Ashley N. Hepburn (Appellant) appeals her conviction for homicide by child abuse. We reverse the circuit court’s denial of Appellant’s mid-trial motion for a directed verdict.
Facts/Procedural Background
On the evening of October 13, 2009, sixteen-month-old Audrina Hepburn (the victim) became unresponsive and was admitted to the hospital in Greenwood, South Carolina. She eventually died in a Greenville hospital on October 17, 2009. No one, including Appellant, disputes that the victim died from child abuse. There were only two people who could have killed the victim, either Appellant or her boyfriend of five months, co-defendant Brandon Lewis, as they were home with the victim on the night she sustained her fatal injuries.
Appellant and Lewis invoked their rights to a jury trial, and the State chose to prosecute them as co-defendants in a joint trial that took place from February 22 to March 3, 2011.
A. The State’s Evidence
At the time of her injuries, the victim resided with her two-year-old brother, Owen, Appellant, Appellant’s mother, Doris Davis, and Davis’s boyfriend, David Crumley.
The victim was taken to Self Regional Hospital in Greenwood. When she arrived, no history of falls, injuries, traumas, or other illnesses was reported to physicians. However, treating physicians and paramedics noticed numerous bruises and petechiae
All of the victim’s treating physicians testified that the victim would not have appeared “normal” almost immediately after sustaining this type of injury. Dr. Seigler testified that the victim “would of [sic] had symptoms virtually immediately after an injury this severe and she would have at the least been in a coma and likely have had more severe symptoms than that.” Dr. Croswell testified that the severity of the injuries would have brought about a drastic change in a toddler’s demeanor that would have been instantly noticeable to her adult caregivers.
While the victim was receiving treatment at Self Regional Hospital, the hospital chaplain, Alexander Brown, met with Appellant and Lewis. At trial, Brown testified that Lewis explained that he was the only person awake at the residence and that he was watching television when he realized he had not checked on the victim in an hour and a half. He stated he would normally open the door or knock to “see if [the victim] would wake up or acknowledge his presence there at the door.” However, this time, Lewis found the victim “sideways with her face careened against the side of the crib” instead of her normal posture of “head to foot.” Upon closer inspection, he noticed the victim was unresponsive. Brown testified that Appellant was present while Lewis recounted his version of events and did not dispute his story:
They both seemed concerned but they appeared united in their story and understanding of what was going on at the time. There wasn’t any dispute about [Lewis’s] description. And, let’s see, let me find my words here. They didn’t seem any more like outrageously concerned like something was very, very seriously wrong. They weren’t over [sic] emotional, they seemed collected as it were, just really concerned.
Brown testified further that at one point Lewis
said one statement in the middle of his explanation of how he found [the victim]. It concerned me and it seemed odd. In the middle of his statement he explained that [the victim], “didn’t like him but he loved her.”
Neither party accused the other of any wrongdoing at that time.
The State’s evidence also hinted at the possibility of prior abuse. In the weeks leading up to the fatal injuries, Appellant brought the victim to her pediatrician three times to treat a petechial rash. In addition, the victim’s father and Appellant’s estranged husband, Daniel Hepburn (Daniel), and his mother, Rita Ebel, testified that they both noticed that the victim had a chipped tooth and a bruise on her forehead, which Appellant claimed was caused by the victim striking her head on her crib. Daniel testified that Appellant was concerned about the rash and took the victim to the doctor for treatment. However, when Daniel confronted Appellant about the petechial rash after accompanying the victim to one of her doctor’s appointments, Daniel testified Appellant became “defensive right away” and stated that “no one had choked her.”
After a visit on October 8, Daniel did not see the victim again until she was in the hospital. He testified he saw Lewis at the hospital in Greenwood, and Lewis “stated, in his opinion she had had a seizure,” as “he walked in to check on her and she was rigid at one point, seemed like she had had a seizure along those lines.”
Daniel further testified about the breakdown of his marriage to Appellant, stating their marital problems began when the victim was born prematurely. Daniel testified that the
Under cross-examination, Daniel testified that Appellant was a good mother, who nursed the victim when she was born prematurely and was never violent with the children. Furthermore, he testified that he had agreed to Appellant receiving primary custody of the children during a custody hearing. Under further cross-examination by Lewis’s counsel, Daniel stated that he spoke with Appellant by telephone on October 12 and she seemed “frustrated” because the victim was teething, but “not more than normal.” He testified he later learned that Appellant found out that she did not receive a job offer as hoped on the day before the victim sustained the injuries.
