State v. Lewis
| Decision Date | 31 January 2014 |
| Docket Number | No. 5132.,5132. |
| Citation | 403 S.C. 345,743 S.E.2d 124 |
| Court | South Carolina Court of Appeals |
| Parties | The STATE, Respondent, v. Richard Brandon LEWIS, Appellant. Appellate Case No.2011–187128. |
OPINION TEXT STARTS HERE
C. Rauch Wise, of Greenwood, for Appellant.
Attorney General Alan M. Wilson, Chief Deputy Attorney General John W. McIntosh, Senior Assistant Deputy Attorney General Salley W. Elliott, and Senior Assistant Attorney General Harold M. Coombs, Jr., all of Columbia; and Solicitor Jerry W. Peace of Greenwood, for Respondent.
Richard Brandon Lewis appeals his conviction of aiding and abetting homicide by child abuse (aiding and abetting). He argues the trial court erred in: (1) failing to direct a verdict in his favor on the charge of aiding and abetting; (2) failing to charge the jury that the State had to prove Lewis had a legal duty to protect Audrina Hepburn (Victim) before he could be convicted of aiding and abetting; (3) not granting a mistrial after a witness testified a statement by Lewis had “the possibility of guilt behind it”; and (4) not requiring the State to open fully on the law and the facts. We reverse.
Lewis began dating Ashley Hepburn, mother of Victim, in early 2009. Hepburn was separated from her husband, with whom she had two children, Victim and Owen.1 Hepburn and her children lived with her mother, Doris Davis, and Davis's boyfriend, David Crumley.
Around 3:30 p.m. on October 12, 2009, Lewis stopped at Hepburn's home on his way back from class at Piedmont Technical College. Lewis stated Hepburn was upset about a withdrawn job offer, and they had an argument that was initially playful, but resulted in her slapping Lewis. Lewis left Hepburn's home after their fight and went to his grandmother's home, where he lived. However, he returned to Hepburn's home around 8:30 p.m. Davis and Crumley had retired to bed for the night when he returned. Hepburn told Lewis she was extremely tired and would not be good company, but he did not leave.
At some point in the evening, Owen accidentally hit Lewis while they were playing and then refused to apologize to Lewis. Lewis told Hepburn if Owen did not listen to her now, he was never going to listen to her, and a fight ensued about her parenting skills. Subsequently, Hepburn and Lewis began putting the children to bed. It took two attempts to put Victim to sleep because she was fussy. Then Owen refused to brush his teeth, and Hepburn spanked him, causing him to cry. Lewis said he felt responsible and guilty for the spanking because of his comments to Hepburn earlier, and so he went to the living room by himself to watch football. Hepburn went to her room with Owen where they laid in bed.
Later in the evening, Lewis checked on Victim and did not see anything out of the ordinary. He then went to Hepburn's room and asked if she wanted to watch a movie, but she declined. While watching the movie alone in the living room, Lewis heard Victim cry and thereafter heard Hepburn stomp down the hall to Victim's room. Victim continued crying for a few minutes before stopping. Lewis described the crying as being broken up with short pauses, “like she could have been shaken,” but in that moment he did not think anything had happened to Victim. After Hepburn returned to her room, Lewis went to her and asked if she wanted any food, but she did not, so he ate by himself and prepared for bed. He checked on Victim once more, but this time he noticed she was in an unusual position, facedown with her head against the bars of the crib. When he picked her up, he noticed she was not breathing properly and had blood around her mouth. He carried Victim into Hepburn's room and Hepburn took her from him. Davis and Crumley awoke to Lewis's and Hepburn's cries, and Crumley called 911. When questioned by Crumley, Lewis explained he had found Victim unresponsive and believed she had a seizure. His opinion stemmed from his personal experience with a seizure condition that resulted in his discharge from the navy.
Paramedics arrived at Hepburn's home around 1:40 a.m. and transported Victim to Self Regional Hospital (Self Regional). Dr. Michelle Curry suspected a brain injury, which was confirmed by a CAT scan. She also suspected the brain injury was caused by shaking, and the Laurens County Sheriff's Office (Sheriff's Office) and the Department of Social Services (DSS) were notified. Lewis told Dr. Curry he found Victim unresponsive but did not tell her Hepburn had stomped into Victim's room shortly before his discovery. Hepburn was present during his explanation to Dr. Curry, but she also stated Victim was simply found limp and unresponsive in her crib. Victim was transferred to Greenville Memorial Hospital where a pediatrician, Robert Seigler, determined the symptoms from her severe injury would have been immediately noticeable. Victim survived for three more days before being removed from life support and passing away.
