dissenting: Evidence of a prior bad act, under New Hampshire Rule of Evidence 404(b), is excluded where the prior act is relevant only because it shows the defendant’s bad character. If the defendant’s prior act, however, is also relevant for a purpose other than proving character, the evidence is not automatically excluded. United States v. Rubio-Estrada, 857 F.2d 845, 846-47 (1st Cir. 1988); cf. State v. Richardson, 138 N.H. 162, 166, 635 A.2d 1361, 1364 (1993).
*531In the case at hand, the State offered the prior rape for a purpose other than showing the defendant’s bad character; namely, as proof of a plan to engage in non-consensual sex in a particular manner. I take issue with the majority’s assertion that the definition of “plan” is limited to a mutually dependent series of events. If this were so, independent prior bad acts that are relevant to and probative of the defendant’s plans at the time of the current alleged assault would have to be excluded. In the instant case, for example, if the defendant had tied the victim with ropes during the assault, in a manner identical to the prior bad act, the majority view would still exclude the prior act, labeling it “irrelevant” on the issue of whether the defendant planned to force the victim to engage in a particular form of non-consensual sex. The majority would thus preclude a determination of whether the probative value of the defendant’s “plan” to commit the assault in a particular manner was substantially outweighed by the danger of unfair prejudice. Such an automatic exclusion of undeniably relevant evidence contradicts our established precedent in this area. See State v. Tarsitano, 134 N.H. 730, 735, 599 A.2d 474, 477 (1991) (highlighting the three-pronged test to determine the admissibility of the prior bad act); cf. State v. Simonds, 135 N.H. 203, 207, 600 A.2d 928, 930 (1991) (upholding the admission of evidence of prior sexual contact with the victim as probative of the defendant’s intent at the time of the alleged assault).
I would not define “plan” so narrowly. The battle was joined on the issue of consent for the sexual acts. The existence of a plan to bring about non-consensual sex as proven by a unique set of circumstances is material and relevant to the issue of whether the sexual encounters were consensual or non-consensual. See State v. Hill, 450 P.2d 696, 697 (Ariz. 1969); People v. Oliphant, 399 Mich. 472, 488-94, 250 N.W.2d 443, 450-51 (1976); State v. Morrison, 310 N.W.2d 135, 137 (Minn. 1981); Williams v. State, 110 So. 2d 654, 662 (Fla.), cert. denied, 361 U.S. 847 (1959).
We have before us an alleged criminal act where the evidence could be found to show that the defendant planned to, and did, use a pretext to get the victim into his vehicle and then transport the victim to a remote spot for the purpose of non-consensual sex, and was planning to use a rope to immobilize the victim while he continued the assault. In addition, because of the unique circumstances of privacy and seclusion surrounding the commission of the sexual acts at issue, witness credibility played a central role. State v. Fears, 688 P.2d 88, 90 (Or. Ct. App.), review denied, 691 P.2d 482 (Or. 1984); see also Carey v. State, 715 P.2d 244, 248 (Wyo.), cert. denied, 479 U.S. 882 *532(1986). The defendant says that sex may have been on his mind, but certainly not the non-consensual variety. Proof of a plan would be very probative to rebut this claim. Evidence of a prior incident where the defendant used a pretext to induce a woman to enter his vehicle, drove to a remote place, restrained her with a rope, and indulged in non-consensual sex, is such proof. Although reasonable minds may differ on whether the probative value of this evidence is substantially outweighed by the danger of unfair prejudice to the defendant, it seems incomprehensible to me to preclude this analysis by labeling the evidence inadmissible on relevancy grounds. Because, in my view, the trial court properly admitted the prior bad act, I respectfully dissent.
Thayer, J., joins in the dissent.