State v. Palmer

THE STATE OF SOUTH CAROLINA

In The Supreme Court

The State, Respondent/Petitioner,

v.

Robert Palmer, Petitioner/Respondent.

Appellate Case No. 2014-000954

and

The State, Petitioner/Respondent,

v.

Julia Gorman, Respondent/Petitioner.

Appellate Case No. 2014-001008

ON WRIT OF CERTIORARI TO THE COURT OF APPEALS

Appeal from Horry County

Larry B. Hyman, Jr., Circuit Court Judge

Opinion No. 27552

Heard June 17, 2015 – Filed July 29, 2015

AFFIRMED IN PART; REVERSED IN PART
 Attorney General Alan McCrory Wilson and Assistant
Attorney General William M. Blitch, Jr., both of
Columbia, for Petitioner/Respondent.

Appellate Defender Robert M. Pachak, of Columbia, for
Respondent/Petitioner, Robert Palmer.

Appellate Defender Susan Barber Hackett, of Columbia,
for Respondent/Petitioner, Julia Gorman.

JUSTICE PLEICONES: Petitioners Julia Gorman and Robert Palmer were tried
jointly for the death of Gorman's seventeen month-old grandson (victim). Palmer
and Gorman, who lived together but were not married, were each convicted of
homicide by child abuse (homicide), aiding and abetting homicide by child abuse
(aiding and abetting), and unlawful conduct towards a child (unlawful conduct).
On direct appeal, the Court of Appeals reversed both Palmer's and Gorman's aiding
and abetting convictions, and a majority affirmed both petitioners' homicide and
unlawful conduct convictions. State v. Palmer, 408 S.C. 218, 758 S.E.2d 195 (Ct.
App. 2014). Judge Pieper dissented, and would have reversed all of the petitioners'
convictions on the ground "the State did not present any direct or circumstantial
evidence to reasonably prove which codefendant harmed the child." We granted
both petitioners' and the State's petitions for writs of certiorari to review the
directed verdict issues.1 We affirm the Court of Appeals' reversal of both aiding
and abetting convictions, and affirm the decision to uphold the denial of Gorman's
homicide and unlawful conduct directed verdict motions. We reverse the Court of
Appeals' affirmance of Palmer's convictions for homicide and unlawful conduct
finding he was entitled to a directed verdict on both charges.

1
While we also granted Palmer's petition to review a proffer issue, Palmer did not
brief the proffer issue on certiorari and it is therefore deemed abandoned. See Rule
208(b)(1)(D), SCACR; see also Wright v. Craft, 372 S.C. 1, 640 S.E.2d 486 (Ct.
App. 2006).
 FACTS

The only contested issues here are the identity of the individual who harmed the
victim and whether the other individual was aware of the abuse. Since this matter
involves directed verdict questions, we begin with a review of the evidence in the
light most favorable to the State. E.g. State v. Buckmon, 347 S.C. 316, 555 S.E.2d
402 (2001). In our review we rely solely on evidence from the State's case-in-chief
in order to avoid any of the directed verdict issues that can arise when jointly tried
codefendants blame each other in their defense cases. See State v. Hepburn, 406
S.C. 416, 753 S.E.2d 402 (2013) (waiver rule bars consideration of codefendant's
testimony in reviewing denial of mid-trial directed verdict motion). Here, Gorman
testified in her own defense and stated that Palmer was alone with the victim
during the time when the fatal injury must have been inflicted. We do not rely on
her trial testimony because it cannot be used against Palmer, and because no
evidence adduced in the defense cases are necessary to a determination whether
Gorman's directed verdict motions were properly denied.

The evidence shows Gorman's eighteen year-old daughter Cesalee traveled by bus
to South Carolina with her child, the victim, in late June 2008. Cesalee and her
mother had a difficult relationship and had long been estranged. On July 2,
Cesalee flew back to her home in Arizona, leaving the victim in the petitioners'
care. While there was overwhelming evidence that Gorman agreed to keep the
victim while Cesalee packed her family's belongings for a move to the East Coast,
Gorman told several people after the victim's injuries that Cesalee had abandoned
the victim to her.

