concurring in part, and dissenting in part.
I believe that the trial court properly admitted the evidence of the rib fractures that the child suffered two to four weeks prior to his death. I respectfully dissent from the majority’s holding to the contrary. With that exception, I concur in the majority opinion.
The evidence in this case established that appellant shook his seven-week-old child to death. Expert testimony established that the retinal hemorrhaging and subdural hematoma suffered by the child concomitant with his death pointed to a single cause of death — an intentional and forceful shaking. The evidence of opportunity pointed to a single criminal agent — appellant. These facts having been established, the issue is whether appellant is guilty of second degree murder or manslaughter. The determinative factor is whether appellant acted with malice.
In addition to the evidence showing that appellant shook his child to death, the Commonwealth presented evidence which showed that appellant had forcefully shaken his child one week prior to his death, causing a prior subdural hematoma. The Commonwealth also presented evidence which showed that the *548child’s ribs had been fractured approximately two to four weeks prior to his death. One of the Commonwealth’s medical experts testified that the rib fractures resulted from the child having been squeezed with excessive force, and that evidence led the medical expert to conclude that the child had been previously shaken. Indeed, the Commonwealth’s experts diagnosed the child as having suffered Shaken Baby Syndrome, a condition exhibiting the triad of injuries the child had suffered in the month leading up to his death.
Testifying for the Commonwealth, the child’s mother stated that no one other than she and appellant had ever been alone with the child, and she denied ever having shaken the child. Testifying in his defense, appellant stated that, in addition to him and his wife, both of the child’s grandmothers had been alone with the child. Appellant’s testimony, however, did not establish when the child’s grandmothers had allegedly been alone with the child. Other evidence in the case showed that the paternal grandmother’s visit coincided with the time frame during which the rib fractures occurred. However, the paternal grandmother testified that, while she had been alone with the child, she had never shaken the child. The evidence showed that the timing of the maternal grandmother’s visit did not coincide with the time frame during which the rib fractures occurred.
The Commonwealth relied on the child’s prior injuries — his week-old subdural hematoma and his rib fractures — to support its theory of the case, viz., that the fatal shaking was not an isolated incident but, rather, one of a series of forceful shakings committed by appellant. The Commonwealth argued to the jury that such a pattern pointed to a single conclusion, viz., that appellant acted with malice when he committed the fatal shaking.2
The relevance of the rib fractures to the Commonwealth’s theory of the case was dependent on proof that appellant *549inflicted the rib fractures.3 Had the Commonwealth presented no evidence linking appellant to the rib fractures, then the evidence of the rib fractures would, manifestly, have had no probative value to the Commonwealth’s theory of the case. See Smarr v. Commonwealth, 219 Va. 168, 170, 246 S.E.2d 892, 893 (1978).
Contrary to appellant’s contention, however, the determination whether the rib-fracture evidence was of probative value to the Commonwealth’s case was not contingent upon the Commonwealth proving, or the trial court finding, by a particular standard of proof that appellant did, in fact, inflict the rib fractures. Rather, as the majority opinion correctly states, the Commonwealth was required only to present evidence from which the trier of fact could “reasonably ... infer[ ]” that appellant inflicted the rib fractures. See also Floyd v. Commonwealth, 219 Va. 575, 583, 249 S.E.2d 171, 175 (1978) (record must contain evidence from which conditional fact may “reasonably be inferred” by trier of fact); Huddleston v. United States, 485 U.S. 681, 689-90, 108 S.Ct. 1496, 1501, 99 L.Ed.2d 771 (1988) (“[Sjimilar act evidence is relevant only if the jury can reasonably conclude that ... the defendant was the actor.... [Tjhe trial court neither weighs credibility nor makes a finding that the Government has proved [that] conditional fact by a preponderance of the evidence. The court simply examines all the evidence in the case and decides *550whether the jury could reasonably find the conditional fact ... by a preponderance of the evidence.”).
I disagree with the majority’s conclusion that the record contains “no evidence from which it may reasonably be inferred that appellant was the criminal agent who caused [the child’s] rib fractures.” I believe that this case is easily distinguished from Smarr, upon which the majority relies. In Smarr, the Commonwealth “merely showed that the [prior] injuries had occurred, and nothing more.” 219 Va. at 170, 246 S.E.2d at 893 (emphasis added). In the present case, to the contrary, evidence was admitted from which the jury could reasonably infer, once it determined the credibility of the testimony, that appellant inflicted the child’s rib injuries. The record established that while the child’s mother and the child’s paternal grandmother were the only individuals, other than appellant, who had been alone with the child during the time frame in which the rib fractures were inflicted, both testified that they had never shaken the child. In my view, given this evidence, and leaving the issue of credibility to the jury, as the trial court was required to do, see Huddleston, 485 U.S. at 690-91, 108 S.Ct. at 1501-02, the jury reasonably could have concluded that appellant inflicted the child’s rib fractures.
To be sure, admissibility of the rib-fracture evidence still depended on its probative value outweighing the prejudice to appellant. See Woodfin, 236 Va. at 95, 372 S.E.2d at 381. My view of the balance to be struck is at odds with that of the majority, which finds the rib-fracture evidence to be of no probative value. I disagree. The evidence of the rib fractures, when considered together with evidence linking the fractures to appellant, was probative on the issue of malice. The rib-fracture evidence tended to show, as the Commonwealth argued, that the shaking death of the child at the hand of appellant was not an isolated incident, suggestive, perhaps, of a non-malicious outburst, but, rather, that the shaking death was one of a series of forceful shakings, supporting a finding that the shaking death was committed with malice. I further believe that the rib-fracture evidence was probative, see Woodfin, 236 Va. at 95, 372 S.E.2d at 381, and that it was not outweighed by any improper prejudicial effect; indeed, I find nothing in' the record to indicate that it provided an *551improper basis for the jury’s decision. The only prejudice suffered by appellant was that the admission of the rib-fracture evidence made it more likely that he would be convicted. See Stockton v. Commonwealth, 227 Va. 124, 143, 314 S.E.2d 371, 383 (1984). Such prejudice, of course, does not justify the exclusion of the evidence. Id.
Accordingly, I would uphold the trial court’s admission of the rib-fracture evidence and affirm appellant’s conviction.
. Indeed, the Commonwealth even suggested to the jury that the evidence of the fatal shaking alone might support a manslaughter verdict. The Commonwealth’s theory of the case, that appellant had acted with malice, was clearly premised on the evidence of the child's prior injuries.
*549I find, nothing to support the apparent view of the majority that the Commonwealth was proceeding under a theory of second degree felony homicide. See Code § 18.2-33. The Commonwealth did not attempt to prove that the fatal shaking was itself a felony from which the required element of malice could have been imputed to appellant. And, indeed, the jury was never instructed on second degree felony homicide.
. Evidence is relevant if it has "any tendency to establish a fact which is properly at issue.” Wise v. Commonwealth, 6 Va.App. 178, 187, 367 S.E.2d 197, 202-03 (1988); see generally C. Friend, The Law of Evidence in Virginia § 11-1 (4th ed.1993) ("evidence is relevant if it tends to establish the proposition for which it is offered. If it has any probative value, however slight — i.e., if it has any tendency whatsoever to prove or disprove the point upon which it is introduced — it is relevant”). Although generally inadmissible, evidence tending to show an accused committed other bad acts at other times is admissible " ‘if it tends to prove any relevant element of the offense charged,' " so long as its " legitimate probative value outweighs the incidental prejudice to the accused.’ ” Woodfin v. Commonwealth, 236 Va. 89, 95, 372 S.E.2d 377, 380-81 (1988) (citations omitted).