The STATE, Respondent, v. Wesley SMITH, Appellant, 391 S.C. 353

FEW, C.J. Wesley Smith was convicted of aiding and abetting homicide by child abuse against his four-month-old daughter, Ebony. The trial judge sentenced him to twenty years. Smith raises two primary issues on appeal. First, he claims the judge committed error in admitting evidence of a prior incident of child abuse against Ebony. He also contends the judge erred in allowing the State to proceed under the aiding and abetting

section of the homicide by child abuse statute. We affirm. I. Facts Ebony Kiandra Smith died on February 14, 2004, from a combination of an overdose of four times the adult therapeutic level of pseudoephedrine and blunt force trauma to her chest. Her death culminated a four month saga of abuse and neglect for Ebony. Charlene Dandridge, Ebony’s mother and Wesley Smith’s live-in girlfriend, left Ebony at home with Smith that day while she went to work. Other than Dandridge’s brief return home for lunch, the child was in Smith’s sole custody the entire day. Smith was indicted for homicide by child abuse as a principal under

section 16 — 3—85(A)(1) of the South Carolina Code (2003). At trial, the State proved the history of Ebony’s abuse. The State established through medical witnesses that Ebony had seventeen broken ribs at the time of her death. The pathologist testified that the rib fractures were “really classic for squeezing type of injury” caused by child abuse. Through a microscopic examination of each individual rib fracture, the pathologist determined by the extent of healing that the fractures had occurred between ten days and three weeks before Ebony’s death.

The pathologist also found evidence of hemorrhaging over some of the fractures indicating new injuries at the site of the fractures that occurred approximately 24 hours before Ebony’s death. The doctor testified that the older fractures resulted from squeezing, but the more recent injuries could have resulted from squeezing or striking. The pathologist testified: “It’s inflicted trauma.... [Tjhere’s no way that this occurred accidentally or naturally, no way whatsoever.” The State proved that Smith was Ebony’s primary caretaker and that he was around her on a constant basis.

From January 15 until the day of her death, the only adults with access to Ebony were Smith, Dandridge, and Smith’s mother and father who saw Ebony on the weekends. On the day of her death, the only people who saw Ebony were Smith, Dandridge, and Dandridge’s other two young children. Importantly, Smith did not object to the introduction of any of the evidence described so far, nor does he challenge the admission of that evidence on appeal. He did object, however, to the admission of evidence of a broken femur Ebony suffered in November, 2003.

Dandridge came home from work one day in November to find that Ebony’s leg was immobile. Smith, who had sole custody of Ebony that day, explained to Dandridge that he was napping with Ebony on his chest when he heard someone knock on the door. Smith explained the injury by telling Dandridge that, as he reacted to the knock, Ebony fell backwards with her leg still in Smith’s hand. Smith and Dandridge apparently knew the leg was broken because Smith concocted a homemade splint and put it on Ebony’s leg. They did not initially take Ebony to the doctor because Dandridge was afraid Ebony would be taken away from her.

On December 9, they finally took Ebony to the doctor. The pediatrician who examined Ebony that day testified that her “thigh was very swollen and painful” and explained that Ebony “started to cry every time I touched her leg.” The pediatrician asked Smith how the injury occurred. At first, Smith told the doctor he “had no idea,” but he later gave her the same story he told Dandridge, admitting he was holding Ebony when the injury happened. The doctor ordered X-rays which demonstrated a “spiral fracture” of Ebony’s femur with callus showing the bone had been healing for at least two weeks.

The radiologist who examined the X-rays on December 9 testified a spiral fracture is “a twisting type injury that causes the bone to fracture in a spiral rather than just a crack” and that a spiral fracture is typically not accidental. During the autopsy, the pathologist was able to examine the fractured femur in greater detail. She described the spiral fracture as one caused by “a twisting, yanking motion, and that’s what we see more with abusive fractures.” While showing the X-ray to the jury, she described the break of Ebony’s femur as “a complete break.

