(concurring in part and dissenting in part).
[¶ 28.] I cannot join issues 1 or 2 as they shake the very foundation of our justice system. The presumption of innocence and the fact that the state must prove every element of the crime charged beyond a reasonable doubt to the satisfaction of twelve jurors. Although the majority opinion does determine that Red Star did not receive a fair trial, it may become best known for the unfair trials it will create. The language of the majority opinion will create “more harm than good.”
[¶ 29.] 1. THE TRIAL COURT ERRED IN REVERSING COURSE AND PERMITTING THE ADMISSION OF PRIOR BAD ACT EVIDENCE DURING THE SECOND TRIAL.
[¶ 30.] The trial court originally determined that any introduction of the prior *581alleged rape was impermissible. In so holding, the trial court stated it could not fathom “how the fact that a person has done an act of rape previously is fair to present to the trier of fact in the present case because there is so much tendency to believe that if it happened once before it probably happened again.” This reasoning demonstrates the trial court’s understanding of the need to exclude such evidence. Subsequently, the jury was unable to reach a verdict and the State sought retrial. Reversing field, the trial court allowed the introduction of this damaging evidence without explanation in the second trial.
[¶ 31.] The only reason evident in this record for permitting this prior act evidence the second time was that without it, the first trial ended in a hung jury. That is not a good enough reason.
[¶ 32.] Has the abuse of discretion standard become so flimsy that we accept any decision by the trial court? It is not apparent from the record why the trial judge’s ruling changed. As stated, the only difference seems to be the result. I dread the impression such events leave in the mind of the public.
[¶ 33.] I submit the trial court had it right the first time. Prior bad act evidence is not admissible to show that since a defendant committed a similar offense on another occasion, he has a propensity to commit the offense charged. State v. Steele, 510 N.W.2d 661, 668 (S.D.1994). As acknowledged by the trial court in the first instance, the act sought to be introduced by the State attempted to accomplish this impermissible goal. Remarkably, in the second trial, the same judge deemed the same evidence acceptable and allowed it under SDCL 19-12-5.
[¶ 34.] It is no secret I take issue with the view that SDCL 19-12-5 is a rule of inclusion. See State v. Wright, 1999 SD 50, ¶ 38, 593 N.W.2d 792, 805; State v. Walton, 1999 SD 80, ¶ 55, 600 N.W.2d 524, 535 (Sabers, J., dissenting). Yet, even those members of this Court who disagree with that position should acknowledge that the trial court erred in admitting this evidence. I encourage my brethren to reconsider my warning in Walton that “it is now open season on defendants.” Here’s why:
[¶ 35.] The trial court erred in admitting this evidence the second time under the intent exception to the general exclusion of prior bad acts. “When considering whether the admission of prior bad acts is probative of intent, trial courts should compare among other factors, the similarity between the prior bad acts and the crimes with which the defendant is charged.” State v. Chamley, 1997 SD 107, ¶ 12, 568 N.W.2d 607, 612. This is commonsense. The alleged prior bad act here was not sufficiently similar to warrant the admission of such clearly prejudicial testimony. The prior act was controverted and all charges had been dismissed. In fact, during the first trial, the trial court found that “the facts of the prior bad acts are dissimilar to the charges herein and that there is no relationship to the facts of the current allegations.” It is impossible to state it any clearer.
[¶ 36.] As this evidence does not meet the requirement that it be similar to the charged conduct it should have been excluded. “A prior bad act not similar in some important respect to the charged conduct is unlikely to be probative of whether the defendant intended to commit the charged crime.” State v. Moeller, 1996 SD 60, ¶ 16, 548 N.W.2d 465, 472. The probative value of this evidence is substantially outweighed by the risk of unfair prejudice. Therefore, I would reverse the trial court’s admission of this evidence in the second trial.
*582[¶ 37.] I do concur with the majority opinion result that the proper procedural safeguards must be met before admitting this type of evidence, that the defendant is entitled to challenge this evidence, and that we should reverse and remand for a fair trial.
[¶ 38.] 2. THE TRIAL COURT IMPROPERLY INSTRUCTED THE JURY ON AN ACT OF SEXUAL PENETRATION, WHICH IS NOT A CRIME, INSTEAD OF THE CRIME OF RAPE.
[¶ 39.] To sustain a conviction for violating SDCL 22-32-1, the State must prove that Red Star either entered an occupied structure with the intent to commit “any crime” or that he remained in the occupied structure after forming the intent to commit “any crime.” SDCL 22-32-1. See also State v. DeNoyer, 541 N.W.2d 725, 732 (S.D.1995) (rejecting defendant’s contention he was required to have the intent to commit rape before entering the structure). The underlying offense relied upon by the State to prove the first-degree burglary charge was intent to commit a rape. However, the jury instructions failed to inform the jury that Red Star had to enter or remain in the apartment with the intent to commit rape. This is reversible error.
[¶ 40.] The jury was instead instructed twice that to convict Red Star for first-degree burglary they only had to find that he had “intent to commit an act of sexual penetration.” An act of sexual penetration is not a crime. The majority opinion establishes abhorrent precedent for future cases. Obviously, intent to commit “any crime” is required before the conviction can stand. This jury instruction, instead of setting forth a crime, sets forth an act that fails to satisfy the definition of any crime in our code. We are faced with the reality that in a jury trial, these instructions are the only method to inform the fact finder the elements of the crime. I appeal to the members of this Court to recognize and acknowledge that our criminal justice system should not be so easily manipulated. I am fearful that such precedent will lead to the criminalization of innocent conduct now and in the future.
[¶ 41.] These instructions did not comport with South Dakota law and do not establish the elements of first-degree burglary. I am not convinced that this error should be overlooked or justified by some “big picture approach.” Therefore, I dissent from the conclusion that the jury was properly instructed. They were not. We should reverse this issue also.
[¶ 42.] In any event, we should require the trial court in Red Star’s third trial to make this change to state a criminal act. Otherwise, it may have to do it in Red Star’s fourth trial. I fail to see any harm in requiring this accurate statement of the law in the instructions to the jury.
[¶ 43.] I concur in issues 3 and 4.