State v. Greene

423 S.C. 263

814 S.E.2d 496

The STATE, Respondent,

v.Stephanie Irene GREENE, Appellant.

Appellate Case No. 2014-000764

Opinion No. 27802

Supreme Court of South Carolina.

Heard February 15, 2018

Filed May 23, 2018

Rehearing Denied June 26, 2018

C. Rauch Wise, of Greenwood, for Appellant.

Attorney General Alan Wilson and Senior Assistant Attorney General David Spencer, both of Columbia, and Seventh Judicial Circuit Solicitor Barry J. Barnette, of Spartanburg, for Respondent.

JUSTICE KITTREDGE :

Appellant Stephanie Irene Greene appeals her convictions and sentences for homicide by child abuse, involuntary manslaughter, and unlawful conduct toward a child for the death of her infant daughter, Alexis. Appellant was sentenced to prison for twenty years for homicide by child abuse, five years concurrent for involuntary manslaughter, and five years concurrent for unlawful conduct toward a child. We affirm the homicide by child abuse and unlawful conduct toward a child convictions and sentences, but we vacate the involuntary manslaughter conviction and sentence.

I.

Appellant was Alexis's mother; she was Alexis's caretaker during her brief life. Alexis died from morphine poisoning when she was forty-six days old. Appellant, a former nurse, was addicted to many drugs. The State contended that Appellant's morphine addiction (as well as dependence on other drugs) caused Alexis's drug poisoning through breastfeeding. The jury convicted Appellant on all charges.

This appeal followed. Appellant has raised four issues: (1) whether the trial court erred in denying her motion for a directed verdict on all charges due to the State's failure to prove causation; (2) whether the trial court erred in denying her motion for a directed verdict on the homicide by child abuse charge due to the State's failure to prove she acted with extreme indifference; (3) whether the trial court erred in failing to instruct the jury that it could only return a guilty verdict on one charge; and (4) whether the trial court erred in failing to require the State to open fully on the law and the facts of the case. We address each of these issues in turn.

II.

Appellant's first assignment of error is the trial court's failure to grant a directed verdict on all charges because the State allegedly failed to produce any evidence that the morphine found in Alexis came from Appellant's breast milk. Appellant ignores the "synergistic effect" of the morphine poisoning when considered along with Appellant's abuse of other drugs. We have carefully reviewed the evidence and, when viewed in a light most favorable to the State as our standard of review mandates, we find sufficient evidence to present all charges to the jury. State v. Bennett , 415 S.C. 232, 235, 781 S.E.2d 352, 353 (2016) (noting that when reviewing the denial of a directed verdict the Court must not weigh the evidence but must view it in the light most favorable to the State, for the Court is concerned only with the existence or nonexistence of evidence) (citations omitted).

The State's causation theory was Appellant consumed excessive amounts of central nervous system depressants, principally morphine,¹ while breastfeeding Alexis and these drugs passed through Appellant's breast milk, resulting in Alexis's death. The evidence at trial revealed that Appellant continuously took morphine—MS Contin—and other drugs while pregnant with Alexis and while breastfeeding her. Moreover, the evidence showed that Appellant took more morphine than her doctors prescribed. In addition, Appellant exclusively breastfed Alexis until approximately one week before her death. Appellant told investigators that she began supplementing with formula due to her new blood pressure medication; however, Appellant also told investigators that she breastfed Alexis extensively during the two nights immediately preceding Alexis's death. Thus, sufficient evidence was shown that Appellant took many drugs, including morphine, and breastfed Alexis.

In addition, the evidence presented at trial was sufficient to show that the morphine and Clonazepam found in Alexis came from Appellant's breast milk. Appellant contends there is no evidence to support a finding that Alexis's drug poisoning was the result of ingesting morphine through Appellant's breast milk. We disagree, for we find the evidence, when considered in its entirety, provides a substantial basis from which a reasonable juror could conclude Appellant's breast milk was the source of the morphine that killed Alexis. The record includes extensive scientific evidence on morphine and the synergistic effect when combined with other central nervous system depressants. This evidence included the varying rates of metabolism in adults, the absence of metabolism in infants, the transferability of morphine from a mother to her baby through breast milk, and the risks of infants ingesting morphine (and other drugs) from their mothers' breast milk.