On July 1, the victim was taken to the doctor's office by Cesalee and Gorman,
suffering from ant bites and allergies. He was prescribed a cream for the bites and
a liquid antihistamine (Xyzal) for his allergies. The prescribed dosage for the
Xyzal, which has a sedative effect, was 0.5 teaspoon per day. An appointment was
set for July 8 so that he could receive immunizations. On July 7, after Cesalee had
returned to Arizona, Gorman took the victim to the emergency room reporting he
was suffering from projectile vomiting. The victim was observed, given a
Pedialyte popsicle, and released.

When Gorman brought the victim back to the family practitioner on July 8, the
office was aware of the emergency room visit the night before. The family
practitioner examined the victim, determined he had recovered from the bites, the
allergies, and the nausea, and administered the vaccinations. She testified that she
had examined the victim's head as part of the check-up and had no concerns, and
also that while the victim was small for his age he was not malnourished. The
doctor also testified she had no concerns about child abuse when she saw the
victim in July.

Gorman repeatedly told medical personnel the victim was lethargic, and Palmer's
statements also indicated the victim was not an energetic toddler. There was
evidence from which a jury could find the victim's lethargy after July 1, when he
was prescribed the sedating Xyzal, was attributable to Gorman's overdosing. At
the emergency room visit on July 7, Gorman told medical personnel the victim was
being given 1.5 teaspoons of Xyzal per day rather than the 0.5 teaspoons he had
been prescribed. After the victim was fatally injured on July 14, Gorman told an
emergency room (ER) nurse that the victim had been on Xyzal, and that she had
been administering a dose of 2.5 teaspoons, five times the prescribed amount. In
this statement, Gorman said the last dose had been given at 9:00 pm on July 11.
On the other hand, while en route to the hospital on the 14th, Gorman told the
EMT she had given the victim Xyzal on the 14th. The family doctor testified that
when she saw the victim on July 8, he was no longer in need of this antihistamine.

On July 14, Gorman went to work, arriving at about 6:00 am, leaving Palmer alone
with the sleeping victim. There was evidence that the victim was tired all day, and
somewhat whiney. He ate breakfast and lunch, but according to Palmer, having
been awakened at about 9:30 am, the victim did not fall asleep again until about 3-
3:30 pm. Gorman arrived home around 4:00 pm. Gorman stated she went straight
into the victim's room to check on him as she normally did when she first got
home, and saw him sleeping soundly and breathing normally. Later she and
Palmer checked on him from the doorway. Palmer agreed that they had checked
on the sleeping victim from the doorway after Gorman arrived home, and that no
one checked on him again until after they had eaten dinner around 6:00 pm. Both
petitioners maintained that after dinner Gorman returned to the bedroom alone, and
she told officers she found the victim "slack," making "really strange noises," and
with saliva at his mouth. She picked him up, and brought him to Palmer. Palmer
said the victim was limp but seizing intermittently, with his fists balled up.
Gorman agreed the victim was fine until she alone checked on him around 6:00
pm.

Horry County Fire and Rescue were dispatched at 6:07 pm following a 9-1-1 call
made by Gorman, and arrived at the home at 6:13 pm. When they arrived, Palmer
was holding the victim who was actively seizing and whose "pretty grave"
condition was immediately apparent. Petitioners told the responder the victim had
not been sick and had been found in this condition during a nap. The responder
started an I.V. and gave oxygen, noting the victim was making unusual breathing
sounds. EMS paramedics took over at 6:20 pm when the first responder brought
the victim to their ambulance as it arrived. The victim was still seizing and
'posturing,' an involuntary movement where the limbs extend and retract that only
occurs in intracranial injury cases. He also exhibited a "right side gaze," with his
eyes pointing towards the injured side of the brain. His pupils were dilated but
responded sluggishly and the seizures stopped as Valium was administered.

The EMS medic testified Gorman rode in the front of the ambulance to the
hospital. Gorman said the victim had not been sick recently and had not fallen, but
that she had given him a dose of Xyzal that day. Gorman told her about the ant
bites and stated the victim had been whiney and lethargic since then. She also
made a statement which the medic paraphrased as "She's raised several children in
her lifetime and never seen such a bad one." When the ambulance arrived at the
hospital at about 7:00 pm, the victim was still posturing, his right-side gaze had not
changed, his pupils were more dilated, he was still breathing very rapidly, and his
heart rate was elevated.

