l
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`A
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`THE STATE OF SOUTH CAROLINA
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`In the Court of Appeals
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`APPEAL FROM SPARTANBURG COUNTY
`Court of General Sessions
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`‘JUL 2 O 2015
`M
`Court of Appeais
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`“Honorable Joseph Derham Cole, Circuit Court Judge
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`Appellate Case No. 2014-000764
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`The State,
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`VS
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`Stephanie Irene Greene,
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`. Appellant.
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`FINAL BRIEF OF APPELLANT
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`C. RAUCH WISE
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`Attorney at Law
`305 Main Street
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`Greenwood, SC 29646
`864-220-5010
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`SC Bar #: 006188
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`Attorney for the Appellant
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`lndex
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`Page:
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`A
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`Table of Authorities .
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`Statement of Issue on Appeal .
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`Argument:
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`Question I: Did the trial court err in failing to direct a verdict when the state
`failed to prove through competent medical evidence or otherwise that the morphine in the
`deceased child came from the mother through breast-feeding? .
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`Question 11: Did the trial court err in failing to direct a verdict or grant a new trial
`when the state failed to prove Stephanie Greene acted with extreme indifference as required by
`South Carolina Code 59 16-3-85‘? .
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`Question III: Did the trial court err in failing to instruct the jury they could
`convict on only one of the charges as a conviction of more than one charge would violate the
`double jeopardy provisions of Article I, § 12 of the Constitution of the State of South Carolina
`and Fifth Amendment to the Constitution of the United States of America as the same fact was
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`used to prove the cause of death in each case? p
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`. 15
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`Question IV: Did the trial court err in failing to require the state to open fully on
`the law and the facts of the case and replying only to new arguments of defense counsel when the
`defendant was deprived of a fair trial in violation ofthe due process clause of Article I, § 3 of the
`Constitution of the State of South Carolina and the Fourteenth Amendment to the constitution of
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`the United States of America by her counsel not being able to respond to new arguments made by
`the state in its closing argument? .
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`Conclusion .
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`Table of Authorities
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`Cases:
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`Armstrong v. Wetland, 267 S.C. 12, 225 S.E.2d 851 (1976)
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`Bailey v. State, 440 A.2d 997 (Del. 1982) .
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`Blockburger vs. United States, 248 U.S. 299 (1932) .
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`Bochette v. Bochette, 300 S.C. 109, 386 S.E.2d 475 (Ct. App. 1989) .
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`Campbell v. State, 2009 Ark. 540, 354 S.W.3d 41 (2009)
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`Cro.s'sv. Concrete ll/Iaterials, 236 S.C. 440,
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`1 14 S.E.2d 828 (1960)
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`Degadillo v. State, 262. S.W.3d 371 (Tex. Ct. App. (2008) .
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`Exparte Nielsen, 131 U.S. 176 (1889)
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`Grady v. Corbin, 495 U.S. 508 (1990)
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`Harris v. Oklahoma, 433 U.S. 682 (1977) .
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`Jackson v. Virginia, 443 U.S. 307 (1979)
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`Ma-Knight v. State, 378 S.C. 33, 661 S.E.2d 354 (2008) .
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`Rutledge v. United States, 517 U.S. 292 (1996)
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`State v. Cherry, 361 SC. 588, 606 S.E.2d 475 (2004)
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`State v. Daniels, 401 S.C. 251, 737 S.E.2d 473 (2012) .
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`State v. Dixon, 509 U.S. 688 (1993)
`State v. Gilliand, 402'S.C. 389, 741 S.E. 2d 521 (Ct. App. 2012)
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`State v. James, 362 so 557, 608 S.E.2d 455 (Ct. App. 2004)
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`State v. Lee, 255 s.c. 309, 178 S.E.2d 652 (1971)
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`State v. L0.llz'.s', 343 s.(_:. 580,541 S.E.2d 254 (2001)
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`Stale 1». Martin, 343 so 580, 541 S.E.2d 254 (2000) .
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`State v.
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`.S‘chrQck, 283 s.c. 129, 133, 322 S.E.2D 450, 452 (1984)
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`as v. Dixon, 509 us. 688 (1993) .
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`Whitner V. State, 328 S.C. 1, 492 S.E.2d 777 (1997) ~ .
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`Statutes:
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`21 U.S.C. § 848 .
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`. 22
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`ARK. CODE ANN. 16-89-123 .
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`l 1
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`South Carolina Code § 16-3-85 .
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`Court Rules:
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`In Re AMENDMENTS TO THE FLORIDA RULES OF CRIMINAL PROCEDURE—FlNAL
`AGRUMENTS, 957 So.2d l 164 (Fla 2007)
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`Rule 1 of the South Carolina Rules of Civil Procedure
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`iii
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`South Carolina Circuit Court Rule 58 .
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`. 21
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`Rule 43 (1) of the South Carolina Rules of Civil Procedure .
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`TENN RULES OF CRIM PROC. RULE 29.1
`Constitutional Provisions:
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`17
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`Fifth Amendment, Constitution of the United States of America .
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`Other:
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`. 21
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`75A Am. Jur. 2d Trial § 448 (2010)
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`. 22
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`Postpartum maternal codeine therapy and the risk ofadverse neonatal outcomes.‘ A retrospective
`cohort study, 50 Clinical‘Toxicology, 390 (2012) .
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`The Transfer ofDrugs and Other Chemicals Into Human Milk, 108 PEDIATRICS, Official
`Journal of the American Academy of Pediatrics, 776 (September 2001)
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`The Transfer o/‘Drugs and Therapeutics Into Human Breast Milk: An Update on Selected
`Topics, 132, PEDIATRICS, Official Journal of the American Academy of Pediatrics, e796
`(September 2013)
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`. 8
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`iv
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`

