Directed Verdicts: what they are and why they are so hard to get.

A directed verdict is a home run for a defense attorney. It means the defendant doesn’t even have to put on a defense to the charges, because the judge agrees there is not enough credible evidence to convict the defendant. I have been fortunate enough to win a directed verdict in a trial, but for those of you who want to know more, a recent South Carolina Court of Appeals case is illustrative.
In the case of State v. Richard Brandon Lewis, Appellate Case No. 2011-187128, the defendant had been charged with aiding and abetting homicide by child abuse. In that case, Lewis had been at the home of Ashley Hepburn, which she shared with her mother and her mother’s boyfriend. Ashely had a baby girl as well.
During the particular evening, the baby had been fussy, and the defendant had fought with Hepburn, so he went to watch television in the living room, which Hepburn went to bed. Lewis later checked on the baby, which was fine at the time. After asking Hepburn to watch a movie with him in the living room, he went back there to watch alone after she declined. Later he heard the baby cry, and Hepburn stomped down the hall to the baby’s room. He heard the baby cry a little more, then heard the crying “as being broken up with short pauses, like she could have been shaken.” However, he was not in the room at the time. A little while later he checked on the baby before going to bed, and found her face down with her head against the crib bars. She also had blood around her mouth. They then called 911.
Lewis was interviewed by the police on several occasions, and did change his story somewhat about what he thought happened to the baby. At first he told police he thought the baby had a seizure. Hepburn, in her first statement to police, implicated Lewis in the crime, saying he was the only person who could have hurt the baby. When shown the second statement of Lewis, she conceded that his version was all true, though she didn’t remember hurting her baby.
It was established at trial that Lewis was not in the room when the baby was attacked, and did help seek medical treatment as soon as he found out about the injuries. The defense attorney moved for a directed verdict, and it was denied. An appeal was filed, which leads to this case.
The appeals court examined the trial court record, using the case of State v. Zeigler, 364 S.C. 94, 102, 610 S.E.2d 859, 863 (Ct. App. 2005) as the yardstick to measure what is required to rule a directed verdict is necessary. In that case the rule established is that a directed verdict is necessary “when the evidence merely raises a suspicion that the accused is guilty.” It continued that “suspicion implies a belief or opinion as to guilty based upon facts or circumstances which do not amount to proof.” Also, from another case, “under accomplice liability theory, a person must personally commit the crime or be present at the scene of the crime and intentionally, or through a common design, aid, abet, or assist in the commission of that crime through some overt act.” State v. Mattison, 388 S.C. 469, 479, 697 S.E.2d 578, 584 (2010). In that case it was also established that presence where the crime occurred is not enough. Failure to act is not enough to be held liable.
Because the state could not show he did something to help with the crime, the fact he was at the house and gave an inconsistent statement at first, does not rise to the level of aiding and abetting. Therefore the court should have granted his directed verdict motion.
Now you can see how hard it is to get a directed verdict, because it doesn’t take much to get over the standard and have a true question for the jury to decide. If you have any questions or comments about this or any other blog post, please feel free to leave a comment here or give my office a call at 843-822-9800. I welcome any responses or suggestions.

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