dissenting.
[¶ 17] Because the trial court correctly applied the law of this state, I would affirm.
I
[¶ 18] In reviewing the decision of the trial court:
“We review a trial court’s evidentiary rulings under an abuse of discretion standard. Knudson v. Director, North Dakota Dept. of Transportation, 530 N.W.2d 313, 316 (N.D.1995); Crowston v. Goodyear Tire & Rubber Co., 521 N.W.2d 401, 412 (N.D.1994). A trial court abuses its discretion when it acts in an arbitrary or capricious manner, or misapplies or misinterprets the law. Filler v. Bragg, 1997 ND 24, ¶ 9, 559 N.W.2d 225; Weber v. Weber, 548 N.W.2d 781, 783 (N.D.1996). We apply this deferential standard of review to provide the trial courts with greater control in the admissibility of evidence. Knudson, 530 N.W.2d at 316.”
State v. Christensen, 1997 ND 57, ¶5, 561 N.W.2d 631. In light of this deferential standard of review, we look at the entire record to determine the context of the trial court’s decision. State v. Stevens, 238 N.W.2d 251, 258 (N.D.1975), overruled in part, on other grounds, by State v. Himmerick, 499 N.W.2d 568, 572 (N.D.1993); cf. State v. Saavedra, 406 N.W.2d 667, 673 (N.D.1987). If the trial court did not abuse its discretion in permitting Osier’s niece to testify, we must affirm the trial court’s decision. Williston Farm Equipment, Inc. v. Steiger Tractor, Inc., 504 N.W.2d 545, 548-49 (N.D.1993).
II
[¶ 19] The majority opinion does not fully enunciate the record upon which the trial court’s decision was based.
[¶20] Mark Osier was charged with six counts of gross sexual imposition involving his daughter. Prior to trial, Osier moved to *446bar the testimony of two witnesses who would present evidence under N.D.R.Ev. 404(b). In his opinion, Judge Ralph Erickson, the judge for Osier’s first trial, ruled on the admissibility of the testimony of the two witnesses, one of whom was Osier’s niece. Judge Erickson permitted Osier’s niece to testify, but did not allow the other witness — • a family friend allegedly abused as a teenager by Osier — to testify. Memorandum Opinion On Rule 404(b) Motion at 7 (Memorandum Opinion).
[¶21] Osier’s first trial ended in a hung jury. The case was set for a second trial before Judge Norman Baekes. Prior to the second trial, Osier moved in limine to bar the testimony of the family friend “as per the order of the Honorable Ralph Erickson” and to bar “the testimony of [Osier’s niece] in the State’s case in chief upon the grounds that the conditions precedent established under the North Dakota rules and State v. Stevens, 238 N.W.2d 251 (N.D.1975) have not been met.” Judge Baekes stated he was not bound by the decisions in the first trial, but did rule Judge Erickson’s decision regarding the 404(b) testimony “will stand.”
[¶ 22] When the State attempted to call Osier’s niece, Osier’s counsel objected. The jury was excused while Judge Baekes heard counsels’ arguments. The State argued the four-pronged Stevens test had been met and the evidence was “highly probative to show motive, opportunity,- intent, preparation, plan, and specifically absence of mistake. This is especially true because of the defense that has been raised.” The State emphasized the defense had “articulated explicitly ... the Defense [sic] is one of fabrication_” Osier argued the Stevens requirements had not been met.
[¶ 23] In deciding to allow the prior bad act testimony, Judge Baekes specifically found the evidence was sufficient to find Osier guilty beyond a reasonable doubt and, because of the potential for prejudice, cautioned the State to “go to exactly and only the prior activity or the prior bad — bad acts.” Judge Baekes further explained “my ruling as to 404(b) — what I am doing in essence is reaffirming the findings of Judge Erickson. I have reviewed those findings and find them to be correct, and I am accepting Judge Erickson’s Order as my own.” Osier’s niece subsequently testified. Before releasing the jury for deliberations, Judge Baekes instructed the jury regarding the prior bad act evidence.2 Osier was found guilty on all six counts.
