           The Supreme Court of South Carolina

             The State, Respondent,

             v. 


             Donna Lynn Phillips, Petitioner. 


             Appellate Case No. 2015-000351


                                         ORDER


After careful consideration of the cross-petitions for rehearing, the Court grants the
State's petition for rehearing, dispenses with further briefing, and substitutes the
attached opinion for the opinion previously filed in this matter. With regards to
Phillips's petition for rehearing, the Court is unable to discover that any material fact or
principle of law has been either overlooked or disregarded, and hence, there is no basis
for granting a rehearing. Accordingly, Phillips's petition for rehearing is denied.


                                   s/ Costa M. Pleicones                         C.J.

                                   s/ Donald W. Beatty                              J.

                                  s/ John W. Kittredge                              J.

                                  s/ Kaye G. Hearn                                  J.

                                  s/ Jean H. Toal                                A.J.

Columbia, South Carolina
April 20, 2016
                      THE STATE OF SOUTH CAROLINA 

                           In The Supreme Court 


            The State, Respondent,

            v.

            Donna Lynn Phillips, Petitioner.

            Appellate Case No. 2015-000351



          ON WRIT OF CERTIORARI TO THE COURT OF APPEALS

                           Appeal from Pickens County 

                 The Honorable D. Garrison Hill, Circuit Court Judge 



                               Opinion No. 27607 

                  Heard December 3, 2015 – Re-Filed April 20, 2016 



                            AFFIRMED AS MODIFIED

            E. Charles Grose, Jr., of Grose Law Firm, of Greenwood, for
            Petitioner.

            Attorney General Alan M. Wilson and Assistant Attorney
            General J. Benjamin Aplin, both of Columbia, for Respondent.

      JUSTICE HEARN: Donna Lynn Phillips was convicted of homicide by child
abuse and sentenced to twenty-five years' imprisonment in the death of her grandson
(Child). The court of appeals affirmed her conviction. State v. Phillips, 411 S.C. 124,
767 S.E.2d 444 (Ct. App. 2014). Phillips now argues the court of appeals erred in
affirming the denial of her motion for directed verdict because it considered the
testimony offered by a co-defendant as well as Phillips' own testimony in its analysis.
Although we agree the court of appeals erred in disregarding State v. Hepburn, 406 S.C.
416, 753 S.E.2d 402 (2013), we ultimately find the denial of Phillips' directed verdict
motion was proper and we affirm as modified.
                   FACTUAL/PROCEDURAL BACKGROUND

       On Monday, March 17, 2008, paramedics responded to a 911 call reporting a
child not breathing. Upon arriving at the house, paramedics encountered Latasha
Honeycutt, Child's mother, outside on the porch. After entering the home they
discovered twenty-one-month-old Child lying on the floor of his bedroom "all alone,
cold, not breathing, no pulse, just laying [sic] there." Child was transported to Baptist
Easley Hospital and was determined to be in an opiate-induced cardiac arrest. After
resuscitation, Child was taken by helicopter to Greenville Memorial Hospital.
Ultimately Child was pronounced brain dead and removed from life support; the cause
of his death was documented as a hydrocodone1 overdose.

       During the course of the police investigation, it was discovered that Child had
been in the care of his father, Jamie Morris, and his paternal grandmother, Phillips, the
weekend preceding his death. At that time, Phillips had a prescription for Tussionex2,
which contains hydrocodone and she was eventually arrested and charged with
homicide by child abuse. The State proceeded to trial against Phillips, who was tried
jointly with Morris, who was charged with aiding and abetting homicide by child abuse,
and Honeycutt, who was likewise charged with homicide by child abuse.

