concurring.
This Court granted review in this case because it raises an issue of first impression. The precise question of first impression presented is whether, absent specific legislation, a defendant may be convicted of criminal homicide for providing a controlled substance to one who then dies following voluntary ingestion of said substance. The majority answers this question with a resounding “maybe.” I would answer the question with a definitive “no.”
My reasons for so concluding are twofold. First, I am unconvinced that the mere act of providing drugs to another creates a substantial and unjustifiable risk that death will result; and second, I do not believe the mere provision of drugs can ever be the cause of death of one who knowingly and voluntarily consumes the substances.
In order to convict one who provides drugs to another of a homicide, the Commonwealth must establish each statutory element of the particular homicide offense, in this case, reckless homicide. KRS 507.050 states that a person is guilty of reckless homicide when, “with recklessness he causes the death of another person.” Reckless conduct is defined by KRS 501.020(4):
A person acts recklessly with respect to a result or to a circumstance ... when he fails to perceive a substantial and unjustifiable risk that the result will occur or that the circumstance exists. The risk must be of such nature and degree that failure to perceive it constitutes a gross deviation from the standard of care that a reasonable person would observe in the situation.
Thus, in order to sustain a conviction for reckless homicide, the Commonwealth must prove that the act of providing controlled substances to another, in and of itself, creates a substantial and unjustifiable risk that the recipient will die as a result. I am unpersuaded.
Rather, I find compelling the analysis of a New York ease cited by Appellant involving statutory language identical to our own reckless homicide statute and facts similar to those in the instant case:
While there has recently been a substantial increase in deaths from narcotics, the proportion of such deaths to the number of times narcotics are currently being used by addicts and for legal medical treatment is not nearly great enough to justify an assumption by a person facilitating the injection of a narcotic drug by a user that the latter is thereby running a substantial and unjustifiable risk that death will result from that injection.
People v. Pinckney, 38 A.D.2d 217, 328 N.Y.S.2d 550, 556-57 (N.Y.App.Div.1972).
More importantly, I am unwilling to hold that the mere act of providing a person with controlled substances may be considered the “cause” of that person’s death for purposes of criminal liability, when the person’s own intervening act of voluntarily injecting himself with the drugs is clearly the direct cause of death. “[N]o act ... shall constitute a criminal offense unless designated a crime ... under this code or another statute of this state.” KRS 500.020(1). The legislature criminalized Appellant’s act of transferring narcotics to a second person when it made drug trafficking a crime pursuant to KRS 218A.1412.1 see no intention on the part of the legislature to further penalize this same conduct by categorizing it as a type of homicide when a death results,1 espe-*244dally given the above analysis of the elements of reckless homicide. Cfi KRS 507.020(l)(b) which specifically includes “operation of a motor vehicle” as a means of committing murder.
In sum, I am unconvinced that the act of providing drugs to another could ever be considered reckless homicide. To hold otherwise would be, in my opinion, to extend the law of homicide beyond that intended by the legislature, something which is not within our power to do. Therefore, although I concur with the result reached by the majority, I disagree with analysis by which it reached its conclusion.
JOHNSTONE, J., joins this concurring opinion.
. I would note that KRS 216.302 criminalizes the act of "provid[ing] the physical means by which another person commits or attempts to commit suicide.” Thus the legislature has chosen another context, distinct from that of drug trafficking, in which to condemn the act of providing a controlled substance to another. Here, however, there was no allegation made nor proof offered that Buford intended to commit suicide.