Ill
[¶ 24] In State v. Flath, 61 N.D. 342, 237 N.W. 792, 794 (1931) (quoting People v. Dean, 253 Mich. 434, 235 N.W. 211, 212 (1931)), this Court reversed a trial court’s decision permitting the use of prior bad act evidence, stating:
‘“The question of defendant’s “motive, intent, the absence of, mistake or accident on his part” is clearly not involved in the charge as laid. Neither do we think that it can be said that in the commission of the crime charged he was acting in conformity with any “scheme” or “plan” theretofore formulated by him, or that proofs of similar acts with others in any way tend to inform the court or jury as to his “system” in doing the act complained of.’ ”
The decision in Flath did not, however, foreclose the use of prior bad acts to show “motive,” “scheme,” “plan,” or “system.” See State v. Stevens, 238 N.W.2d 251, 257 (N.D. 1975) (noting “the exception to the rule is part of the law of this State”), overruled in part, on other grounds, by State v. Himmerick, 499 N.W.2d 568, 572 (N.D.1993).
[¶ 25] The exception discussed in Flath has since been codified as N.D.R.Ev. 404(b), which states in part:
“Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. However, it may be admissible for othér purposes, such as *447proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.”
This Court has:
“enunciated criteria to be considered whenever subdivision (b) of Rule 404, N.D.R.Ev., is invoked. A stricter showing of relevancy is required to prove identity or the doing of the criminal act by the accused than when it is offered to prove knowledge, intent, or state of mind. There must be clear and convincing evidence of prior similar acts. Evidence of prior wrongs may not be considered unless proof exists of commission of the crime charged. Finally, the court must balance the aims of full disclosure and fairness to the defendant when they are in conflict.”
State v. Phelps, 297 N.W.2d 769, 772-73 (N.D.1980) (citing Stevens); see also State v. Christensen, 1997 ND 57, ¶ 7, 561 N.W.2d 631 (setting forth a similar analysis).
[¶ 26] The admissibility of prior bad act evidence turns on the application of the facts to this framework, giving due consideration to the decision of the trial court. Under the proper factual situations, a trial court does not abuse its discretion by admitting prior bad acts to show common plan, scheme, or motive.
[¶27] In State v. Ondricek, 535 N.W.2d 872, 873 (S.D.1995), the South Dakota Supreme Court, in a case similar to this, affirmed the admission of prior acts as evidence of intent and common plan or scheme, based on an abuse of discretion standard. South Dakota applies a two-part test to its codification of F.R.Ev. 404(b), S.D.C.L. § 19-12-5, which considers:
“1. Whether the intended purpose for offering the other acts evidence is relevant to some material issue in the case (factual inquiry), and
“2. Whether the probative value of the evidence is substantially outweighed by its prejudicial effect (legal inquiry).”
Ondricek at 873.
[¶ 28] In Ondricek, Myron Ondricek was charged with the sexual contact and rape of two of his nieces. Those nieces testified about the incidents, and the trial court also permitted two other nieces to testify about prior bad acts allegedly committed upon them by Ondricek. Ondricek was convicted on one count of sexual contact with a minor. The South Dakota Supreme Court held “a comparison between the other acts evidence and the crimes charged clearly demonstrates Ondrieek’s common plan or scheme to use family and recreational activities to prey on his young nieces.” Ondricek at 876. The Court noted:
“Most of the charged and uncharged acts took place during fishing, swimming, and camping trips which were initiated by On-dricek, or during his nieces’ overnight visits at his home. During recreational excursions, Ondricek was typically alone with his victim, or accompanied by younger children who were unlikely to understand or report his sexual predation. During his nieces’ overnight stays, he arranged to be alone with them by telling bedtime stories or offering to help them with their bath. In other words, Ondricek consistently used these family visits and recreational activities as a means to get his young nieces alone and sexually abuse them. The pattern established over the years by Ondricek is, in all material respects, indistinguishable from the common scheme of sexual predation found in Perkins and Christopherson. The trial court properly admitted other acts evidence to show this common scheme.”
Ondricek at 876-77.
