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 – File d 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 Spen cer, both of Columbia, and

Seventh Judicial Circuit Solic itor Barry J. Barnette, of Spartanburg, for Respondent.

JUSTICE KITTREDGE: Appellant Stephanie Ire ne Greene appeals her

convictions and sentences for homicide by child abuse, involunt ary 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 involu ntary manslaughter, and five ye ars concurrent for

unlawful conduct toward a child. W e affirm the homicide by chi ld abuse andunlawful conduct toward a child convictions and sentences, but we vacate the involuntary manslaughter c onviction and sentence.

I.

Appellant was Alexis's mother; s he was Alexis's caretaker durin g her brief life.

Alexis died from morphine poisoni ng when she was f orty-six days old. Appellant, a former nurse, was addicted t o many drugs. The State contended that Appellant's morphine addiction (as well as dependence on other drugs) cause d Alexis's drug poisoning through breastfeeding. The jury convicted Appellant on all charges.

This appeal followed. Appellant has raised four issues: (1) wh ether the trial court erred in denying her motion for a directed verdict on all charg es due to the State's failure to prove causation; (2) w hether the trial court erred i n denying her motion

for a directed verdict on the ho micide by child abuse charge du e to the State's failure to prove she acted with e xtreme indifference; (3) wheth er 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 req uire 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 e rror is the trial court's fail ure to grant a directed verdict on all charges because the State al legedly failed to pr oduce 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 revie wed the evidence and, when viewed in a light most favorable to the State as our standard of review mandates, we find sufficient evid ence to present all charges to the jury. State v.

Bennett , 415 S.C. 232, 235, 781 S.E. 2d 352, 353 (2016) (noting that wh en reviewing the denial of a direct ed verdict the Court must not w eigh the evidence but must view it in the light mos t favorable to the State, for the Court is concerned only with the existence or nonexi stence 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 Appe llant's breast milk, resulting i n 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 pre gnant with Alexis and while bre astfeeding her. Moreover, the evidence showed t hat Appellant took more morphine than her doctors prescribed. In addition , Appellant exclusively breastf ed Alexis until approximately one week before he r death. Appellant told invest igators that she began supplementing with formula due to her new bl ood pressure medication; however, Appellant also told inve stigators that she breastfed A lexis extensively during the two nights immediatel y preceding Alexis's death. Th us, sufficient evidence was shown that Appella nt took many drugs, including mo rphine, and

breastfed Alexis.

In addition, the evidence presented at trial was sufficient to show that the morphine and Clonazepam found in Alexis cam e from Appellant's breast mil k. 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 mil k. We disagree, for we find the evidence, when consid ered 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 kille d Alexis. The record includes extensive scientific evidence on morphine and the syne rgistic effect when combined with other central
nervous system depressants. Thi s evidence included the varying rates of metabolism in adults, the absence of metabolism in infants, the transferability of morphine from a mother to her ba by through breast milk, and the risks of infants ingesting morphine (and other dr ugs) from their mothers' breast milk.

Dr. David H. Eagerton, an assistan t professor of pharmacology a nd founding faculty member at the Presbyter ian College School of Pharmacy a nd the former chief toxicologist at the South Carolina Law Enforcement Division, provided considerable testimony. Part of t hat evidence included the war ning 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 histor ies. 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 evidenc e 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—ca n 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 six

week-[]old.

Dr. Eagerton : Okay. Typically, whenever—j ust to kind of back up a little bit how—you have to understa nd 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? T here's—there's lots of differe nt 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 a bsorb 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 t he drug is.

Once you absorb it it's going to distribute throughout your bod y based on its chemical and physical p roperties, 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 t hat. So it's going to distri bute throughout your body.

Then the next step is metabolism, which is more correctly terme d biotransformation. Basically, your liver is responsible for th at, and it has enzymes that develop over time that basically take t hese foreign compounds that you're tak ing and make it usually morewater [soluble], and the idea is to make it either less toxic o r more readily excreted. But the idea i[s] to make it more readily—mo re water [soluble] typically so that it could be mor e readily excr eted

from your body. And that's the las t stage[] of elimination. A nd

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 l ike that is how it's going to be eliminated primarily. There are o ther
ways too.

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

Dr. Eagerton : No, not typically because it take[s] time[] for your liver to develop. It takes time f or these—the genes that code for these enzymes to turn on and be expressed. And you don't—even

a child doesn't metabolize th ings 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 go ing to

turn on.

