(dissenting in part and concurring in result in part).
[¶ 31.] I join the dissent of Chief Justice Gilbertson on Issue 1 and his concurrence in result on Issue 2. I write to add two additional reasons for dissenting on Issue 1.
ISSUE 1
WHETHER THE TRIAL COURT ABUSED ITS DISCRETION BY EXCLUDING EVIDENCE OF THE INJUNCTION AND CONTEMPT ORDER FROM THE STATE’S CASE-IN-CHIEF.
[¶ 32.] Trial courts retain broad discretion in ruling on the admissibility of evi*823dence. Therefore, decisions to admit or exclude testimony will not-be reversed absent a clear showing of abuse of discretion. State v. Guthrie, 2001 SD 61, ¶ 30, 627 N.W.2d 401, 414-415. However, “[w]hén a trial court misapplies a rule of evidence, as opposed to merely allowing, or refusing questionable evidence, it abuses its discretion.” Id. (citing Koon v. United States, 518 U.S. 81, 100, 116 S.Ct. 2035, 2047, 135 L.Ed.2d 392, 414 (1996)). In my judgment, the trial court misapplied Rule 404(b) and our cases in two respects.
Other-Acts Evidence Is Admissible In The State’s Case-in-Chief.
[¶ 33.] First, our cases establish that a defendant need not testify before other-acts evidence is admitted in the state’s case-in-chief. A defendant need not testify if the pre-trial proceedings disclose that the defendant has raised a real dispute about an issue that makes the other-acts evidence admissible for a proper purpose. State v. Werner, 482 N.W.2d 286, 290-291 (S.D.1992). Moreover, because those proper uses for other-act evidence are limitless, the Rule 404(b) list of permissible purposes is nonexclusive. State v. Wright, 1999 SD 50, ¶ 14, 593 N.W.2d 792, 798. Therefore, if the injunction and contempt order are relevant to any non-character purpose that Jones has placed in issue, they are admissible in the state’s ease-in-chief.
[¶ 34.] In this case, Jones submitted a pre-trial affidavit in which she unequivocally declared her defense. She admitted attending the births, admitted practicing as a “midwife,” but denied that she held herself out as a “Certified Nurse Midwife” and further denied that her conduct fell within the proscription against practicing midwifery without a license. Under those circumstances, the trial court misapplied Rule 404(b) and our cases when it summarily concluded that the injunction and contempt findings were.-“not relevant” to show knowledge or absence of mistake (intent) “unless and until the defendant testifies that she did not know that what she did was prohibited or that it was a mistake or accident.” (emphasis added). That decision, which only allowed the other-acts evidence if Jones opened the door by testifying about knowledge or intent, misapplied Rule 404(b) because it failed to consider the fact that the injunction and contempt order directly refuted Jones’ declared defense that her type of practice was not prohibited by SDCL ch 36-9A and the statute with which she was charged.
[¶ 35.] The trial court’s decision also reflects that it did not consider all of the rules that determine when other-acts is permitted in the state’s case-in-chief. The trial court premised its decision on only one of the two applicable rules governing the use of other-acts evidence in the state’s case-in-chief. The trial court relied on the rule of “preference” (expressed in State v. Steichen, 1998 SD 126, ¶ 19, 588 N.W.2d 870, 875) to wait for the admission of other-acts evidence until the defense opens the door at trial. The trial court, however, misapplied Steichen because the trial court’s decision reflects that it did not consider the Steichen exception to the preference. More specifically, the trial court’s decision reflects that it failed to consider the reason for the Steichen preference, and therefore, it failed to apply Steichen’s exception to the preference: an exception under which other-acts evidence is admitted in the state’s case-in-chief. Steichen, 1998 SD 126 at ¶ 24, 588 N.W.2d at 875 (further citations omitted).
[¶ 36.] A review of the trial court’s application of. Steichen must begin with the observation that the Steichen court’s preference for requiring a defendant to open the door at trial was adopted from Werner, 482 N.W.2d at 290. Werner explained the *824reason for the preference. Werner noted that it is generally “preferable to delay the admission of 404(b) evidence until after the defense rests because it places the trial court in the best position to determine whether the issue sought to be proved by the extrinsic act evidence is really in dispute, and if so, to assess its probative worth and possible prejudicial effect.” Werner, 482 N.W.2d at 290 (citing United States v. Estabrook, 774 F.2d 284, 289 (8thCir.1985)) (emphasis added). Thus, the reason for the preference in delaying the admission of other-acts evidence is to give the trial court an opportunity to determine whether a legitimate purpose exists for use of other-acts evidence.
[¶ 87.] However, it is not always necessary for the defense to present its case before a trial court can make that determination. Therefore, Steichen and Werner adopted an exception to the preference. Under that exception: “where it is made clear at the outset of the trial that the defendant’s principal defense is [a permissible purpose for use of other-acts evidence], and thus the issue is unarguably in dispute, the government may introduce the [other-acts] evidence in its case-in-chief” Id., (further citations omitted); Steichen, 1998 SD 126 at ¶ 19, 588 N.W.2d at 875. Indeed, this Court applied this exception in Werner and held that other-acts evidence was admissible in the state’s case-in-chief. It did so because that trial court “had ample opportunity” in pre-trial proceedings 5 to ascertain that there was a dispute over an appropriate purpose for use of other-acts evidence. Id. The identical situation is present in the case now before us.