Around 6:20 a.m. the morning of the incident, Lewis accepted law enforcement's request to come by the Sheriff's Office, and he gave a statement to Officer Ben Blackmon and other officers. In his initial statement, he did not mention hearing Hepburn's loud footsteps down the hall prior to discovering Victim's condition; he simply said he found Victim unresponsive. Additionally, he did not tell the officers about his argument with Hepburn earlier in the night that resulted in her slapping him. Lewis testified that at the time of the initial statement, he did not want to get Hepburn in trouble and did not believe Hepburn would do anything to hurt Victim. After his initial statement, he spoke with his grandmother,who urged him to tell the officers anything he knew about the case. Lewis then gave officers a second statement and explained he had heard Victim crying followed by Hepburn's loud footsteps and then louder crying from Victim, “as if she was being shaken.”
Hepburn also spoke with law enforcement within approximately twelve hours of Victim entering the Greenville Hospital, and in her initial interview with South Carolina Law Enforcement Division (SLED) agent, Casey Kirkland, she did not indicate Lewis was involved in Victim's injuries. Hepburn stated Lewis was “watching TV during all of this,” and she was asleep, except for the two times she was awakened by Lewis, first asking about food and then with Victim in his arms. At trial, Hepburn implicated Lewis, asserting Lewis was the only person who could have harmed Victim. However, she conceded she never heard a sound, and she did not know Victim was hurt until Lewis brought Victim to her.
Officer Robert Plaxico, from the Sheriff's Office, also spoke with Hepburn and showed her Lewis's second statement. Officer Plaxico stated that when shown the statement, she said, “[O]h my god all of this is true but I don't remember hurting my baby.” However, she explained her exclamation pertained to putting Owen to bed and the difficulty she had brushing his teeth because Lewis's statement was accurate in that respect. Officer Plaxico stated Hepburn never implicated Lewis during her interview with him.
Officer Plaxico visited Lewis's grandmother's home a couple of days after the incident, and when he arrived, Lewis ran out the back door. However, Lewis returned a couple of minutes later and told Plaxico he ran because he thought he was going to be arrested. Lewis was unable to give Plaxico any further information, and Plaxico left the home. A few days later, Lewis was admitted to the Laurens County Hospital for a suicide attempt. Lewis was not arrested until September 18, 2010, when he was charged with homicide by child abuse and aiding and abetting.
Lewis and Hepburn were tried jointly on February 22, 2011. The State introduced Alexander Brown, Self Regional's chaplain, as a witness, and he testified his position required him to serve as a caretaker, “emotionally, spiritually, and mentally,” for patients and their families. Brown testified that during his time with Victim's family, Lewis stated Victim “didn't like him but he loved her.” Brown thought Lewis's statement was odd, and it caused him concern. Hepburn's counsel asked Brown why he thought the comment was odd, and Lewis's counsel objected on the basis that Brown was not qualified as an expert, and it was speculative. The trial court asked for a foundation to explain “how long [Brown] worked [at Self Regional] or something like that.” Brown testified he had two years of seminary education, which included activities such as analyzing conversations he had with patients to see “why we ask what we ask and what flags might have been drawn by things that [the patients] have said.” When Hepburn's counsel asked Brown again why Lewis's comment caused him concern, Lewis's counsel objected to it as speculative. The trial court overruled the objection, stating the answer was being received for the purpose of showing Brown's reaction to that moment and stated Lewis's counsel was welcome to cross-examine Brown on the issue. Brown answered that Lewis's comment “appeared to be a statement that had the possibility of having guilt behind it.” Lewis's counsel objected once again, and the objection was sustained. Lewis moved for a mistrial, arguing Brown had testified as to his opinion that Lewis was guilty, which he maintained was far beyond anything admissible in court. The trial court gave the jury a curative instruction instead of granting a mistrial.
At the end of the State's case, Lewis asked for a directed verdict on both charges, which was denied by the trial court. Lewis renewed his directed verdict motion on the charge of aiding and abetting at the close of the trial, and the trial court again denied it. On March 3, 2011, the jury found Lewis guilty of aiding and abetting homicide by child abuse, but acquitted him on the charge of homicide by child abuse. The jury found Hepburn guilty of...
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... ... Therefore, the trial court erred in denying Palmer's and Gorman's motions for a directed verdict on aiding and abetting. See State v. Lewis, 403 S.C. 345, 355–57, 743 S.E.2d 124, 129–30 (Ct.App.2013) (reversing denial of directed verdict motion when evidence was insufficient to prove the defendant knowingly undertook an overt act to aid and abet his codefendant in committing homicide by child abuse). The State ... ...
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... ... 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 A. The State's ... ...
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