The ER nurse testified that on arrival the victim was unresponsive, posturing,
seizing, and had dilated pupils. Gorman responded to the nurse's questions. She
said the victim had not fallen or hit his head on anything before the seizures
started. She also told the ER nurse that he was on Xyzal, but she had not given
him any since administering 2.5 teaspoon on July 11. The nurse observed Palmer
was very concerned and wanted to talk to and touch the seizing victim, in contrast
to Gorman's behavior.

The ER nurse testified that upon the victim's arrival at the Conway Hospital at 7:02
pm another nurse had scored the victim at a 5 on the Glasgow Coma Score. At
8:30 pm his score had dropped to a 3. The scale runs from 15 to 3, and anything
below a 9 is "gravely concerning." The victim's breathing was labored and
grunting, and the nurse testified that human life cannot be maintained at that level
of effort. His heart rate never dropped below 142, when a normal rate would have
been 110 to 115. The ER nurse watched as the C.A.T. scan was performed,
immediately saw the skull fractures, and some bleeding at the back of the brain,
and called the ER doctor. She testified the fractures and bleeding were consistent
with violent trauma, and she also observed some abnormal bruising on the victim's
body. Palmer reported the victim had been dragging his foot earlier in the day.
Gorman told the nurse the victim's mother was a drug addict who dropped the
victim off and whose whereabouts were unknown. The victim, who was very thin,
remained at the Conway Hospital from 6:58 pm until he was helicoptered to the
Medical University of South Carolina (MUSC) in Charleston at 10:33 pm.

The Conway ER doctor testified the victim arrived "in extremist [sic] immediately
evident" "showing signs of a severe neurological injury." The victim appeared to
be breathing on his own but was posturing. He was immediately intubated to
maintain breathing. The C.A.T. scan showed severe trauma to the skull and brain
such that "impending death is what it [sic] was concerned." The brain had
hemorrhages and edema and there was a loss of gray-white matter distinction
indicating the death of brain tissue.

The victim's father arrived in Charleston from Virginia on Monday, July 15, after
Gorman called him during the evening of July 14 to say the victim was being
airlifted to MUSC. After this conversation, the father called to speak to the doctor
at the Conway Hospital, and based on that conversation, the father filed a police
report. The father called Cesalee in Arizona but neither Palmer nor Gorman had
tried to reach her. Cesalee flew to Charleston, and after consulting with the
doctors who told them only machines were keeping the victim alive, the parents
had him baptized and then donated his organs. The victim was removed from life
support on July 16.

A MUSC neuro-radiologist testified as an expert witness, having examined the
medical reports and C.T. scans performed at Conway Hospital on July 14 and at
MUSC on July 15. Those scans showed the victim suffered comminuted
fractures,2 severe swelling of the brain, blood around the brain, and the loss of
gray-white differentiation which indicates brain tissue has died. The victim's skull
fractures were the result of severe traumatic force of a type most commonly seen
following an automobile accident. The victim had no chance for a meaningful
recovery. The bleeding was acute and the fractures showed no signs of healing.

The neuro-radiologist testified a person suffering the type of injury inflicted upon
the victim would be immediately severely symptomatic, exhibiting:

(1) alteration or loss of consciousness;

(2) alteration in breathing;

2
In a comminuted fracture the bone is broken into multiple pieces.
 (3) likely seizures;

(4) inability to walk, move, or eat;

(5) possible foaming at the mouth; and

(6) no purposeful movement.

The expert testified the severity of the fractures were of a type caused either by an
automobile accident, by having been dropped from a two-story building, or from
intentionally applied force. While she could not give an exact time, the onset of
symptoms would have been very soon after the injury, if not immediate.

The forensic pathologist autopsied the victim's body on July 19, 2008. She found
the head injuries were caused either by a single hit or compression, or possibly by
one hit on each side of the victim's head. She testified the injury occurred between
July 11 and July 14.3

Finally, a MUSC doctor who serves as director of the Violence Intervention and
Prevention Division in the pediatric department testified. She observed the victim
on July 15, finding him very thin, on a respirator, and totally unconscious with
fixed and dilated pupils. In addition to the skull fractures, she found a number of
unexplained/atypical bruises on the victim: one on his upper right thigh close to his
buttocks; one close to his waist; and one on the inside of his leg. The bruises could
have been inflicted contemporaneously with the head injuries. The head injuries
had to have been inflicted on July 14, and it would have taken less than a minute to
fracture the victim's skull. Finally, this doctor opined that the injury must have
been inflicted on the 14th as the victim would have died very soon after if not
placed on a respirator. She estimated the injuries were inflicted within three hours
of his arrival at the Conway Hospital ER at 6:58 pm on July 14.

