(dissenting):
I respectfully dissent. I am deeply troubled by the abuse visited upon this infant victim that resulted in her untimely death. I believe the trial court erred, however, in allowing the introduction of improper propensity evidence. Based on our supreme court’s reasoning in State v. Fletcher, 379 S.C. 17, 664 S.E.2d 480 (2008), I would hold the admission of evidence of the victim’s fractured femur as a prior bad act amounts to reversible error. In the absence of this evidence, I would also hold the trial court should not have charged the jury with aiding and abetting homicide by child abuse.7
A. Prior Bad Act
On appeal, Smith argues the trial court erred in admitting evidence of a prior injury (a fractured femur) to the victim where the evidence was not clear and convincing and its probative value was substantially outweighed by the danger of unfair prejudice. The majority finds “overwhelming” evidence Smith inflicted the victim’s broken leg by committing an intentional act of child abuse. I disagree.
*368Evidence of other crimes or bad acts is not admissible to show criminal propensity to commit the crime charged or to demonstrate the bad character of the accused. Rule 404(b), SCRE; State v. Nelson, 331 S.C. 1, 6-7, 501 S.E.2d 716, 718-19 (1998); State v. Lyle, 125 S.C. 406, 415-16, 118 S.E. 803, 807 (1923). However, such evidence may be admissible to show motive, identity, the existence of a common scheme or plan, the absence of mistake or accident, or intent. Rule 404(b), SCRE. “To be admissible, the bad act must logically relate to the crime with which the defendant has been charged.” Fletcher, 379 S.C. at 23, 664 S.E.2d at 483. “If the defendant was not convicted of the prior crime, evidence of the prior bad act must be clear and convincing.” Id. “Even if the prior bad act evidence is clear and convincing and falls within an exception, it must be excluded if its probative value is substantially outweighed by the danger of unfair prejudice to the defendant.” Id. (citing Rule 403, SCRE).
The admission of this prior bad act conflicts with our supreme court’s holding in Fletcher. Specifically, evidence of the victim’s broken femur was inadmissible because (1) there was no evidence, let alone clear and convincing evidence, that Smith inflicted the victim’s broken femur by committing an intentional act of child abuse; (2) there was no logical connection between the broken femur and the victim’s resulting death; and, (3) the probative value of the victim’s broken femur was substantially outweighed by the danger of unfair prejudice pursuant to Rule 403, SCRE.
During the Fletcher trial, a neighbor testified that approximately two weeks prior to the victim’s death, he visited Fletcher’s home, heard crying, and located the victim sitting alone in the attic drenched in sweat while Fletcher and the victim’s mother were home. Id. at 21, 664 S.E.2d at 482. The same neighbor testified that approximately one month prior to the victim’s death, he came to Fletcher’s house and found the victim handcuffed by his feet to the bed on which Fletcher and the victim’s mother slept. Id. at 22, 664 S.E.2d at 482.
The Fletcher court held that it was improper to admit the neighbor’s testimony regarding these prior bad acts where there was no evidence, let alone clear and convincing evidence, as to which caretaker perpetrated the prior bad acts. Id. at *36925, 664 S.E.2d at 483-84. Our supreme court defined clear and convincing evidence as follows:
Clear and convincing evidence is that degree of proof which ■will produce in the mind of the trier of facts a firm belief as to the allegations sought to be established. Such proof is intermediate, more than a mere preponderance but less than is required for proof beyond a reasonable doubt; it does not mean clear and unequivocal.
Id. at 24, 664 S.E.2d at 483. The Fletcher court concluded that although there was evidence the victim had been abused, there was “not clear and convincing evidence in the record that Fletcher committed the prior had acts ....” (emphasis added). Id.
In the instant case, the record does not contain any evidence that Smith intentionally inflicted the victim’s broken femur. Dr. Cooper-Merchant, an attending physician, testified Smith informed him that he had no idea how the femur injury happened. Dr. Cooper-Merchant also testified Smith later stated the victim may have sustained the broken femur when she accidentally fell from his lap as Smith stood up from his chair one day upon hearing the doorbell ring.8 Dr. Cooper-Merchant further testified Charlene Dandridge9 was afraid to take the victim to the hospital after the femur injury because “they might consider her a bad mother.” Another attending physician, Dr. Crane, testified the femur fracture could have been anywhere between two and four weeks old when he took the victim’s x-ray on December 9, 2003, and it was impossible to know exactly when or how the fracture occurred. Dr. Crane noted approximately 30% of spiral fractures are accidental, and not abusive. Dr. Rahter, a third attending physi*370cian, testified it was possible Smith was not even present when the spiral fracture occurred.
