Criminal Practice – Homicide by Child Abuse – Directed Verdict Motion – Waiver Rule – Co-Defendant Exception – Co-Defendant’s Witness

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State v. Phillips (Lawyers Weekly No. 010-028-16, 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 was right to deny defendant’s motion for a directed verdict, our Court of Appeals should not have considered the testimony of a co-defendant’s witness. Nevertheless, without considering such testimony, we find that there was sufficient evidence to allow the charge of homicide by child abuse to go to the jury.

We modify and affirm the Court of Appeals’ decision to uphold defendant’s conviction of homicide by child abuse.

Background

A 21-month-old child died from – according to the state’s chemistry expert – an overdose of the cough medicine Tussionex. The child had been in the care of his paternal grandmother (defendant), who had a prescription for Tussionex.

Also charged in relation to the child’s death were his mother and father. The mother called witness Kayla Roper, who testified that she had overheard defendant indicate that she gave the child some cough medicine over the weekend, stating “surely to God that’s not what is wrong.”

The trial court denied defendant’s motion for a directed verdict, and the jury found her guilty of homicide by child abuse. Our Court of Appeals considered Roper’s testimony in deciding that the trial court correctly denied defendant’s motion to dismiss.

Analysis

Under the waiver rule as adopted in State v. Hepburn, 406 S.C. 416, 753 S.E.2d 402 (2013), 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 that evidence presented in the state’s case-in-chief. However, the waiver rule does not apply to evidence offered by a co-defendant.

Defendant’s own testimony falls squarely within the waiver rule. Defendant argues that her testimony was a preemptive response to the mother’s defense. Temporally, her defense preceded the mother’s; we do not find her testimony can be considered responsive to the mother. 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.

Contrary to the state’s argument, Hepburn’s exception to the waiver rule is not limited to the testimony of a co-defendant herself; it also extends to other witnesses called by a co-defendant. The decision of a co-defendant to produce witnesses is not subject to the defendant’s control like testimony the defendant elects to produce in her own defensive case, nor is such testimony within the state’s power to command in a joint trial.

Accordingly, we do not consider Roper’s testimony in reviewing defendant’s directed verdict motion, and it was error for the Court of Appeals to have done so. 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.

Nevertheless, 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 child’s death. The testimony indicates the administration of multiple doses of Tussionex 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 and 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 he 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 the Tussionex.

Affirmed as modified.