(dissenting).
[¶43.] I respectfully dissent. The trial court improperly allowed the State to bombard the jury with other acts evidence in its ease-in-chief. The other acts evidence was not relevant to a material issue in the case and was highly prejudicial. We should reverse and remand for a fair trial.
[¶ 44.] Motive was not a material issue. State v. Werner, 482 N.W.2d 286, 297 (S.D. *8791992) (Sabers, J., dissenting). The majority claims motive was relevant to prove intent. See ¶ 21 of the majority opinion. However, intent is not in dispute when the defendant denies the touching occurred. State v. Ondricek, 535 N.W.2d 872, 878 (S.D.1995) (Sabers, J., dissenting) (citations omitted). At a minimum, the trial court should have deferred the other acts evidence until intent became an issue. Id. (citations omitted).
[¶ 45.] The trial court also allowed the State to use other acts evidence to prove a common plan or scheme and a continuing course of criminal activity. Steichen’s identity was not in issue; the victims were clear about who had committed the alleged crimes. Steichen’s defense was that he did not commit the charged acts, not that he was wrongly identified as the person who did. State v. Champagne, 422 N.W.2d 840, 846 (S.D.1988) (Sabers, J., dissenting). The other acts evidence constituted separate, independent, uncharged criminal acts which created an impermissible propensity inference. Ondricek, 535 N.W.2d at 880 (Sabers, J., dissenting).
[¶ 46.] The other acts evidence served only to paint Steichen as a sick, bad man. See 'Werner.; 482 N.W.2d at 297 (Sabers, J., dissenting) (stating that “[t]he prior bad acts testimony in this case painted the defendant not only as a bad man but also as an evil and conniving man.”). The other acts evidence was not offered in rebuttal, but was presented in the State’s case-in-chief. The State took a shotgun approach of bombarding the jury with other acts evidence creating the impermissible inference that because Stei-chen was a “bad man” he must have committed the charged acts.
[¶ 47.] Allowing the use of other acts evidence in the State’s case-in-chief put Stei-chen in an adverse position where he had to defend against numerous uncharged acts and was incapable of receiving a fair trial. See Werner, 482 N.W.2d at 296 (Amundson, J., concurring in part and dissenting in part). The prejudicial effect of this evidence so outweighed any probative value that Steichen was denied the fair trial guaranteed by the United States Constitution and the South Dakota Constitution.
[¶ 48.] As I have previously stated:
The South Dakota Legislature could, within constitutional limits, make all prior bad acts admissible in sex molestation cases. It could do so simply by enacting a law which states that all such evidence is admissible without regard to relevancy, materiality and prejudice. However, until the legislature does so, we should enforce the law and require the prosecutor to prove relevancy, materiality and that the prejudicial effect of such evidence does not substantially outweigh its probative value.
Werner, 482 N.W.2d at 297 (Sabers, J., dissenting) (citation omitted). The majority opinion is throwing out our recent strides in Moeller and Chamley of preventing the exceptions to SDCL 19-12-5 from swallowing the rule of general inadmissibility of other acts evidence.
[¶ 49.] Steichen was denied a fair trial by the admission of other acts evidence. The other acts evidence was not relevant to a material issue and created an impermissible propensity inference. It is unnecessary to reach the other issue raised by Steichen because we should reverse on the issue of other acts evidence and remand for a new, fair trial.