During the motion in limine to exclude evidence of the victim’s broken femur, the trial court noted “either he or his wife or both of them had to do it.” It appears from the record that the trial court focused on clear and convincing evidence of a pattern of abuse inflicted upon the victim by any perpetrator, versus clear and convincing evidence of abuse inflicted by Smith. I believe this was error.
An allegation.of an accident does not equate to the admission of an intentional act of child abuse for purposes of demonstrating evidence of a prior bad act. See State v. Northcutt, 372 S.C. 207, 218-19, 641 S.E.2d 873, 879 (2007) (reversing a death penalty conviction when the trial court admitted evidence of the victim’s spiral leg fracture at age ten-weeks despite the fact that the prior injury was, by all accounts, accidental and therefore not relevant to show the nature of defendant’s relationship with the victim). This is particularly true where, as is the case here, Smith did not have exclusive custody and control over the victim. See State v. Cutro, 332 S.C. 100, 105-06, 504 S.E.2d 324, 326-27 (1998) (holding admission of prior bad acts of child abuse was reversible error when the defendant did not have exclusive control over the children during the period when the prior bad acts occurred). Indeed, DSS was unable to determine who caused the victim’s broken femur after investigating the incident, and returned the victim to her parents.
Therefore, evidence of the victim’s broken femur was inadmissible as a prior bad act because the State failed to present any evidence that Smith intentionally inflicted the injury. Compare State v. Pierce, 326 S.C. 176, 178-79, 485 S.E.2d 913, 914 (1997) (holding hospital employees’ testimony regarding victim’s previous injuries was inadmissible under the common scheme or plan, exception because there was no clear and convincing evidence defendant inflicted the injuries), with State v. Martucci, 380 S.C. 232, 241-42, 251-56, 669 S.E.2d 598, 603, 608-11 (Ct.App.2008) (permitting evidence of prior bad acts of child abuse when there was eyewitness testimony that the defendant slapped victim, taped victim’s mouth shut, *371and dunked victim’s head in a bathtub until he choked to stop victim from crying).
The majority next contends there was a “logical connection” between the broken femur and one of the exceptions listed in Rule 404(b), specifically, evidence of motive or absence of mistake. However, the logical connection required is between the prior bad act and the crime with which the defendant has been charged. See Fletcher, 379 S.C. at 23, 664 S.E.2d at 483; State v. Pagan, 369 S.C. 201, 211, 631 S.E.2d 262, 267 (2006) (“To be admissible, the bad act must logically relate to the crime with which the defendant has been charged.”).
Notably, the femur injury occurred three months before the victim’s death. At the well-baby visit on February 12, 2004, two days before the victim’s death, the attending physician did not note anything wrong with the victim. These facts are inconsistent with the majority’s assertion that Smith “chemically restrained” the victim to keep her from crying because her leg was hurting. Moreover, the majority overlooks the fact that both Smith and Dandridge admitted to administering medication to the victim in the days prior to her death, and both parents were primary caregivers.10 Finally, the victim’s cause of death was an overdose of pseudoephedrine accompanied by blunt force trauma to her chest. In the absence of any evidence Smith intentionally inflicted the broken femur, this evidence was not in any way causally related or logically connected to the victim’s death and was not necessary to prove res gestae. See Fletcher, 379 S.C. at 25 n. 3, 664 S.E.2d at 484 n. 3.
The majority holds the broken femur was admissible to show evidence of motive or absence of mistake. However, Smith never claimed the victim’s death was a mistake. Smith’s only defense during trial was that Dandridge commit*372ted the acts which resulted in the victim’s death. The broken femur was not relevant to show Smith’s motive to commit child abuse because there was no evidence that Smith intentionally or willfully inflicted the broken femur. See Northcutt, 372 S.C. at 218-19, 641 S.E.2d at 879. The only purpose for admitting this evidence was to demonstrate Smith’s propensity to commit the acts which resulted in the victim’s death in the absence of any direct evidence of abuse. This purpose is specifically prohibited by Rule 404(b), SCRE.