[¶ 38.] In this case, Jones has unequivocally declared through a sworn affidavit that she admits attending the births, but denies that her conduct constitutes the practice of midwifery within the meaning of the statute under which she is charged. Moreover, Jones’ defense has remained unchanged from her position in prior litigation where she also admitted attending births, but denied that her attendance at births constituted the practice of midwifery without a license in violation of SDCL ch. 36-9A.6 See, South Dakota Bd. of Nursing v. Jones, 1997 SD 78, ¶ 18 n. 6, 566 N.W.2d 142, 147 n. 6. Significantly, the trial court observed that this was Jones’ defense. The trial court noted that Jones’ contention was “that the requirements of SDCL S6-9A-35 do not apply to her as she is not and does not hold herself out to be a nurse midwife. She contends that she is a Certified, Professional Midwife and, therefore, not subject to SDCL 36-9A-35.” (emphasis added). Notwithstanding this recognition of a defense that is directly refuted by the injunction and contempt order, the trial court’s opinion does not reflect that Jones’ sworn affidavit and her similar contention in the prior *825litigation was considered. Had this pretrial record been considered on the 404(b) issue, it clearly demonstrated factual and legal relevancy to a real issue in dispute that Jones will raise at trial.
[¶ 39.] Under those circumstances, where Jones has unequivocally revealed her defense in pre-trial proceedings, the reason for the preference stated in Stei-chen and Werner is absent. When that reason for delaying admission of other-acts evidence is absent, our cases apply the exception that allows the admission of the other-acts evidence in the state’s case-in-chief. Werner, 482 N.W.2d 286, 290; Steichen, 1998 SD 126, ¶ 19, 588 N.W.2d at 875.
[¶ 40.] Respected commentators confirm this conclusion. In cases like this where “it is obvious that an appropriate consequential fact will be in issue, [whether Jones’ specific conduct in attending births constitutes the practice of midwifery in violation of SDCL 36-9A-35, a] trial court does not err by admitting other-crimes evidence as a part of the government’s case-in-chief.” 2 Jack B. Weinstein & Margaret A. Berger, Weinstein’s Federal Evidence, § 404.23(3) (2d ed 2002). Moreover, that rule is not diminished by the fact that practicing midwifery without a license may be a general intent offense. “Even in general intent crimes; the government can offer [such] other crimes evidence as part of its case-in-chief when it is obvious that the defense will raise [a non-character issue] as a defense.” 22 Charles A. Wright & Kenneth W. Graham, Federal Practice and Procedure, § 5244 at 490 (1978). Under these circumstances, where it was made clear at the outset that Jones’ defense was that her attendance at the births did not constitute the practice of midwifery as defined in SDCL ch 36-9A, the trial court misapplied Rule 404(b) by failing to consider the pre-trial record, by failing to consider the reason for the Stei-chen preference, and by failing to apply the Steichen exception.
Continuing Course of Criminal Conduct.
[¶ 41.] Alternatively, the trial court misapplied Rule 404(b) because it faded to consider the admissibility of the injunction and contempt citation to prove an obvious plan to engage in a continuing course of criminal conduct. ■ Had the trial court considered that purpose, Jones’ affidavit and her prior legal history made the injunction and contempt citation admissible in the state’s case-in-chief to prove Jones’ plan to engage in a continuing midwifery practice without a license.,'
[¶ 42.] Jones’ pre-trial affidavit indicates that since 1984, she has attended over 400 births and continues to do so- to the date the affidavit was submitted in this case. In 1997, Jones filed a similar affidavit claiming attendance at 150 births. Jones, 1997 SD 78, ¶ 18, n. 6, 566 N.W.2d at 147, n. 6. Given Jones’ proclamation of a “larger continuing plan” to practice without a license, and given the fact that the present alleged crime is a part of that continuing course of criminal conduct, the prior acts are admissible in the state’s case-in-chief. Steichen, 1998 SD 126, ¶ 25, 588 N.W.2d at 876. Applying the test we used in Steichen. if one “compartes] the crimes for which {Jones] is charged with the other-acts avidence[, it] demonstrates [that] the crimes charged are a continuation of [Jones’] criminal conduct,” and therefore, the- other-acts are properly admitted' to show the continuing course of criminal conduct. Id.
[¶43.] The, trial court’s opinion does not reflect that .it considered Jones’ continuing criminal conduct or the applicable exception to. the preference stated in Stei-chen and Werner. ■■ Had the trial court considered those matters, the injunction *826and contempt citation were not only relevant to refute Jones’ declared defense, but also to prove her plan to engage in a continuing course of criminal conduct. Therefore, the trial court erred in its application of Rule 404(b), and it abused its discretion on Issue 1. Guthrie, 2001 SD 61, ¶ 30, 627 N.W.2d at 414-15.
. In footnote 1, this Court adopts the trial court's error by requiring that Jones or her counsel must repeat, at trial, Jones’ sworn pre-trial assertion that she was acting lawfully as a “certified professional midwife or under some other capacity” which made her conduct lawful under SDCL 36-9A-35. The Court’s procedural impediment misapplies Rule 404(b) in cases like this where the defendant has, at the outset, made this defense the issue in the case. See generally, Werner, supra; State v. Champagne, 422 N.W.2d 840 (S.D.1988). This Court also overlooks the fact that Jones' defense is unarguably at issue. The trial court expressly noted that Jones was contending that she acted in a capacity (a "Certified Professional Midwife”) that made her conduct lawful under SDCL 36-9A-35, and Jones does not take issue with this finding on appeal.
. Notwithstanding her denial in that case, we concluded that her conduct was a willful violation of the prohibition against practicing midwifery without a license in SDCL ch. 36-9A.