And, in fact, it even goes the other way. As you get old, beco me 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 ha ve to take into consideration age certainly whenever you're lookin g at the effects of drugs and how long they're going to stay in your body.

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

the death.

Dr. Eagerton : Right. The—the lethargy, maybe trouble breathing. I—I don't know how to interpret th at 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 c ontinuously breastfeeding and things like that could she reach a level, especially if she did n't metabolize it nearly as fast as the mother, for example, could it reach the levels of toxicology—t oxicity 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 you r body and you become—you have a toxic dose wh enever you wouldn't normally have a tox[ic] dose.

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

LactMed 2 :

Dr. Eagerton : "Epidural morphine given to mothers for post[-] cesarean section analge sia results in trivial amounts of morphi ne in their colostrum and milk. I ntravenous or oral doses of mate rnal morphine in the immediate postp artum period result in higher milk levels than with epidural m orphine. Labor pain medication may delay the onset of lactation. Maternal use of oral narcotics during breastfeeding can cause infa nt drowsiness, central nervous system depression and even death. "

(emphasis added).

Dr. Eagerton : "[A]t least some of [the m orphine] I believe within a reasonable degree of scientific a nd medical certainty had to co me through the breast milk."

Accepting this evidence as true— as we must under the standard o f review—one may reasonably deduce that morphine ingested through breastfeeding "can cause . . . death." The evidence, scientific and otherwise, further allo ws a reasonable juror to conclude that Appellant's bre ast 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 survi ve Appellant's directed verdict motion. The State presented additional evidence.

2 LactMed is a database that provi des information and warnings o n drugs to which breastfeeding mothers may be expos ed. It is part of TOXNET, a database operated by the National Institute of Health.Dr. John D. Wren, a pathologist, performed the autopsy on Alexi s. Dr. Wren is an experienced pathologist, having performed more than four thousa nd autopsies. Early in Dr. Wren's testimony, t he State established that Alexi s's body had no

needle marks. Dr. Wren stated th at "the only way this child could have gotten that much [morphine] would be orally , because I saw no injection sit es. . . . The route

of administration had to have been orally." And as Dr. Wren ex plained, 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 depen ds

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

3 This is consistent with Dr. Eag erton's testimony that the line dividing toxic and

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

Thus, the dissent's misconcepti ons are twofold. First, the dis sent fails to appreciate that the ranges for toxic and le thal levels of morphine are overlapping and that

Alexis's level fell within the o verlapping area. According to the expert testimony in this case, the level of morphine found in Alexis (.52 mg) co uld have been classified in either the toxic level (.3 to 2.5 mg) or lethal l evel (.2 to 7.2 mg); it is simply lethal because it caused her death. Therefore, the diss ent's attempt to draw

an artificial distinction that t here 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 re cognize the expert testimony tha t 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 resul t in a lethal level of morphine. It was not necessary to show Alexis received a le thal level of morphine from one dose of breast milk in order to prove the Sta te's causation theory: "the child died as a res ult of consumption of a control led substance through

the mother's breast milk." The State provided evidence that Ap pellant was taking morphine and breastfeeding Alexis continuously, morphine can pa ss 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 Al exis died from a lethal leve l of morphine. Contrary to the dissent's assert ion, 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 produ ce surgical analgesia in pediat rics is .046 to .083, which is 46 to 83. Once again, the level repo rted [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 t ime they adjust to the—their body p hysiology adjusts to that, and t hey can sustain higher levels without it having an effect on them.

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

that—and of course nobo dy 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 getti ng it illegal[ly] or they're tak ing 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 sp lit 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 week s, 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 per iod of time if it—if it keeps getting the drugs.

Dr. Wren : Yeah. If they can't metaboliz e it'd have to go somewhere. And there's something called intrahepatic circulation. If it's

excreted into the bile or whatev er, 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 affl uent diarrhea or—or urinating a ll

of the time.

The State : So, and the—the mother was taking morphine in this situation and breastfeeding. O bviously, 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 getti ng it from the breast milk, cou ld 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 ref erence 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 e ffects of even small doses of analgesics. Once the mother's m ilk 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 withclose infant monitoring. And th en 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 w as 21 days postpartum, which is about half this one, [who] receive d oral morphine, 10 mg every six hours, and for four doses. That 's 40 mg. And then five [milligrams] every six hours for two dose s. So that's actually 50 mg total she got in a 24-hour period.