Likewise, both Crumley and Davis testified that Appellant was a good and loving mother, who was attentive to her children.
B. Directed Verdict Motion
At the close of the State’s evidence, Appellant moved for a directed verdict pursuant to Rule 19, SCRCrP, claiming the State had failed to present substantial circumstantial evidence that Appellant committed the crimes charged.
C. Appellant’s Defense
Appellant’s testimony largely corroborated the State’s evidence.
Appellant testified that October 12 was a normal day, and she, Crumley, Davis, and the children ate dinner between 8:00-8:30 p.m., after which Appellant bathed the children. Lewis arrived at the residence while Appellant was bathing the children, and helped Appellant dress them for bed. Meanwhile, Davis and Crumley went to bed. Appellant, Lewis, and the children watched television, and then Appellant put the victim in her bed. Appellant testified the victim was tired and irritable, so she gave her a bottle. Appellant and Lewis smoked a cigarette on the back porch, and heard the victim crying. Therefore, Appellant took the victim out of her crib and administered Orajel for teething, and then placed her back in her crib.
Once Appellant reentered the living room, Owen accidentally hit Lewis in the face with his elbow while they were playing, and Appellant and Lewis fought over Appellant’s disciplinary tactics. Appellant told Owen to brush his teeth, and she
Appellant testified that she and Lewis had been dating for approximately six months. She stated that the victim would “cry and cling” to her when Lewis was around, but that she did not think that was unusual at the time, just that “she ... didn’t take to him.” Appellant testified that Lewis was the only person awake in the house at the time the victim sustained her injuries and was the only person who could have harmed the victim.
She testified that the victim was born prematurely and was in the hospital for eight weeks. Appellant spent a portion of every day in the NICU with the victim during this time. Appellant testified she “needed help” with the children, as the preterm birth put stress on her relationship with Daniel and finances, so she moved back into her mother’s home from Washington, where Daniel was stationed in the military. Appellant testified that she and Daniel had rekindled their relationship after the victim’s death and were still in a relationship at the time of trial.
Appellant testified that, outside of visitation for Daniel, she was with her children “[t]wenty-four, seven.” As to the victim’s previous injuries, Appellant testified she was concerned about the petechial rash, and noticed the chipped tooth and bruising to the victim’s forehead and assumed she hit her head on her crib. Appellant testified that she took the victim to her doctor three times to follow-up on the petechial rash. Moreover, she was in the process of finding a dentist to fix the
D. Lewis’s Defense
On the other hand, Lewis’s defense painted a markedly different version of events. Lewis testified he stopped by Appellant’s home on October 12 at approximately 3:30 p.m. While there, Lewis testified, Appellant slapped him in the face because he called her a “bitch” for throwing a pillow at him after he playfully threw the pillow at her. Lewis testified Appellant “was stressed” because she had not received a job offer as hoped. Lewis went home, and did not return until after dinner later that evening around 8:30 p.m. When he arrived, Lewis helped Appellant dress the children for bed, and they all watched television together. Lewis testified that Owen accidentally hit him in the face with his elbow, and he and Appellant argued over disciplining Owen. At approximately 10:00 to 10:30 p.m., Appellant then told Owen repeatedly to brush his teeth, and when he would not comply with her instructions, Appellant “yanked” Owen by the arm, took him into the bathroom, and Lewis heard Appellant “pop” Owen at least four or five times. Lewis testified he had never known Appellant to strike her children before this night. To “avoid” Appellant, Lewis began watching television again. At this point, Appellant and Owen were in Appellant’s bed, and the victim was in her bedroom in her crib. Around 11:00 p.m., Lewis asked Appellant if she wanted to watch a movie, and she declined. Lewis testified, “[w]hen I asked her to watch a movie I think [Appellant] was still awake.”
At some point, Lewis checked on the victim by peering into the room from the doorway, and she seemed “fine.” Lewis testified “she was really a light sleeper and she was just popped her head up and I let the door shut back and just went back and started watching TV.” Next, he testified he heard the victim “faintly crying” and then “heard [Appellant] get up and stomp into the room, I actually felt her footsteps.” Lewis testified, “I can remember hearing [Appellant] stomp into the room I heard her go into the room and I can remember [the victim] crying a little bit. And then she wasn’t crying and [Appellant] went out of the room.” Lewis testified that the
After he ate and because he was preparing for bed, he checked on the victim a final time. This time, Lewis testified he saw the victim lying horizontally, facedown, with her head against the bars of her crib, and when he went to straighten her, he noticed she was bleeding from the mouth, barely breathing, and limp. He picked her up and ran to Appellant’s bedroom. Lewis testified Appellant went to the bathroom and then Lewis handed the victim to her in the hallway. Lewis testified he thought the victim had a seizure because he had experienced seizures in the past and the victim’s mouth was bleeding. Lewis testified he and Appellant then woke Davis and Crumley.
