On December 11, 2013, the South Carolina Supreme Court decided State v. Hepburn, holding “the State did not present substantial circumstantial evidence sufficient to warrant the denial of [Ashley Hepburn’s] mid-trial directed verdict motion.”  The State jointly tired Ms. Hepburn with her codefendant, Brandon Lewis.  Previously, on May 3, 2013, the Court of Appeals had vacated Mr. Lewis’ conviction for aiding and abetting homicide by child abuse.

The State had charged both Ms. Hepburn and Mr. Lewis with homicide by child abuse and aiding and abetting homicide by child abuse.  The evidence established that both defendants were in the house at the time of the injuries leading to the child’s death.  Lacking a coherent theory as to which defendant actually perpetrated those injuries, the prosecution asked the jurors to sort out what really happened.  The decisions by our Supreme Court and Court of Appeals rejected that prosecution strategy.  These court opinions together with the jurors’ verdicts fully acquitted Ms. Hepburn and Mr. Lewis of these allegations.

On February 12, 2014, the Court of Appeals decided State v Palmer & Gorman.  At trial, both defendants were convicted of homicide by child abuse, aiding and abetting homicide by child abuse, and unlawful conduct toward a child.  The basic facts of Palmer & Gorman are very similar to Hepburn and Lewis. The evidence showed that “the child was in the exclusive possession of Palmer or Gorman, or both, during the time in which the injuries occurred” and raised the possibility “that either Palmer or Gorman, or both, inflicted the child’s injuries.”  In a curious holding, the Court of Appeals affirmed the homicide by child abuse and unlawful conduct toward a child convictions but vacated the aiding and abetting homicide by child abuse convictions.

It is difficult, if not impossible, to reconcile Palmer & Gorman with Hepburn and Lewis.  In fact, Judge Pieper dissented and would have held “there was insufficient evidence for the codefendants’ guilt for homicide by child abuse and unlawful conduct toward a child because the State failed to present direct or circumstantial evidence to reasonably prove which codefendant harmed the child.”

Hopefully, our Supreme Court will review the Court of Appeals decision in Palmer  & Gorman.  The presumption of innocence, the prosecution’s burden of proof, and public policy should not allow the State to jointly try codefendants and ask jurors to sort out the facts when the State, itself, is unable to do so.

Click one of these links to read State v. Hepburn, State v. Lewis, and State v. Palmer & Gorman.

Disclosure:  Charles Grose represented the South Carolina Association of Criminal Defense Lawyers as amicus curie (friend of the court) in State v. Hepburn.