(concurring) — The majority opinion with great care anchors its reasoning and its holding solely to ER 404(b), and reaches a conclusion in which I concur. I write separately only to note this case says nothing about the admissibility of battered child syndrome (BCS) evidence; that is, evidence of prior injuries to a child admissible for reasons other than ER 404(b). ER 404(b) does not govern the admissibility of BCS evidence. Thus, the law of Washington regarding BCS evidence continues to reside in the two cases explicitly holding BCS evidence admissible, State v. Mulder, 29 Wn. App. 513, 629 P.2d 462 (1981), and State v. Toennis, 52 Wn. App. 176, 758 P.2d 539, review denied, 111 Wn.2d 1026 (1988).
The first case, Mulder, 29 Wn. App. at 515-16, said:
[Doctors may testify] with reasonable probability that a particular injury or group of injuries to a child is not accidental or is not consistent with the explanation offered therefor but is instead the result of physical abuse by a person of mature strength. . . .
The use of the term “battered child syndrome” by a physician does not, of course, necessarily indicate any wrongdoing by a particular defendant. People v. Jackson, [18 Cal. App. 3d 504, 95 Cal. Rptr. 919 (1971)]. Evidence must still be produced to establish that it was the defendant who caused the injuries in question. The trier of fact still must determine the weight to be given the expert’s testimony.
The Court of Appeals in the second case, Toennis, 52 Wn. App. at 185, said:
We agree with the court in Mulder that a qualified physician may testify that within reasonable probabilities, a particular injury or group of injuries to a child is not accidental or is not consistent with the defendant’s explanation, but is instead consistent with physical abuse by a person of mature strength. Mulder, 29 Wn. App. at 515. Athough it has been argued that this testimony usurps the function of the jury, we disagree. The jury must still decide whether the particular injury in *586question was caused by the defendant. Mulder, 29 Wn. App. at 516.
. . . Here, the trial court properly ruled that if the proper foundation was established, the doctor could testify concerning the battered child syndrome to explain the continuing nature of the abuse and to rebut any inference of accidental injury.
I agree with the Court of Appeals’ articulation of the admissibility of BCS evidence in Mulder and Toennis.6
*587Dolliver and Guy, JJ., concur with Taimadge, J.
Reconsideration denied April 22, 1998.
Eveiy state court to have considered the issue, except one, has held battered child syndrome evidence admissible: State v. Moyer, 151 Ariz. 253, 727 P.2d 31, 33 (Ct. App. 1986) (“BCS is not an opinion by a doctor as to whether any particular person has done anything, but rather simply indicates that a child of tender years found with a certain type of injury has not suffered those injuries by accidental means, but rather is the victim of child abuse.”); People v. Jackson, 18 Cal. App. 3d 504, 95 Cal. Rptr. 919, 921 (1971) (“the ‘battered child syndrome’ simply indicates that a child found with the type of injuries outlined above has not suffered those injuries by accidental means.”); People v. Ellis, 41 Colo. App. 271, 589 P.2d 494, 496 (1978) (“[Wjhere as here, defendant’s theory of the case is that death was accidental, and where there is evidence of exclusive parental custody during the relevant period, evidence of past abuses is admissible to prove intent, and to disprove accident.”), cited with approval by People v. Taggart, 621 P.2d 1375 (Colo. 1981); State v. Dumlao, 3 Conn. App. 607, 491 A.2d 404, 409 (1985) (quoting Jackson); Smith v. State, 247 Ga. 612, 277 S.E.2d 678, 682, 18 A.L.R.4th 1144 (1981) (permitting expert testimony of battered child syndrome evidence); State v. Screpesi, 611 A.2d 34, 39 (Del. Super. Ct. 1991) (doctor’s opinion of prior child abuse admissible because it merely indicates child was injured intentionally rather than accidentally), aff’d, 609 A.2d 669 (Del. 1992); People v. DeJesus, 71 Ill. App. 3d 235, 389 N.E.2d 260, 261 (1979) (testimony of prior injuries to child does not necessarily indicate any wrongdoing by a particular defendant, but is merely descriptive of the nature of the injuries observed by the physician (citing Jackson)); State v. Conlogue, 474 A.2d 167, 172, 43 A.L.R.4th 1189 (Me. 1984) (“battered child syndrome” evidence is