Dr. David H. Eagerton, an assistant professor of pharmacology and founding faculty member at the Presbyterian College School of Pharmacy and the former chief toxicologist at the South Carolina Law Enforcement Division, provided considerable testimony. Part of that evidence included the warning accompanying MS Contin, which provides that morphine "passes into the breast milk":

Dr. Eagerton : "Before taking MS Contin tell your healthcare provider if you have a history of it." It gives several histories. And then in bold again it says, "Tell your healthcare provider if you are pregnant or planning to become pregnant. MS Contin may harm your unborn baby. If you're breastfeeding MS Contin passes into the breast milk and may harm your baby ."

(emphasis added).

Much of the scientific evidence addressed an infant's inability to absorb and process a drug like morphine :

The State : And obviously the child died. Obviously, it is consistent with that. Through the breastfeeding and everything a child—can it metabolize drugs like an adult does?

Dr. Eagerton : No, they don't.

The State : If you would, tell the jury about that, especially a six-week-[ ]old.

Dr. Eagerton : Okay. Typically, whenever—just to kind of back up a little bit how—you have to understand what drugs do in your body.

Once—once you take them they don't stay there forever. They go through a cycle. And in pharmacology we use the acronym ADME absorption. You have to get the drug into your system. So how do you get it in there? There's—there's lots of different ways. You can—most things we're talking about now is you think of it orally. But you can give it, you know, as a shot either just under your skin, in your muscle. You can give it [in an] IV directly in your veins. You can absorb some drugs

through the skin, different things like that. So you have different routes of administration depending on what you're trying to do and what the drug is.

Once you absorb it it's going to distribute throughout your body based on its chemical and physical properties, that is whether it likes water or whether it likes fat, or it distributes into one of those two areas in the body primarily.

Certain tissues may pick up drugs preferentially, things like that. So it's going to distribute throughout your body.

Then the next step is metabolism, which is more correctly termed biotransformation. Basically, your liver is responsible for that, and it has enzymes that develop over time that basically take these foreign compounds that you're taking and make it usually more water [soluble], and the idea is to make it either less toxic or more readily excreted. But the idea i[s] to make it more readily—more water [soluble] typically so that it could be more readily excreted from your body. And that's the last stage[ ] of elimination. And it's eliminated—it's eliminated—most drugs are going to be once they're—especially once they've been metabolized and made more water [soluble] they're going to be eliminated throughout the water in your body—urine, feces, sweat, saliva, tears, things like that is how it's going to be eliminated primarily. There are other ways too.

The State : Does a six-week-[ ]old child metabolize at all?

Dr. Eagerton : No, not typically because it take[s] time[ ] for your liver to develop. It takes time for these—the genes that code for these enzymes to turn on and be expressed. And you don't—even a child doesn't metabolize things the same as an adult.

Usually you don't—whenever you go through puberty is whenever most of the things that are going to turn on for an adult is going to turn on.

And, in fact, it even goes the other way. As you get old, become aged, some of these genes can become nonfunctional.

Some—you may not have the same metabolic capacity.

Your kidneys may not work as well, things like that. So you have to take into consideration age certainly whenever you're looking at the effects of drugs and how long they're going to stay in your body.

The State : Obviously, the baby Alexis showed signs of this before the death.

Dr. Eagerton : Right. The—the lethargy, maybe trouble breathing. I—I don't know how to interpret that exactly, but there [were] some—there were some symptoms that were conveyed that were consistent with morphine toxicity.

The State : And basically if she was continuously breastfeeding and things like that could she reach a level, especially if she didn't metabolize it nearly as fast as the mother, for example, could it reach the levels of toxicology—toxicity of the level [sic]?

Dr. Eagerton : Yes. And that's one of the things that if you can't metabolize it, then the drug may build up in your body and you become—you have a toxic dose whenever you wouldn't normally have a tox[ic] dose.

Dr. Eagerton's testimony further included the warning on morphine from LactMed² :

Dr. Eagerton : "Epidural morphine given to mothers for post[-] cesarean section analgesia results in trivial amounts of morphine in their colostrum and milk. Intravenous or oral doses of maternal morphine in the immediate postpartum period result in

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