        At trial, the State presented the testimony of Detective Rita Burgess of the
Pickens County Sheriff's Office, who interviewed and took statements from the three
defendants. Honeycutt told her Child was with Morris and Phillips from the afternoon
of Friday, March 14, 2008, until the evening of Sunday, March 16, 2008. She stated
that when Child arrived home around 8:00 p.m. or 9:00 p.m., he was fussy and
extremely sleepy; therefore, Honeycutt immediately put him to bed. She checked on
him when she woke up around 8:30 a.m. or 9:00 a.m. the following morning, but he was
still sleeping. She returned at 11:00 a.m., found Child unresponsive, and awoke
Brandon Roper, her boyfriend who lived with her; at that point she called 911.

       Phillips spoke with Detective Burgess at Greenville Memorial Hospital and told
her Child had trouble sleeping and experienced "frightmares" where he would wake up
fighting and crying. Phillips further stated Child had a cough and seemed congested, so




1
  The opiate hydrocodone is an antitussive used to treat coughs. Physicians' Desk

Reference 3443 (64th ed. 2010). 

2
  Tussionex is a prescription medication used for the relief of cough and upper 

respiratory symptoms. Physicians' Desk Reference 3443 (64th ed. 2010). 

Morris gave him generic Tylenol3 on Sunday. Detective Burgess also noted that during
their conversation, Phillips made "random statements" about Lortab, and that she hoped
"[Child] didn't get any of her Lortab" or "she hoped [Child] did not get her sister's
Lortab.4"

       Charlie Lark, an investigative consultant in Pickens County, also testified about
his interviews with Phillips and Morris. He noted that Morris informed him Phillips had
a prescription for cough medication, but Morris stated he never saw Phillips medicate
Child over the course of the weekend. Morris further explained Phillips kept her
Tussionex in a wire-mesh pumpkin at the top of her closet. Although Phillips retrieved
the medication on two occasions in Child's presence, Morris did not see Child ingest any
of Phillips' medication; however, he did note that Child played with the Tussionex bottle
while Phillips had it out of the pumpkin. Additionally, Lark stated Phillips informed
him Child played with her "medicine bottles," but the tops were on them so she did not
believe he could have ingested anything. She further stated although she was concerned
she may have dropped a bottle on the floor and Child picked it up, she never witnessed
him consume any medication.

       Two witnesses testified as to the results from the tests performed on Child's blood
and urine samples. The supervisor of the chemistry department at Baptist Easley
Hospital testified about the drug screen performed on Child's urine and noted the results
indicated the presence of hydromorphone, which is a metabolite of the opiate
hydrocodone. Robert Foery, a forensic toxicologist, testified as to tests performed on
the urine and blood taken from Child. Foery stated the tests revealed chlorpheniramine5
and hydrocodone in the blood, as well as hydrocodone, hydromorphone, and
chlorpheniramine in the urine. Foery stated hydrocodone and chlorphenaramine are
both found in Tussionex. He further testified that the concentration of hydrocodone in
Child's blood was 102 nanograms per milliliter and that the therapeutic range for an
adult is 10 to 40 nanograms per milliliter. Foery could not opine on the dosage that was
likely administered to Child, but stated he believed this could have been a repetitive
dosing. Additionally, he testified the first dose would have been given some twenty-
four to thirty-six hours prior to the blood being drawn at 12:30 p.m. on Monday, March
17, 2008. On cross-examination, Foery also stated that Lortab contained acetaminophen
3
  Tylenol contains acetaminophen, which is used for the treatment of minor aches and         

pains, nasal congestion, headaches, and temporarily reduces fever. Physicians' Desk          

Reference 1950 (59th ed. 2005). 

4
   Lortab, a combination of acetaminophen and hydrocodone, is a prescription                  

medication for the relief of moderate to moderately severe pain. Physicians' Desk            

Reference 3240 (59th ed. 2005). 

5
  Chlorpheniramine is an antihistamine. Physicians' Desk Reference 3443 (64th ed.            

2010). 

in addition to hydrocodone, and because there was no acetaminophen found in the
samples, he did not believe Child ingested Lortab.

