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2011-UP-140 - State v. Avery

THIS OPINION HAS NO PRECEDENTIAL VALUE.  IT SHOULD NOT BE CITED OR RELIED ON AS PRECEDENT IN ANY PROCEEDING EXCEPT AS PROVIDED BY RULE 268(d)(2), SCACR.

THE STATE OF SOUTH CAROLINA
In The Court of Appeals

The State, Respondent,

v.

Paris G. Avery, Appellant.


Appeal From Beaufort County
Carmen T. Mullen, Circuit Court Judge


Unpublished Opinion No. 2011-UP-140  
Submitted February 1, 2011 – Submitted April 5, 2011


AFFIRMED


Appellate Defender Elizabeth A. Franklin-Best, of Columbia, for Appellant.

Attorney General Alan Wilson, Chief Deputy Attorney General John W. McIntosh, Assistant Deputy Attorney General Salley W. Elliott, and Senior Assistant Attorney General Norman Mark Rapoport, all of Columbia; and Solicitor Issac McDuffie Stone, III, of Beaufort, for Respondent.

PER CURIAM: Paris G. Avery appeals her conviction for homicide by child abuse.  On appeal, Avery contends the trial court erred in denying her motion for a directed verdict because the State failed to prove her conduct rose to the level of extreme indifference as required by the homicide by child abuse statute.  We disagree.[1]

An individual is guilty of homicide by child abuse if that individual "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."  S.C. Code Ann. §16‑3‑85(A)(1) (2003).  "'[C]hild abuse or neglect' means an act or omission by any person which causes harm to the child's physical health or welfare."  S.C. Code Ann. § 16‑3‑85(B)(1).  The South Carolina Supreme Court has defined "extreme indifference" 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) (citation omitted).   

First, the State produced evidence Avery caused the death of a child while committing child abuse.  The State established (1) the concentration of Hydroxyzine in the child's body at the time of his death was approximately six times higher than the amount that would be expected if the medication were given therapeutically; (2) Hydroxyzine is "rapidly absorbed" and has a peak concentration in the blood within two to three hours after the medicine is given; (3) Avery was the only caretaker home with the child two to three hours before his death; (4) neither of the child's other two caretakers that day, the daycare worker and the babysitter, had access to the Hydroxyzine; and (5) the child died from the side effects of the "potentially lethal" dose of the drug. 

Second, the State produced evidence the child died under circumstances manifesting an extreme indifference to human life.   The State established Avery committed the deliberate act of giving the child Hydroxyzine and the child died from the side-effects of a "potentially lethal" dose of Hydroxyzine.  Although she may not have intended her act to culminate in the child's death, viewing the evidence in the light most favorable to the State, the State established Avery committed a deliberate act and the child died as a result of that act. 

Accordingly, the evidence supported submitting the case to the jury. 

AFFIRMED.

FEW, C.J., THOMAS and KONDUROS, JJ., concur.


[1] We decide this case without oral argument pursuant to Rule 215, SCACR.