(dissenting).
[¶ 21.] To prove the charges it brought against Bunger, the State must prove beyond a reasonable doubt that he had touching, not amounting to rape, of the breasts and genitalia or anus of this alleged victim and others with the intent to arouse or gratify the sexual desire of either party. SDCL 22-22-7.1. The State argued it offered the bra and testimony regarding the bra to corroborate Jane Doe Vi’s anticipated testimony at trial and provided no other reason for its admission into evidence. However, in South Dakota, it is not essential to a sexual offense conviction that the testimony of the victim be corroborated by any other evidence. See SDCL 23A-22-15.1; State v. Gonzalez, 2001 SD 47, ¶ 17, 624 N.W.2d 836, 840.
[¶ 22.] Bunger’s possession of Jane Doe Vi’s bra, obtained from her ostensibly as a donation to Goodwill, does not tend to prove any element of SDCL 22-22-7.1. The fact that he entered her room and asked about the bra after she indicated she had nothing to donate to Goodwill does not tend to prove sexual contact. The fact that the bra was found in his bedroom intertwined in a man’s shirt does not tend to prove sexual touching. The fact that he did not donate the bra to Goodwill does not tend to prove sexual touching. None of these facts, considered separately or together, tend to prove the crime with which Bunger is charged.
[¶23.] Even if Bunger obtained and kept the bra for prurient reasons, this does not tend to prove the crime with which he is charged. In State v. White, 1996 SD 67, 549 N.W.2d 676, this Court unanimously held that the trial court did not abuse its discretion in denying the defendant from introducing a pornographic video found in the victim’s VCR into evidence to prove that he was sexually attacked. In affirming the trial court’s decision to deny the admission such irrelevant evidence, this Court stated that “[t]he causal link between possession of pornographic materials and an individual’s propensity to commit sexual offenses is tenuous, if not nonexistent.” White, 1996 SD 67, ¶ 20, 549 N.W.2d at 682. The same reasoning in denying a defendant/proponént from admitting such evidence should also apply when it is the State who is the proponent of such evidence. Other courts have also similarly held. See e.g. State v. Nelson, 331 S.C. 1, 501 S.E.2d 716, 723 (1998); State v. Melcher, 140 N.H. 823, 678 A.2d 146 (1996); State v. Tizará, 897 S.W.2d 732, 744 (Tenn.Crim.App.1994); State v. Bernard, 849 S.W.2d 10 (Mo.1993); Lannan v. State, 600 N.E.2d 1334 (Ind. 1992).
[¶ 24.] A necessary corollary to the presumption of innocence is that a defendant must be tried for what he did, not for who he is. As stated in Nelson,
It is obvious the real purpose, the sole purpose, of this evidence was, in general, to prove the appellant was a sexual pervert, and, in particular, to prove that his perversion was pedophilia, and to do so on the basis of reading material found in his possession some of which would offend a substantial number of jurors, prejudicing them against the appellant without regard to whether it proved anything against him.... If this material is supposed to provide a picture of the *612appellant as a pedophile, such profile evidence is inadmissible in criminal cases to prove either guilt or innocence.
501 S.E.2d at 720. The State has not shown the trial court abused its broad discretion in suppressing this evidence from a trial involving charges of sexual contact. Despite this obvious infirmity, this majority opinion stands for the proposition that if one is charged with a sex crime, any and all evidence, no matter how remotely related to sex, such evidence can be used by the State in prosecuting that person.
[¶25.] The rules of evidence are in place to assure a level playing field, and that, in a criminal trial, the defendant is tried for the crimes charged.
In a criminal trial, [the rules of evidence] serve [ ] to ensure that the defendant is tried on the merits of the crime as charged and to prevent a conviction based on evidence of other crimes or wrongs. [These rules] reflect [] long-established notions of fair play and due process, which forbid judging a person on the basis of innuendoes arising from conduct which is irrelevant to the charges for which he or she is presently standing trial.
State v. Melcher, 140 N.H. 828, 678 A.2d 146, 149 (1996) (citing United States v. Cortijo-Diaz, 875 F.2d 13, 15 (1st Cir. 1989)). Basing its decision with these rules in mind, the trial court held that Jane Doe Vi’s bra, found in Bunger’s bedroom, was not relevant to the charges against Bunger, including sexual contact with Jane Doe VI. Evidentiary rulings on a motion to suppress are presumed correct by this Court and are reviewed under an abuse of discretion standard. State v. Belmontes, 2000 SD 115, ¶ 9, 615 N.W.2d 634, 637; State v. Vento, 1999 SD 158, ¶ 5, 604 N.W.2d 468, 469. The majority opinion fails to afford the trial court the proper amount of deference to which it is entitled.
[¶ 26.] The State claims the trial court concluded that evidence concerning the bra was “highly prejudicial” without conducting the proper balancing test under SDCL 19-12-3. Even relevant evidence may be excluded where it is unfairly prejudicial. State v. Holzer, 2000 SD 75, ¶ 27, 611 N.W.2d 647, 655. If the trial court determines the evidence is relevant, it must then decide whether “its probative value is substantially outweighed by the danger of unfair prejudice.” SDCL 19-12-3. Because the court ruled the evidence was not relevant, and therefore inadmissible, this balancing test was not required.
[¶ 27.] Since the majority opinion concludes that the bra is relevant, it also determines, on a de novo basis, that the bra’s probative value is not substantially outweighed by the danger of unfair prejudice. I submit the majority opinion is substituting its judgment for that of the trial court. Without a ruling from the trial court as to the balancing of the bra’s probative versus prejudicial value under SDCL 19-12-3, the majority again wishes to micro-manage discretionary evidentiary decisions made by the trial court.
[¶ 28.] Therefore, I dissent.