Lewis testified he withheld this version of events in previous statements because he loved Appellant and wanted to protect her. Lewis testified he did not inflict harm on the victim or shake her. However, while at the police station on October 13, Lewis testified he did not believe Appellant had done
Lewis re-called an investigating officer to the witness stand, who testified that after Lewis’s second statement was shown to Appellant later in the afternoon on October 13, she allegedly exclaimed “oh my god all of this is true but I don’t remember hurting my baby.”
E. Renewal of Directed Verdict Motion
The jury found Appellant guilty of homicide by child abuse and Lewis guilty of aiding and abetting homicide by child abuse. The trial court sentenced Appellant to 45 years’ imprisonment and Lewis to ten years’ imprisonment suspended upon the service of seven years.
At the close of the case, Appellant renewed her motion for directed verdict, which the trial court denied.
Appellant filed a timely appeal in the court of appeals. On October 3, 2012, this Court certified this case for review pursuant to Rule 204(b), SCACR.
Analysis
Appellant argues the trial court erred in denying Appellant’s motion for directed verdict. We agree.
In cases where the State has failed to present evidence of the offense charged, a criminal defendant is entitled to a directed verdict. State v. Cherry,
On appeal, “[w]hen reviewing a denial of a directed verdict, this Court must view the evidence and all reasonable inferences in the light most favorable to the state.” Id. (citing State v. Burdette,
B. The “Waiver” Rule
Today, our decision depends on what evidence we deem appropriate for consideration at the appellate stage of review to assess whether the State presented “any direct evidence or
Appellant contends that, when reviewing the propriety of a mid-trial motion for directed verdict, this Court may only rely on evidence presented during the State’s case-in-chief, noting that in its brief, the State relies predominately on Lewis’s testimony to rebut her argument that the State lacked substantial circumstantial evidence to convict her. To this end, Appellant argues this Court should overrule the court of appeals’ recognition of the waiver rule articulated in State v. Harry,
In Harry, the appellant was indicted for two separate counts of arson on the same property.
On appeal, the appellant argued that, in reviewing the propriety of the trial court’s denial of his mid-trial motion for directed verdict, the court should only review the evidence presented by the state in its case-in-chief, as that was the only evidence available to the trial court when denying the appellant’s motion. Id. at 277,
A motion for a directed verdict made at the close of the [state’s] case is not sufficient to preserve error unless renewed at the close of all the evidence, because once the defense has come forward with its proof, the propriety of a directed verdict can only be tested in terms of all the evidence. If there has been no motion for a directed verdict at the close of all the evidence, it cannot be said that the trial judge has ever been given an opportunity to pass on the sufficiency of the evidence as it stood when finally submitted to the jury. In effect, therefore, a motion for directed verdict made only at the close of one party’s evidence loses any significance once it is denied and the other party, by producing further evidence, chooses not to stand on it.
Harry,
We decline Appellant’s invitation to overrule Harry and instead adopt its rationale today. Cf. State v. Thompkins,
Citing Cephus v. United States,
In Cephus, the United States Court of Appeals for the District of Columbia Circuit dealt with the situation in which a co-defendant incriminated the appellant after he testified in his own defense subsequent to the district court’s denial of the appellant’s motion for acquittal.
It is clear that if the defendant himself rests on the Government’s evidence, the co-defendant’s testimony does not waive the defendant’s motion. It is also clear that the defendant’s own evidence, introduced in response to thecodefendant’s testimony, does not waive the motion if it adds nothing to the Government’s case. The waiver question arises only where, as here, the defendant himself, in seeking to explain, impeach, or rebut the co-defendant’s testimony, introduces evidence which overshoots that mark and tends to cure a deficiency in the Government’s case. We think the waiver doctrine cannot fairly be applied in this situation.
A defendant’s attempt to explain, impeach, or rebut a codefendant’s testimony does not at all imply that after the defendant made his motion to dismiss, he then re-evaluated the Government’s case-in-chief and now thinks it sufficient. It may be both necessary and possible for the defendant to meet the co-defendant’s testimony. He should be free to do so without risk that he may be held to have waived his motion.