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`Statement of Issues on Appeal.
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`Question I: Did the trial court err in failing to direct a verdict when the State
`failed to prove through competent medical evidence or otherwise that the morphine in the
`deceased child came from the mother through breast-feeding?
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`Question 11: Did the trial court _err in failing to direct a verdict or grant a new trial
`when the State failed to prove Stephanie Greene acted with extreme indifference asrequired by
`South Carolina Code § l6—3-85?
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`Question 111: Did the trial court err in failing to instruct the jury they could
`convict on only one of the charges as a conviction of more than one charge would violate the
`double jeopardy provisions of Article I, § 12‘ of the Constitution of the State of South Carolina
`and Fifth Amendment to the Constitution of the United States of America as the same fact was
`used to prove the cause of death in each case?
`'
`’
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`Question IV: Did the trial court err in failing to require the state to open fully on
`the law and the facts of the case and replying only to new arguments of defense counsel when the
`defendant was deprived of a fair trial in violation of the due process clause of Article I, § 3 of the
`Constitution of the State of South» Carolina and the Fourteenth Amendment to the constitution of
`the United Statesof America by her counsel not being able to respond to new arguments made by
`the state in its closing argument?
`-
`A
`'
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`

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`Procedural History
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`The State indicted Stephanie lrene Greene on September 15, 201 1 on charges of
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`homicide by child abuse, involuntary manslaughter, and unlawful conduct toward a child and
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`homicide by child abuse. On March 31-April 4, 2014 she was tried before the Honorable J.
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`Derham Cole, Sr. and ajury. On April 3, 2014 thejury convicted Mrs. Greene of all the charges.
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`On April 4, 2014 Judge ‘Cole sentenced her to five years on the charges of involuntary
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`manslaughter, unlawful conduct toward a child and 20 yeais for homicide by child abuse. All
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`sentences are concurrent. On April 14, 2014 Mrs. Greene filed her Notice of Intent to Appeal.
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`Factual History
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`In the early morning hours of November 13, 2010 Spartanbug County 91 1
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`received a call from the residence of Randy and Stephanie Greene about their child, Alexis, who
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`was not responsive. Rec. on App. at 69, 11 2-19. The coroner’s office was called and they arrived
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`at about 6:16 a.m. Rec. on App. at 72, 11 1-8. The child was dead at the scene. Rec. on App. at
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`73, 11 1-11. Pursuant ta their protocol Ellen Holmes conducted an interview with Mrs. Greene at
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`the scene. Rec. on App. at 74, 6-20; 52, 11 2-6. The interview lasted about three hours. Rec. on
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`App. at 89, 11 6-1 1.
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`In this interview Ms Holmes obtained a medical history of the child and the
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`activities of the child for the previous several days. She stated that in her opinion Mrs. Greene
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`appeared to be under the influence. Rec. on App. at 73, 11 18-24.
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`As no immediate cause of death could be determined, blood and tissue samples
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`were taken to be analyzed. When these results were returned Dr. John David Wrenn, the
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`pathologist, issued his report on January 28, 201 1 stating the cause of death was a result of
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`respiratory insufficiency secondary to synergistic drug intoxication. Rec. on App. at 419, ll 18-
`
`

