Supreme Court Seal
South Carolina
JUDICIAL DEPARTMENT
Site Map | Feedback
2012-UP-068 - State v. Person

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.

Andrea Person, Appellant.


Appeal From Richland County
Alison Renee Lee, Circuit Court Judge


Unpublished Opinion No. 2012-UP-068
Submitted January 3, 2012 – Filed February 8, 2012   


AFFIRMED


Appellate Defender LaNelle Cantey DuRant, of Columbia, for Appellant.

Attorney General Alan Wilson, Chief Deputy Attorney General John W. McIntosh, Assistant Deputy Attorney General Salley W. Elliott, Assistant Attorney General Mark R. Farthing, and Solicitor Daniel E. Johnson, all of Columbia, for Respondent.

PER CURIAM: Andrea Person appeals her conviction for homicide by child abuse, arguing the trial court erred in denying her (1) motion for a directed verdict and (2) motion for a mistrial following an officer's testimony about additional contact with Person.  We affirm.[1]

1.  We hold the trial court properly denied Person's motion for a directed verdict. 

"When ruling on a motion for a directed verdict, the trial court is concerned with the existence or nonexistence of evidence, not its weight."  State v. Weston, 367 S.C. 279, 292, 625 S.E.2d 641, 648 (2006).  "When reviewing a denial of a directed verdict, [an appellate court] views the evidence and all reasonable inferences in the light most favorable to the [S]tate."  Id.  "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 the human life." S.C. Code Ann. 16-3-85(A)(1) (2003).  When applied to a particular offense, corpus delicti means that the specific crime has actually been committed.  State v. Dodd, 354 S.C. 13, 17, 579 S.E.2d 331, 333 (Ct. App. 2003).  "[A] conviction cannot be had on the extra-judicial confessions of a defendant unless they are corroborated by proof aliunde of the corpus delicti."  State v. Osborne, 335 S.C. 172, 175, 516 S.E.2d 201, 202 (1999) (footnotes omitted). 

Sufficient independent evidence corroborated Person's statement that the twelve-and-a-half-month-old boy (Victim) in her care died as a result of her actions.  See id. at 180, 516 S.E.2d at 205 ("[T]he corroboration rule is satisfied if the State provides sufficient independent evidence which serves to corroborate the defendant's extra-judicial statements and, together with such statements, permits a reasonable belief that the crime occurred.").  The evidence established Victim was in Person's sole custody at the time of his death.  Victim's mother testified Victim did not exhibit any signs of illness at the time she dropped Victim off at Person's house.  Expert witnesses affirmed Victim died within an interval of time too short for the pneumonia found in his lungs to have been the cause of his death.  The expert witnesses contended the minimal or small amount of pneumonia found in Victim's lungs was insufficient to cause death, with an additional consideration being the lack of pneumonia symptoms.  Physical evidence found at the time of Victim's autopsy was consistent with a cause of death of asphyxia by suffocation.  Viewing the evidence and all reasonable inferences in the light most favorable to the State, sufficient evidence proved Victim did not die a natural death.  See State v. Saltz, 346 S.C. 114, 138, 551 S.E.2d 240, 253 (2001) (holding the trial court properly denied Saltz's motion for a directed verdict when circumstantial evidence existed to prove the victim did not die a natural death, notwithstanding Saltz's argument that the facts were equally consistent with death by accident or sudden illness).  Therefore, the trial court properly submitted the case to the jury.  See Osborne, 335 S.C. at 180, 516 S.E.2d at 205 ("If there is any evidence tending to establish the corpus delicti, then it is the trial court's duty to pass that question on to the jury.").

2. We hold the trial court properly denied Person's motion for a mistrial because the officer's testimony was not prejudicial to Person.  "The decision to grant or deny a mistrial is within the sound discretion of the trial court. The trial court's decision will not be overturned on appeal absent an abuse of discretion amounting to an error of law."  State v. Wilson, 389 S.C. 579, 585, 698 S.E.2d 862, 865 (Ct. App. 2010) (citation and internal quotation marks omitted).  "A mistrial should only be granted when absolutely necessary, and a defendant must show both error and prejudice in order to be entitled to a mistrial."  Id. at 585-86, 698 S.E.2d at 865.  "The power of the trial court to declare a mistrial should be used with the greatest caution under urgent circumstances and for very plain and obvious reasons stated on the record by the trial court."  State v. Wiley, 387 S.C. 490, 495, 692 S.E.2d 560, 563 (Ct. App. 2010).

The officer confirmed he had further contact with Person on the day she gave the written statement but not for any matter concerning Victim's death.  The State did not introduce any evidence regarding the reason for the additional contact, and no bad acts or other charges were referenced during the trial.  Even if the jury inferred she committed another bad act from the officer's statement, Person was not prejudiced because the State never attempted to prove she committed another bad act.  See Wiley, 387 S.C. at 496, 692 S.E.2d at 563 (finding not prejudicial the State's mention of Wiley's unrelated outstanding warrant during opening statements, "even if the jury inferred that Wiley committed another crime . . . because the State never attempted to prove Wiley was convicted of some other crime").  Therefore, the trial court did not abuse its discretion in denying Person's motion for a mistrial.

AFFIRMED.

HUFF, PIEPER, and LOCKEMY, JJ., concur.


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