It’s going from the inner part of the thigh down towards the outer part.” She described the fracture as “abusive in that this is an inflicted fracture. This is not an accidental fracture.” Finally, the pathologist testified that Smith’s story about how the injury occurred is “absolutely not” consistent with the medical evidence she had just described. The trial judge admitted the evidence over Smith’s objection. At the close of all the evidence, the State asked the trial judge to charge the jury that it could find Smith guilty under both subsections of the homicide by child abuse statute.

The indictment alleged he was guilty as a principal under subsection 16 — 3—85(A)(1). The trial judge also allowed the State to proceed under subsection 16-3-85(A)(2), the aiding and abetting subsection of the statute. The jury found Smith guilty of aiding and abetting homicide by child abuse, and the judge imposed the maximum penalty of twenty years. II. Other Crimes, Wrongs, or Acts The rule of evidence governing the admissibility of other crimes, wrongs - or acts committed by a defendant has long been a part of our jurisprudence. In 1923, in the often cited case of State v.

Lyle our supreme court described it as “the familiar and salutary general rule, universally recognized and firmly established in all English-speaking countries____” 125 S.C. 406, 415-16, 118 S.E. 803, 807 (1923). The rule is based on the danger that the jury will reach a guilty verdict because of the defendant’s bad character and not based on the evidence of the crime for which he is currently on trial.

This danger was described in Lyle: Proof that a defendant has been guilty of another crime equally heinous prompts to a ready acceptance of and belief in the prosecution’s theory that he is guilty of the crime charged. Its effect is to predispose the mind of the juror to believe the prisoner guilty, and thus effectually to strip him of the presumption of innocence.

It “compels the defendant to meet charges of which the indictment gives him no information, confuses him in his defense, raises a variety of issues, and thus diverts the attention of the jury from the one immediately before it.” 125 S.C. at 416, 118 S.E. at 807 (citations omitted).

The rule is often explained in terms of “propensity,” in that the rule prevents a defendant from being found guilty simply because of his propensity to commit similar crimes. “The State may not show defendant’s prior trouble with the law, specific criminal acts, or ill name among his neighbors, even though such facts might logically be persuasive that he is by propensity a probable perpetrator of the crime.” Michelson v. United States, 335 U.S. 469, 475, 69 S.Ct. 213, 93 L.Ed. 168 (1948). “It is in criminal cases that the law must be the most sternly on guard against allowing the doing of

an act to be proved by a propensity to do it.” James F. Dreher, A Guide to Evidence Law in South Carolina 35 (South Carolina Bar 1967). “[Ejvidence of other crimes, wrongs, or acts is not admissible for purposes of proving that the defendant possesses a criminal character or has a propensity to commit the charged crime.” State v. Fletcher, 379 S.C. 17, 26, 664 S.E.2d 480, 484 (2008) (Toal, C.J., dissenting). When South Carolina adopted the Rules of Evidence in 1995, the law of admissibility of evidence of other crimes, wrongs and acts was incorporated into Rule 404(b). The first sentence of Rule 404(

b) focuses the court’s inquiry on the purpose for which the evidence is offered. “Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith.” Rule 404(b), SCRE. When other acts of the defendant are offered to prove his character in order to show that he acted in conformity with his character, the evidence is offered for the prohibited purpose of showing a propensity to commit the crime, and is therefore not admissible.

See Fletcher, 379 S.C. at 26, 664 S.E.2d at 484 (explaining “why certain prior bad act testimony is inadmissible, i.e., ...” when “the only function of [the] testimony ... was to demonstrate ... bad character” which was “used by the jury to infer that the defendant did in fact commit the crime”). However, Rule 404(

b) recognizes exceptions to the bar against using the evidence to prove propensity. When the evidence is offered for one of the five purposes listed in the second sentence of Rule 404(b), evidence of other crimes, wrongs or acts “may ... be admissible.” The five listed purposes are “to show motive, identity, the existence of a common scheme or plan, the absence of mistake or accident, or intent.” Rule 404(b), SCRE. In order to introduce evidence of some other act of the defendant under one of these exceptions, the State must lay the proper foundation.

