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Unpublished Opinion No. 2011-UP-140  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.