THE STATE OF SOUTH CAROLINA 

In The Supreme Court 

The State, Respondent, 

v. 

Stephanie Irene Greene, Appellant. 

Appellate Case No. 2014-000764 

Appeal from Spartanburg County 

J. Derham Cole, Circuit Court Judge 

Opinion No. 27802 

Heard February 15, 2018 – Filed May 23, 2018 

AFFIRMED IN PART, VACATED IN PART 

C. Rauch Wise, of Greenwood, for Appellant. 

Attorney General Alan Wilson and Senior Assistant 

Attorney General David Spencer, both of Columbia, and 

Seventh Judicial Circuit Solicitor Barry J. Barnette, of 

Spartanburg, for Respondent.

JUSTICE KITTREDGE: Appellant Stephanie Irene Greene appeals her 

convictions and sentences for homicide by child abuse, involuntary manslaughter, 

and unlawful conduct toward a child for the death of her infant daughter, Alexis. 

Appellant was sentenced to prison for twenty years for homicide by child abuse, 

five years concurrent for involuntary manslaughter, and five years concurrent for 

unlawful conduct toward a child. We affirm the homicide by child abuse and 
                                                            

unlawful conduct toward a child convictions and sentences, but we vacate the 

involuntary manslaughter conviction and sentence. 

I. 

Appellant was Alexis's mother; she was Alexis's caretaker during her brief life. 

Alexis died from morphine poisoning when she was forty-six days old. Appellant, 

a former nurse, was addicted to many drugs. The State contended that Appellant's 

morphine addiction (as well as dependence on other drugs) caused Alexis's drug 

poisoning through breastfeeding. The jury convicted Appellant on all charges. 

This appeal followed. Appellant has raised four issues: (1) whether the trial court 

erred in denying her motion for a directed verdict on all charges due to the State's 

failure to prove causation; (2) whether the trial court erred in denying her motion 

for a directed verdict on the homicide by child abuse charge due to the State's

failure to prove she acted with extreme indifference; (3) whether the trial court 

erred in failing to instruct the jury that it could only return a guilty verdict on one 

charge; and (4) whether the trial court erred in failing to require the State to open 

fully on the law and the facts of the case. We address each of these issues in turn.

II.

Appellant's first assignment of error is the trial court's failure to grant a directed 

verdict on all charges because the State allegedly failed to produce any evidence 

that the morphine found in Alexis came from Appellant's breast milk. Appellant 

ignores the "synergistic effect" of the morphine poisoning when considered along 

with Appellant's abuse of other drugs. We have carefully reviewed the evidence 

and, when viewed in a light most favorable to the State as our standard of review 

mandates, we find sufficient evidence to present all charges to the jury. State v. 

Bennett, 415 S.C. 232, 235, 781 S.E.2d 352, 353 (2016) (noting that when 

reviewing the denial of a directed verdict the Court must not weigh the evidence 

but must view it in the light most favorable to the State, for the Court is concerned 

only with the existence or nonexistence of evidence) (citations omitted). 

The State's causation theory was Appellant consumed excessive amounts of central 

nervous system depressants, principally morphine,1

 while breastfeeding Alexis and 

these drugs passed through Appellant's breast milk, resulting in Alexis's death.

1

 While the State focused mainly on Alexis's morphine poisoning, the other central 

nervous system depressant abused by Appellant was Clonazepam. 
The evidence at trial revealed that Appellant continuously took morphine—MS 

Contin—and other drugs while pregnant with Alexis and while breastfeeding her. 

Moreover, the evidence showed that Appellant took more morphine than her 

doctors prescribed. In addition, Appellant exclusively breastfed Alexis until 

approximately one week before her death. Appellant told investigators that she 

began supplementing with formula due to her new blood pressure medication; 

however, Appellant also told investigators that she breastfed Alexis extensively 

during the two nights immediately preceding Alexis's death. Thus, sufficient 

evidence was shown that Appellant took many drugs, including morphine, and 

breastfed Alexis. 

In addition, the evidence presented at trial was sufficient to show that the morphine 

and Clonazepam found in Alexis came from Appellant's breast milk. Appellant 

contends there is no evidence to support a finding that Alexis's drug poisoning was 

the result of ingesting morphine through Appellant's breast milk. We disagree, for 

we find the evidence, when considered in its entirety, provides a substantial basis 

from which a reasonable juror could conclude Appellant's breast milk was the 

source of the morphine that killed Alexis. The record includes extensive scientific 

evidence on morphine and the synergistic effect when combined with other central 

nervous system depressants. This evidence included the varying rates of 

metabolism in adults, the absence of metabolism in infants, the transferability of 

morphine from a mother to her baby through breast milk, and the risks of infants 

ingesting morphine (and other drugs) from their mothers' breast milk. 

Dr. David H. Eagerton, an assistant professor of pharmacology and founding 

faculty member at the Presbyterian College School of Pharmacy and the former 

chief toxicologist at the South Carolina Law Enforcement Division, provided 

considerable testimony. Part of that evidence included the warning accompanying 

MS Contin, which provides that morphine "passes into the breast milk": 

Dr. Eagerton: "Before taking MS Contin tell your healthcare 

provider if you have a history of it." It gives several histories. 

And then in bold again it says, "Tell your healthcare provider if 

you are pregnant or planning to become pregnant. MS Contin 

may harm your unborn baby. If you're breastfeeding MS Contin 

passes into the breast milk and may harm your baby." 

(emphasis added). 
Much of the scientific evidence addressed an infant's inability to absorb and 

process a drug like morphine: 

The State: And obviously the child died. Obviously, it is consistent 

with that. Through the breastfeeding and everything a child—can 

it metabolize drugs like an adult does? 

Dr. Eagerton: No, they don't. 

The State: If you would, tell the jury about that, especially a sixweek-[]old. 

Dr. Eagerton: Okay. Typically, whenever—just to kind of back up a 

little bit how—you have to understand what drugs do in your 

body. 

Once—once you take them they don't stay there forever. They go

through a cycle. And in pharmacology we use the acronym

ADME absorption. You have to get the drug into your system. 

So how do you get it in there? There's—there's lots of different 

ways. You can—most things we're talking about now is you think

of it orally. But you can give it, you know, as a shot either just 

under your skin, in your muscle. You can give it [in an] IV 

directly in your veins. You can absorb some drugs through the

skin, different things like that. So you have different routes of 

administration depending on what you're trying to do and what the 

drug is. 

Once you absorb it it's going to distribute throughout your body 

based on its chemical and physical properties, that is whether it 

likes water or whether it likes fat, or it distributes into one of those 

two areas in the body primarily. 

Certain tissues may pick up drugs preferentially, things like that. 

So it's going to distribute throughout your body.

Then the next step is metabolism, which is more correctly termed 

biotransformation. Basically, your liver is responsible for that, 

and it has enzymes that develop over time that basically take these 

foreign compounds that you're taking and make it usually more 
 

 

water [soluble], and the idea is to make it either less toxic or more 

readily excreted. But the idea i[s] to make it more readily—more 

water [soluble] typically so that it could be more readily excreted 

from your body. And that's the last stage[] of elimination. And 

it's eliminated—it's eliminated—most drugs are going to be once

they're—especially once they've been metabolized and made more 

water [soluble] they're going to be eliminated throughout the 

water in your body—urine, feces, sweat, saliva, tears, things like 

that is how it's going to be eliminated primarily. There are other 

ways too. 

