STATE v. 2011 188646 (2013)

Supreme Court of South Carolina.

The STATE, Respondent, v. Wesley SMITH, Petitioner. Appellate Case No.2011–188646.

No. 27328.

Decided: October 30, 2013

Assistant Appellate Defender Kathrine H. Hudgins, of Columbia, for Petitioner. Attorney General Alan M. Wilson, Chief Deputy Attorney General John W. McIntosh, Senior Assistant Deputy Attorney General Salley W. Elliott, Assistant Attorney General Christina J. Catoe, all of Columbia, and Solicitor John G. Hembree, of North Myrtle Beach, for the State.

We granted a petition for writ of certiorari to review the court of appeals' affirmance of Petitioner's conviction for aiding and abetting homicide by child abuse. State v. Smith, 391 S.C. 353, 705 S.E.2d 491 (Ct.App.2011). Petitioner contends that the court of appeals erred by applying common law principles of accomplice liability to affirm his conviction for a statutory offense for which he was not indicted. We reverse the court of appeals and remand for a new trial.

I.

Petitioner was the father of the minor child (Victim) who died as a result of child abuse on February 14, 2004. Victim lived only 130 days. Petitioner and the Victim's mother, Charlene Dandridge, were Victim's caretakers. The two contributing causes of death were blunt-force trauma to the chest and pseudoephedrine toxicity. An autopsy revealed seventeen rib fractures, some of which occurred several weeks prior to death and some that occurred in the forty-eight hours immediately prior to death. The autopsy also revealed that, on the day she died, Victim had been given approximately four times the adult dosage of pseudoephedrine.¹

Petitioner was indicted for homicide by child abuse limited to section 16–3–85(A)(1),² as follows:

That WESLEY SMITH did in Horry County, on or about February 14, 2004, cause the death of [Victim], a four (4) month old child, while committing child abuse or neglect, and the child's death occurred under circumstances manifesting an extreme indifference to human life, in violation of Section 16–3–85(A)(1), S.C.Code of Laws, 1976, as amended.

The trial court, on its own initiative, instructed the jury on both South Carolina Code section 16–3–85(A)(1) (section (A)(1)), homicide by child abuse as a principal, and South Carolina Code section 16–3–85(A)(2) (section (A)(2)), homicide by child abuse by aiding and abetting. The trial court indicated that it believed that section (A)(2) was a lesser-included offense of section (A)(1), or alternatively, that section (A)(2) was merely another means to convict a criminal defendant of the same underlying crime of homicide by child abuse but would lead to a lesser sentence.³ Petitioner's trial counsel objected to the jury instruction on section (A)(2) because he was not put on notice of the section (A)(2) offense.⁴ The jury subsequently found Petitioner guilty of violating the unindicted section (A)(2) offense without reaching the indicted section (A)(1) charge.⁵

II.

The court of appeals declined to address the grounds relied on by the trial court but affirmed Petitioner's conviction on what it believed was an alternative sustaining ground, stating:

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. Thus, the indictment charging [Petitioner] 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.

Smith, 391 S.C. at 365, 705 S.E.2d at 497–98 (quoting State v. Dickman, 341 S.C. 293, 295, 534 S.E.2d 268, 269 (2000)) (internal citations and quotations omitted). This was error.

The common law principles of accomplice liability, as applied by the court of appeals, do not apply in the context of the homicide by child abuse statute. “The cardinal rule of statutory construction is to ascertain and effectuate the intent of the legislature.” Hodges v. Rainey, 341 S.C. 79, 85, 533 S.E.2d 578, 581 (2000). “What a legislature says in the text of a statute is considered the best evidence of the legislative intent or will. Therefore, the courts are bound to give effect to the expressed intent of the legislature.” Id. (quoting Norman J. Singer, Sutherland Statutory Construction § 46.03 at 94 (5th ed.1992)).

(A) A person is guilty of homicide by child abuse if the person:

(1) 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 indifference to human life; or

(2) 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.

S.C.Code § 16–3–85(A) (2003).

We find the language of section 16–3–85 unambiguously signals the General Assembly's intent to codify two distinct crimes-homicide by child abuse as a principal pursuant to section (A)(1) and homicide by child abuse by aiding and abetting pursuant to section (A)(2), each with distinct elements and sentencing ranges.⁶ Because the section (A)(2) offense is not a lesser-included offense of section (A)(1), an indictment expressly charging only a section (A)(1) offense does not provide notice of a section (A)(2) charge. See State v. Cody, 180 S.C. 417, 423, 186 S.E. 165, 167 (1936) (“[I]t is a rule of universal observance in administering the criminal law that a defendant must be convicted, if convicted at all, of the particular offense charged in the bill of indictment.”).

III.

In sum, Petitioner was indicted only for homicide by child abuse pursuant to section (A)(1). The court of appeals erred in affirming Petitioner's conviction under section (A)(2)—an unindicted charge that was not a lesser-included offense of the indicted offense. Accordingly, we reverse the decision of the court of appeals and remand this case to the trial court for a new trial on the indicted offense of homicide by child abuse pursuant to section (A)(1).⁷

REVERSED AND REMANDED.

Justice KITTREDGE.

TOAL, C.J., PLEICONES, BEATTY, and HEARN, JJ., concur.