(concurring in part and dissenting in part).
[¶ 24.] The trial court erred in preventing LCH “from attacking Bad Wound’s credibility [and truthfulness] by presenting habit evidence of LCH’s prior transitions and Bad Wound’s failure to claim confusion on any of those transitions.”
[¶ 25.] LCH offered evidence “that on eight prior managerial transitions during Bad Wound’s 17 years of employment with LCH, he never claimed confusion as to who was in charge.” In fact, only three years before, CKJ was fired for the first time and Bad Wound reported to work the next day without claiming any confusion.
[¶ 26.] Clearly, this evidence is relevant to establish that Bad Wound was not truly “confused” about whom he worked for on November 7 and 8, 1995. Relevant evidence is defined as:
[E]videnee having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.
SDCL 19-12-1 (Rule 401). The determination of relevancy hinges on whether the evidence possesses sufficient probative value to justify receiving it into evidence. In other words, does the admission of Bad Wound’s lack of confusion during eight prior management transitions have a tendency to prove that Bad Wound was not confused in this instance more probable than it would be without the evidence? The answer is clearly “yes.” The ascertainment of whether Bad Wound was actually confused in this instance is indisputably the ultimate issue in this case and applies to Bad Wound’s intent and knowledge. The probative value of the habit evidence is not substantially outweighed by its prejudicial effect. If Bad Wound was not confused in the prior 17 years, was he really confused in this instance? The answer is for a jury to determine.
[¶ 27.] It was an abuse of discretion to determine that the evidence of the eight prior managerial transitions LCH endured while Bad Wound was an employee, was inadmissible and did not rise to the level of habit evidence. Habit evidence is defined as:
Evidence of the habit of a person or of the routine practice of an organization, whether corroborated or not and regardless of the presence of eyewitnesses, is relevant to prove that the conduct of the person or organization on a particular occasion was in conformity with the habit or routine practice.
SDCL 19-12-8 (Rule 406). Although the rule does not define “habit,” the Advisory Committee Note to Federal Rule of Evidence 406 quotes Professor McCormick’s description of habitual behavior as “consisting of semi-automatic, almost involuntary and invariablfy] specific responses to fairly specific stimuli.” “What Rule 406 seeks to admit are those kinds of repetitive acts that provide strong proof of conduct on a specified occasion without the danger of bogging down the trial in collateral issues or unfairly prejudicing the case of one of the parties.” 23 Wright and Graham, Federal Practice and Procedure § 5273.2 *730“Although there are no ‘precise standards’ for determining whether a behavior pattern has matured into a habit, two factors are considered controlling as a rule: ‘adequacy of sampling and uniformity of response.’ ” United States v. Newman, 982 F.2d 665, 668 (1stCir.1992), cert. denied, 510 U.S. 812, 114 S.Ct. 59, 126 L.Ed.2d 28 (1993) (citations omitted).
[¶ 28.] Courts are divided as to how many prior instances of identical behavior must be shown in order to demonstrate a habit. See John P. Ludington, Annotation, Habit or Routine Practice Evidence Under Uniform Evidence Rule W6, 64 A.L.R.4th 567, 598-601 (1988). Rule 406 does not specify a minimum number of specific instances of conduct to establish a habit. In fact, the Advisory Committee’s Note to Federal Rule of Evidence 406 cites approvingly Whittemore v. Lockheed Aircraft Corp., 65 Cal.App.2d 737, 151 P.2d 670 (1944), a- case in which evidence that a decedent had, on four prior occasions, piloted planes from defendant’s factory to decedent’s place of employment was admitted to prove that he probably piloted a plane that crashed, killing everyone on board. It is probably not possible, nor is it proper, to prescribe a precise number because much depends on the nature of the behavior in question.
[¶29.] In Chomicki v. Wittekind, 128 Wis.2d 188, 381 N.W.2d 561, 564-65 (Wis.Ct.App.1985), the Wisconsin Court of Appeals held that four incidents of conduct over a two-year period were properly admitted as habit evidence: “[t]he key issue is not how many incidents are testified to, but how relevant and probative are they to the case at bar.” Another court has also pointed out: “[t]he sheer number of prior instances of particular conduct is an important factor in establishing a habit, but perhaps even more important is evidence from which an inference of consistency and invariability can be drawn.” State v. Kelekolio, 74 Haw. 479, 849 P.2d 58, 67 n.9 (Haw.1993) (quoting A. Bowman, Hawaii Rules of Evidence Manual § 406-2, at 122-24 (1990) & at 8-10 (Supp.1992) (other citations omitted)). The determinative part of this equation is not frequency, in and of itself, but consistency and regularity.,
[¶ 30.] There were nine managerial transitions throughout Bad Wound’s employment with LCH. During the first eight transitions, Bad Wound consistently reported to work on a regular basis. In fact, three years before this incident, CKJ was fired for the first time and Bad Wound did not even hesitate to report for work the next day. For 17 years, there appeared to be no question of whom he worked for. All eight of these prior managerial transitions are unquestionably similar to the managerial transition that took place in November of 1995; however, Bad Wound alleges to be confused on this ninth transition.
[¶ 31.] As a general rule, evidence of habitual behavior is admissible as circumstantial proof that the habit was followed on the occasion in question. The evidence that Bad Wound was not confused about who his employer was during the previous eight managerial transitions would be offered to prove that Bad Wound was not confused during the ninth transition. The evidence is sufficient to establish that Bad Wound’s response to management transitions was a “semi-automatic, almost involuntary and invariabl[y] specific responses to fairly specific stimuli.” Therefore, it is relevant and admissible as habit evidence under Rule 406.
[¶ 32.] The trial court granted the Bad Wound’s motion in limine because Bad Wound did not have an employment contract with LCH during the prior transitions, but did have a contract during the transition on November 7 and 8 of 1995. The fact that Bad Wound had an employment contract in this instance is immaterial to the point that Bad Wound, who never had an employment contract in the preced*731ing 17 years, never before contested that he worked for LCH. The trial court abused its discretion in granting the motion in limine and taking the ultimate issue in this case from the jury.
Where the evidence is entirely circumstantial[,] a party should not be deprived of competent, relevant evidence because it is not of great strength. Many threads may make a rope.
Whittemore, 151 P.2d at 678.
[¶ 33.] As indicated, Bad Wound’s credibility was the ultimate issue3 in this case and the trial court clearly erred in denying the jury the evidence to properly decide it.
[¶ 34.] I vote to reverse and remand for a new trial.
. This treatise additionally provides: "One of the reasons the courts have been reluctant to *730admit evidence that a person is a “habitual drunk” or has a habit of reckless driving is that such evidence may be more prejudicial than probative with respect to the issues in the case.”
. The irony of this case is that it has been to the South Dakota Supreme Court twice without the real issue ever having been decided by a jury. In Bad Wound I, the trial court was so impressed in LCH’s favor it granted LCH summary judgment based on the same evidence it excluded from the jury in Bad Wound II. The jury should decide this case on all the evidence instead of the trial court or this court deciding it on part of the evidence.