The State v. Smith

• Decision Date: 28 February 2011
• Docket Number: No. 4785.,4785.
• Citation: 391 S.C. 353,705 S.E.2d 491
• Parties: The STATE, Respondent,v.Wesley SMITH, Appellant.
• Court: South Carolina Court of Appeals

391 S.C. 353

705 S.E.2d 491

The STATE, Respondent,

v.Wesley SMITH, Appellant.

No. 4785.

Court of Appeals of South Carolina.

Heard Sept. 16, 2010.Decided Jan. 26, 2011.Rehearing Denied Feb. 28, 2011.

Appellate Defender Kathrine Haggard Hudgins, of Columbia, for Appellant.Attorney General Alan Wilson, Chief Deputy Attorney General John W. McIntosh, Assistant Deputy Attorney General Salley W. Elliott, Assistant Attorney General Christina Catoe, all of Columbia; and Solicitor John Gregory Hembree, of Conway; for Respondent.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 ¹ 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.² 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.... [T]here'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). “[E]vidence 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”).³

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...