The State: Does a six-week-[]old child metabolize at all? 

Dr. Eagerton: No, not typically because it take[s] time[] for your 

liver to develop. It takes time for these—the genes that code for 

these enzymes to turn on and be expressed. And you don't—even 

a child doesn't metabolize things the same as an adult. 

Usually you don't—whenever you go through puberty is whenever 

most of the things that are going to turn on for an adult is going to

turn on. 

And, in fact, it even goes the other way. As you get old, become 

aged, some of these genes can become nonfunctional. Some—you 

may not have the same metabolic capacity. 

Your kidneys may not work as well, things like that. So you have 

to take into consideration age certainly whenever you're looking at 

the effects of drugs and how long they're going to stay in your

body. 

The State: Obviously, the baby Alexis showed signs of this before 

the death. 

Dr. Eagerton: Right. The—the lethargy, maybe trouble breathing. 

I—I don't know how to interpret that exactly, but there [were] 

some—there were some symptoms that were conveyed that were 

consistent with morphine toxicity. 
                                                            

The State: And basically if she was continuously breastfeeding and 

things like that could she reach a level, especially if she didn't 

metabolize it nearly as fast as the mother, for example, could it 

reach the levels of toxicology—toxicity of the level [sic]? 

Dr. Eagerton: Yes. And that's one of the things that if you can't 

metabolize it, then the drug may build up in your body and you 

become—you have a toxic dose whenever you wouldn't normally 

have a tox[ic] dose. 

Dr. Eagerton's testimony further included the warning on morphine from

LactMed2

: 

Dr. Eagerton: "Epidural morphine given to mothers for post[-]

cesarean section analgesia results in trivial amounts of morphine 

in their colostrum and milk. Intravenous or oral doses of maternal 

morphine in the immediate postpartum period result in higher 

milk levels than with epidural morphine. Labor pain medication

may delay the onset of lactation. Maternal use of oral narcotics 

during breastfeeding can cause infant drowsiness, central nervous 

system depression and even death."

(emphasis added). 

Dr. Eagerton: "[A]t least some of [the morphine] I believe within a 

reasonable degree of scientific and medical certainty had to come 

through the breast milk." 

Accepting this evidence as true—as we must under the standard of review—one 

may reasonably deduce that morphine ingested through breastfeeding "can cause . . 

. death." The evidence, scientific and otherwise, further allows a reasonable juror 

to conclude that Appellant's breast milk was the source of the morphine found in 

Alexis's body. Thus, the testimony of Dr. Eagerton provides evidence that, if 

believed, is sufficient to survive Appellant's directed verdict motion. The State 

presented additional evidence. 

2

 LactMed is a database that provides information and warnings on drugs to which 

breastfeeding mothers may be exposed. It is part of TOXNET, a database operated 

by the National Institute of Health. 
                                                            

 

Dr. John D. Wren, a pathologist, performed the autopsy on Alexis. Dr. Wren is an 

experienced pathologist, having performed more than four thousand autopsies. 

Early in Dr. Wren's testimony, the State established that Alexis's body had no 

needle marks. Dr. Wren stated that "the only way this child could have gotten that

much [morphine] would be orally, because I saw no injection sites. . . . The route 

of administration had to have been orally." And as Dr. Wren explained, the level 

of morphine in Alexis was lethal: 

Dr. Wren: Then you come to morphine. The level was .52 mg per 

liter, therapeutic level was .10 to .30 mg per liter. And from my 

references therapeutics [sic] .001 to .200. Toxic is .3 to 2.5. And 

lethal is .2 to 7.2. 

Now, you'll notice that some of these overlap. It really depends 

on how the—how accustomed the body is to that drug.3

3

 This is consistent with Dr. Eagerton's testimony that the line dividing toxic and 

lethal levels is not an exact demarcation but rather falls within "a range." 

Thus, the dissent's misconceptions are twofold. First, the dissent fails to appreciate 

that the ranges for toxic and lethal levels of morphine are overlapping and that 

Alexis's level fell within the overlapping area. According to the expert testimony 

in this case, the level of morphine found in Alexis (.52 mg) could have been 

classified in either the toxic level (.3 to 2.5 mg) or lethal level (.2 to 7.2 mg); it is 

simply lethal because it caused her death. Therefore, the dissent's attempt to draw 

an artificial distinction that there was only evidence showing enough morphine 

could pass through the breast milk to be "toxic" but not "lethal" is unavailing. 

Second, the dissent fails to recognize the expert testimony that a baby is unable to 

metabolize this type of drug and chronic exposure can lead to a higher level of 

morphine building up within the body, which can logically result in a lethal level 

of morphine. It was not necessary to show Alexis received a lethal level of 

morphine from one dose of breast milk in order to prove the State's causation 

theory: "the child died as a result of consumption of a controlled substance through 

the mother's breast milk." The State provided evidence that Appellant was taking 

morphine and breastfeeding Alexis continuously, morphine can pass from a mother 

to a baby through breast milk, the level of morphine can build up in a baby due to 

the inability to process it, and Alexis died from a lethal level of morphine. 

Contrary to the dissent's assertion, nothing more was required for the jury to make 

a logical deduction. 
 

. . . 

And then in pieds [sic]—I put this in because I had found this 

later—that the levels that produce surgical analgesia in pediatrics 

is .046 to .083, which is 46 to 83. Once again, the level reported 

[in Alexis] is 520. And then of course there's a caveat there.

Lethal levels may be higher in individuals under chronic opioid

treatment. 

If you have a person that's under chronic opioid treatment they're 

taking in a lot—a lot often and they're—over a long period of time 

they adjust to the—their body physiology adjusts to that, and they 

can sustain higher levels without it having an effect on them. 

So you have to take into account where the person has a history of 

that—and of course nobody that comes to the morgue is going to 

tell you they're taking morphine, and sometimes the family don't 

tell you either. So we have to take it if they don't have a 

prescription that they're getting it illegal[ly] or they're taking 

something else. 

So based on all of that all of these drugs essentially lead to 

respiratory depression. And so I said based on the history and 

autopsy findings—and I should have put in including toxicology 

results—it was my opinion that this child died as a result of 

respiratory insufficiency secondary to synergistic drug 

intoxication. I could just as easily have said morphine 

intoxication, but lawyers like to split hairs, and so I included them 

all. 

(emphasis added). 

Dr. Wren's testimony continued: 

The State: And, Doctor, let me ask you this. Obviously, being a 

young child, six-and-a-half weeks, her metab—the ability to 

metabolize drugs, is it much less than an adult? 

Dr. Wren: That's—that's correct. It builds up. 
 

 

 

The State: So it will build up over a period of time if it—if it keeps 

getting the drugs.

Dr. Wren: Yeah. If they can't metabolize it'd have to go somewhere. 

And there's something called intrahepatic circulation. If it's

excreted into the bile or whatever, it gets into the GI tract, and it's 

reabsorbed and goes back in[,] it just recirculates. It's just not 

eliminated unless she's—has affluent diarrhea or—or urinating all 

of the time. 

