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Criminal Practice – Homicide by Child Abuse – Directed Verdict Motion – Waiver Rule – Defendant’s Testimony

State v. Phillips (Lawyers Weekly No. 010-011-16, 10 pp.) (Kaye Hearn, J.) Appealed from Pickens County Circuit Court (D. Garrison Hill, J.) On writ of certiorari to the Court of Appeals. S.C. S. Ct.

Holding: In deciding whether the trial court correctly denied defendant’s motion for a directed verdict, our Court of Appeals should not have considered the testimony of a co-defendant’s witness. Nevertheless, the Court of Appeals reached the right conclusion: the trial court did not err in denying defendant’s directed verdict motion.

We modify and affirm.

In State v. Hepburn, 406 S.C. 416, 753 S.E.2d 402 (2013), the appellant argued that, in reviewing the propriety of the trial court’s denial of her mid-trial motion for directed verdict, the appellate court should only review the evidence presented by the state in its case-in-chief. The state sought to augment the evidence presented in its case-in-chief with evidence offered by a co-defendant and with evidence offered by appellant in opposition to the co-defendant’s evidence.

Accordingly, the state requested that we overrule the decision in State v. Harry, 321 S.C. 273, 468 S.E.2d 76 (Ct. App. 1996), wherein the Court of Appeals held that, when a defendant presents evidence in his own defense, he waives the right to limit the appellate court’s consideration of the denial of his motion for directed verdict to only the evidence presented in the state’s case-in-chief. Declining the state’s invitation, we expressly adopted the reasoning in Harry and the waiver rule propounded therein.

We also acknowledged in Hepburn the inapplicability of the waiver rule to evidence offered by a co-defendant. Thus, we held that, although we adopted the waiver rule, because the co-defendant’s testimony implicated appellant, and because appellant’s testimony merely rebutted the testimony of the co-defendant, neither testimony could be considered in assessing the propriety of the trial court’s denial of appellant’s directed verdict motion.

Here, defendant’s own testimony falls squarely within our articulation of the waiver rule in Hepburn. Defendant asserts that her testimony was a preemptive response to co-defendant Latasha Honeycutt’s defense. Temporally, her defense preceded Honeycutt’s; we do not find that defendant’s testimony can be considered responsive to Honeycutt. Accordingly, under Hepburn, defendant waived her right to have this court review the sufficiency of the state’s case based solely on its case-in-chief when she chose to testify in her own defense.

However, it was improper for the Court of Appeals to consider the testimony of Honeycutt’s witness, Kayla Roper, in reviewing the denial of the directed verdict motion.

A defendant has no control over the testimony of a co-defendant or his witnesses. It would therefore be unfair to allow the state to use such evidence to support its case.

Today we clarify our holding in Hepburn that the waiver rule is inapplicable not only to testimony of a co-defendant but also to testimony offered by a co-defendant, as in this case, Roper’s testimony.

However, considering the evidence presented in the state’s case-in-chief and in defendant’s own defense, we hold the trial court properly denied her motion for directed verdict.

There is direct and circumstantial evidence that, when construed in the light most favorable to the state, could allow the jury to conclude defendant acted with extreme indifference in administering the medication that caused the death of her 21-month-old grandchild. The testimony indicates the administration of multiple doses of Tussionex (a prescription medication containing hydrocone) and a concentration of at least two-and-a-half times the therapeutic amount of the drug in the child’s blood.

It is common knowledge that giving another person, particularly a toddler, drugs not prescribed to him is inherently dangerous. Importantly, defendant herself testified she would never give the child medication not prescribed to him, nor would she give any medication to a child under the age of two.

There is no question that the child was in the care and custody of defendant and her son at the time of the lethal dose; defendant herself testified the child was never alone during the weekend. Accordingly, the evidence was sufficient to allow a reasonable juror to conclude defendant acted with extreme indifference to human life in administering Tussionex to the child.

Affirmed as modified.

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