ISSUE

Whether the Court of Appeals erred in failing to reverse
petitioners' convictions for homicide by child abuse and

3
The State amended the indictments before trial to specify the fatal injury occurred
on July 14.
 unlawful conduct towards a child, and in reversing the
petitioners' convictions for aiding and abetting homicide by
child abuse?

ANALYSIS

In this case we are primarily concerned with whether the State presented any
evidence of identity to support the submission of the three charges to the jury.
Since the issues all involve a directed verdict, we review the evidence in the light
most favorable to the State. State v. Buckmon, supra. We begin with the homicide
by child abuse charges.

A. Homicide by Child Abuse.

The application of the directed verdict standard in a circumstantial evidence case
where one of two persons must have killed a child is set forth in State v. Hepburn,
406 S.C. 416, 753 S.E.2d 402 (2013):

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 Smith4 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.

In Smith, the mother and her boyfriend were jointly tried for the death of the
mother's young daughter. Both defendants were convicted of homicide by child
abuse and aiding and abetting that offense. On appeal, the boyfriend argued he

4
State v. Smith, 359 S.C. 481, 597 S.E.2d 888 (Ct. App. 2004).
was entitled to a directed verdict on both counts as the evidence showed, at most,
his mere presence at the crime scene. The Court of Appeals disagreed, finding the
evidence showed the two defendants were together with the child for the entire
period during which the child was shaken with sufficient force to kill her, and
suffered more than one blow to the head inflicted with sufficient force to fracture
her skull. Further, the evidence showed that her impairment would have been
obvious. In addition, there was "evidence of a probable cover-up."

Here, the State's evidence narrowed the window of opportunity during which the
fatal injury must have been inflicted to between 4:00 pm and 6:05 pm on Sunday,
July 14. The State's evidence placed both petitioners at the home during this
period. Just as the only evidence in Hepburn was that the appellant was asleep at
all critical times, the only evidence here was that the child was sleeping and
breathing normally until Gorman found him in distress shortly after 6:00 pm.
Further, the present cases are distinguishable from Smith in that petitioners were
not together at all relevant times, and unlike Smith, where the only evidence was
the child's injuries would have been immediately apparent, here there was evidence
that a layperson might not be able to distinguish between a sleeping child and an
unconscious one. Finally, unlike Smith, the State presented no "evidence of a
probable cover-up."

We hold there is sufficient evidence to uphold the Court of Appeals' ruling that the
motion for a directed verdict on homicide by child abuse charge was properly
denied as to Gorman, but hold there is no evidence to support the denial of
Palmer's motion. The State's evidence places Gorman alone with the victim at 4:00
pm when she first returned home and again at 6:00 pm when the victim was found
in grave distress. The medical evidence would support a finding that Gorman
inflicted the fatal blow when she first returned home and that when she and Palmer
checked on the child from the doorway at 4:15 pm, the victim's injuries may not
have been apparent to a layperson. Alternatively, there was evidence that the
blow(s) must have been inflicted immediately preceding the expression of
symptoms, which is evidence from which a jury could conclude that Gorman
injured the child when she went alone to check on him at 6:00 pm. Further,
Gorman admitted mistreating the victim by shaking, spanking, and overdosing
him, and numerous witnesses testified to her unusual affect and statements
following the child's injury.

There was sufficient circumstantial evidence that Gorman committed homicide by
child abuse, but there is no evidence in the case-in-chief that Palmer was alone
with the victim after around 3:30 pm, when the victim fell asleep. Thus, as in
Hepburn, the State produced no evidence that Palmer "was aware of the victim's
injuries, let alone caused them." Hepburn, 406 S.C. at 442, 753 S.E.2d at 416.