She had a peak morphine of a hundr ed micrograms per liter after one hour, and four and a half hour s after her first milligram, 5 mg
dose.

Using the peak level from th is study an exclusively best—

breastfed infant would receive 15 micrograms per [] daily[,] eq ual to about three percent of the mat ernal daily dose assuming a da ily maternal oral morphine dose of 40 mg.

Okay. So I took 40 mg and took th ree percent of that. That comes out to be 1.2 mg.

The baby weighed 3,345 grams, wh ich 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 bl ood in a child that age. The r ule of thumb is 75 to 80 milliliters per kilogram.

Okay. This child weighed, again , 3.345 kilograms, so 3.345 tim es 75 or 80 comes out to be a bout .285 liters. 285 milliliters is all the blood that child had in her body , and that has to go into the t issues everywhere in the body. So the— the blood—you'll have to take my word for it. It is hard to g et 10 ccs of blood out of a chi ld, an infant. It is really hard. The younger they are, the harder i t is.

And we—a lot of places that do b lood 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 an d divide it by two—. 285 you get about 4 mg per liter, whic h is 4,000 micrograms per lit er. 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 th at an exclusively breastfed infan t receives—tells what it receives

. But it also says the peak mor phine 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, w as 48 on the average mic— micrograms per liter. And the peak six glucuronide metabolite was 1,084 mg or micrograms per lite r, 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 o f the LactMed warning on morphi ne:

Dr. Wren : "Maternal use of oral nar cotics during breastfeeding can cause infant drowsiness, central nervous system depression[,] a nd

even death. Newborn instant—infa nts seem to be particularly sensitive to the effects of even small do[s]es of narcotic anal gesics and limited maternal intake of morphine to a few—to a few days at a low dosage with close infan t monitoring is best to provide pain control and limited materna l intake to a few days at low dosage."

The defense stressed the lack o f studies and peer-reviewed arti cles linking drugrelated infant deaths to breastf eeding. 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 evi dence that Appellant continuously ingested

substantial doses of morphine a nd other drugs while pregnant an d breastfeeding;that morphine and other drugs can and do pass from a nursing mo ther to a breastfeeding child through breast milk; that infants cannot me tabolize morphine and other drugs effectively; tha t Alexis exhibited symptoms con sistent with morphine toxicity; and that Alex is's death was caused by respiratory failure secondary to synergistic drug intoxication.

As noted, we are mandated when r eviewing the denial of a direct ed verdict motion to view the evidence in a light most favorable to the State. W hen examined through the proper lens, the State presented ample evidence tha t would permit the jury to logically and reasonably conclude that Appellant's morphine consumption while breastfeeding "place[d] th e child at unreasonable risk of harm," S.C. Code Ann. § 63-5-70(A)(1) (2010), and constituted "an act or omissio n 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 d irected verdict motion in a homicide by child abuse action despite an expert's inability to identify "the exact mechanism" through wh ich the cocaine affected the in fant's body). 4

4 We, of course, agree with the di ssent that the "State must prov e every element of the crime charged." We are convi nced the State has done so in this case, sufficient to survive a directed verdict motion. With respect for the dis sent, we disagree with its reliance on the law concerning a jury's consideration of ci rcumstantial evidence.

It is here that the dissent int roduces its view that "additiona l reasoning" is needed. While the dissent's desired framework may apply to a jury's con sideration of circumstantial evidence, it has no place at the directed verdic t 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 verdic t 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 ver dict stage. The dissent conflates the standards that appl y to a trial court's consideration of circumstantial

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

evidence. This conflation of different sta ndards 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 disse nt does acknowle dge that "the State presented

substantial circumstantial evid ence to support its theory that Alexis died as a resultIII.

Appellant argues that, even if c ausation was shown, the trial c ourt erred in failing

to direct a verdict on the homic ide by child abuse charge becau se the State did not prove she acted with e xtreme indifference.

"A person is guilty of homicid e by child abuse if the person . . . causes the death of a child under the age of eleve n 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 eviden ce was presented to show that Ap pellant 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 docto r's supervision ensuring Alexi s'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 Januar y 2006, Appellant was pregnant and began seeing Dr. K ooistra to treat a seizure disor der. Notably, Dr. Kooistra did not prescribe any pain medications for Appellant w hile she was pregnant and tried "to avoid pres cribing medications of any sor t during pregnancy." In November 2007, A ppellant began seeing Dr. Kovac s and receiving

of ingesting morphine from [Appe llant's] breast milk." The dis sent circumvents this undeniable finding by parsing selected portions of the tes timony favorable to Appellant and recasting that evi dence as the "proper lens." Th e State must present evidence from which a jury can fairly and logically deduce that the defendant

committed the offense charged, a nd at the directed verdict stag e, the evidence must be viewed in a light most favorab le to the State, not the defen dant.