If the appellant is now deemed to have waived his right to test the sufficiency of the Government’s case, the Government will in effect have been able to use the coercive power of the co-defendant’s testimony as part of its case-in-chief, even though the Government was prohibited from calling the co-defendant to testify for the prosecution. Although this prohibition arises from the co-defendant’s privilege against self-incrimination, its effect excludes from the Government’s case-in-chief the testimony of one who has an incentive to exculpate himself by inculpating his fellow defendant.
Id. at 897-98 (footnotes omitted); see Foster,
Most courts that recognize the waiver rule also acknowledge its inapplicability to co-defendant testimony. See State v. Pennington,
The waiver doctrine is not mere formalism but is an expression of our adversary justice system which requires a defendant to accept the risks of adverse testimony that he introduces. The doctrine’s operative principle is not so much that the defendant offering testimony “waives” his earlier motion but that, if he presents the testimony of himself or of others and asks the jury to evaluate his credibility (and that of his witnesses) against the government’s case, he cannot insulate himself from the risk that the evidence will be favorable to the government. 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 codefendant 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.
The result we reach is a limited one, applying only to a joint trial and to cross-examination and third-party testimony elicited by the appealing defendant and directed solely to the codefendant’s credibility and character. So long as the defendant contents himself with cross-examination of the codefendant and testimony aimed at vitiating the inculpatory testimony given by the codefendant rather than broughtforward by the government, the adversarial purpose of the waiver doctrine is left untouched.
Id.
We find this rationale persuasive. Here, Appellant did not dispute the State’s contention that the victim died from homicide by child abuse inflicted by one of the two defendants. Instead, her testimony rebutted Lewis’s contention that she killed the victim. Thus, we recognize an exception to the waiver rule where a codefendant testifies, implicating the defendant, and will not consider Lewis’s testimony, or testimony elicited by Appellant that is responsive to Lewis’s testimony, for purposes of determining whether the State presented substantial circumstantial evidence sufficient to survive Appellant’s mid-trial motion for directed verdict.
In addition, Appellant contends that we should not consider her defense in assessing the trial court’s denial of her directed verdict motion. Appellant contends that Cephus stands for the proposition that “if the defendant’s case does not provide a missing link in the Government’s evidence or rectify any deficiency in the State’s case, the presentation of a defense does not operate as a waiver of the right to have an appellate court review the mid-trial denial of a motion for directed verdict on the State’s evidence alone.”
In Cephus, the court stated that regardless of whether the waiver rule applies, “if the defendant then rests or if he introduces evidence which adds nothing to the Government’s evidence, the sufficiency of the Government’s case-in-chief may be reviewed on the appeal from a conviction.” Cephus,
C. Sufficiency of Evidence
Absent Lewis’s and Appellant’s testimony, the State has not presented substantial circumstantial evidence on which the trial court could have based the denial of Appellant’s motion for directed verdict with respect to the homicide by child abuse charge.
The homicide by child abuse statute provides:
(A) A person is guilty of homicide by child abuse if the person:
(1) 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; or
(2) knowingly aids and abets another person to commit child abuse or neglect, and the child abuse or neglect results in the death of a child under the age of eleven.
(B) For purposes of this section, the following definitions apply:
(1) “child abuse or neglect” means an act or omission by any person which causes harm to the child’s physical health or welfare;
(2) “harm” to a child’s health or welfare occurs when a person:
(a) inflicts or allows to be inflicted upon the child physical injury, including injuries sustained as a result of excessive corporal punishment ...
S.C.Code Ann. § 16-3-85 (2003).
Relying on State v. Bostick,
As in this case, in Bostick, the State presented entirely circumstantial evidence that the defendant committed murder.
Likewise, in Odems, the defendant was convicted of first degree burglary, grand larceny, criminal conspiracy, and malicious injury to an electrical utility system, and this Court reversed the trial court after it denied the defendant’s directed verdict motion.
Appellant contends that the State’s evidence “falls woefully short” of the standard set by this Court’s precedents concerning the modicum of evidence constituting substantial circumstantial evidence sufficient to withstand a directed verdict. On the other hand, the State contends it presented substantial circumstantial evidence warranting the trial court’s denial of the Appellant’s directed verdict motion, focusing on Appellant’s circumstances at the time of the victim’s death, namely scant evidence that she was frustrated by her failure to secure employment, living situation, and parental responsibilities; the medical testimony concerning the severity of the victim’s injuries; but most predominantly Lewis’s testimony that he heard Appellant shake the victim prior to finding her unresponsive in her crib.