[If 29] In Ondricek, the South Dakota Supreme Court quoted extensively from Perkins and Christopherson, where it had also found common plans or schemes. In Chris-topherson it held:
“ ‘The bad act testimony in this case was admissible to prove a plan or a common scheme to develop situations which allowed Christopherson to have sexual contact with young boys. First he would pick out an impressionable boy in his early teens. Christopherson always picked boys whose parents he knew or could get friendly with, making it more difficult for the boy to confide with his parents. Christopherson then used his role as an authority figure *448(teacher, supervisor or family friend) to work the boy into a situation where Chris-topherson was alone with him and able to have sexual contact. In each case Christo-pherson would tell the boy to keep it a secret. Christopherson would play off the desires or insecurities of the boy by promising a car, praying to God for forgiveness, or promising to get the boy out of special education. Christopherson never asked any of the boys to do anything to him.’ ”
Ondricek at 875 (quoting State v. Christopherson, 482 N.W.2d 298, 301 (S.D.1992)).
[¶ 30] In Perkins, the South Dakota Supreme Court also permitted evidence of prior acts, stating:
“‘The challenged testimony demonstrates a consistent pattern of molesting young girls with whom Perkins was long acquainted, when they were within his home. In each instance, Perkins approached the victim, and began fondling their breasts. Between the charges stemming from the D.J.K. incidents, and the four acts involving the other girls, a total of seven sexual encounters were presented. In four of the seven, the victim was present in the home as a baby-sitter staying overnight. In a fifth ... the victim was spending the night after staying late to help Perkins’ wife with a new baby, i.e. babysitting. Although Perkins asserts that the incidents involving [the other girls] were so different as to be irrelevant, the factual patterns are remarkably similar. The only real difference between the bad acts and the rape incidents is that D.J.K. made no physical act to stop Perkins, whereas [the other girls] did. Circumstances which surrounded the various acts and Perkins’ behavior up to the point of physical resistance (which D.J.K. did not offer) are virtually the same.’ ”
Ondricek at 875-76 (quoting State v. Perkins, 444 N.W.2d 34, 38 (S.D.1989)).
[¶ 31] In admitting prior acts as evidence of motive, the Wisconsin Supreme Court held, when “the purpose of the sexual contact is an element of the crime, and because the defendant’s motive impacts upon his purpose for committing the crime with which he is charged, other-acts evidence which tends to show [the defendant’s] motive is properly admissible.” State v. Fishnick, 127 Wis.2d 247, 378 N.W.2d 272, 279 (1985); see also State v. Plymesser, 172 Wis.2d 583, 493 N.W.2d 367, 372-74 (1992); State v. Friedrich, 135 Wis.2d 1, 398 N.W.2d 763, 772 (1987). When “a, motive in an earlier crime is used to show a common cause for both the earlier and a later crime,” it is not being used to show acting in conformity with, but rather to show “[t]he same motive caused both the prior act and the charged act.” Plymesser at 372.
[¶ 32] In this case, the motivation for Osier’s interaction with his daughter was arguably the satisfaction of his sexual desires, and his interactions with his niece were also arguably motivated by the satisfaction of his sexual desires. Compare Fishnick at 279. Whether Osier acted with the purpose of satisfying his sexual desires is an element of gross sexual imposition, N.D.C.C. § 12.1-20-03. N.D.C.C. § 12.1-20-02(3) defines a sexual act as:
“sexual contact between human beings consisting of contact between the penis and the vulva, the penis and the anus, the mouth and the penis, the mouth and the vulva, or any other portion of the human body and the penis, anus, or vulva; or the use of an object which comes in contact with the victim’s anus, vulva, or penis. For the purposes of this subsection, sexual contact between the penis and the vulva, the penis and the anus, any other portion of the human body and the anus or vulva, or an object and the anus, vulva, or penis of the victim, occurs upon penetration, however slight. Emission is not required.”
Sexual contact, as referred to in N.D.C.C. § 12.1-20-02(3), is defined in N.D.C.C. § 12.1-20-02(4), as “any touching of the'sexual or other intimate parts of the person for the purpose of arousing or satisfying sexual or aggressive desires ” (emphasis added). See State v. Vance, 537 N.W.2d 545, 548 (N.D.1995) (“Therefore, section 12.1-20-03(2)(a), NDCC, which prohibits ‘sexual contact’ is necessarily a lesser included offense of section 12.1-20-03(l)(d), NDCC, which prohibits a ‘sexual act.’ ”). Thus motive was clearly relevant to an element of the offense charged, a necessary subject of proof.
