(dissenting).
I respectfully dissent. The disputed evidence is not subject to Spreigl requirements, and it is premature to evaluate its admissibility before trial. Furthermore, the exclusion is of critical impact unless reversed.
Evidence of Reckinger’s prior sexual abuse of S.S.M. is evidence bearing directly on the history of the relationship between the defendant and the victim. The supreme court has stated that
[w]e did not intend by our decision in State v. Spreigl * * * to require a “Spreigl notice” as a condition to the admissibility of evidence bearing directly on the history of the relationship existing between [the] accused * * * and the victim.
State v. Salas, 306 N.W.2d 832, 836 (Minn.1981) (quoting State v. Boyce, 284 Minn. 242, 260, 170 N.W.2d 104,115 (1969)).
The supreme court in the past has affirmed the admission of relationship evidence without discussing the Spreigl balancing test, or by suggesting a rule of general admissibility. See, e.g., State v. Thieman, 439 N.W.2d 1, 6 (Minn.1989) (affirming admission of relationship evidence without balancing test analysis); State v. Flores, 418 N.W.2d 150, 159 (Minn.1988) (stating evidence is “generally admissible”). In the most recent supreme court case on relationship evidence, the court applied the balancing test in concluding that relationship evidence was properly admitted. See State v. Bauer, 598 N.W.2d 352, 364-65 (Minn.1999). That case concerned third-party testimony, however, and not, as here, testimony of the victim herself.
It is unusual for a trial court to reject testimony from the victim of the charged offense as not being “clear and convincing.” See, e.g., State v. Kennedy, 585 N.W.2d 385, 389 (Minn.1998) (explaining that if sexual assault victim’s testimony alone is sufficient to establish proof beyond reasonable doubt it should be enough to satisfy clear and convincing requirement). More importantly, the district court should not have rejected the disputed evidence before trial. The supreme court has stated that no admissibility decision should be made until after the state’s case is in. See, e.g., State v. DeWald, 464 N.W.2d 500, *336504-05 (Minn.1991) (trial court should defer Spreigl ruling until after state has presented its case at trial because subsequent events, including unforeseen testimony, may impact on ruling). Particularly where the victim is going to be testifying anyway, and can easily be questioned in chambers about the disputed incident, it makes little sense to hold pretrial that “clear and convincing” evidence is lacking.
Furthermore, exclusion of the disputed testimony may have a critical impact on the outcome of the trial unless reversed. S.S.M. is the only witness of the charged offense of sexual abuse in early August 1994, while the disputed testimony relates to earlier abuse in Iowa in December 1993. Excluding testimony about the earlier abuse would leave the jury with the impression that the charged offense is an isolated, one-time event. Such an impression is contrary to the victim’s own testimony and would substantially increase the effectiveness of a defense of mistake or inadvertence.