Barring Lewis’s testimony, as outlined supra, we find the State did not present substantial evidence that Appellant killed the victim. Every State witness placed Appellant asleep at the time the victim sustained the fatal injuries. While undoubtedly present at the scene, the only inference that can be drawn from the State’s case is that one of the two co-defendants inflicted the victim’s injuries, but not that Appellant harmed the victim. Thus, we reverse the trial court’s refusal to direct a verdict of acquittal because the State did not put forward sufficient direct or substantial circumstantial evidence of Appellant’s guilt.
Although not raised by the State, due the similar nature of the charges and facts, the court of appeals’ case, State v. Smith,
Noting that the child abuse statute “makes clear that child abuse may be committed by either an act or an omission which causes harm to a child’s physical health,” S.C.Code Ann. § 16-3-85(B)(l), and “harm to a child’s health occurs when a person either inflicts, or allows to be inflicted physical injury upon a child,” S.C.Code Ann. § 16-3-85(B)(2)(a), the court concluded:
Given the evidence on the severity and number of injuries to [the victim], the fact that both Smith and [the victim’s mother] were the only adults with [the victim] during the time frame that she received her injuries and were the only people who could have possibly caused her injuries, the evidence that her impairment should have been obvious to these two adults, along with the evidence of possible coverup, we find there was sufficient evidence of an act or omission by Smith wherein he inflicted or allowed to beinflicted physical harm to [the victim] resulting in [the victim’s] death. Accordingly, there was substantial circumstantial evidence reasonably tending to prove the guilt of Smith such that the charges were properly submitted to the jury.
Smith,
Homicide by child abuse cases are difficult to prove because often the only witnesses are the perpetrators of the crime. What separates this case from a case like Smith is that every piece of the State’s evidence establishes (1) Appellant was asleep at the time the victim sustained her injuries, (2) Appellant was only awoken after Lewis retrieved the unresponsive victim from her crib, and (3) the victim appeared to be acting normally until after Appellant put the victim to sleep and went to sleep herself. As in Smith, medical testimony adduced at trial indicated that the victim would not have appeared “normal” within a short period of time after her injuries were inflicted due to the nature and extent of her neurological injuries. However, there is no evidence that Appellant herself was aware of the victim’s injuries, let alone caused them. Thus, we find this case distinguishable from Smith.
We hold that, absent Lewis’s interested testimony and the ability to assess Appellant’s credibility on the witness stand, the State did not present substantial circumstantial evidence sufficient to warrant the denial of Appellant’s mid-trial directed verdict motion.
While we are mindful that the net result of our decision is to overturn a jury verdict reached with all due deliberation and diligence, we are called by our standard of review to consider the evidence as it stood after the State presented its case, and we are not satisfied that the evidence was sufficient to sustain the State’s ultimate burden of proof in this case.
Conclusion
Based on the foregoing, we find the trial court erred in refusing to grant Appellant’s mid-trial motion for directed verdict, and now direct a verdict of acquittal.
REVERSED.
Notes
. On May 15, 2013, the court of appeals reversed Lewis’s conviction for aiding and abetting homicide by child abuse. See State v. Lewis, 403 S.C, 345,
. Crumley and Davis went to sleep in their bedroom at approximately 9:00 p.m. on the opposite side of the house and did not come out of their bedroom again until they were awoken between 1:15-1:20 a.m. to Appellant's distraught crying, and found Appellant in the living room huddled over the limp victim. Lewis told Crumley he went to check on the victim, found her lying face down in her crib with her head up against the rails, shaking "as if she was [sic] cold or having a seizure.” Davis testified Lewis "kept repeating” that he found the victim "face down horizontal in the crib.”
. In one statement to police, Lewis stated he then "shut the door.... I didn’t hold her then, but I did earlier in the night. I didn't shake her or anything.”
. In one statement to police, Lewis said that he routinely checked on the victim when he stayed at Appellant's house, and that the walls of the house were so thin that he usually could hear if the victim was crying. On the night in question, he stated the victim was not crying.
. At trial, it was explained that petechiae are caused by the rupture of microscopic blood vessels underneath the surface of the skin, similar to bruising.
. Dr. Curry explained:
A subdural hematoma is not something that happens spontaneously. There are types of bleeding in the brain that can happen spontaneously. Subdural hematomas are the result of trauma because it involves a tearing of veins between layers. There is some amount of, we call it acceleration-deceleration of shaking or wiggling that happens. If you think of the brain as jello inside of a very hard mold and if you shake the mold hard enough the jello separates from the side. When that happens in the brain the little veins that are in between the mold and the jello tear and you get the bleeding around the brain or the jello which then eventually compresses it.
