State v. Hepburn, 753 S.E.2d 402

Ashley N. Hepburn appeals a homicide by child abuse conviction; mid-trial motion for directed verdict denied and later reversed.
Two defendants (Appellant Hepburn and co-defendant Brandon Lewis) were tried jointly for homicide by child abuse based on injuries to 16‑month‑old Audrina Hepburn.
Victim died from abusive head trauma; treating physicians attributed injuries to abusive injury mechanisms (acceleration-deceleration/shaken baby) with extensive brain injury.
Evidence showed Hepburn asleep at time of injury; Lewis testified to events that suggested Hepburn’s possible involvement, while Hepburn and Lewis presented defenses blaming each other.
The court applied a “waiver rule” permitting consideration of defense testimony and co-defendant testimony in evaluating the mid-trial directed verdict; the appellate court later reversed and remanded for acquittal based on insufficiency of evidence absent co‑defendant testimony.
The South Carolina Supreme Court ultimately held that the waiver rule applied but excused consideration of the co-defendant testimony and Hepburn’s testimony for purposes of evaluating the State’s case, and reversed the denial of the directed verdict, directing acquittal.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the mid-trial directed-verdict denial was proper	Hepburn argues insufficient circumstantial evidence; waiver should prevent considering defense	State contends substantial evidence exists including co-defendant testimony	Directed verdict reversed; insufficient evidence absent Lewis's testimony
Whether the waiver rule governs appellate review of a mid-trial directed verdict	Waiver should be based only on State’s case; defense should not fill gaps	Waiver permits consideration of defense/co-defendant evidence at review	Waiver applied but not to consider co-defendant testimony for sufficiency; not considered in assessing the denial on direct appeal
Whether there was substantial circumstantial evidence tying Hepburn to the crime	State’s evidence shows Hepburn present; could be inferred guilt	Absent Lewis’s testimony, evidence does not reasonably prove Hepburn’s guilt	Absent Lewis’s testimony, no substantial circumstantial evidence; acquittal directed
Whether Smith’s reasoning supports upholding the State’s case	Smith shows joint-custody context supports guilt by omission	Smith distinguished; here Hepburn asleep and not shown to cause injury	Distinguishable from Smith; cannot sustain denial of directed verdict

State v. Cherry, 361 S.C. 588, 606 S.E.2d 475 (2004) (directed-verdict standard; any substantial evidence suffices to go to jury)
Harry, 321 S.C. 273, 468 S.E.2d 76 (Ct.App. 1996) (waiver rule for mid-trial directed verdict persists when defense presents evidence)
Cephus v. United States, 324 F.2d 893 (D.C.Cir.1963) (co-defendant testimony exception to waiver when defendant’s defense adds nothing to prosecution)
United States v. Belt, 574 F.2d 1234 (5th Cir.1978) (waiver limited to rebutting co-defendant testimony without curing government case)
State v. Smith, 359 S.C. 481, 597 S.E.2d 888 (Ct.App.2004) (co-defendant context; substantial circumstantial evidence can sustain verdict)
State v. Bostick, 392 S.C. 134, 708 S.E.2d 774 (2011) (circumstantial evidence analysis in sufficiency review)
State v. Odems, 395 S.C. 582, 720 S.E.2d 48 (2011) (circumstantial-evidence sufficiency analysis)