First, unless the act is the subject of a criminal conviction, the State must prove by clear and convincing evidence that the defendant committed the act. Fletcher, 379 S.C. at 23, 664 S.E.2d at 483. The second element of the foundation requires the State to articulate the logical connection between the other act and at least one of the five purposes listed as exceptions in the rule. State v. Pagan, 369 S.C. 201, 211, 631 S.E.2d 262, 267 (2006).

In order to meet this element, the State must explain how evidence of the other act will assist the judge or the jury in understanding some material issue in the case related to one or more of the Rule 404(

b) exceptions. When the State adequately explains how the evidence of the other act logically connects to an issue in the case, it demonstrates how the judge or jury can use the evidence without using it for the prohibited purpose of inferring guilt from the defendant’s propensity to commit the crime. See State v. Wiles, 383 S.C. 151, 158, 679 S.E.2d 172, 176 (2009) (“Stated differently, evidence which is logically relevant to establish a material element of the offense charged is not to be excluded merely because it incidentally reveals the accused’s guilt of another crime.” (internal citations omitted)).

If the trial judge finds the State has met the first two elements, the judge must consider Rule 403, SCRE. State v. Stokes, 381 S.C. 390, 404, 673 S.E.2d 434, 441 (2009). Under Rule 403, the trial judge must determine whether the logical connection articulated by the State is sufficiently strong that the probative value found in the connection is not substantially outweighed by the tendency of the evidence to show propensity, or by some other form of unfair prejudice. If the trial judge determines not to exclude the evidence under this Rule 403 analysis, then the State may admit it.

Turning to the facts of this case, we are satisfied the judge acted within his discretion in ruling the evidence was clear and convincing that Smith committed child abuse in connection with Ebony’s broken leg. While the record does not reflect the exact manner in which the injury occurred, the State’s proof that Smith was guilty of the abuse that caused it is overwhelming. Smith was the only person with Ebony when the injury occurred. Smith admitted to Dandridge and to the pediatrician that the injury occurred while he held the child in his hands.

Three treating physicians along with the pathologist testified that Ebony’s spiral fracture was the result of child abuse, not accident. Moreover, the State presented evidence that Smith lied to Dandridge, the doctors, and investigators from the Department of Social Services about how the child’s injury occurred in order to conceal his involvement in the injury. There is ample evidence to support the judge’s ruling. We review a circuit court’s determination that evidence offered pursuant to Rule 404(

b) is clear and convincing under the “any evidence” standard. State v. Wilson, 345 S.C. 1, 5-6, 545 S.E.2d 827, 829 (2001) (reversing the court of appeals for not applying the any evidence standard in reviewing a circuit court’s determination that Rule 404(

b) evidence was clear and convincing); See also State v. Wallace, 384 S.C. 428, 432 n. 2, 683 S.E.2d 275, 277 n. 2 (2009) (“Bad act evidence that is not subject to a conviction must be shown by clear and convincing evidence and is reviewed under an ‘any evidence’ standard on appeal.” (citing Wilson, 345 S.C. at 5-6, 545 S.E.2d at 829)). Because there is evidence to support the judge’s ruling that the evidence was clear and convincing, we must affirm the trial court’s ruling that the State satisfied the first element.

The State also satisfied the second element of the foundation by explaining how the evidence logically related to two of the exceptions listed under Rule 404(b): motive and absence of mistake. See State v. Cutro, 332 S.C. 100, 103, 504 S.E.2d 324, 325 (1998) (“The acid test of admissibility is the logical relevancy of the other crimes. The trial judge must clearly perceive the connection between the other crimes and the crimes charged.”). First, the State points to the indisputable facts that the untreated broken leg was painful and that the pain would have made Ebony cry.