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`20. Mrs. Greene was theniarrested on June 24, 201 1 forlhomicide by child abuse.
`Alexis Greene was born on September 28, 2010. At the time of the birth oftheir
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`daughter, Mrs. Greene was being prescribed numerous pain medications for injuries she had
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`sustained in an automobile accident years before and other physical complications. Rec. on App.
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`at 163, 11 3-25 to 164, 11 1-1 1. Testimony from Dr. Carol A. Koistra confirmed that Mrs. Greene
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`was totally disabled. Rec. on App. at 21 1, 11 3-25 to 214, 11 1-25,. Dr. Koistra was primarily
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`prescribing vicoprofen, a schedule 111 drug and several other drugs from schedule 111 and higher.
`
`Rec. on App. at 209 11 4-9. Dr. Susan Kovacs, over a period of several years, prescribed various
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`schedule 11 drugs to Mrs. Greene. Rec. On App. 150, 11 23-25 to 151, 11 1-10.
`
`I Both doctors testified that they did not know Mrs. Greene was pregnant and they
`would not have prescribed the opioids had they known she was pregnant. Recon App. at 162, 11
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`18-23; 151, 11 8-13; 201, 11 6-11; 203, 11 3-10. Dr. Kooistra was unsure if she referred Mrs.
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`Greene to Dr. Kovacs, but she did send Dr. Kovacs a copy of her report of November 4, 2010
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`which included a complete list of the prescriptions she was prescribing for Mrs. Greene. Rec. on
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`App. at 207, 11 21-25 to 208, 1-16. Dr. Kovacstestified she did not know that Dr. Kooistra was
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`prescribing vicoprofen. Rec. on App. at 152, 11 5-7. On cross ekamination she admitted that she
`had signed two documents in her office acknowledging that Mrs. Greene was in fact receiving
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`vicoprofen through November of2009. Rec. on App. at 169, 11 16-25 to 171, 11 1-17. The
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`doctors also admitted that vicoprofen and morphine are frequently prescribed together. Rec. on
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`App. at 165, 11 12-25 to 166, 11 1-6; 219, 11 1-10. Dr. Kooistra further admitted that the American
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`Academy of Pediatric found nothing wrong with prescribing morphine while a woman is breast-
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`feeding. Rec. on App. at 217, 11 19-25 to 218, 11 1-4.
`
`DJ
`
`