The State: So, and the—the mother was taking morphine in this 

situation and breastfeeding. Obviously, the baby was getting 

morphine though the—taking MS Contin actually. 

Dr. Wren: At least some, yeah.

The State: Yeah. From there. So the baby would get the morphine 

from the mother.

Dr. Wren: That's correct. 

The State: And could then metabolize it as fast as it, you know—in a 

fast way or was constantly getting it from the breast milk, could it 

build up in that body? 

Dr. Wren: That's right. I did a couple of calculations. I'm not as 

good in my head as I used to be, but I think I might be correct or 

at least close. I have one reference here if I can find it. 

The State: Yes, sir. Take your time. 

Dr. Wren: It's from toxnet.

The State: Yes, sir. 

Dr. Wren: It says—this is a caveat. "Newborn infants tend to be 

particularly sensitive to the effects of even small doses of 

analgesics. Once the mother's milk come in—comes in it's best to 

provide pain control with a nonnarcotic analgesic and limit 

maternal intake of morphine to a few days at a low dosage with 
close infant monitoring. And then if the baby shows signs of 

increased sleepiness more than usual, difficulty breastfeeding,

breathing difficulties, a physician should be contacted 

immediately." 

It goes further to say there's a study here of one mother who was 

21 days postpartum, which is about half this one, [who] received 

oral morphine, 10 mg every six hours, and for four doses. That's

40 mg. And then five [milligrams] every six hours for two doses. 

So that's actually 50 mg total she got in a 24-hour period. 

She had a peak morphine of a hundred micrograms per liter after

one hour, and four and a half hours after her first milligram, 5 mg

dose. 

Using the peak level from this study an exclusively best—

breastfed infant would receive 15 micrograms per [] daily[,] equal

to about three percent of the maternal daily dose assuming a daily 

maternal oral morphine dose of 40 mg. 

Okay. So I took 40 mg and took three percent of that. That 

comes out to be 1.2 mg. 

The baby weighed 3,345 grams, which is 3.345 mg [sic]. And I 

was doing this in my head, so I got—took three times 1.2. 

That's—well, actually I didn't even do that. I took 1.2 mg and

divided that by the volume of blood in a child that age. The rule

of thumb is 75 to 80 milliliters per kilogram. 

Okay. This child weighed, again, 3.345 kilograms, so 3.345 times 

75 or 80 comes out to be about .285 liters. 285 milliliters is all the 

blood that child had in her body, and that has to go into the tissues 

everywhere in the body. So the—the blood—you'll have to take 

my word for it. It is hard to get 10 ccs of blood out of a child, an 

infant. It is really hard. The younger they are, the harder it is. 

And we—a lot of places that do blood toxicology, they want 21 

milliliters. They want three 7-milliliter tubes of blood. We can't 

get that. So we have to send them small amounts. 
But, at any rate, if you take the 1.2 mg and divide it by two—.285 

you get about 4 mg per liter, which is 4,000 micrograms per liter. 

So that's—that's a good bit of—when we're talking about 

micrograms and milligrams, that's a good bit. 

Then I found another place in the same article where it says that 

an exclusively breastfed infant receives—tells what it receives. 

But it also says the peak morphine in—they did seven women 

who had preterm deliveries, and they—they gave them 60 mg of 

morphine in 24 hours cumulative. And they found out that the 

peak milk morphine varied, was 48 on the average mic—

micrograms per liter. And the peak six glucuronide metabolite 

was 1,084 mg or micrograms per liter, which is also secreted in

breast milk. 

And it's thought that that—that active drug, the six—the six 

isomer is actually secreted in the milk too. And in the infant's

digestive system it's converted back to morphine, and that is 

another source of morphine.

Dr. Wren also re-read portions of the LactMed warning on morphine:

Dr. Wren: "Maternal use of oral narcotics during breastfeeding can 

cause infant drowsiness, central nervous system depression[,] and 

even death. Newborn instant—infants seem to be particularly 

sensitive to the effects of even small do[s]es of narcotic analgesics 

and limited maternal intake of morphine to a few—to a few days 

at a low dosage with close infant monitoring is best to provide

pain control and limited maternal intake to a few days at low 

dosage." 

The defense stressed the lack of studies and peer-reviewed articles linking drugrelated infant deaths to breastfeeding. Dr. Wren provided a common sense 

explanation:

Dr. Wren: I don't—I don't think anybody in here would subject [a] 

child to an ongoing test like that. 

In sum, the State presented evidence that Appellant continuously ingested 

substantial doses of morphine and other drugs while pregnant and breastfeeding; 
 

                                                            

that morphine and other drugs can and do pass from a nursing mother to a 

breastfeeding child through breast milk; that infants cannot metabolize morphine 

and other drugs effectively; that Alexis exhibited symptoms consistent with 

morphine toxicity; and that Alexis's death was caused by respiratory failure 

secondary to synergistic drug intoxication.

As noted, we are mandated when reviewing the denial of a directed verdict motion 

to view the evidence in a light most favorable to the State. When examined 

through the proper lens, the State presented ample evidence that would permit the 

jury to logically and reasonably conclude that Appellant's morphine consumption 

while breastfeeding "place[d] the child at unreasonable risk of harm," S.C. Code 

Ann. § 63-5-70(A)(1) (2010), and constituted "an act or omission by any person 

which causes harm to the child's physical health or welfare" resulting in the child's

death, S.C. Code Ann. § 16-3-85 (2015). See State v. McKnight, 352 S.C. 635, 

643–44, 576 S.E.2d 168, 172 (2003) (affirming the denial of a directed verdict 

motion in a homicide by child abuse action despite an expert's inability to identify 

"the exact mechanism" through which the cocaine affected the infant's body).4

4 We, of course, agree with the dissent that the "State must prove every element of 

the crime charged." We are convinced the State has done so in this case, sufficient 

to survive a directed verdict motion. With respect for the dissent, we disagree with 

its reliance on the law concerning a jury's consideration of circumstantial evidence. 

It is here that the dissent introduces its view that "additional reasoning" is needed. 

While the dissent's desired framework may apply to a jury's consideration of 

circumstantial evidence, it has no place at the directed verdict stage. The reliance 

on McCormick on Evidence section 185 is misplaced, for this section "clarifies the 

meaning of relevance[,]" not a trial court's consideration of circumstantial evidence 

at the directed verdict stage. Similarly, the case of State v. Logan, cited by the 

dissent, addressed a challenge to a circumstantial evidence jury charge. 405 S.C. 

83, 747 S.E.2d 444 (2013). Logan does not remotely touch upon a trial court's 

consideration of circumstantial evidence at the directed verdict stage. The dissent 

conflates the standards that apply to a trial court's consideration of circumstantial 

evidence at a directed verdict motion and a jury's consideration of circumstantial 

evidence. This conflation of different standards was addressed in Bennett, as the 

Court concluded that "the lens through which a court considers circumstantial 

evidence when ruling on a directed verdict motion is distinct from the analysis 

performed by the jury." State v. Bennett, 415 S.C. 232, 236, 781 S.E.2d 352, 354 

(2016). Paradoxically, the dissent does acknowledge that "the State presented 

substantial circumstantial evidence to support its theory that Alexis died as a result 
                                                            

III. 

Appellant argues that, even if causation was shown, the trial court erred in failing 

to direct a verdict on the homicide by child abuse charge because the State did not 

prove she acted with extreme indifference. 