5 In addition, the toxicology report revealed that Alexis tested positive for Klonopin (Clonazepam), for which A ppellant had a prescription. The pill bottle for this drug, found in Appellant's room on the morning of Alex is's death, specifically instructed, "Do not use if pregnant or suspect you are pregnant or are breastfeeding."prescriptions for various nar cotics. 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 Ap ril 2010, Appellant requested to switch her prescription patch—Duragesic—to MS Contin pills, which Dr. Kova cs prescribed as she was unaware that Appella nt was pregnant. Dr. Kovacs tes tified that she would not have prescribed morphi ne to Appellant had she known o f the pregnancy. In addition, Dr. Bridges, Appella nt's O.B.G.Y.N. physician, tes tified that she and her colleagues were unaware tha t Appellant was taking morphine prior to the birth, during delivery, and postpartum.

Throughout her pregnancy, Appella nt 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 o mitted the fact that she was taking morphine from the paperwork that she submitted t o her doctors. The testimony at trial was that, at the very least, the drug sh ould only be taken under a doctor's supervision so the baby's health could be moni tored. Nevertheless, Appellant failed to disclose this important infor mation to any of her

doctors.

The morphine addiction and con cealment continued after Alexis's birth. In October 2010, Appellant told Dr. K ovacs that she had missed her appointments since receiving the MS Contin pre scription in April because she had been so depressed that she could not l eave the house—her pregnancy and Alexis's recent

birth were never mentioned. One of the State's experts, Dr. Ea gerton, testified that the use of morphine during lact ation is not recommended. Moreo ver, in response to whether "the doctors definitely need to know about this," Dr . Eagerton stated, "Absolutely." Again, Dr. Kovacs testified that she would not h ave given Appellant

the medication had she known about the pregnancy and Dr. Bridge s testified that no mention of morphine was made during Appellant's postpartum v isit. Due to her nondisclosure, the record reveal s 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, d espite their specific inquiry upon finding the pill bo ttle in her bedroom. At that t ime, Appellant only admitted to taking morphine while pregnant with Alexis. When i nitially questioned by law enforcement, A ppellant lied about her morphin e addiction. It was only after the autopsy and t oxicology reports were finalized and Appellant was interviewed again by Investigator Gary that she told the truth and acknowledgedher addiction. Specifically, Investigator Gary testified that Appellant "finally admitted she just didn't tell [the doctors] because she was afr aid they'd take off [sic] her off the morphine."

Thus, viewing the evidence in the light most favorable to the S tate, the jury could conclude Appellant acted with ext reme indifference in taking th e morphine and breastfeeding her child, resu lting in Alexis's death.

IV.

Appellant argues alternatively th at if the homicide by child ab use conviction stands, the multiple convictions and sentences for the remaining offenses cannot

stand and should be vacated. C oncerning the involuntary manslaughter conviction and sentence, we agr ee. As explained below, we find nothing in South Carolina's

homicide statutes or law that re flects a legislative intent to deviate from the overwhelmingly prevailing view t hat the homicide of one person by one defendant is limited to one homicide punish ment—one homicid e, one homicid e punishment. Concerning the unlawful conduct to ward a child charge, we rejec t Appellant's challenge and affirm, for that en tirely separate offense was co mplete prior to

Alexis's death.

A.

Multiple offenses, including multiple homicide offenses, may be prosecuted in a single trial, but principles i nherent in double jeopardy and du e 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 (1 960) ("It was within the pro vince of the jury to find whether appellant's con duct was negligent or reckless, or neither; if negligent, it would have supporte d a verdict of guilty of mansl aughter, the court having eliminated murder and vol untary manslaughter; if reckless, it sustains the verdict of guilty of reckless hom icide, and that finding by the jury is implicit in the verdict. The jury were instructe d that they could not find app ellant 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. am end. XIV ("[N]or shall any State deprive any person of life, liberty, or property, wit hout 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 l aw . . . ."); S.C. Const. art. I, § 12 ("No person shall be subject for the same of fense to be twice put in jeopar dy of life or liberty . . . .").counts. To sustain this point o f appellant would require the court, instead of the jury, to determine whether his conduct was negligent or reckles s, if either, which,

