasized that speculative or possible causes of death are not adequate for a conviction and that expert testimony must meet the standard of reasonable medical certainty.

No, the State's medical testimony was insufficient to establish with reasonable medical certainty that Oxendine's conduct accelerated his son's death. The evidence did not support the State's original theories of causation or the 'acceleration' theory instructed to the jury. The State's expert witnesses were unable to state with any degree of medical certainty that the second injury contributed to or accelerated the child's death. However, the evidence was sufficient to support a conviction for the lesser included offense of assault in the second degree. We emphasize that speculative or possible causes of death are not adequate for a conviction and that expert testimony must meet the standard of reasonable medical certainty.

Oxendine v. State

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