"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 human 

life." S.C. Code Ann. § 16-3-85(A)(1) (2015). For purposes of this statute, we 

have previously 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) (quoting State v. Jarrell, 350 S.C. 90, 98, 

564 S.E.2d 362, 367 (Ct. App. 2002)). 

In this case, sufficient evidence was presented to show that Appellant was addicted 

to prescription drugs—including morphine—and Appellant knew she should use 

caution in taking morphine while pregnant or breastfeeding but elected to take it in 

excessive amounts without a doctor's supervision ensuring Alexis's safety.5

The testimony at trial revealed that Appellant began receiving prescription drugs 

due to injuries sustained in a car accident in 1998. In January 2006, Appellant was 

pregnant and began seeing Dr. Kooistra to treat a seizure disorder. Notably, Dr. 

Kooistra did not prescribe any pain medications for Appellant while she was 

pregnant and tried "to avoid prescribing medications of any sort during 

pregnancy." In November 2007, Appellant began seeing Dr. Kovacs and receiving 

of ingesting morphine from [Appellant's] breast milk." The dissent circumvents 

this undeniable finding by parsing selected portions of the testimony favorable to 

Appellant and recasting that evidence as the "proper lens." The State must present 

evidence from which a jury can fairly and logically deduce that the defendant 

committed the offense charged, and at the directed verdict stage, the evidence must 

be viewed in a light most favorable to the State, not the defendant. 

5

 In addition, the toxicology report revealed that Alexis tested positive for 

Klonopin (Clonazepam), for which Appellant had a prescription. The pill bottle 

for this drug, found in Appellant's room on the morning of Alexis's death, 

specifically instructed, "Do not use if pregnant or suspect you are pregnant or are 

breastfeeding."
prescriptions for various narcotics. Unbeknownst to Dr. Kovacs, Appellant 

continued to receive other pain prescriptions from Dr. Kooistra. In March 2010, 

when Appellant realized that she was pregnant with Alexis, she did not notify 

either prescribing doctor. In April 2010, Appellant requested to switch her 

prescription patch—Duragesic—to MS Contin pills, which Dr. Kovacs prescribed 

as she was unaware that Appellant was pregnant. Dr. Kovacs testified that she 

would not have prescribed morphine to Appellant had she known of the pregnancy. 

In addition, Dr. Bridges, Appellant's O.B.G.Y.N. physician, testified that she and 

her colleagues were unaware that Appellant was taking morphine prior to the birth, 

during delivery, and postpartum. 

Throughout her pregnancy, Appellant failed to disclose that she was pregnant to 

the doctors prescribing morphine to her and failed to disclose that she was taking 

morphine to her prenatal doctors. In addition, she routinely omitted the fact that 

she was taking morphine from the paperwork that she submitted to her doctors. 

The testimony at trial was that, at the very least, the drug should only be taken 

under a doctor's supervision so the baby's health could be monitored. 

Nevertheless, Appellant failed to disclose this important information to any of her 

doctors. 

The morphine addiction and concealment continued after Alexis's birth. In 

October 2010, Appellant told Dr. Kovacs that she had missed her appointments 

since receiving the MS Contin prescription in April because she had been so 

depressed that she could not leave the house—her pregnancy and Alexis's recent 

birth were never mentioned. One of the State's experts, Dr. Eagerton, testified that 

the use of morphine during lactation is not recommended. Moreover, in response 

to whether "the doctors definitely need to know about this," Dr. Eagerton stated, 

"Absolutely." Again, Dr. Kovacs testified that she would not have given Appellant 

the medication had she known about the pregnancy and Dr. Bridges testified that 

no mention of morphine was made during Appellant's postpartum visit. Due to her 

nondisclosure, the record reveals that Appellant received an additional prescription 

for MS Contin and continued to breastfeed Alexis. 

The morning of Alexis's death, Appellant omitted morphine from the list of her 

current prescriptions that she provided to the investigators, despite their specific 

inquiry upon finding the pill bottle in her bedroom. At that time, Appellant only 

admitted to taking morphine while pregnant with Alexis. When initially 

questioned by law enforcement, Appellant lied about her morphine addiction. It 

was only after the autopsy and toxicology reports were finalized and Appellant was 

interviewed again by Investigator Gary that she told the truth and acknowledged 
 

                                                            

her addiction. Specifically, Investigator Gary testified that Appellant "finally 

admitted she just didn't tell [the doctors] because she was afraid they'd take off 

[sic] her off the morphine." 

Thus, viewing the evidence in the light most favorable to the State, the jury could 

conclude Appellant acted with extreme indifference in taking the morphine and 

breastfeeding her child, resulting in Alexis's death. 

IV. 

Appellant argues alternatively that if the homicide by child abuse conviction 

stands, the multiple convictions and sentences for the remaining offenses cannot 

stand and should be vacated. Concerning the involuntary manslaughter conviction 

and sentence, we agree. As explained below, we find nothing in South Carolina's 

homicide statutes or law that reflects a legislative intent to deviate from the 

overwhelmingly prevailing view that the homicide of one person by one defendant 

is limited to one homicide punishment—one homicide, one homicide punishment. 

Concerning the unlawful conduct toward a child charge, we reject Appellant's

challenge and affirm, for that entirely separate offense was complete prior to 

Alexis's death.

A. 

Multiple offenses, including multiple homicide offenses, may be prosecuted in a 

single trial, but principles inherent in double jeopardy and due process preclude 

multiple punishments for the same offense.6 See, e.g., State v. Cavers, 236 S.C. 

305, 311–12, 114 S.E.2d 401, 404 (1960) ("It was within the province of the jury 

to find whether appellant's conduct was negligent or reckless, or neither; if 

negligent, it would have supported a verdict of guilty of manslaughter, the court 

having eliminated murder and voluntary manslaughter; if reckless, it sustains the 

verdict of guilty of reckless homicide, and that finding by the jury is implicit in the 

verdict. The jury were instructed that they could not find appellant guilty on both 

6

 U.S. Const. amend. V ("No person shall . . . be subject for the same offence to be 

twice put in jeopardy of life or limb . . . ."); U.S. Const. amend. XIV ("[N]or shall 

any State deprive any person of life, liberty, or property, without due process of 

law"); S.C. Const. art. I, § 3 ("[N]or shall any person be deprived of life, liberty, or 

property without due process of law . . . ."); S.C. Const. art. I, § 12 ("No person 

shall be subject for the same offense to be twice put in jeopardy of life or liberty 

. . . .").
 

counts. To sustain this point of appellant would require the court, instead of the 

jury, to determine whether his conduct was negligent or reckless, if either, which, 

under the evidence in this case, would be an invasion by the court of the province 

of the jury. The State cannot be required to elect between counts in an indictment 

when they charge offenses of the same character and refer to the same transaction, 

whether or not one charges a common law offense and another a statutory offense." 

