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Unpublished Opinion No. 2012-UP-068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.