B. Unlawful Conduct Towards a Child.

The Court of Appeals upheld the trial court's denial of both petitioners' motions for
directed verdicts on the charges of unlawful conduct towards a child in violation of
S.C. Code Ann. § 63-5-70 (2010).5 This statute provides:

(A) It is unlawful for a person who has charge or custody of a
child, or who is the parent or guardian of a child, or who is
responsible for the welfare of a child as defined in Section 63-
7-20 to:

(1) place the child at unreasonable risk of harm affecting
the child's life, physical or mental health, or safety;

(2) do or cause to be done unlawfully or maliciously any
bodily harm to the child so that the life or health of the
child is endangered or likely to be endangered; or

(3) willfully abandon the child.

We find there is no evidence in this record that Palmer either harmed the victim or
was aware Gorman was harming him. In fact, the State does not contest Palmer's
entitlement to a directed verdict on this charge in its respondent's brief on
certiorari. On the other hand, Gorman told at least two people that she was
continuing to give the victim Xyzal, which has a sedative effect, after it was no
longer medically indicated, and in amounts three to five times the recommended
dosage. This alone is some evidence she placed the victim at an unreasonable risk
of harm. Further, she admitted lacking patience, smacking the victim on his hands
and his diapered behind, and shaking him, but not hard. From this evidence, a jury
could find Gorman acted maliciously in causing bodily harm, as reflected in the
unusual bruises found on the victim's body on July 14.

5
At the time of the petitioners' indictment this statute was codified as § 20-7-50.
We affirm the Court of Appeals' decision to affirm the trial court's denial of
Gorman's directed verdict motion on the charge of unlawful conduct towards a
child, but reverse its decision as to Palmer's motion.

C. Aiding and Abetting Homicide by Child Abuse.

The Court of Appeals reversed both petitioners' convictions for aiding and abetting
homicide by child abuse, stating simply "we find the State presented no direct
evidence and insubstantial circumstantial evidence that either Palmer or Gorman
knowingly undertook any action to aid or abet that abuse." State v. Palmer, 408
S.C. at 234, 758 S.E.2d at 205. The State contends the Court of Appeals erred in
reversing these convictions. We disagree.

A person aids and abets homicide by child abuse under S.C. Code Ann. § 16-3-
85(A)(2) (2003) when he "knowingly aids and abets another person to commit
child abuse or neglect [which] results in the death of a child under the age of
eleven." The State would have the Court speculate, despite the absence of any
evidence, that both petitioners actually entered the victim's bedroom around 4:30
pm where one abused him in the presence of the other, who thus aided and abetted
the perpetrator by failing to seek medical help for an hour and a half. Compare
Smith, supra. There is no evidence other than rank speculation that such an
incident occurred. Moreover, while "omission which causes harm" can constitute
aiding and abetting child abuse or neglect (§ 16-3-85(B)(1)), there is no evidence
that more prompt treatment would have mitigated the victim's injuries and thus we
do not perceive potential liability for the non-abuser even if he or she were aware
of the abuse. For this reason, even were there evidence that Palmer had hurt the
victim during the day while alone, there is no evidence that any delay in seeking
medical attention by Gorman caused the victim harm beyond that inflicted by the
perpetrator. Finally, State v. Lewis, 403 S.C. 345, 743 S.E.2d 124 (Ct. App. 2013)
cert. dismissed as improvidently granted 411 S.C. 647, 770 S.E.2d 398 (2015),
establishes that neither knowledge of another's intent to commit a crime nor failure
to act to stop abuse are sufficient to deny a directed verdict on a charge of aiding
and abetting homicide by child abuse. Lewis, 403 S.C. at 356, 743 S.E.2d at 129-
130.

We therefore affirm the Court of Appeals' decision to reverse the trial court's
denial of each petitioner's motion for a directed verdict on the charge of aiding and
abetting homicide by child abuse.
 CONCLUSION

We affirm the Court of Appeals' ruling on the aiding and abetting homicide by
child abuse convictions. We affirm the Court of Appeals' decision to the extent it
upholds the denial of Gorman's directed verdict motions on the charges of
homicide by child abuse and unlawful conduct towards a child, but reverse its
decisions as to Palmer. For these reasons, the decision of the Court of Appeals is

AFFIRMED IN PART; REVERSED IN PART.

TOAL, C.J., BEATTY, KITTREDGE and HEARN, JJ., concur.