(citations omitted)); see also Ball v. United States, 470 U.S. 856, 859, 861 (1985) 

("It is clear that a convicted felon may be prosecuted simultaneously for violations 

of §§ 922(h) and 1202(a) involving the same firearm. This Court has long 

acknowledged the Government's broad discretion to conduct criminal prosecutions, 

including its power to select the charges to be brought in a particular case. . . . To 

say that a convicted felon may be prosecuted simultaneously for violation of §§ 

922(h) and 1202(a), however, is not to say that he may be convicted and punished 

for two offenses. Congress can be read as allowing charges under two different 

statutes with conviction and sentence confined to one. Indeed, '[a]ll guides to 

legislative intent,' United States v. Woodward, 469 U.S. 105, 109, 105 S. Ct. 611-

613, 83 L.Ed.2d 518 (1985), show that Congress intended a felon in [the 

defendant's] position to be convicted and punished for only one of the two 

offenses." (citations omitted)). 

While the South Carolina legislature has manifestly authorized multiple homicide 

charges for a single homicide, we find no expression of legislative intent 

authorizing multiple homicide punishments for a single homicide committed by a 

single defendant. As a result, absent legislative intent to the contrary, we follow 

the prevailing rule—one homicide is limited to one homicide punishment per 

defendant. See Ervin v. State, 991 S.W.2d 804 (Tex. Crim. App. 1999) (collecting 

cases from various jurisdictions supporting that one person causing one death 

should result in one murder or homicide conviction); see also People v. Lowe, 660 

P.2d 1261, 1271 n.11 (Colo. 1983), abrogated on other grounds by Callis v. 

People, 692 P.2d 1045 (Colo. 1984) (collecting "[c]ases holding that a person may 

be convicted of only one homicide offense for the killing of one person"). "It 

would be a strange system of justice that would permit the defendant to be 

sentenced to two . . . sentences for the killing of one person." People v. Hickam, 

684 P.2d 228, 231 (Colo. 1984) (quoting Lowe, 660 P.2d at 1270–71). 

"[C]onviction of both charges, arising from the slaying of the same person amounts 

to piling punishment upon punishment. Fundamental fairness precludes such a 

practice." Loscomb v. State, 45 Md. App. 598, 613, 416 A.2d 1276, 1285 (1980).
B. 

Homicide by Child Abuse and Involuntary Manslaughter 

Appellant was indicted on both homicide by child abuse and involuntary 

manslaughter charges as a result of Alexis's death. 

The homicide by child abuse statute reflects the legislature's intent to define and 

target a specific societal problem—child abuse resulting in death, which further 

explains why multiple homicide offenses may be prosecuted in a single trial. The

statute defines in detail the elements of homicide by child abuse: "caus[ing] the 

death of a child under the age of eleven while committing child abuse or neglect"

where "the death occurs under circumstances manifesting an extreme indifference 

to human life." S.C. Code Ann. § 16-3-85(A)(1) (2015). Conversely, the now 

codified common law offense of involuntary manslaughter is defined in broad 

terms, covering unintentional killings from both unlawful conduct that does not 

naturally tend to place another in danger of death or serious bodily harm and 

lawful conduct that recklessly places another in danger of harm. See, e.g., State v. 

Sams, 410 S.C. 303, 309, 764 S.E.2d 511, 514 (2014) ("Involuntary manslaughter 

is defined as the unintentional killing of another without malice while engaged in 

either (1) the commission of some unlawful act not amounting to a felony and not 

naturally tending to cause death or great bodily harm, or (2) the doing of a lawful 

act with a reckless disregard for the safety of others."); S.C. Code Ann. § 16-3-60 

(2015). 

In McKnight v. State, 378 S.C. 33, 51–52, 661 S.E.2d 354, 363 (2008), we applied 

the Blockburger "same-elements" test and held that involuntary manslaughter is

not a lesser included offense of homicide by child abuse. See Blockburger v. 

United States, 284 U.S. 299 (1932). In McKnight, we stated a defendant charged 

with homicide by child abuse was not entitled to a jury charge on involuntary 

manslaughter because "the elements of involuntary manslaughter will never be 

included in the greater offense of homicide by child abuse." Id. at 52, 661 S.E.2d 

at 363. The lawful-conduct-in-a-criminally-negligent-manner prong could not 

apply because child abuse is not lawful. Id. at 51–52, 661 S.E.2d at 363. Further, 

the unlawful-conduct version of involuntary manslaughter could not apply because 

"child abuse could never be defined as an unlawful activity not tending to cause 

death or great bodily harm." Id. at 52, 661 S.E.2d at 363 (internal quotation marks 

omitted). 
                                                            

This issue is presented to us in an unusual posture. While both homicide charges 

were properly presented to the jury, the jury was not instructed in accordance with 

Appellant's proper request—Appellant could not be found guilty of both homicide 

by child abuse and involuntary manslaughter. In this situation, the jury should 

have been instructed that, depending on their view of the evidence, they could find 

Appellant not guilty of both homicide offenses, guilty of homicide by child abuse, 

or guilty of involuntary manslaughter—but may not find Appellant guilty of both 

homicide charges. The State erroneously contends both homicide convictions and 

punishments should stand. 

The flaw in the State's argument on appeal is best understood by reviewing its 

theory of criminal liability as the trial unfolded. After indicting Appellant on 

varying homicide charges (which as a matter of law could not be premised on one 

theory of liability), the State ultimately elected to pursue a single theory of 

liability—Alexis's death from morphine poisoning was caused by the morphine in 

Appellant's breast milk—and the trial court instructed the jury, "That applies to 

each of the separate charges." The jury could have accepted Appellant's view of 

the evidence and found Appellant not guilty of homicide by child abuse. 

Specifically, the jury could have concluded the State failed to prove Appellant 

"committed a deliberate or intentional act under circumstances revealing an 

extreme indifference to human life."7 In that scenario, the jury may have 

nevertheless found Appellant guilty of involuntary manslaughter.

8

 But the jury's

guilty verdict on Count One in the indictment—homicide by child abuse—

precluded a guilty verdict on the charged offense of involuntary manslaughter in 

7

 This language is from the trial court's jury charge on homicide by child abuse. 

8

 The trial court's charge on involuntary manslaughter included the instruction, 

"Unintentional means that the defendant did not intend to kill the child nor did the 

defendant intend to inflict serious bodily harm or injury to the deceased child." A 

finding that Appellant's conduct satisfied this standard would be consistent with 

Appellant's argument that it is safe for breastfeeding mothers to take morphine. 

However, it would be inconsistent with a finding that Appellant "committed a 

deliberate or intentional act under circumstances revealing an extreme indifference 

to human life." 
 

                                                            

Count Two. Thus, under these circumstances, a conviction and sentence for each 

homicide charge cannot stand.9

The situation here should be contrasted with a homicide that would properly fall 

within multiple homicide statutes. In that situation, a jury may properly return a 

guilty verdict on more than one homicide charge. In State v. Easler, 327 S.C. 121, 

489 S.E.2d 617 (1997), this Court affirmed convictions and sentences for two 

homicide charges—felony driving under the influence causing death and reckless 

homicide—arising out of a motor vehicle accident that killed one person and 

seriously injured another. The evidence and theory of criminal liability satisfied 

the elements of both homicide statutes. Easler, however, went further and 

affirmed multiple punishments for the single homicide committed by one 

defendant, and this was error. We overrule Easler to the extent it authorizes 

multiple homicide punishments involving only one homicide.