not evidence of bad character and is therefore not excluded by ER 404(a)); Commonwealth v. Labbe, 6 Mass. App. 73, 373 N.E.2d 227, 231 (1978) (testimony admissible to show a particular injury or group of injuries is not accidental or is not consistent with the explanation offered therefor but is instead the result of physical abuse by a person of mature strength), cited with approval by Commonwealth v. Day, 409 Mass. 719, 569 N.E.2d 397, 400 (1991); People v. Barnard, 93 Mich. App. 590, 286 N.W.2d 870, 871 (1979) (“Battered child syndrome is a widely recognized medical diagnosis which indicates that a child has been injured by other than accidental means.”); State v. Loss, 295 Minn. 271, 204 N.W.2d 404, 409 (1973) (“The establishment of the fact that the deceased child was a battered child was proper, and adequate foundation was laid for the introduction of the evidence which conclusively established a battered child syndrome.”); State v. Taylor, 163 Mont. 106, 515 P.2d 695, 703 (1973); People v. Henson, 33 N.Y.2d 63, 304 N.E.2d 358, 349 N.Y.S.2d 657, 665 (1973) (quoting Jackson); Bludsworth v. State, 98 Nev. 289, 646 P.2d 558 (1982); State v. Aguayo, 114 N.M. 124, 835 P.2d 840, 845 (1992) (“Evidence admissible under ‘battered child syndrome’ negates accidental injury and is probative of physical abuse by a person of mature strength, but the jury must still decide *587whether the particular injury in question was caused by the defendant.”); Ashford v. State, 603 P.2d 1162, 1164 (Okla. Crim. App. 1979) (“past injuries are admissible to counter any claim that the latest injury happened through accident or simple negligence”); Commonwealth v. Rodgers, 364 Pa. Super. 477, 528 A.2d 610, 614 (1987) (“The battered child syndrome simply indicates that a child found with the type of injuries described above has not suffered those injuries by accidental means.”), appeal denied, 518 Pa. 638, 542 A.2d 1368 (1988), cited with approval in Commonwealth v. Dunkle, 529 Pa. 168, 602 A.2d 830, 836 (1992); State v. Lopez, 306 S.C. 362, 412 S.E.2d 390, 393 (1991) (battered child evidence admissible to “support an inference that the child’s injuries were not sustained by accidental means”); State v. Best, 89 S.D. 227, 232 N.W.2d 447 (1975) (citing Jackson); State v. Durand, 465 A.2d 762, 768-69 (R.I. 1983) (permitting battered child syndrome evidence and citing Jackson); State v. Tanner, 675 P.2d 539, 543 (Utah 1983), (“Battered child syndrome evidence is most frequently cited as admissible to show absence of accident. It is relevant to claims of accidents by the child, e.g., ‘She was clumsy and fell a lot,’ as well as accidents by the adult, T tripped while I was carrying him.’ ”), superseded on other grounds by State v. Walker, 743 P.2d 191, 193 (Utah 1987); Price v. Commonwealth, 18 Va. App. 760, 766, 446 S.E.2d 642, 646 (1994) (battered child syndrome evidence admissible when doctor did not testify that any specific injury was intentionally inflicted, merely that a pattern existed which supported his conclusion that the child suffered from battered child syndrome).
Notably, the United States Supreme Court addressed battered child syndrome evidence in Estelle v. McGuire, 502 U.S. 62, 112 S. Ct. 475, 116 L. Ed. 2d 385 (1991). The Court rejected a due process challenge to the admission of evidence of prior injuries to McGuire’s murdered daughter, holding “evidence of prior injuries presented at McGuire’s trial, whether it was directly linked to McGuire or not, was probative on the question of the intent with which the person who caused the injuries acted.” Id. at 69. The Court adopted and approved of the California cases on battered child syndrome evidence, quoting in particular Jackson-. “The demonstration of battered child syndrome ‘simply indicates that a child found with [serious, repeated injuries] has not suffered those injuries by accidental means.’ ” Id. at 68.
The only state court to reject “battered child syndrome” evidence is the New Hampshire Supreme Court. In State v. Cuyette, 139 N.H. 526, 658 A.2d 1204, 1206-07 (1995), the court cited only Mulder as a case permitting such evidence, and went on to reject the battered child syndrome in the absence of proof of a connection between the defendant and the prior injuries. The Guyette court did not engage in analysis; it simply said in its short opinion it was not persuaded by the cases allowing such evidence. Id.