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`Dr. Kovacs, who was prescribing schedule 11 narcotics, admitted that she did not
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`personally see Mrs. Greene but four times‘ over a 23 month period ending in November of 201 0.
`
`Rec. on App. at 185, 11 13-23. On one occasion Dr. Kovacs mailed the prescription to Mrs.
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`Greene. Rec. on App. at 186, 11 3-9. Dr. Kovacs also referred Mrs. Greene to Carolina‘
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`O.B.G.Y.N. Apparently the O.B.Y.G.N never told Dr. Kovacs, the referring doctor, that Mrs.
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`Greene was in fact pregnant. Rec. on App. at 189, 11 4-25.
`
`Kaushik Kotecha, employed by the South Carolina Department of Health and
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`Environmental Control, was the primary investigator of the medicines prescribed by the various
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`doctors. He testified that DHEC had a prescription-monitoring system that all doctors in the
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`state have had access to since 2007. Rec. on App. at 325, 11 3-15. Heifurther stated that all the
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`prescriptions except one were filled at a single pharmacy in Inman. Rec. on App. at 315, 11 8-21.
`
`He testified that when dealing with different medications a prudent patient would use the same
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`pharmacy. Rec. on App. at 317, ll
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`1 1-16. He further stated that two prescriptions that had a
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`warning against ‘taking while breast-feeding were not found in the toxicology report. Rec. on
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`App. at 319, .13-25 to 320, 11 1-4. The only drug found in the toxicology report that contained a
`warning against taking while breast-feeding was Clonazepam. Rec. on App. at 321, 11 9-25 to V
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`322, 11 1-20.
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`The State called as experts in this matter Dr. David Eagerton and Dr. John David
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`Wrenn. Neither testified that the morphine in the child was obtained though breast milk. When
`asked about the source of the morphine Dr, Wrenn stated “It’s not my opinion that it was from
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`milk or anything else.
`
`ljust know that it was there.” Rec. on App. at 421, 11 22-24. Dr. Eagerton
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`. testified when asked he could not say how the morphine got into the child other than “Had to get
`
`4
`
`

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`into the baby somehow.” Rec. on App. at 369, ll 12-] 8. Dr. Eagleton further admitted that no
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`peer reviewed article involving morphine discusses a child being in a hospital from ‘a toxic level
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`of morphine obtained through breast milk. Rec. on App. at 351, 11 19-22. He also knew of no
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`study that shows a child can obtain a toxic level of morphine through breast milk from a mother
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`1 taking MS Contin, the morphine being taken by "Mrs. Greene. Rec. on App. at 357, 11 18-21. He
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`further admitted_that the American Academy of Pediatrics listed morphine as safe to take while
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`breast feeding. Rec. on App. at 361, 11 4-7. He also admitted that the Clinical Toxicology
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`Journal reported that scant evidence existed that opioid toxicity could occur in breast-fed infants .
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`Rec. on App. at 367, 11 12—25 to 369, 11 1-11. Nether Dr. Eaglerton nor Dr. Wrenn produced any
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`medical or other scientific research that supported the proposition that an infant can receive a
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`lethal level of morphine through breast milk.
`
`

`
`Argument
`
`Question I
`
`Did the trial court err in ‘failing to direct a verdict when the State failed to
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`prove through competent medical evidence or otherwise that the morphine in the deceased
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`child came from the mother through breast-feeding?
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`At the trial below the only theory the State had as to how the child obtained a
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`lethal dose of morphine was through the breast—milk of the child’s mother, Stephanie Irene
`
`Greene. The trial court charged the jury “[T]he State’s allegation and theory in the case is, that
`the child died as a result ofconsumption of a controlled substance through the mother’s breast
`
`milk.” Rec. on App. at 579, ll 5-7. The State, however, never produced any medical or
`
`scientific evidence that a mother could give anursing infant a lethal dose of morphine through
`
`breast—milk. If the State fails in this proof, then the State fails in its proof of guilt against
`
`Stephanie Irene Greene.
`
`South Carolina has long recognized “the rule that when the testimony of medical
`
`experts is relied upon to establish causal connection between an accident and subsequent
`
`disability or death, in order to establish such, the opinion of the experts must be at least that the
`
`> disability or death ‘most probably’ resulted from the accidental injury.” Cross v. Concrete
`
`Materials, 236 S.C. 440, 442, l 14 S.E.2d 828, 829 (1960). See, also, Armstrong 12. Weilana’, 267
`
`In the present
`S.C. I2, 225 S.E.2d 851 (I 976)(applying the rule in a medical malpractice case).
`case the ability totransfer different drugs through breast milk is not something that is within the
`
`common knowledge of lay people. This can be established only through expert testimony.
`
`In an attempt to establish its case the State called Dr. David Wren and Dr. David
`
`