*449IV
[¶ 33] Judge Erickson’s opinion, as adopted by Judge Backes, carefully analyzed both the law and the four-pronged test in Stevens. See State v. Micko, 393 N.W.2d 741, 745 (N.D.1986) (concluding the trial court improperly admitted prior bad act evidence where the trial court failed to use the proper analysis); compare Ondricek at 877 (finding trial court applied test for admission of other acts evidence).
[¶ 34] Stevens requires a stricter showing of relevance. Stevens at 257. While not all prior acts are admissible under this test, Rule 404(b) does allow evidence of prior bad acts when there is evidence of “a ‘pattern’ of crimes exhibiting ‘striking similarities’ of method.” James Joseph Duane, The New Federal Rules of Evidence on Prior Acts of Accused Sex Offenders: A Poorly Drafted Version of A Very Bad Idea, 157 F.R.D. 95, 98 (1994). This rule applies equally to cases involving prior acts of child sexual abuse when the record supports this determination. See Ondricek; see also, e.g., State v. Moorman, 505 N.W.2d 593 (Minn.1993); State v. Shamp, 422 N.W.2d 520 (Minn.Ct.App.1988); Plymesser at 374.
[¶ 35] “Striking similarities” is also the language used by Judge Erickson in his opinion and adopted by Judge Backes. Judge Erickson found:
“In reviewing the testimony of [Osier’s niece], there are striking similarities between the testimony of the witness and the complaining victim. [Osier’s niece] testified that she was told by the defendant not to tell anyone ‘because Leona would be jealous and your mother wouldn’t think you would be old enough.’ [Osier’s daughter] relates that she was told by her father not to tell anyone because her mother (Leona) would be jealous. Both [Osier’s niece and his daughter] describe the use of ‘dirty pictures.’ Both also relate that Mr. Osier asserted that he was giving them advice during the incidents (to [his niece]: ‘This is when you should say no.’ to [his daughter]: T would like to be the one to teach you.’).
“These similarities are highly probative in that they go to show ‘motive, opportunity, intent, preparation, plan ... or absence of mistake or accident.’ See, Rule 404(b) N.D. Rules Evid. (1995). This evidence is especially probative because the defense appears to be at this time to be one of fabrication by [Osier’s daughter]. Under these circumstances, the probative value of the evidence outweighs any unfair prejudice that might arise out of the admission of the evidence.”
Memorandum Opinion at 5.
[¶ 36] The majority says, “The State did not demonstrate an operative scheme or plan common to Osier’s alleged sexual fondling of his niece and his charged acts of unlawful intercourse with his daughter to justify admitting the prior acts evidence.” This would appear to be the correct result based upon the facts recited in the majority opinion at ¶ 3:
“She testified, over Osier’s objection, that when she was eight or nine years old Osier ‘put his hands up my shirt,’ ‘kissed me and stuck his tongue in my mouth’ and, in another instance, took her from the room she was sleeping in at his home and touched her ‘between my legs’ and then ‘took me upstairs into his bedroom’ and then ‘had me feel his penis.’ ”
The majority opinion, however, does not consider the testimony discussed and considered by Judge Erickson in his opinion, which supports a finding of a common plan or scheme. The testimony of Osier’s daughter and his niece at the second trial before Judge Backes was similar to the testimony before Judge Erickson. See Trans. at 88, 94,102, 357, 358, 360.
[¶ 37] The majority also dismisses the trial court’s admission of Osier’s niece’s testimony to show motive, stating at ¶ 8: “That is precisely the use of prior bad act testimony prohibited by this court in Flath and again rejected by this court in State v. Forsland.” However, nowhere in State v. Forsland, 326 N.W.2d 688 (N.D.1982), did this Court discuss whether prior bad acts, specifically, prior sexual abuse, might fit the motive exception to N.D.R.Ev. 404(b). Justice VandeWalle, concurring in the result in *450State v. Ferguson, 391 N.W.2d 172, 178 (N.D.1986), explained:
“Forsland did not hold, as a matter of law, that there was no appropriate purpose for which the prior conviction evidence could serve as proof and that its only effect was to demonstrate criminal character or propensity. Rather, it was the use of the previous conviction under the particular facts of that case where the complaining witness could not identify the defendant, which the Forsland court found could not be used in determining whether or not the defendant was guilty or innocent of the crime charged.