under the evidence in this case , would be an invasion by the co urt of the province of the jury. The State cannot b e required to elect between cou nts in an indictment when they charge offenses of the same character and refer to th e 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 f elon may be prosecuted simultan eously for violations of §§ 922(h) and 1202(a) involvi ng the same firearm. This Cour t has long acknowledged the Government's bro ad discretion to conduct criminal prosecutions, including its power to select the charges to be brought in a pa rticular 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 convi cted and punished for two offenses. Congress can b e read as allowing charges und er two different

statutes with conviction and sent ence 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 legislat ure has manifestly authorized multiple homicide charges for a single homicide, w e find no expression of legisla tive intent authorizing multiple homicide punishments for a single homicide committed by a single defendant. As a result, abs ent legislative intent to th e contrary, we follow the prevailing rule—one homicid e is limited to one homicide pun ishment 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) (colle cting "[c]ases holding that a person may be convicted of only one homicide offense for the killing of on e person"). "It would be a strange system of j ustice that would permit the defe ndant to be

sentenced to two . . . sentences f or the killing of one person. " People v. Hickam

, 684 P.2d 228, 231 (Col o. 1984) (quoting Lowe , 660 P.2d at 1270–71). "[C]onviction of both charges, a rising from the slaying of the same person amounts to piling punishment upon punish ment. Fundamental fairness pre cludes 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 invo luntary manslaughter charges as a result of Alexis's death.

The homicide by child abuse statut e reflects the legislature's intent to define and target a specific societal pr oblem—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 el ements of homicide by child abu se: "caus[ing] the death of a child under the age of eleven while committing child abuse or neglect"

where "the death occurs under cir cumstances manifesting an extr eme indifference

to human life." S.C. Code Ann. § 16-3-85(A)(1) (2015). Conver sely, the now codified common law offense of involuntary manslaughter is defined in broad terms, covering unintentional ki llings from both unlawful condu ct that does not naturally tend to place another in danger of death or serious b odily harm and lawful conduct that recklessly pl aces another in danger of harm

. See, e.g.

, State v.

Sams , 410 S.C. 303, 309, 764 S.E.2d 511 , 514 (2014) ("Involuntary m anslaughter is defined as the unintentional killing of another without mali ce while engaged in either (1) the commission of som e 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 elemen ts 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-c riminally-negligent-manner pr ong 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 ne ver be defined as an unlawful activity not tending to cause death or great bodily harm." Id. at 52, 661 S.E.2d at 363 (i nternal quotation marks omitted).This issue is presented to us i n an unusual posture. While bot h homicide charges were properly presented to the j ury, the jury was not instructed in accordance with Appellant's proper request—Appe llant could not be found guilty of both homicide by child abuse and involuntary ma nslaughter. In this situation , the jury should have been instructed that, depe nding on their view of the evide nce, they could find Appellant not guilty of both ho micide offenses, guilty of homic ide by child abuse, or guilty of involuntary manslaught er—but may not find Appellan t guilty of both homicide charges. The State e rroneously contends both homicide convictions and punishments should stand.

The flaw in the State's argumen t on appeal is best understood b y reviewing its theory of criminal liability as the trial unfolded. After indi cting Appellant on varying homicide charges (which as a matter of law could not be premised on one theory of liability), the State u ltimately 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 tr ial court instructed the jury , "That applies to each of the separate charges." The jury could have accepted Ap pellant's view of the evidence and found Appellant not guilty of homicide by chil d 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 A ppellant guilty of involuntary manslaughter

. 8 But the jury's guilty verdict on Count One in t he indictment—homicide by child abuse— precluded a guilty verdict on the charged offense of involuntar y manslaughter in

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

8 The trial court's charge on i nvoluntary manslaughter included the instruction,

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

defendant intend to inflict seri ous bodily harm or injury to th e deceased child." A finding that Appellant's conduct sa tisfied this standard would be consistent with Appellant's argument that it is safe for breastfeeding mothers to take morphine. However, it would be inconsiste nt with a finding that Appellant "committed a

deliberate or intentional act unde r circumstances revealing an extreme indifference

to human life."Count Two. Thus, under these circ umstances, a conviction and s entence for each homicide charge cannot stand. 9