       The State also presented testimony from a chemistry expert who analyzed the
Tussionex bottle retrieved from Phillips' home and who opined it contained both
chlorpheniramine and hydrocodone. The coroner also testified, stating he concluded
Child's death was a homicide caused by an overdose of hydrocodone. Without
objection, he also noted that the hydrocodone "came from the grandmother's home . . .
in the form of Tussionex." He determined Tussionex caused the death because of the
presence of chloropheniramine and hydrocodone in Child's bloodstream.

      At the close of the State's evidence, Phillips moved for directed verdict arguing
there was no evidence presented "she gave any drugs to anybody" nor was evidence
presented from which a jury could conclude she did so with extreme indifference to
human life. The trial court denied the motion.

       Each defendant presented a defense. Phillips testified she did not give Child any
medication, stating "I was not raised that way. I would not give a child any kind of
medicine that was not prescribed for them. I would never give a child anything under
the age of two years old." She further stated there was no way for Child to have gotten
into the pumpkin without her knowledge because it was on the top shelf out of his reach
and because they never left him alone.

       Honeycutt called Kayla Roper, her boyfriend's sister, in her defense, who testified
as to the events of Monday, March 17, 2008. She specifically described how at Baptist
Easley Hospital she was near Phillips and Morris and overheard Phillips indicate that
she gave Child some cough medicine over the weekend, stating "surely to God that's not
what is wrong."

       At the close of the evidence, Phillips again moved for directed verdict, which was
denied. The jury ultimately convicted Phillips and she was sentenced to twenty-five
years' imprisonment.6

      Phillips appealed, arguing the State failed to present substantial circumstantial
evidence that she acted with extreme indifference. Prior to oral argument at the court of
appeals, but subsequent to the filing of her initial brief, this Court decided State v.
Hepburn, 406 S.C. 416, 753 S.E.2d 402 (2013), which adopted the waiver rule, but
6
 Honeycutt was acquitted. Morris was found guilty of aiding and abetting homicide by
child abuse and sentenced to twelve years' imprisonment, suspended to eight years. His
convictions were affirmed on appeal and he did not petition this Court for certiorari.
State v. Morris, Op. No. 2014-UP-112 (S.C. Ct. App. filed Mar. 12, 2014).
noted an exception to when testimony is offered by co-defendants.7 Id. at 436, 752
S.E.2d at 412. Phillips' appellate counsel submitted a letter to the court listing Hepburn
as a supplemental citation, but did not specify the proposition for which it was being
cited. During oral argument, the court of appeals focused on Kayla Roper's testimony
and the fact it provided direct not circumstantial evidence, ignoring that under Hepburn,
her testimony could not be considered in reviewing the denial of directed verdict.

       Ultimately, the court of appeals affirmed her conviction. Specifically, the court
found Kayla Roper's testimony provided direct evidence of child abuse therefore,
relying on Phillips' testimony that she would never give medicine to Child coupled with
the medical evidence of the extreme levels of hydrocodone within Child's blood, there
was direct and circumstantial evidence presented of extreme indifference sufficient to
withstand Phillips' directed verdict motion. Phillips, 411 S.C. at 134–36, 767 S.E.2d at
448–50. Phillips filed a petition for rehearing, arguing the court of appeals erred in
failing to apply the waiver rule enunciated in Hepburn and in considering Phillips'
testimony as well as evidence presented by Honeycutt. The court of appeals denied the
petition. This Court granted certiorari.

                                  ISSUE PRESENTED

     Did the court of appeals err in affirming the denial of Phillips' directed verdict
motion?
                                LAW/ ANALYSIS

      Phillips argues the court of appeals failed to apply applicable precedent and
therefore erred in its affirmance of the trial court's denial of her directed verdict motion.
Although we agree the court of appeals should have applied Hepburn, we nevertheless
hold sufficient evidence was presented to withstand Phillips' motion for directed verdict.
We therefore affirm the court of appeals as modified, writing only to reiterate an
appellate court's proper framework in analyzing the denial of directed verdict in cases
where Hepburn is implicated.