Lastly, evidence of the victim’s broken femur was inadmissible pursuant to Rule 403, SCRE. See Rule 403, SCRE (stating that evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice). This evidence was highly prejudicial and not harmless. See Fletcher, 379 S.C. at 26, 664 S.E.2d at 484 (noting the admission of prior bad act evidence when the offender was unsubstantiated was not harmless error because the identity of the perpetrator was the essential issue at trial); see also Northcutt, 372 S.C. at 218-19, 641 S.E.2d at 879 (reversing a death penalty conviction due to unfair prejudice pursuant to Rule 403, SCRE, when the trial court admitted evidence of the victim’s spiral leg fracture at age ten-weeks despite the fact that the prior injury was, by all accounts, an accident).
Smith’s sole defense during trial was that Dandridge committed the acts which resulted in the victim’s death. In addition, at the time the trial court admitted the evidence of the victim’s broken femur, Smith was only being tried for homicide by child abuse, not aiding and abetting homicide by child abuse. The admission of this evidence was highly prejudicial to Smith as Dandridge was not on trial, and DSS was unable to determine who caused the spiral fracture after investigating the incident. Therefore, I would reverse.
B. Aiding and Abetting Jmy Charge
Smith was indicted for homicide by child abuse under section 16-3-85(A)(l) of the South Carolina Code (2003). That section provides that a person is guilty of homicide by child abuse if the person “causes the death of a child under the age of eleven while committing child abuse or neglect, and the death occurs under circumstances manifesting an extreme *373indifference to human life.” At the end of trial, the State requested and the trial court decided to charge the jury on section 16-3-85(A)(2) as well, which provides that a person is guilty of homicide by child abuse if the person “knowingly aids or 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.” Smith was acquitted of the charge for which he was indicted, but the jury found Smith guilty of aiding and abetting homicide by child abuse. On appeal, Smith argues it was error for the trial court to charge the jury on section 16 — 3—85(A)(2). I agree.
An appellate court will not reverse the trial court’s decision regarding jury charges absent an abuse of discretion. State v. Williams, 367 S.C. 192, 195, 624 S.E.2d 443, 445 (Ct.App.2005) (citation and quotation marks omitted). “It is well-settled the law to be charged is determined from the evidence presented at trial, and if any evidence exists to support a charge, it should be given.” State v. Burriss, 334 S.C. 256, 262, 513 S.E.2d 104, 108 (1999) (emphasis added).
Setting aside evidence of the broken femur and any evidence collateral to that injury, there was not any evidence presented on which to charge the jury with aiding and abetting homicide by child abuse. Specifically, there was no evidence that Smith knowingly aided and abetted Dandridge or any other person to commit homicide by child abuse. See section 16-3-85(A)(2).
In conclusion, I would hold evidence of the victim’s broken femur should have been excluded under Rule 404(b), SCRE, and Rule 403, SCRE, as it may have been used by the jury as propensity evidence to infer that Smith aided and abetted the acts that ultimately resulted in the victim’s death, even though it acquitted him of homicide by child abuse. Because the prior bad act should not have been admitted, there was no evidence to charge the jury with aiding and abetting homicide by child abuse. Accordingly, I would reverse on both grounds.
. At the time the evidence of the broken femur was admitted, Smith was only being tried for homicide by child abuse. See S.C.Code Ann. § 16-3-85(A)(l) (2003). The State did not request and the trial court did not decide to charge aiding and abetting homicide by child abuse pursuant to section 16-3-85(A)(2) until the close of all evidence.
. To the extent the majority characterizes Smith’s inconsistent explanations as Smith having "lied” to conceal his involvement in the femur injury, I believe the majority misconstrues the facts. As I read the record, medical testimony merely indicated Smith’s explanations were inconsistent with the victim’s resulting injury. The State did not present any testimony that Smith fabricated stories to cover up for his own involvement in the injury.
. Dandridge was the victim’s mother. She testified for the State during Smith’s trial but was not tried simultaneously, and the State did not charge her with homicide by child abuse.
. Dandridge had custody of the victim the entire two days prior to the victim’s death (February 12-13th, 2004), and she admitted she could not recall every time she gave the victim medicine over that two day period. Dandridge further testified she could not remember whether or not she gave the victim pseudoephedrine over that two day period. In addition, Dandridge came home for lunch around 2 p.m. on the day of the victim’s death, approximately five hours before Smith called 911 to report the victim was not breathing. Finally, Dandridge testified she lied to police during her initial interview but she declined to identify the content of her misstatement.