It is because of this rule—one homicide, one homicide punishment—that even 

were we to accept the State's argument that the involuntary manslaughter guilty 

verdict should stand, an additional sentence for Alexis's death could not stand. The 

fact that Appellant received a concurrent five-year sentence for involuntary 

manslaughter does not change the result. The concurrent sentence likely reflects 

the learned trial judge's inherent understanding that a consecutive sentence could 

not be imposed. Yet the conviction itself is considered a punishment and that, too, 

must be vacated. Ball v. United States, 470 U.S. 856, 864–65 (1985) ("The second 

conviction, whose concomitant sentence is served concurrently, does not evaporate 

simply because of the concurrence of the sentence. The separate conviction, apart 

from the concurrent sentence, has potential adverse collateral consequences that 

may not be ignored. . . . Thus, the second conviction, even if it results in no greater 

sentence, is an impermissible punishment."). 

V.

Appellant's final challenge is the claim of error in the trial court's refusal to 

"require the State to open fully on the law and the facts of the case [in closing 

argument] and replying only to new arguments of defense counsel." We affirm 

pursuant to Rule 220, SCACR, and the following authority: State v. Beaty, Op. 

9

 This is the very argument made by defense counsel to the trial court, as he 

argued, "it's very inconsistent for the jury to have found that, one, [Appellant] was 

simply negligent, or, two, grossly negligent, or, three, extreme indifference, 

because there are different standards requiring different—different things."
No. 27693 (S.C. Sup. Ct. filed Apr. 25, 2018) (Shearouse 2018 Adv. Sh. No. 17 at

57). 

VI. 

In sum, the homicide by child abuse and unlawful conduct toward a child 

convictions and sentences are affirmed; the involuntary manslaughter conviction 

and sentence is vacated; and we find no error in the order and manner of closing 

arguments. 

AFFIRMED IN PART, VACATED IN PART. 

BEATTY, C.J., HEARN and JAMES, JJ., concur. FEW, J., concurring in 

part and dissenting in part in a separate opinion.

 
                                                            

 

JUSTICE FEW: I concur in sections III, IV, and V of the majority opinion. I 

also concur with the conclusion the majority reaches in section II that Greene's 

conviction for unlawful conduct toward a child must be affirmed. I disagree, 

however, that we may affirm Greene's homicide convictions. On this point, for the 

reasons I will explain, I dissent. 

I. 

The State argues it is not required to prove scientific facts with expert testimony as 

we require civil plaintiffs to do. The State is mistaken. The State must prove 

every element of the crime charged, State v. Attardo, 263 S.C. 546, 550, 211 

S.E.2d 868, 870 (1975), and when establishing any one element requires the State 

to prove a fact that is beyond the common understanding of lay people, the State 

must prove that fact by expert testimony, see Graves v. CAS Medical Systems, Inc., 

401 S.C. 63, 80, 735 S.E.2d 650, 659 (2012) ("In some design defect cases, expert 

testimony is required . . . because the claims are too complex to be within the ken 

of the ordinary lay juror."); Watson v. Ford Motor Co., 389 S.C. 434, 445, 699 

S.E.2d 169, 175 (2010) (stating "expert evidence is required where a factual issue 

must be resolved with scientific, technical, or any other specialized knowledge"); 

see also Green v. Lilliewood, 272 S.C. 186, 192, 249 S.E.2d 910, 913 (1978) 

(holding that unless the subject is a matter of common knowledge, expert

testimony is required to establish that a defendant failed to conform to a required 

standard of care in a medical malpractice case); Kemmerlin v. Wingate, 274 S.C. 

62, 65, 261 S.E.2d 50, 51 (1979) (holding in a public accounting malpractice 

action: "Since this is an area beyond the realm of ordinary lay knowledge, expert 

testimony usually will be necessary to establish both the standard of care and the 

defendant's departure therefrom."). 

II. 

The State's theory of how Greene caused Alexis's death was narrow:10 Greene took 

morphine and other medications while breastfeeding, the morphine passed through 

10 In all prosecutions for homicide, the State must prove the defendant caused the 

death of the victim. See State v. McIver, 238 S.C. 401, 406, 120 S.E.2d 393, 395 

(1961) ("In a homicide case, the corpus delicti consists of two elements—the death 

of the person killed, and its causation by the criminal act of another."). McIver was 

a manslaughter case, 238 S.C. at 403, 120 S.E.2d at 393, and the causation element 
                                                            

Greene's breast milk, and Alexis died as a result of morphine intoxication.11 The 

trial court charged the jury, 

The State has the burden of proving these crimes, but it 

involves the ingestion of the controlled substance by the 

child through the child's mother's breast milk. That's the 

State's allegation and theory in the case, that the child 

died as a result of consumption of a controlled substance 

through the mother's breast milk. That applies to each of 

the separate charges. 

The State had no difficulty proving Greene was taking morphine while 

breastfeeding, and that Alexis died from morphine intoxication. The issue, 

therefore, is whether the State proved the morphine that killed Alexis came from 

Greene's breast milk. 

A. Circumstantial Evidence of Causation

On this point, as the majority has explained in detail, the State presented 

substantial circumstantial evidence, which we view in the light most favorable to 

the State. State v. Pearson, 415 S.C. 463, 470, 783 S.E.2d 802, 806 (2016). 

The majority has recited the strongest circumstantial evidence in the record that 

supports the State's theory of causation, but to be fair, there is even more than what

the majority has included. In fact, the circumstantial evidence that Alexis died 

from ingesting morphine through Greene's breast milk appears overwhelming, until 

we pose the scientific question of whether it is even possible for enough morphine 

to pass through breast milk to kill a child. 

is specifically included in the statute governing homicide by child abuse, S.C. 

Code Ann. § 16-3-85(A) (2015). 

11 The State began the trial with alternative theories of causation. The first theory 

was that Greene administered morphine directly to Alexis. At the conclusion of all 

evidence, however, the State elected not to proceed on the basis of a direct transfer 

of morphine, and the trial court directed a verdict for Greene on that theory. 
B. Circumstantial Evidence Cases

The use of circumstantial evidence to prove guilt in criminal trials contemplates 

that "even if the circumstances depicted are accepted as true, additional reasoning 

is required to reach the desired conclusion." Kenneth S. Broun et al., McCormick 

on Evidence § 185, at 397 (Hornbook Series, 7th ed. 2014). In State v. Logan, 405 

S.C. 83, 747 S.E.2d 444 (2013), we described the "evaluation of circumstantial 

evidence" and stated it "requires jurors to find that the proponent of the evidence 

has connected collateral facts in order to prove the proposition propounded—a 

process not required when evaluating direct evidence." 405 S.C. at 97, 747 S.E.2d 

at 451; see also 405 S.C. at 97-98, 747 S.E.2d at 451 ("Analysis of circumstantial 

evidence is plainly a more intellectual process."). In every circumstantial evidence 

case in which this Court affirmed the sufficiency of the evidence, the "additional 

reasoning" required to "connect[] collateral facts in order to prove the proposition 

propounded" was such that a lay juror could readily conduct the reasoning and 

make the connection. In those cases, the "intellectual process" through which the 

jury could reasonably infer the guilt of the defendant from the circumstances 

proven by the State involved a chain of inferences that lay jurors were fully 

capable of navigating. 