. Dr. Curry defined "shaken baby syndrome” as a "well described entity in the pediatric and emergency medicine literature,” in which "a child is being disciplined or is so aggravating they are shaken ... and it can result in both the retinal hemorrhages and the subdural hematoma.”
. While Dr. Croswell testified that the victim's injuries were as severe as if she had fallen "from several stories, more than a story high,” she concluded that "[wjithout a history of significant accidental injury such as ... a motor vehicle crash or a fall from several stories, this constellation of findings [was] most consistent with abusive head trauma.”
. On redirect, Daniel testified that Appellant got defensive because she knew Daniel did not like Lewis to be around the children, and "[s]he got defensive right away as far as me questioning him being around the children, me questioning her right as a parent to allow him around the children.”
. In contrast, Crumley testified that Lewis frequented the home sporadically, his contact with the victim was ‘‘[v]ery limited,” and Lewis ”[n]ever had anything to do” with the victim other than see her at the residence.
. Pursuant to Rule 19(a), "On motion of the defendant or on its own motion, the court shall direct a verdict in the defendant’s favor on any
. Appellant testified she never used corporal punishment on the victim, and the only time she ever used corporal punishment on either child was when she "popped [Owen] on the backside” when he would not brush his teeth on October 12.
. This testimony corroborated Lewis’s second statement to police, which was introduced by Lewis at trial. In this second statement, Lewis stated:
[Appellant] got Owen to brush his teeth and then put [the victim] in her crib. [Appellant] then went to bed with Owen and I went to the living room to watch TV. I watched the football game and then around 11:00 in the p.m. I went to check on [the victim]. When I went to check on her at that point [the victim] was fíne laying [sic] in the crib. I started watching TV again and then around 12:45 in the a.m. I heard [the victim] crying in her room. I then heard some loud footsteps coming from the back of the house where [Appellant] and Owen were located at. [The victim] started crying even louder as if she was being shaken.
. We need not reach the remaining evidentiary and constitutional issues, as this issue is dispositive. See Futch v. McAllister Towing of Georgetown, Inc.,
. Under the "waiver” rule:
[A] defendant's decision to present evidence in his behalf following denial of his motion for a judgment of acquittal made at the conclusion of the Government’s evidence operates as a waiver of his objection to the denial of his motion. If a defendant fails to renew his motion for judgment of acquittal at the end of all the evidence, the "waiver doctrine” operates to foreclose the issue of sufficiency of the evidence on appeal absent a "manifest miscarriage of justice.” If a defendant renews his motion for judgment of acquittal at the end of all the evidence, the "waiver doctrine” requires the reviewing court to examine all the evidence rather than to restrict its examination to the evidence presented in the Government’s case-in-chief.
United States v. White,
. The South Carolina Association of Criminal Defense Lawyers also argued these positions in its amicus brief. The State did not file a brief in response to the amicus filing, but made a return by letter dated November 8, 2012, in which it noted that the amicus brief was filed after the close of the briefing cycle and that "Appellant renewed her motion for directed verdict at the conclusion of all the evidence but made no assertion that the trial court should not consider the codefendant’s testimony at that time.” In addition, the State questioned the relevance of the amicus brief. This was the extent of the State’s response to the waiver arguments.
. In By field, the United States Court of Appeals for the District of Columbia Circuit stated, "Although a motion for judgment of acquittal made at the close of the government’s case-in-chief is decided on the basis of only that evidence so far introduced at trial ... [the court] must look at the entire record when ruling on the same motion made after trial." Byfield,
. In so holding, we recognize that state courts have not uniformly accepted the waiver rule. Appellant and amicus argue this Court should follow other state courts from Alabama, California, Delaware, Florida, Massachusetts, Michigan, and New Jersey, in rejecting the waiver doctrine.
Interestingly, most of the cases espoused by Appellant do not discuss the waiver rule at all, but reject the notion of considering any evidence
. The fact that Appellant testified, necessarily placing her credibility in issue, further does not operate to waive consideration of her testimony where the testimony does not present patent inconsistencies with the State's evidence. Here, the jury obviously did not believe Appellant’s version of events, and that presents a dilemma for any court assessing whether the defendant has provided evidence that fills gaps in the State's case. United States v. Zeigler,
. Appellant was acquitted of aiding and abetting child abuse, so the propriety of the trial court’s ruling in that respect is not before this Court on appeal.