The situation here should be cont rasted with a homicide that wo uld properly fall within multiple homicide statutes. In that situation, a jury m ay 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 sent ences for two homicide charges—felony driving under the influence causing dea th 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 punishmen t—that even were we to accept the State's argument that the involuntary man slaughter guilty verdict should stand, an additi onal sentence for Alexis's death could not stand. The fact that Appellant received a c oncurrent five-year sentence fo r involuntary manslaughter does not change the r esult. The concurrent sentence likely reflects the learned trial judge's inhe rent understanding that a consecu tive sentence could not be imposed. Yet the convic tion itself is considered a puni shment and that, too,

must be vacated. Ball v. United States , 470 U.S. 856, 864–65 (1985) ("The second conviction, whose concomitant se ntence is served concurrently, does not evaporate simply because of the concurren ce of the sentence. The separat e conviction , apart
from the concurrent sentence, h as 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 th e 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 aff irm pursuant to Rule 220, SCACR, a nd 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, extrem e indifference,

because there are different sta ndards requiring different—diffe rent things."No. 27693 (S.C. Sup. Ct. filed Ap r. 25, 2018) (Shearouse 2018 A dv. Sh. No. 17 at 57).

VI.

In sum, the homicide by child a buse and unlawful conduct toward a child convictions and sentences are affirmed; the involuntary manslau ghter 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., concurrin g in part and dissenting in part in a separate opinion.JUSTICE FEW: I concur in sections III, IV, a nd V of the majority opinion. I
also concur with the conclusion t he majority reaches in section II that Greene's

conviction for unlawful conduct to ward a child must be affirmed . I disagree, however, that we may affirm Green e'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 w ith 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 e stablishing any one element r equires the State to prove a fact that is beyond th e 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 de fect 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 wh ere a factual issue

must be resolved with scientific , technical, or any other speci alized 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 knowledg e, expert testimony is required to establis h that a defendant failed to c onform 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 (197 9) (holding in a public accountin g malpractice

action: "Since this is an area beyond the realm of ordinary lay knowledge, expert testimony usually will be necessary to establish both the stand ard of care and the defendant's departure therefrom.").

II.

The State's theory of how Greene caused Alexis's death was narr ow: 10 Greene took morphine and other medications wh ile breastfeeding, the morphin e passed through

10 In all prosecutions for homicide, the State must prove the def endant 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 cau sation by the criminal act of another."). McIver was a manslaughter case, 238 S.C. at 403, 120 S.E.2d at 393, and th e causation elementGreene's breast milk, and Alexis died as a result of morphine i ntoxication. 11 The trial court charged the jury,

The State has the burden of p roving these crimes, but it involves the ingestion of the controlled substance by the child through the child's mothe r's breast milk. That's the State's allegation and theory i n the case, that the child died as a result of consumptio n of a controlled substance through the mother's breast milk. That applies to each of the separate charges.

The State had no difficulty pro ving Greene was taking morphine while breastfeeding, and that Alexis d ied 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 Sta te presented

substantial circumstantial evid ence, 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 str ongest 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 fa ct, the circumstantial evidenc e that Alexis died

from ingesting morphine through Greene's breast milk appears ov erwhelming, until we pose the scientific questi on of whether it is even possible for enough morphine to pass through breast milk to kill a child.

is specifically included in the s tatute governing homicide by c hild abuse, S.C. Code Ann. § 16-3- 85(A) (2015).

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

was that Greene administered mor phine 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 eviden ce to prove guilt in criminal t rials contemplates that "even if the circumstances depicted are accepted as true, additional reasoning is required to reach the desir ed conclusion." Kenneth S. Broun et al., McCormick

on Evidence § 185, at 397 (Hornbook Se ries, 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 propo nent of the evidence

has connected collateral facts in order to prove the propositio n propounded—a process not required when evalua ting 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 4 51 ("Analysis of circumstant ial evidence is plainly a more intell ectual process."). In every c ircumstantial evidence

case in which this Court affirmed the sufficiency of the eviden ce, 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 cas es, the "intellectual process " through which the jury could reasonably infer the guilt of the defendant from the circumstances proven by the State involved a ch ain of inferences that lay jur ors were fully capable of navigating.

