State v. Hepburn
| Decision Date | 31 January 2014 |
| Docket Number | No. 27336.,27336. |
| Citation | 753 S.E.2d 402,406 S.C. 416 |
| Court | South Carolina Supreme Court |
| Parties | The STATE, Respondent, v. Ashley N. HEPBURN, Appellant. Appellate Case No. 2011–190695. |
OPINION TEXT STARTS HERE
Andrew A. Mathias, of Nexsen Pruet, LLC, of Greenville, for Appellant.
Attorney General Alan McCrory Wilson, Chief Deputy Attorney General John W. McIntosh, Senior Assistant Deputy Attorney General Salley W. Elliott, all of Columbia, and Solicitor Jerry W. Peace, of Greenwood, South Carolina, for Respondent.
E. Charles Grose, Jr., of The Grose Law Firm, LLC, of Greenwood, and James W. Bannister, of Bannister & Wyatt, LLC, of Greenville, for Amicus Curiae, South Carolina Association of Criminal Defense Lawyers.
Ashley N. Hepburn (Appellant) appeals her conviction for homicide by child abuse. We reverse the circuit court's denial of Appellant's mid-trial motion for a directed verdict.
On the evening of October 13, 2009, sixteen-month-old Audrina Hepburn (the victim) became unresponsive and was admitted to the hospital in Greenwood, South Carolina. She eventually died in a Greenville hospital on October 17, 2009. No one, including Appellant, disputes that the victim died from child abuse. There were only two people who could have killed the victim, either Appellant or her boyfriend of five months, co-defendant Brandon Lewis, as they were home with the victim on the night she sustained her fatal injuries.
Appellant and Lewis invoked their rights to a jury trial, and the State chose to prosecute them as co-defendants in a joint trial that took place from February 22 to March 3, 2011.1
At the time of her injuries, the victim resided with her two-year-old brother, Owen, Appellant, Appellant's mother, Doris Davis, and Davis's boyfriend, David Crumley.
On the evening of October 12 between 8:00–8:30 p.m., Appellant, the victim, Owen, Davis, and Crumley ate dinner together. After dinner, Appellant ran a bath for the children, and Davis and Crumley went to bed on the opposite side of the residence just as Lewis arrived.2 Lewis helped Appellant get the children ready for bed. Appellant described the victim as “fussy” before bedtime, and stated she gave the victim a bottle at approximately 9:00 p.m. She also administered Orajel to the victim because she was teething. After putting the victim to bed, Appellant, Lewis, and Owen watched football in the living room. At approximately 10:00 p.m., Appellant got Owen ready for bed and “popped” him when he would not brush his teeth. She and Owen then got into bed in her bedroom, and she read books to Owen until they both fell asleep while Lewis continued watching television in the living room. Around 11:00 p.m., Lewis checked on the victim for the first time. When he opened the door to the victim's room, the victim “popped her head up.” 3 Lewis then entered Appellant's bedroom, and tried to wake her up to ask her if she wanted to watch a movie or eat any of the food his grandmother made for him to bring over. She declined and fell back asleep. Therefore, Lewis made food for himself and sat down in the living room and resumed watching television. Between 1:00–1:30 a.m., Lewis checked on the victim again.4 This time, the victim Appellant awoke to Lewis holding the unresponsive victim in his arms. Appellant and Lewis then woke Davis and Crumley, who called 911.
The victim was taken to Self Regional Hospital in Greenwood. When she arrived, no history of falls, injuries, traumas, or other illnesses was reported to physicians. However, treating physicians and paramedics noticed numerous bruises and petechiae5 on the victim's body, retinal hemorrhaging, labored breathing, and overall lack of responsiveness. Upon closer inspection, physicians determined that the victim sustained a subdural hematoma. Dr. Michelle Curry, who treated the victim at Self Regional testified that the subdural hematoma extended from the front to back of the right side of the victim's brain and was “fairly extensive.” 6 Dr. Curry opined that the victim's injuries were caused by an acceleration-deceleration movement, as in a car accident or shaken baby syndrome.7 Likewise, Dr. Robert Seigler, the medical director of the pediatric intensive care unit at Greenville Memorial Hospital where the victim was transferred, opined that due to the nature of her injuries, the victim sustained abusive head trauma due to child abuse. Dr. Mary–Fran Croswell, who also examined the victim at Greenville Memorial Hospital, testified that she could not rule out a “ direct impact force,” “acceleration-deceleration forces,” or some “combination of the two.” 8
All of the victim's treating physicians testified that the victim would not have appeared “normal” almost immediately after sustaining this type of injury. Dr. Seigler testified that the victim “would of [sic] had symptoms virtually immediately after an injury this severe and she would have at the least been in a coma and likely have had more severe symptoms than that.” Dr. Croswell testified that the severity of the injuries would have brought about a drastic change in a toddler's demeanor that would have been instantly noticeable to her adult caregivers.