      In reviewing a motion for directed verdict, the trial court is concerned with the
existence of evidence, not with its weight. State v. Curtis, 356 S.C. 622, 633 591 S.E.2d
600, 605 (2004). When the evidence presented merely raises a suspicion of the
accused's guilt, the trial court should not refuse to grant the directed verdict motion.
State v. Cherry, 361 S.C. 588, 594, 606 S.E.2d 475, 478 (2004). However, the trial
7
  Under the waiver rule, a defendant who presents evidence in his own defense waives
the right to have the court review the denial of directed verdict based solely on the
evidence presented in the State's case-in-chief. Hepburn, 406 S.C. at 431, 753 S.E.2d at
410.
court must submit the case to the jury if there is "any substantial evidence which
reasonably tends to prove the guilt of the accused, or from which his guilt may be fairly
and logically deduced." State v. Mitchell, 341 S.C. 406, 409, 535 S.E.2d 126, 127
(2000).

      As we recently stated in State v. Bennett, "the lens through which a court
considers circumstantial evidence when ruling on a directed verdict motion is distinct
from the analysis performed by the jury." Op. No. 27600 (S.C. Sup. Ct. filed January 6,
2016) (Shearouse Adv. Sh. No. 1 at 19). The jury's focus is on determining whether
every circumstance relied on by the State is proven beyond a reasonable doubt, and that
all of the circumstances be consistent with each other and, taken together, point
conclusively to the guilt of the accused to the exclusion of every other reasonable
hypothesis. State v. Littlejohn, 228 S.C. 324, 328, 89 S.E.2d 924, 926 (1955). The trial
court must view the evidence in the light most favorable to the State when ruling on a
motion for directed verdict, and must submit the case to the jury if there is "any
substantial evidence which reasonably tends to prove the guilt of the accused, or from
which his guilt may be fairly and logically deduced." Id. at 329, 89 S.E.2d at 926. As
we noted in Bennett, while "the jury must consider alternative hypotheses, the court
must concern itself solely with the existence or non-existence of evidence from which a
jury could reasonably infer guilt." Bennett, Op. No. 27600 (S.C. Sup. Ct. filed January
6, 2016) (Shearouse Adv. Sh. No. 1 at 19).

       In Hepburn, 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 appellant requested 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 appellant's invitation,
we expressly adopted the reasoning in Harry and the waiver rule propounded therein.

      Consistent with the approach taken in other states, 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.
       The State contends Phillips has not preserved her Hepburn argument because this
precise point—that the testimony offered by a co-defendant should not be considered in
reviewing a motion for directed verdict—was never squarely presented to the court of
appeals. We acknowledge Phillips never specifically argued until her petition for
rehearing that the review of her motion should be limited to the evidence presented in
the State's case; however, this does not preclude her from arguing this now, nor, more
fundamentally, can it prevent this Court from applying the proper standard of review.
Phillips has consistently argued the denial of her motion for directed verdict was in
error. Requesting that the Court consider Hepburn in its analysis is not a distinct
argument, but merely adds nuance to the inquiry engaged in by the appellate court.
Further, it is incumbent upon the court of appeals to apply this Court's precedent. See
S.C. Const. art. V, § 9 ("The decisions of the Supreme Court shall bind the Court of
Appeals as precedents."). Simply because a party does not expressly articulate the
relevance of a particular case does not excuse the court of appeals from failing to apply
controlling precedent. While it may have been preferable for Phillips to make this
argument during oral argument, the court of appeals should not have overlooked recent
case law—especially where it was expressly cited. Moreover, the court of appeals had
the opportunity to correct its error on rehearing but declined to do so. We therefore
reject the State's argument that Phillips' reliance on Hepburn is not preserved.