`
`H. Eagleton as medical experts who opined concerning breast-milk and the morphine found in
`
`the minorichild. No other witness gave any testimony‘ as to whether lethal levels of morphine can
`be supplied through breast-milk. Neither expert called by the State testified to a reasonable b
`degree of medical certainly that the most likely cause ofthe morphine levels in the minor child
`
`was through breast-milk. in fact neither testified that even a toxic level of morphine in the child
`
`through breast milk was possible.
`
`‘On cross-examination Dr. Eagerton states:
`
`Q (By Mr. Wise) Well, I hand you - - look here at the highlighted
`portion about the LactMed website and see if that refreshes your
`memory?
`'
`A (By Dr.,Eagerton) Yes, sir.
`Q The National Institute of Health
`A Yes, sir.
`
`A
`
`Q Did you access that website in preparation for your testimony
`here today?
`‘
`»
`.
`i
`A I did
`Q And which article on the National Institute of Health website
`did you find that says a mother whobreastfeeds can give her child
`a toxic level of morphine‘?
`‘
`A I don’t recall
`
`Q Because it doesn’t exist.
`A
`A May not
`Q Do you think if it existed you would have found it?
`A I would hope so.
`Rec. on App. at 365, 11 6-24
`
`He further testified:
`
`Q Look there if you would on this highlighted portion on the right
`hand side where the little star is.
`
`A. Ok
`
`.
`
`Q. 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 that’s — -
`'
`
`

`
`Q. That’s true‘
`
`That’s true, yes sir.
`So there’s scant evidence
`
`That’s correct
`
`Which is pretty close to none
`Yes, sir.
`
`‘
`
`0?>@?>O?>@.>
`
`Right?
`That’s right
`. So you’re in no position to say then that that number came
`through breast milk.
`‘ A. Had to get into the baby somehow.
`Rec. on App. at 368, ll 20-25 to 369,11 l-18.
`
`>l<>l<>l<
`
`Q. So you’re not able to tell this jury how‘ this morphine got into
`this child.
`_
`A‘.
`It had to - - most commonly it had to get there by the oral route.
`Rec. on App. at 383, 11 15-18.
`
`Dr. David Wrenn, the pathologist, was likewise no more helpful to the State. He
`
`speculated as to a theory and then said “It’s not up to - - in my opinion it’s not up to me to find
`
`out exactly everything that happened because this is not a research project.” Rec. on App. at 429,
`
`11 7-10. He later stated “I don’t know how it got there. It’s unquestionably there. And you can —
`
`— you can argue any mechanism you want, but it’s there, period.” Rec. on App. at 430, ll 9-] l.
`
`. Neither expert ever cited any research project, study, or report of any mother
`
`giving her child even" a toxic level of morphine from taking MS Contin. Dr. Eagleton admitted
`
`on cross-examination that morphine was approved for use by breast feeding mothers. Rec. on
`
`App. at 361, ll 4-'8; See also, The Transfer ofDrugs and Therepeutics [1710 Human Breasl Milk.‘
`
`An Update on Selected Topics, 132, PEDIATRICS, Official Journal of the American Academy of
`
`Pediatrics, e796, e80I(September 2013) (‘.‘For these reasons, when narcotic agents are needed to
`
`treat pain ‘in the breastfeeding mother, agents other than codeine'(eg, butotphanol, morphine, or
`
`