There is ample medical testimony in the record to support this point. Second, the State presented evidence that Smith was not able to handle being around Ebony when she was crying. Third, the State presented evidence that Smith gave Ebony medicine on the day of her death, despite the fact that she had no medical condition that warranted medication.

Next, the State presented expert testimony that pseudoephedrine is often improperly used to “chemically restrain” children, meaning, as the State’s forensic toxicologist and drug chemist testified, to “subdue the child so that the caregiver would not have to care for the child or tend to the child, or to quiet the child in some manner.” The State summarizes its “logical connection” argument in its brief: The child would have been crying continually and extensively because of her injuries, beginning at the time of the first known injury — the injury to the femur — and progressing with the subsequent injuries.

In light of the testimony that Appellant could not “handle” the victim’s crying, the femur injury was highly relevant to show Appellant’s motive for ... attempting to “chemically restrain” the child with medicine. The femur evidence was thus critical to show that the overdose was not purely a mistake or accident. This is precisely what our courts mean when requiring a “logical connection.” The State has explained how the evidence can be used by the jury to determine motive and absence of mistake without relying on propensity. The State has proven the second element of the foundation.

Finally, we believe the trial judge’s ruling not to exclude the evidence under Rule 403 was within his discretion. See State v. Holland, 385 S.C. 159, 171-72, 682 S.E.2d 898, 904 (Ct.App.2009) (stating this court gives “great deference to the trial court’s judgment” under Rule 403 and that the “trial court’s determination should be reversed only in exceptional circumstances”).

The trial judge acknowledged the unfair prejudice of the evidence, calling it “highly prejudicial, obviously.” He concluded, however, that “the probative value ... clearly outweighs the prejudicial effect.” Smith made no Rule 403 argument to the trial judge other than the conclusory statement: “I still think we have the filter of the 403, the prejudicial and probative value.” Smith’s argument on appeal is equally conclusory.

Given the State’s articulation of the logical relevance of the femur injury, and thus its probative value, the judge acted within his discretion in concluding the unfair prejudice in admitting the evidence did not substantially outweigh the probative value. Smith argues that because the trial court relied on this court’s opinion in State v. Fletcher, 363 S.C. 221, 609 S.E.2d 572 (Ct.App.2005), which was subsequently reversed by the supreme court, 379 S.C. 17, 664 S.E.2d 480 (2008), Smith’s conviction must also be reversed. We disagree.

The supreme court’s decision in Fletcher was based on the State’s failure to prove the prior acts by clear and convincing evidence, and therefore does not control the outcome of this appeal. 379 S.C. at 25, 664 S.E.2d at 483-84 (“[T]here is simply no evidence, let alone clear and convincing evidence that Fletcher was the perpetrator of the prior bad acts____”). One point warrants further discussion. The trial judge made several comments as to the reasons he was admitting the evidence of Ebony’s broken femur which do not fit into the analysis set out above.

For example, he stated “I’m admitting it to show clearly that someone committed child abuse on this child. The jury can determine whether or not this defendant did it.” To the extent this and other comments by the trial judge have been argued to indicate an improper Rule 404(

b) or Rule 403 analysis, it was Smith’s duty to raise those arguments before the trial judge. Because the arguments were never presented to the trial judge, they are not preserved for our review. See State v. Russell, 345 S.C. 128, 133-34, 546 S.E.2d 202, 205 (Ct.App.2001) (finding evidentiary argument was not preserved for review because the issue was never raised to or ruled upon by the trial judge). III. Aiding and Abetting under

Section 16-3-85(A)

(2) Smith contends that the trial judge erred in allowing the State to proceed on aiding and abetting homicide by child abuse under subsection 16-3-85(A)(2) of the South Carolina Code (2003). Smith was indicted as a principal under subsection 16-3-85(A)(l), not under subsection 16-3-85(A)(2). He claims he did not have notice of, and the evidence was not sufficient to support, the aiding and abetting charge. We disagree.

