(dissenting in part and concurring in result in part).
[¶ 22.] I respectfully dissent on Issue One. When a criminal defendant enters a plea of not guilty, it is a complete denial of all the elements of the criminal charge. State v. Steichen, 1998 SD 126, ¶¶ 23-24, 588 N.W.2d 870, 875. That puts in issue each of the elements of the charge, all of which the state has to prove beyond a reasonable doubt. Id. Whether evidence of other acts is admitted and when, rests with the sound discretion of the trial court. Steichen, 1998 SD 126 at ¶ 19, 588 N.W.2d at 875 (citing State v. Werner, 482 N.W.2d 286,290 (S.D.1992)).
Generally, “ ‘it is preferable to delay the admission of [other acts] evidence until the defense rests.’ ” Once the defense rests, the trial court is then in the “best position to determine whether the issue sought to be proved by the extrinsic evidence is really in dispute, and if so, to assess its probative worth and possible prejudicial effect.” However, admission of other acts evidence may be properly admitted during the State’s case-in-chief. (“[W]here it is made clear at the outset of the trial that the defendant’s principal defense is lack of knowledge or intent, and thus the issue is unarguably in dispute, the government may introduce the [other acts] evidence in its case-in-chief.”) “[T]he order of proof is within the sound -discretion of the trial court[.]”
(Citations omitted) (emphasis added).
[¶ 23.] In a proper exercise of judicial discretion, the trial court obviously must be guided by a correct application of the applicable law. Here the trial court improperly followed the now-discarded thesis: “Evidence of a Defendant’s other crimes or acts is generally not admissible unless an exception can be met.” Rather, the trial court should have followed State v. Wright, 1999 SD 50, ¶ 13, 593 N.W.2d 792, 798, which established that SDCL 19-12-5 is a rule of inclusion, rather than exclusion. Failure to follow the proper law is per se an -abuse of discretion.
[¶ 24.] Moreover, Jones has served notice that in this proceeding she intends to raise the same defense that she raised in South Dakota Bd. of Nursing v. Jones, 1997 SD 78, 566 N.W.2d 142, that is, the South Dakota statutes on midwifery do not control her activities. Compare her unsuccessful argument of no state regulation in Jones in that she was a “direct-entry, midwife” rather than a “certified nurse midwife,” id. at ¶ 18, 566 N.W.2d at 147 n. 6, with her affidavit in this case where she argues she is a “certified professional midwife” rather than a “certified nurse midwife” which once again she argues, the state cannot regulate.2
[¶ 25.] Here the plea of not guilty and her affidavit make clear she denies intentionally committing any acts which violated SDCL ch 36-9A, which become a criminal offense under SDCL 36-9A-35. The State has to prove this intent beyond a reasonable doubt. . If she chooses to present no *822defense, the State will be denied any opportunity to show that a circuit judge and this Court in Jones concluded and so told her, that her midwife activities violated SDCL ch 36-9A. Therefore, the trial court abused its discretion in not allowing admission of the injunction and contempt order in the state’s case-in-chief. Steichen, 1998 SD 126 at ¶¶ 23-24, 588 N.W.2d at 875-76.
[¶ 26.] I can concur in result only on issue Two as the Court attempts to resurrect a definition for application of res ges-tae which this Court long ago discarded. The Court today attempts to apply the requirement of State v. Burtts, 81 S.D. 150, 155-56, 132 N.W.2d 209, 211-12 (1964) that the application of res gestae “embraces matters and statements immediately antecedent to ... the main transaction.” The requirement of immediately antecedent is an artificial time requirement that may or may not have relevance to determining admissibility.
[¶ 27.] In State v. Goodroad, 1997 SD 46, ¶ 10, 563 N.W.2d 126, 130, this Court discussed at length the proper application of the doctrine of res gestae:
The res gestae rule is well-recognized exception to rule 404(b). In Floody, we acknowledged the Second Circuit Court of Appeals’ holding that “ ‘evidence’ of uncharged criminal activity is not considered ‘other crimes’ evidence if it ‘arose out of the same transaction or series of transaction of the charged offense[.]’ ”
This court has ... approved the admission of other crimes where such evidence is ‘so blended or connected’ with the one[s] on trial ... that proof of one incident involves the others[s]; or explains the circumstances; or tends logically to prove any element of the crime charged.
(citations omitted).
[¶ 28.] Recently in State v. Andrews, we again adopted the Goodroad standard of “same transaction or series of transactions as the charged offense.” 2001 SD 31, ¶ 9, 623 N.W.2d 78, 81. Thus, while the same series of transactions may be immediately connected to the charged offense by time, it may just as well not be so directly connected.3
[¶ 29.] In the case now before us, the controlling factor is not the expiration of ten days time from the child’s birth to its death, but rather that during that period of time, the child was out of the care of Jones before the child died.4
[¶ 30.] As such the trial court did not abuse its discretion in suppressing evidence of the child’s death.
. In her affidavit Jones also makes it clear that she has not changed her methods of midwifery since this Court's 1997 decision in Jones:
I have practiced as a Midwife since September of 1984 and I have attended over 400 births to this date.
In all of these births, I have not held myself out to be a Certified Nurse Midwife (CNM). I hold myself out as a Certified Professional Midwife (CPM).
. In Goodroad, we found the defendant's stealing of a car eleven days before the unlawful taking of a second car to he part of the res gestae. Id. at ¶ 13, 563 N.W.2d at 130.
. The State makes no claim whatsoever that the death of the child is in any way causally related to the delivery by Jones. Had there been evidentiary support to the contrary, it would have been an abuse of discretion by the trial court not to admit the death as part of the res gestae.