`
`'
`
`A hydromorphine) are preferred”); The Transfer of Drugs and Other Chemicals Into Human Milk,
`
`108 PEDIATRICS, Official Journal of the American Academy of Pediatrics, 776, 781
`
`(September 2001) (listing no sign or symptom in infant of mother taking morphine other than
`
`measurable blood concentration for morphine); Postpartum maternal codeine therapy and the
`
`risk ofaa'verse neonatal outcomes.’ A retrospective cohort study, 50 Clinical Toxicology, 390,
`
`394 (2012)(“In summary, despite a recent report of neonatal death associated with maternal use
`
`of codeine, we found ho evidence that prescription of codeine to women following delivery was
`
`associated with several measures of neonatal harm in large population studied over a 10-year
`
`period.”)'
`
`This Court and the South Carolina Supreme Court have said that a circumstantial
`
`evidence case must be based on substantial circumstantial evidence. “If there is any direct
`
`evidence or any substantial circumstantial evidence reasonably tending to prove the guilt ofthe
`accused, an appellate court must find the case was properly submitted to the jury.” State v.
`
`Cherry, 361 S.C. 588,‘ 593-594, 606 S.E.2d 475, 478 (2004)(emphasis added); See, also, Jackson
`
`v. Virginia, 443 U.S. 307 (1979); State v. James, 362 S.C. 557, 608 S.E.2d 455 (Ct. App. 2004);
`
`State
`
`()a’ems, 395 S.C. 582, 720 S.E.2d 48 (2011); State v. Lollis, 343.S.C. 580, 541 S.E.2d
`
`254 (2001); State v. Martin, 343 S.C.. 580, 541 S.E.2d 254 (2000); State v. Gilliand, 402 S.C.
`
`389, 741 S.E.2d 521 (Ct. App. 2012); State v. Meggett, 398 S.C. 516, 728 S.E.2d 492 (Ct. App.
`
`' These articles and others were referred to during the trial and acknowledged by the
`‘
`State’s experts to be authoritative. Codeine is converted by the human body to morphine.
`
`

`
`2012)? The standard of review is not is there some circumstantial evidence that could be
`
`, interpreted to be evidence of guilt. Nor is it so if one interpretation of the facts is consistent with
`
`guilt the verdict is to be sustained. To say a theory of guilt is possible is not substantial
`
`circumstantial evidence nor proof beyond a reasonable doubt. Concerning a review of a
`
`circumstantial evidence case, the Arkansas Supreme Court said “In reviewing a challenge to the
`
`sufficiency of the evidence, we determine whether the verdict is supported by substantial
`
`evidence. direct or circumstantial. Substantial evidence is that evidence which is of sufficient
`
`force and character that it will, with reasonable certainty, compel a conclusion one way or the
`
`other, without resorting to speculation or conjecture.” Campbell v. State, 2009 Ark. 540, T,
`
`354 S.W.3d 41, 44 (2009).
`
`As to circumstantial evidence the South Carolina Supreme Court has said
`
`‘“Suspicion’ implies a belief or opinion as to guilt based upon facts or circumstances which do
`
`not amount to proof.” State v. Lollis, 343 S.C. 580, 584,. 541 S.E.2d 254, 256 (2001). The
`
`Court hasfurther said circumstantial evidence is sufficient to convict when “ the circumstances
`
`proven are consistent with each other, and when taken together, point conclusively to the guilt of
`
`Appellant to the exclusion of every other reasonable hypothesis.” Stale v. Daniels, 401 S.C. 251,
`
`3 The South Carolina Court of Appeals in State v. Cherry, 348 S.C. 281, 559 S.E.2d 297
`(Ct. App. 2001) discussed whether courts inapplying the “substantial circumstantial evidence”
`standard are engaging in the weighing of evidence, which appellate courts are forbidden to do.
`The United States Supreme Court in Jackson v. Virginia, 443 U.S. 307 (1979) specifically
`rejected the “any evidence” standard in criminal cases. The Court said “But it could not seriously
`be argued that such a ‘modicum’ ofevidence could by itself rationally support a conviction
`beyond a reasonable doubt.” Id. at 320. To the extent that any appellate court determines
`whether the circumstantial evidence is “substantial” or if the evidence is more than a “modicum”
`
`an appellate court will, to some extent, weigh the evidence, notwithstanding the frequent
`' protestations to the contrary.
`
`10
`
`