       Turning first to Phillips' contention that her own testimony should be excluded,
we disagree and find it falls squarely within our articulation of the waiver rule in
Hepburn. In support of her argument, Phillips asserts her testimony was a preemptive
response to Honeycutt's defense. Temporally, her defense preceded Honeycutt's; we do
not find her testimony can be considered responsive to Honeycutt. Accordingly, under
Hepburn, Phillips 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, we find it was improper for the court of appeals to consider the
testimony of Kayla Roper in reviewing the denial of the directed verdict motion. The
State argues Hepburn's exception to the waiver rule is limited to the testimony of a co-
defendant and does not extend to other witnesses called by a co-defendant. Specifically,
it contends that unlike calling a defendant, the State could have called Kayla Roper in
reply and presented precisely the same testimony. We disagree. Although in the
discussion of the waiver rule the Court noted the unfairness of allowing the State to use
to its advantage evidence it could not otherwise elicit—testimony of a co-defendant—it
also clearly stated that "[t]he rationale behind the co-defendant exception pertains to
control." Id. at 435, 753 S.E.2d at 412. It further explained,
      Requiring the defendant to accept the consequences of his decision to
      challenge directly the government's case affirms the adversary process.
      But the decision of a co[-]defendant to testify and produce witnesses is not
      subject to the defendant's control like testimony the defendant elects to
      produce in his own defensive case, nor is such testimony within the
      government's power to command in a joint trial.

Hepburn, 406 S.C. at 435, 753 S.E.2d at 412 (quoting United States v. Belt, 574 F.2d
1234, 1237 (5th. Cir. 1978) (emphasis added)). Thus, in Hepburn we grounded our
holding in the notion that the defendant has no control over the testimony of a co-
defendant or his witnesses, and it would therefore be unfair to allow the State to use that
evidence to support its case. Nor do we accept the State's misplaced argument that it
could have called Kayla Roper in reply; it did not and it cannot now rewrite history and
rely on that testimony simply because it could have called her as a witness.
Accordingly, we do not consider Kayla Roper's testimony presented by Honeycutt in
reviewing Phillips' 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, Kayla Roper's testimony.

       However, considering the evidence presented in the State's case-in-chief and in
Phillips' defense, we hold the trial court properly denied her motion for directed verdict.
Section 16-3-85 of the South Carolina Code (2003) provides "A person is guilty of
homicide by child abuse if the person . . . causes the death of a child under the age of
eleven while committing child abuse or neglect, and the death occurs under
circumstances manifesting an extreme indifference to human life . . . ." "[I]ndifference
in the context of criminal statutes has been compared to the conscious act of
disregarding a risk which a person's conduct has created, or a failure to exercise
ordinary or due care." State v. Jarrell, 350 S.C. 90, 98, 564 S.E.2d 362, 367 (Ct. App.
2002). For purposes of this statute, "extreme indifference" has been characterized as "a
mental state akin to intent characterized by a deliberate act culminating in death."
McKnight v. State, 378 S.C. 33, 48, 661 S.E.2d 354, 361 (2008) (quoting Jarrell, 350
S.C. at 98, 564 S.E.2d at 367).

       We find there is direct and circumstantial evidence that, when construed in the
light most favorable to the State, could allow the jury to conclude Phillips acted with
extreme indifference in administering the medication that caused 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
Child's blood. It is common knowledge that giving another person, particularly a
toddler, drugs not prescribed to him is inherently dangerous. Importantly, Phillips
herself testified she would never give 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 Child was in the care and custody of Phillips and her son at the time of the lethal
dose; Phillips herself testified he was never alone during the weekend. Accordingly, the
evidence was sufficient to allow a reasonable juror to conclude Phillips acted with
extreme indifference to human life in administering the Tussionex.

                                    CONCLUSION

       We affirm as modified the court of appeals' opinion, holding that under Hepburn,
Phillips' testimony, but not Kayla Roper's, can be considered in the Court's review of the
denial of directed verdict. Because there was sufficient evidence under that standard to
withstand Phillips' directed verdict motion, we affirm her conviction and sentence.

PLEICONES, C.J., BEATTY, KITTREDGE, JJ., and Acting Justice Jean H. Toal,
concur.