“It is clear that the evidence of the previous conviction may be admissible for such purpose as proof of preparation and plan.... However, the statement of the trial judge as recited in the majority opinion leads me to the conclusion that the wide discretion vested in the trial judge by Rule 403 was not exercised in this instance.”
[¶ 38] The Wisconsin Supreme Court’s decisions in Fishnick, Friedrich, and Plymesser, holding prior acts of sexual abuse committed upon third parties admissible to show motive, apply in this ease. See also Pavlacka v. State, 892 S.W.2d 897, 903-05 (Tex.Crim.App.1994) (Campbell, J., dissenting); Hernandez v. State, 900 S.W.2d 835 (Tex.App.1995, no writ).
[¶ 39] Judge Backes also met the Stevens requirement the court balance “the aims of full disclosure and fairness to the defendant.” Stevens at 257. At the second trial, Judges Backes did not rule on the admissibility of the prior act evidence until all of the other testimony in the ease had been heard and the State had called all its other witnesses. Judge Backes then considered the prejudicial value of the testimony and ordered the State to proceed immediately to the testimony of the bad acts to prevent the testimony from being unduly prejudicial. See Micko at 745, 745 n. 2. Osier contends the remoteness of the prior acts with his niece is “prejudicial”; however, the South Dakota Supreme Court in Ondricek and Christopherson held incidents occurring nearly twenty years previous were not too remote, considering the nature of the acts. See Ondricek at 877. Their analysis applies here — where the events were substantially more recent.
[¶ 40] Furthermore, in its closing argument, the State emphasized the limited purpose for which it was using the evidence of prior bad acts:
“Ladies and gentlemen, that is enough to convict Mark Osier, but there is one other thing that the State chooses to introduce and the one other thing you can only use for a limited purpose. That is the testimony of [Osier’s niece]. ■ She testified that her Uncle Mark molested her when she was about 8 or 9 years old. And while he — during the times that he did that, he showed her magazines. And if you remember she — [Osier’s daughter] said he showed her a pornographic film described as pornographic. [Osier’s niece] testified about the magazine not National Geographic but called Jugs. He told [his niece] not to tell Leona. He told her he wanted to instruct her. What was he telling [his daughter]? I would like to be the one so you don’t get in trouble with someone else. Those are the purposes that the State introduced that evidence.”
In Stevens at 258, this Court stated, “We regret that the arguments of counsel were not reported and transcribed, so that we could examine the arguments of counsel to see what use was made in argument of evidence which we hold inadmissible.” In this ease, the State’s closing argument, while not wholly articulate, evidences its intent to use the testimony for proper 404(b) purposes, and is distinguishable from the argument made by the State in Flath, that prior act evidence should be admitted “for the purpose of showing the general licentious character.” Flath at 792-93.
[¶ 41] The requirement of Stevens that “before such evidence may be considered at all, there must be proof of commission of the crime charged” was also met. Stevens at 257. Prior to allowing the testimony, Judge Backes determined “a juror might find the Defendant guilty beyond a reasonable doubt under the evidence that has been at this point submitted.” After the close of testimony, Judge Backes concluded the trial by giv*451ing an instruction similar to that cited and discussed in Stevens, Forsland, and Micko. See supra note 2 (setting forth instruction given by the trial court); Micko at 744; Forsland at 691; Stevens at'257. In Micko, this Court held the Stevens requirement of proof of the crime charged is satisfied by such a cautionary instruction. Micko at 744.
[¶ 42] The majority holds, at ¶ 10, Flath and its progeny are determinative of this case. However, application of the law in Flath and its progeny to the facts of this case shows the trial court reached the correct conclusion. The trial court properly analyzed the admission of the prior act evidence against its prejudicial value, and the record shows the evidence was properly used under Rule 404(b). I would hold Judge Baekes’ decision to permit the evidence in the second trial was not an abuse of discretion, and I would affirm.
[¶ 43] Dale V. Sandstrom. The instruction read:
“RELATED ACTS OR OFFENSES
"For the purpose of showing motive scheme or plan with respect to the offense charged, the court received evidence of other acts or offenses committed by the Defendant. Before considering evidence of other acts or offenses for this purpose, you must first find beyond a reasonable doubt that the Defendant committed the acts constituting the offense charged.”