Under subsection 16-3-85(A)(2), a defendant is guilty of homicide by child abuse if he “knowingly aids and abets another person to commit child abuse or neglect, and the child abuse or neglect results in the death of a child under the age of eleven.” Id. “It is well-settled that a defendant may be convicted on a theory of accomplice liability pursuant to an indictment charging him only with the principal offense.” State v. Dickman, 341 S.C. 293, 295, 534 S.E.2d 268, 269 (2000) (citing State v. Leonard, 292 S.C. 133, 136, 355 S.E.2d 270, 272 (1987)).

Thus, the indictment charging Smith with homicide by child abuse as a principal was effective to put him on notice that the State may request to proceed on aiding and abetting homicide by child abuse as well. We find the State presented sufficient evidence to support various theories of Smith’s guilt under the aiding and abetting section.

Even if the jury found the State failed to prove beyond a reasonable doubt that Smith inflicted the fatal chest injuries, or personally administered the pseudoephedrine, they could nevertheless find him guilty of aiding and abetting if they found the State proved beyond a reasonable doubt that Smith knew about the injuries or about the pseudoephedrine but failed to seek medical care for her. IY. Remaining Issues on Appeal Smith raises two other issues related to the trial judge’s exclusion of evidence.

Smith sought to cross-examine Dandridge with evidence that she could also have been charged with homicide by child abuse as a principal, in which case she would have faced life in prison rather than thirty years. Though the trial judge initially sustained the State’s objection to the evidence, he later changed his mind and correctly allowed Smith to bring Dandridge back to the stand. See State v. Curry, 370 S.C. 674, 678-89, 636 S.E.2d 649, 651 (Ct.App.2006) (explaining that possible sentences co-defendant witnesses face are admissible as evidence of bias). However, Smith never offered the evidence.

We find no error. Smith also claims the judge erred in excluding the testimony of a psychiatrist Smith said would testify Smith has a very low I.Q. The psychiatrist was not present when the request was made, and Smith never offered the testimony into the record. The issue is not preserved for review. See State v. Santiago, 370 S.C. 153, 163, 634 S.E.2d 23, 29 (Ct.App.2006) (explaining that appellate court will not consider alleged error unless the record shows what the testimony would have been). V.

Conclusion We find the trial judge acted within his discretion in admitting evidence of Ebony’s broken femur and did not err in allowing the State to proceed under the aiding and abetting

section of the homicide by child abuse statute. Regarding the other issues, Smith’s claim that the trial judge erred in excluding evidence of bias fails because the judge did not exclude the evidence. Smith’s argument that the judge erred in excluding evidence of his borderline intelligence is not preserved for our review. AFFIRMED. HUFF, J., concurs. . Pseudoephedrine is a decongestant found in over-the-counter products such as Sudafed. It is not permitted to be given to children under the age of two. . A radiologist testified that X-rays taken on January 15 showed no rib fractures. .

Fletcher was actually decided on the basis of the State's failure to prove the other acts by clear and convincing evidence. 379 S.C. at 25 n. 2, 664 S.E.2d at 484 n. 2 ("We need not decide whether these acts, if proven by clear and convincing evidence, would otherwise be admissible under Rule 404(b), SCRE.”). The court nevertheless explained the basis for the rule excluding propensity evidence. . Contrary to the dissent’s assertion, this case is not controlled by Fletcher.

The Fletcher majority states "there is simply no evidence ... that Fletcher was the perpetrator of the prior bad acts against Jaquan.” 379 S.C. at 25, 664 S.E.2d at 483-84. Because there is evidence in this case to support the trial judge’s ruling, Fletcher is distinguishable. . We recognize that this situation is different from Dickman in that here the statute contains a separate aiding and abetting subsection. However, the subsection does not add any elements necessary for conviction, and therefore is governed’ by the same general aiding and abetting principles considered in Dickman. .

The record reveals that Dandridge faced thirty years, but does not include the specific charges she faced. Had she been charged with homicide by child abuse as a principal, she would have faced a minimum of twenty years and a maximum of life in prison. S.C.Code Ann. § 16-3-85(0(1) (2003).