In Pearson, for example, the State proved the following circumstances: the 

suspects fled the victim's home in the victim's stolen El Camino, and Pearson's 

fingerprint was found in the truck's bed where the victim saw one of the suspects 

sitting; Pearson lied about ever having been to the victim's house when he had 

previously done considerable landscaping work there; and Pearson lied about 

knowing the co-defendant whose DNA was found on the duct tape on the victim's

head. 415 S.C. at 465-69, 473-74, 783 S.E.2d at 803-05, 808. From those 

circumstances, a lay juror could readily conclude through a chain of non-scientific 

inferences that Pearson was one of the people who robbed and beat the victim. We 

found "the evidence could induce a reasonable juror to find Pearson guilty." 415 

S.C. at 474, 783 S.E.2d at 808. 

In State v. Bennett, 415 S.C. 232, 781 S.E.2d 352 (2016), the State proved the 

following circumstances: Bennett's blood was found on the floor directly beneath 

the spot from which a television was stolen from a public building; his fingerprint 

was found on another television the suspects had attempted to steal from the 

"community room" of the building; and though Bennett "was known to frequent" 

the room in which his blood was found, "[t]estimony suggested Bennett would 

have no reason to be in the community room." 415 S.C. at 234-35, 237, 781 

S.E.2d at 353, 354. From those circumstances, a lay juror could readily conclude 
                                                            

through a chain of non-scientific inferences that Bennett committed the burglary, 

malicious injury, and larceny. We found "the evidence could induce a reasonable 

juror to find Bennett guilty." 415 S.C. at 237, 781 S.E.2d at 354. 

In Pearson, Bennett, and every other case in which this Court found the State's 

presentation of purely circumstantial evidence sufficient to survive a motion for 

directed verdict, a jury was fully capable of performing the "additional reasoning 

. . . required to reach the desired conclusion" by using its common knowledge, 

experience, and understanding.12 In each of those cases, therefore, we focused 

only on the State's proof of collateral facts or circumstances—not on the inferences 

to be drawn from those facts or circumstances—and we found the State's proof of 

the circumstances sufficient to support the fact inferred. 

C. The Circumstantial Evidence Standard 

In Bennett, we reiterated that when reviewing the sufficiency of circumstantial 

evidence, "The Court's review is limited to considering the existence or 

nonexistence of evidence, not its weight." 415 S.C. at 235, 781 S.E.2d at 353 

(citing State v. Cherry, 361 S.C. 588, 593, 606 S.E.2d 475, 478-79 (2004)). We 

criticized the court of appeals in Bennett for considering a "plausible alternative 

theory" because doing so is "contrary to our jurisprudence and misapprehends the 

court's role" compared to the role of the jury. 415 S.C. at 236, 781 S.E.2d at 354. 

We held "the trial court . . . must submit the case to the jury if there is 'any 

substantial evidence which reasonably tends to prove the guilt of the accused, or 

from which his guilt may be fairly and logically deduced.'" 415 S.C. at 236-37, 

781 S.E.2d at 354 (quoting State v. Littlejohn, 228 S.C. 324, 329, 89 S.E.2d 924, 

926 (1955)). 

In this case, the State presented substantial circumstantial evidence to support its 

theory that Alexis died as a result of ingesting morphine from Greene's breast milk, 

and abandoned any alternative theory of causation. Therefore, under Bennett and 

the long line of cases upon which it relies, our task is limited to the second step in 

the Bennett/Littlejohn analysis. The question before us under that second step is 

12 See generally Holland v. Georgia Hardwood Lumber Co., 214 S.C. 195, 204, 51 

S.E.2d 744, 749 (1949) (discussing circumstantial evidence in a workers' 

compensation case, and stating, "The facts and circumstances shown should be 

reckoned with in the light of ordinary experience, and such conclusions deduced 

therefrom as common sense dictates."). 
 

whether a reasonable jury could "fairly and logically" conclude from the 

circumstances proven that the State established the causation element under its 

theory. This, in turn, requires us to determine if the chain of inferences the jury 

must follow to reach this conclusion may be completed by the jury using its 

common knowledge, experience, and understanding, or whether expert testimony 

should be required. 

Greene argues the jury could not fairly and logically complete this second step 

because, in the course of its analysis, the jury would necessarily consider whether 

it is even possible that a breastfeeding mother can transmit morphine through her 

breast milk in sufficient concentration to cause the death of a child. Green argues 

the means of answering this question are beyond the common knowledge, 

experience, and understanding of a lay juror. Therefore, Greene argues, expert 

testimony was required to establish the causal connection between morphine in the 

mother's breast milk and Alexis's death. Specifically, Greene argues the State was 

required to present an expert opinion that morphine—by itself or synergistically 

with other drugs—passed through her breast milk to kill Alexis.

I agree with Greene. In reaching this conclusion, I find it particularly important 

that the State's own expert witnesses refused to state the morphine that killed 

Alexis came from Greene's breast milk, or even whether that was possible. The 

reader may repeatedly scour the majority's outstanding recitation of the State's

expert testimony—or the record from which it came—but will not find any 

testimony that comes close to such a statement. In fact, as I will explain, the 

State's two experts openly avoided answering this question. In addition, the 

circumstances proven at trial, considered in the light most favorable to the State, 

include the fact that reliable medical organizations and journals have stated it can 

be "safe" to take morphine while breastfeeding a child. Finally, the record in this 

case does not include even one instance documented in medical literature of a 

lethal level of morphine in a child that resulted from a breastfeeding mother taking 

morphine. 

D. Expert Testimony on Causation

The State presented the testimony of two experts. David H. Eagerton, Ph.D., is an 

assistant professor of pharmacology and founding faculty member at the 

Presbyterian College School of Pharmacy and the former chief toxicologist at the 

South Carolina Law Enforcement Division. His doctoral degree is in 

pharmacology, and he is board certified in forensic toxicology. Dr. Eagerton gave 

an extensive explanation of the numerous drugs found in Alexis's body after her 
death, including what he considered to be a lethal level of morphine, and how the 

combination of those drugs can work synergistically to increase the toxic effects of 

the drugs in the blood. He explained how drugs are absorbed into the body and 

that infants do not metabolize quickly because their liver has not yet developed. At 

one point, Dr. Eagerton testified a six-week old child like Alexis typically does not 

metabolize "at all." 

The State then asked, "If she was continuously breastfeeding . . . could [Alexis]

reach a level, especially if she didn't metabolize it nearly as fast as the mother, 

could it reach the levels of toxicology -- toxicity of the level?" Dr. Eagerton 

answered, "Yes." Dr. Eagerton went on to explain Alexis showed symptoms that 

were "consistent with morphine toxicity." He testified morphine may build up in a 

child's body to become "toxic." But Dr. Eagerton distinguished "toxic" from

"lethal." Toxic means it will make you sick; lethal means it will kill you. There 

was never any dispute that morphine in breast milk could make a child sick. In 

fact, the label on the package states morphine "passes into the breast milk and may

harm your baby." 

On cross-examination, Dr. Eagerton acknowledged several articles in the medical 

literature that list morphine as "safe to take while breastfeeding," and conceded 

"based upon [his] research" he was not aware of any documentation in the medical 

literature "that ever says a mother taking morphine can create a toxic level of 

morphine in the child through breast milk." Counsel showed Dr. Eagerton a 2012 

article from the journal Clinical Toxicology entitled, "Is Maternal Opioid Use 

Hazardous to Breastfed Infants," and the following dialogue took place, 

Q: Look on page six of this journal. And this is a 

peer-reviewed journal, correct? 