`
`_, 737 S.E.2d 473 (2012). Further the court said “It is not sufficient that they create a
`
`probability, though a strong one .
`
`.” State v. Schrock, 283 S.C. 129, 133, 322 S.E.2d 450,
`
`452 (1 984)3. When no expert ever opined to aireasonable degree of medical certainly that the
`
`morphine most probably was administered through breast milk, the state has simply failed in its
`
`proof. This is especially true when all the authoritative sources concerning the taking of
`
`morphine while breast feeding say exactly to the contrary. When Dr. Wrenn, the expert forthe
`State, can only conclude “So there’s first time for everything.” (Rec. on App. at 437, ll 17-1 8),
`
`that is hardly substantial circumstantial evidence as to how the child received the morphine. As
`
`the evidence in this case raises at best only a suspicion that the morphine came from her breast-
`
`milk, all the convictions of Stephanie I. Greene should be reversed.
`
`Question [1
`
`Did the trialhcourt err in failing to direct a verdict or grant a new trial when
`
`the state failed to prove Stephanie Greene acted with extreme indifference as required by
`South Carolina Code § 16-3-85?
`3
`A Under South Carolina (lode § l6-3-85 a person commits homicide by child abuse
`
`when “ the death occurs under circumstances manifesting an extreme indifference to human life.”
`
`The statute is not violated if the person is negligent or even grossly negligent or reckless. The
`
`action must show an_extreme indifference to human life and not an extreme indifference to the
`
`consequence of ones actions. As the South Carolina Supreme Court has said ‘“extreme
`
`3 While the evidence in this case does not meet the “most probable” standard, the
`Schrock case could also stand for the proposition that the “most probable” standard is not
`sufficient in a criminal case where the burden is beyond a reasonable doubt.
`
`ll
`
`

`
`indifference’ has been defined as ‘a mental state akin to intent characterized by a deliberate act
`
`culminating in death.’” McKm'gh/’v. State, 378 S.C. 33, 48, 661 S.E.2d 354, 361 (2008). Thus,
`the state is required to prove that Mrs. Greene acted not negligently but with aniintent to
`
`disregard the consequences of her actions which she knew could result in the death of her child.
`
`The act which the State contends that Mrs. Greene committed which was done with extreme
`
`indifference was breast feeding her child while taking prescription drugs. The State must prove
`
`Mrs. Greene had reason to know that this act could result in the death of her child and that she
`
`did the act with extreme indifference as to the consequences. The record simply does not
`
`support this conclusion.
`
`The South Carolina Supreme Court has said “[l]t is common knowledge that use
`
`of cocaine during pregnancy can harm the viable unborn child. Given these facts, we do not see
`
`how Whitner can claim she lacked fair notice that her behavior constituted child endangerment as
`
`proscribed in section 20-7-50.” Whitner v. Stale, 328 S.C. 1, 16, 492 S.E.2d 777, 785 (1997). If
`
`“common knowledge,” and not published medical studies, is sufficient to put one on notices
`
`about the consequences of cocaine, then numerous published medical studies ought to be
`
`sufficient to tell a woman that breast feeding while taking morphine is safe. As noted at the trial,
`
`scientific studies from numerous reputable organizations tell women that breast feeding while
`
`taking morphine is safe. Doing what these studies say’ is safe cannot lead one to conclude that
`
`. breast feeding while taking morphine is acting with extreme indifference as to the consequences.
`
`But the record here provides more evidence that Mrs. Greene did not act with extreme
`
`indifference.
`
`Kaushik Kotecha, a licensed pharmacist employed by DHEC,
`
`testifying for the
`
`12
`
`

`
`state said:
`
`Q. (By Mr. Wise) People are encouraged to use the same
`pharmacy, aren’t they?
`'
`i
`A. Yes, sir.
`i
`
`Q. And why is that?
`.
`.
`.
`A. So you can kind of monitor the side effects of drugs. You
`know, you may be getting one drug that may counter the effect of
`another drug or, you know, you may have a drug that’s synergistic
`effect, so yes.
`i
`'
`
`Rec. on App. at 314, 11 13-20.
`
`* * >l<
`
`~
`
`Q". (By Mr. Wise) But she had been going to the same pharmacy as
`far back as you’ve~got records.
`Yes, sir.
`
`O>O?>O.>
`
`Which is a good practice
`Absolutely
`A smart practice
`_
`K
`. Yes, sir.
`. An_d there’s not a person in the world you would encourage to
`do anything differently.
`‘
`A. No, sir.
`,
`Q. Because it’s important for your health to know what — — how
`drugs inter-react.
`‘
`A. Right,