In Pearson , for example, the State proved the following circumstances: th e suspects fled the victim's home i n the victim's stolen El Camin o, and Pearson's fingerprint was found in the tru ck's bed where the victim saw o ne of the suspects sitting; Pearson lied about ever having been to the victim's house when he had previously done considerable la ndscaping work there; and Pearso n lied about knowing the co-defendant whose DN A was found on the duct tape o n 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 be at the victim. We

found "the evidence could induce a reasonable juror to find Pea rson 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 (2 016), the State proved the following circumstances: Benn ett's blood was found on the floor directly beneath the spot from which a television was stolen from a public build ing; his fingerprint was found on another television the suspects had attempted to s teal from the "community room" of the build ing; and though Bennett "was known to frequent"

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

have no reason to be in the com munity room." 415 S.C. at 234-3 5, 237, 781 S.E.2d at 353, 354. From those ci rcumstances, a lay juror coul d readily concludethrough a chain of non-scientific inferences that Bennett commi tted the burglary, malicious injury, and larceny. We found "the evidence could in duce 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 whic h this Court found the State's presentation of purely circumst antial evidence sufficient to su rvive a motion for directed verdict, a jury was fu lly capable of performing the "additional reasoning . . . required to reach the desired conclusion" by using its co mmon knowledge, experience, and understanding. 12 In each of those cases, t herefore, we focused only on the State's proof of coll ateral 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 revie wing the sufficiency of circumst antial evidence, "The Court's review i s limited to considering the exi stence or nonexistence of evidence, not its weight." 415 S.C. at 235, 78 1 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 23 6, 781 S.E.2d at 354.

We held "the trial court . . . mus t 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 fair ly 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 ev idence to support its theory that Alexis died as a result of ingesting morphine from Greene's breast milk, and abandoned any alte rnative theory of cau sation. Therefore, under Bennett and the long line of cases upon which it relies, our task is limite d 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) (discussi ng circumstantial evidence in a workers' compensation case, and stating, "The facts and circumstances sh own should be reckoned with in the light of or dinary 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 S tate established the causation e lement under its theory. This, in turn, requires us to determine if the chain o f inferences the jury

must follow to reach this conclu sion may be completed by the ju ry using its common knowledge, experience, and understanding, or whether exp ert testimony should be required.

Greene argues the jury could not fairly and logically complete this second step because, in the course of its ana lysis, the jury would necessar ily consider whether it is even possible that a breas tfeeding mother can transmit mo rphine through her

breast milk in sufficient concen tration to cause the death of a child. Green argues the means of answering this question are beyond the common know ledge, experience, and understanding of a lay juror. Therefore, Green e argues, expert testimony was required to establis h the causal connection betwe en morphine in the

mother's breast milk and Alexis 's death. Specifically, Greene argues the State was required to present a n expert opinion that morphine—by itself o r synergistically with other drugs—passed through her breast milk to kill Alexis.

I agree with Greene. In reachin g this conclusion, I find it pa rticularly important that the State's own expert witne sses refused to state the morp hine that killed

Alexis came from Greene's breast milk, or even whether that was possible. The reader may repeatedly scour the majority's outstanding recitati on 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 ope nly avoided answeri ng this question. In addition, the circumstances proven at trial, c onsidered in the light most fav orable to the State,

include the fact that reliable medical organizations and journa ls have stated it can be "safe" to take morphine while breastfeeding a child. Finall y, the record in this

case does not include even one ins tance documented in medical l iterature 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 testim ony of two experts. David H. Eag erton, Ph.D., is an assistant professor of pharmacology and founding faculty member at the Presbyterian College School of Ph armacy and the former chief to xicologist at the

South Carolina Law Enforcement Division. His doctoral degree i s 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 herdeath, including what he consider ed to be a lethal level of mor phine, and how the combination of those drugs can wo rk synergistically to increase the toxic effects of the drugs in the blood. He explained how drugs are absorbed in to the body and that infants do not metabolize qu ickly because their liver has not yet developed. At one point, Dr. Eagerton testified a six-week old child like Ale xis typically does not

metabolize "at all."

The State then asked, "If she wa s continuously breastfeeding . . . could [Alexis] reach a level, especially if sh e didn't metabolize it nearly as fast as the mother,

could it reach the levels of toxi cology -- toxicity of the leve l?" Dr. Eagerton answered, "Yes." Dr. Eagerton went on to explain Alexis showed symptoms that were "consistent with morphine t oxicity." He testified morphin e may build up in a child's body to become "toxic." B ut Dr. Eagerton distinguished "toxic" from

"lethal." Toxic means it will ma ke you sick; lethal means it w ill kill you. There was never any dispute that mor phine in breast milk could make a child sick. In fact, the label on the package st ates morphine "passes into the breast milk and may harm your baby."