A: That's right. 

. . . . 

Q: Look there if you would on this highlighted 

portion . . . [and] read that to us. 

A: "The medical literature describes scant evidence of 

opioid toxicity in breastfed infants." 

Q: Do you have any evidence that's contrary to that? 
                                                            

A: No, sir. . . . 

. . . . 

Q: So there is scant evidence? 

A: That is correct. 

Q: Which is pretty close to none. 

A: Yes, sir. 

. . . . 

Q: So you are in no position to say then that that 

number[13] came through breast milk? 

A: I don't believe I've said one way or the other. 

Nobody's asked me. 

Q: But you don't have any basis for saying that it 

came through breast milk? 

A: Had to get into the baby somehow. 

Q: That's not my question. You have no basis for 

saying that number came into the baby through 

breast milk? 

A: I don't know that I'd say I have no basis. I'd say 

the basis is the mother is taking . . . morphine. She 

is breastfeeding. We know that based on the 

literature we've already talked about that at least 

small amounts certainly do pass through into the 

13 The question refers to the number 0.52 mg/L, the concentration of morphine 

measured in Alexis's blood after her death. Dr. Eagerton testified he considered 

that a lethal level of morphine. 
                                                            

breast milk. So I don't think I have a basis to say 

that it didn't, or at least some of it. 

The strongest testimony Dr. Eagerton gave on the causation question came when 

he read from the LactMed database14 on the TOXNET internet site maintained by 

the National Institutes of Health in its National Library of Medicine. He testified, 

"Maternal use of oral narcotics during breastfeeding can cause infant drowsiness, 

central nervous system depression and even death." However, Dr. Eagerton was 

careful never to say that the morphine that came from Greene's breast milk killed 

Alexis—that it was "lethal." In fact, he was specifically asked, "So, you cannot 

make a conclusion today as to how that morphine got into the baby?" He replied, 

"No, sir. I think I can make a conclusion . . . at least some of it . . . had to come 

through the breast milk." When pressed as to whether morphine could get to a 

specific toxicity level from breastfeeding, however, he stated, "Like I said earlier, I 

can't quantitate how much." 

The State's other expert was John David Wren, M.D., the pathologist who 

performed the autopsy. Dr. Wren testified Alexis had lethal levels of morphine, 

"It's lethal in the brain, it's lethal in the liver, it's lethal in the blood." He explained, 

"it was my opinion that this child died as a result of respiratory insufficiency 

secondary to synergistic drug intoxication. I could just as easily have said 

morphine intoxication." However, Dr. Wren testified, "It's not my opinion that it 

was from milk or anything else. I just know that it was there." On crossexamination, Dr. Wren testified, "I don't know how it got there. It's unquestionably 

there. And you can argue any mechanism you want, but it's there, period." 

E. The "Proper Lens"15

This case is different from Logan, Bennett, and every other circumstantial evidence 

case this Court has decided. The majority's suggestion that I have "conflated" the 

roles of judge and jury ignores that difference. None of those previous cases 

involved scientific questions, so the lay jury was fully capable of making all the 

necessary inferences on its own, "fairly and logically." Bennett, 415 S.C. at 237, 

781 S.E.2d at 354. The issue before the Court in those cases, therefore, arose only 

14 The LactMed database contains information on drugs and other chemicals to 

which breastfeeding mothers may be exposed. 

15 The term "proper lens" is taken from the majority opinion, slip op. at 12. 
under the first step of the Bennett/Littlejohn analysis—whether the circumstantial 

evidence met the "any substantial evidence" standard. That is not the issue we face 

in this case. As I have stated, the circumstantial evidence in this case that Alexis 

died from ingesting morphine through Greene's breast milk appears overwhelming. 

The issue in this case arises under the second step of the Bennett/Littlejohn 

analysis—whether the "additional reasoning" required to infer from the 

circumstances proven that the morphine that killed Alexis came from Greene's 

breast milk required the jury to answer a scientific question beyond its common 

knowledge, experience, or understanding. It is the same question we addressed in 

Graves, Watson, Green, and Kemmerlin. Although Watson, Green, and 

Kemmerlin were not circumstantial evidence cases, Graves was a circumstantial 

evidence case. In this respect, this case is identical to Graves. We said in 

Graves—just like I say here—this case is not about the State's proof of sufficient 

circumstances, or "what quantum of circumstantial evidence . . . is necessary" to 

present a jury question. 401 S.C. at 80, 735 S.E.2d at 658. 

In Graves, we first found the plaintiffs failed to present admissible testimony of an 

expert on the existence of a defect in a products liability case. 401 S.C. at 75-78, 

735 S.E.2d at 656-57. We then turned to whether the plaintiffs nevertheless 

presented sufficient circumstantial evidence to reach a jury. We stated "the Graves 

have no direct evidence," and "[t]hus, the question is whether the record contains 

sufficient circumstantial evidence of a defect required to survive summary 

judgment." 401 S.C. at 79, 735 S.E.2d at 658. Focusing on the second part of the 

Bennett/Littlejohn analysis for circumstantial evidence, we stated "we need not 

determine what quantum of circumstantial evidence of a design defect is necessary 

to withstand summary judgment because the lack of expert testimony is . . . 

dispositive." 401 S.C. at 80, 735 S.E.2d at 658. "In some design defect cases," we 

held, "expert testimony is required . . . because the claims are too complex to be 

within the ken of the ordinary lay juror." 401 S.C. at 80, 735 S.E.2d at 659 (citing 

Watson, 389 S.C. at 445, 699 S.E.2d at 175). 

Thus, as in Graves, the "proper lens" invoked by the majority forces us to examine 

whether the State has satisfied the second prong of the Bennett/Littlejohn analysis. 

Through this lens we must determine whether a lay juror can comprehend the 

scientific possibility that morphine—even acting synergistically with other drugs—

may pass through a mother's breast milk in sufficient quantity to kill a child. 

Greene's counsel repeatedly pressed both Dr. Eagerton and Dr. Wren as to whether 

there is any scientific documentation supporting the theory that this is even 

possible. At one point, Dr. Eagerton responded, "I don't believe I've seen any 
literature that says that. But for everything there's got to be a first." Dr. Wren 

responded, "No. But, . . . there is a first time for everything." 

These answers demonstrate the narrow point upon which I would reverse Greene's 

homicide convictions. If medical and scientific professionals have nothing more 

definitive to say as to whether the factual premise of the State's theory is even 

possible, then we should not permit a lay jury to base a verdict in a criminal trial 

on the premise. One day there may be a "first" who says morphine can do what the 

State argues it did here, but it should be a medical or scientific professional, not a 

jury in a criminal case. 

III. 

I agree with the majority that Greene's conviction for unlawful conduct toward a 

child must be affirmed, and that under any circumstance both convictions for 

homicide cannot stand. However, I would find the trial court erred in not directing 

a verdict on the homicide charges because the State failed to present evidence of 

causation "sufficient to allow a reasonable juror to find the defendant guilty 

beyond a reasonable doubt." Bennett, 415 S.C. at 237, 781 S.E.2d at 354.