While the victim was receiving treatment at Self Regional Hospital, the hospital chaplain, Alexander Brown, met with Appellant and Lewis. At trial, Brown testified that Lewis explained that he was the only person awake at the residence and that he was watching television when he realized he had not checked on the victim in an hour and a half. He stated he would normally open the door or knock to “see if [the victim] would wake up or acknowledge his presence there at the door.” However, this time, Lewis found the victim “sideways with her face careened against the side of the crib” instead of her normal posture of “head to foot.” Upon closer inspection, he noticed the victim was unresponsive. Brown testified that Appellant was present while Lewis recounted his version of events and did not dispute his story:
They both seemed concerned but they appeared united in their story and understanding of what was going on at the time. There wasn't any dispute about [Lewis's] description. And, let's see, let me find my words here. They didn't seem any more like outrageously concerned like something was very, very seriously wrong. They weren't over [sic] emotional, they seemed collected as it were, just really concerned.
Brown testified further that at one point Lewis
said one statement in the middle of his explanation of how he found [the victim]. It concerned me and it seemed odd. In the middle of his statement he explained that [the victim], “didn't like him but he loved her.”
Neither party accused the other of any wrongdoing at that time.
The State's evidence also hinted at the possibility of prior abuse. In the weeks leading up to the fatal injuries, Appellant brought the victim to her pediatrician three times to treat a petechial rash. In addition, the victim's father and Appellant's estranged husband, Daniel Hepburn (Daniel), and his mother, Rita Ebel, testified that they both noticed that the victim had a chipped tooth and a bruise on her forehead, which Appellant claimed was caused by the victim striking her head on her crib. Daniel testified that Appellant was concerned about the rash and took the victim to the doctor for treatment. However, when Daniel confronted Appellant about the petechial rash after accompanying the victim to one of her doctor's appointments, Daniel testified Appellant became “defensive right away” and stated that “no one had choked her.” 9 In addition, Appellant told Daniel that she did not know how the victim chipped her tooth, but that it “must have happened with her being a little kid.”
After a visit on October 8, Daniel did not see the victim again until she was in the hospital. He testified he saw Lewis at the hospital in Greenwood, and Lewis “stated, in his opinion she had had a seizure,” as “he walked in to check on her and she was rigid at one point, seemed like she had had a seizure along those lines.”
Daniel further testified about the breakdown of his marriage to Appellant, stating their marital problems began when the victim was born prematurely. Daniel testified that the couple decided to divorce in May 2009, and shortly thereafter he learned that Appellant and Lewis “were a couple.” Finally, over Appellant's objection, Daniel testified that Appellant struck him during a fight they had while intoxicated when Appellant visited him in Washington in February 2009 to reconcile their marriage.
Under cross-examination, Daniel testified that Appellant was a good mother, who nursed the victim when she was born prematurely and was never violent with the children. Furthermore, he testified that he had agreed to Appellant receiving primary custody of the children during a custody hearing. Under further cross-examination by Lewis's counsel, Daniel stated that he spoke with Appellant by telephone on October 12 and she seemed “frustrated” because the victim was teething, but “not more than normal.” He testified he later learned that Appellant found out that she did not receive a job offer as hoped on the day before the victim sustained the injuries.
Likewise, both Crumley and Davis testified that Appellant was a good and loving mother, who was attentive to her children.10 Both testified that they saw a bruise in the middle of the victim's forehead prior to her hospitalization. Davis testified that Appellant brought the bruise to her attention and they attempted to discover the cause of the bruise in the home, and that Appellant took the victim to the doctor because she was...
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