On cross-examination, Dr. Eage rton acknowledged several article s in the medical literature that list morphine as "safe to take while breastfeed ing," and conceded "based upon [his] research" he wa s not aware of any documentati on 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 too k 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 d escribes 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 num ber 0.52 mg/L, the concentration of morphine

measured in Alexis's blood aft er her death. Dr. Eagerton testi fied he considered that a lethal level of morphine.breast milk. So I don't thi nk I have a basis to say that it didn't, or at least some of it.

The strongest testimony Dr. Eag erton gave on the causation ques tion came when

he read from the LactMed database 14 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 m orphine that came from Greene's breast milk killed

Alexis—that it was "lethal." In fact, he was specifically aske d, "So, you cannot make a conclusion today as to ho w 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 pr essed 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 J ohn David Wren, M.D., the patholo gist who performed the autopsy. Dr. Wren t estified Alexis had lethal le vels of morphine, "It's lethal in the brain, it's lethal in the liver, it's letha l in the blood." He explained, "it was my opinion that this child died as a result of respirat ory insufficiency secondary to synergistic drug in toxication. I could just as ea sily have said morphine intoxication." Howe ver, 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 me chanism you want, but it's ther e, period."

E. The "Proper Lens" 15

This case is different from Logan

, Bennett , and every other circumstantial evidence

case this Court has decided. Th e majority's suggestion that I have "conflated" the roles of judge and jury ignores that difference. None of those previous cases involved scientific questions, s o the lay jury was fully capabl e of making all the necessary inferences on its o wn, "fairly and logically." Bennett , 415 S.C. at 237,
781 S.E.2d at 354. The issue befo re the Court in those cases, therefore, arose only

14 The LactMed database contains information on drugs and other c hemicals to which breastfeeding mothers may be exposed.

15 The term "proper lens" is taken from the majority opinion, sli p op. at 12.under the first step of the Bennett / Littlejohn analysis—whether the circumstantial evidence met the "any substantia l 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 t hrough Greene's breast milk appea rs overwhelming.

The issue in this case arises under the second step of the Bennett / Littlejohn analysis—whether the "additiona l reasoning" required to infer f rom the circumstances proven that the m orphine that killed Alexis came from Greene's breast milk required the jury to answer a scientific question b eyond its common knowledge, experience, or underst anding. It is the same questi on we addressed in

Graves

, Watson

, Green , and Kemmerlin . Although Watson

, Green , and

Kemmerlin were not circumstan tial evidence cases, Graves was a circumstantial evidence case. In this resp ect, 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 o f 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 f ailed to present admissible te stimony of an expert on the existence of a defect in a products liability cas e. 401 S.C. at 75-78,
735 S.E.2d at 656-57. We then tur ned to whether the plaintiffs nevertheless presented sufficient circumstan tial 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 eviden ce of a defect required to surv ive 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 circum stantial evidence of a design d efect is necessary to withstand summary judgment b ecause the lack of expert testim ony is . . . dispositive." 401 S.C. at 80, 735 S.E.2d at 658. "In some des ign defect cases," we held, "expert testimony is requi red . . . because the claims ar e 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 examin e whether the State has satisfi ed the second prong of the Bennett / Littlejohn analysis. Through this lens we must determ ine whether a lay juror can com prehend the scientific possibility that morphine—even acting synergistically with other drugs— may pass through a mother's br east 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 documen tation supporting the theory tha t this is even possible. At one point, Dr. Ea gerton responded , "I don't belie ve I've seen anyliterature that says that. But for everything there's got to b e a first." Dr. Wren responded, "No. But, . . . there is a first time for everythin g."

These answers demonstrate the na rrow point upon which I would r everse Greene's
homicide convictions. If medical and scientific professionals have nothing more definitive to say as to whether the factual premise of the Stat e's theory is even possible, then we should not perm it a lay jury to base a verdic t in a criminal trial on the premise. One day there may be a "first" who says morphi ne can do what the State argues it did here, but it should be a medical or scienti fic 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 co nvictions for homicide cannot stand. However, I would find the trial court e rred in not directing a verdict on the homicide charge s because the State failed to p resent evidence of causation "sufficient to allow a reasonable juror to find the d efendant guilty beyond a reasonable doubt." Bennett , 415 S.C. at 237, 781 S.E.2d at 354.