(dissenting).
[¶ 34.] I dissent for the following reasons:
[¶ 35.] SDCL 22-22-1, the rape statute, provides in part, “... a charge brought pursuant to this section may be commenced at any time prior to the time the victim becomes age twenty-five or within seven years of the commission of the crime, whichever is longer.” Defendant concedes that filing the initial complaint “commenced” the charges against him. See also, SDCL 23A-42-4 (providing in part that a charge is deemed commenced “by the filing of a complaint, information or indictment[.]”).
[¶36.] The day the initial complaint was filed was the last day the State could have criminally charged Defendant for his offenses against J.C. in the hot tub incident. The State amended the complaint on May 24, 2001 and June 4, 2001. Both of the amendments took place after the statute of limitation had expired. Defendant argues that these amendments were substantive changes as the original charge substantially differed from the amended charge and that the charges are mutually exclusive and barred.
[¶ 37.] SDCL 23A-6-19 provides in part:
If trial has not commenced, a prosecuting attorney may amend an information to allege, or to change the allegations regarding, any offense arising out of the same alleged conduct of the defendant that gave rise to any offense alleged in the original information. If the change alleges a new offense, the defendant has the right to a preliminary hearing on the new offense.
(Emphasis supplied.) The State did change the allegations regarding an offense “arising out of the same alleged conduct of the defendant,” e.g., the hot tub incident. The court offered a continuance of the preliminary hearing, but that offer was not accepted. The parties briefed the issue and the court heard arguments at a subsequent motion hearing. Defendant repeatedly raised objections based on the statute of limitation through the end of trial. He does not seek to have a new *276preliminary hearing. Instead, he argues that his conviction should be reversed because the prosecution was untimely. The State responds that the filing of the initial complaint served to toll the statute of limitation, in essence, allowing the amendments to the complaint to “relate back” to the date of the first complaint.
[¶ 38.] Although this is a question of first impression for this Court, other jurisdictions have addressed analogous issues. Many courts have held that where the State commences a prosecution by filing a timely information or indictment, the filing of an amendment after the statute of limitation has expired will not divest the court of jurisdiction unless the amended information broadens or substantially amends the original charges. See e.g., United States v. Schmick, 904 F.2d 936, 940 (5th Cir.1990); United States v. Elliott, 849 F.2d 554, 561 (11th Cir.1988); United States v. Friedman, 649 F.2d 199, 203 (3d Cir.1981); United States v. Grady, 544 F.2d 598, 601 (2d Cir.1976); Benitez v. State, 111 Nev. 1363, 904 P.2d 1036, 1037 (1995); State v. Almeda, 211 Conn. 441, 560 A.2d 389, 392 (1989). I believe that this is the appropriate test.
[¶ 39.] A determination whether the amended complaint broadened or substantially amended the original complaint requires comparison of the facts of the crime originally charged with the facts of the crime supporting the conviction. SDCL 22-22-1 provides, “[r]ape is an act of sexual penetration accomplished with any person under any of the following circumstances[.]” Subsection (2) (forcible rape), the section Defendant was originally charged with, provides, “[t]hrough the use of force, coercion, or threats of immediate and great bodily harm against the victim or other persons within the victim’s presence, accompanied by apparent power of execution[.]” Subsection (5) (statutory rape), the charge supporting the conviction, provides, “[i]f the victim is ten years of age, but less than sixteen years of age, and the perpetrator is at least three years older than the victim[J” Subsection (5) is rape in the third degree, a Class 3 felony, whereas subsection (2) is rape in the second degree, a Class 2 felony. Both subsections are subject to the statute of limitation cited above. This amendment did not broaden the original charge to a more serious crime but narrowed it to a less serious crime.
[¶ 40.] Defendant argues that the original and amended charges are substantially different, and based on those differences, the statute of limitation should bar prosecution on the amended charge. Specifically, he argues that the difference between forcible rape (the original charge) and statutory rape (the charge supporting the conviction) are mutually exclusive in that: 1) forcible rape allows for the defense of consent whereas statutory rape does not; 2) the original charge left open the possibility of an alibi defense because the victim and defendant lived in different cities at the time the alleged act occurred; 3) statutory rape cannot be considered a lesser included offense of forcible rape because of its differing elements; and 4) statutory rape is a time-sensitive charge because it must occur between the time the victim is ten and sixteen years old. This analysis of legal factors supports a finding of a substantially new and different offense.
[¶ 41.] SDCL 23A-6-19 may require an analysis from a factual standpoint. SDCL 23A-6-19 permits an amendment to “amend [] or change the allegations regarding any offense arising out of the same alleged conduct of the defendant that gave rise to any offense alleged in the original information.” Arguably, that is what was done here. However, the fatal defect in this factual analysis is that the *277statute deals specifically with amending and amending to a new charge but says nothing about permitting an amendment after the statute of limitations expired on a new charge.
[¶ 42.] The State would not be entitled to charge, through an amendment to a complaint, an offense that does not arise out of the same alleged conduct that gave rise to the original information either before or after the statute of limitation expired.
[¶ 43.] Statutes of limitation are created by the Legislature and become the public policy of the State of South Dakota. Statutes of limitation serve two primary purposes; they avoid unfair proceedings against defendants caused by the use of stale evidence and encourage prompt investigation by the government in criminal cases. United States v. Ewell, 383 U.S. 116, 122, 86 S.Ct. 773, 777, 15 L.Ed.2d 627, 632 (1966). Here, neither purpose was fulfilled. Through the amended complaint, the evidence to support the charge was fifteen years old and despite knowledge by the State as of 1992, there was no prompt investigation of the offenses by the government.10
[¶ 44.] A criminal statute of limitation acts as a jurisdictional bar to prosecution. This is a limitation on the power of the State to act against an accused. State v. Glover, 25 Wash.App. 58, 604 P.2d 1015, 1016 (1979) (additional citations omitted). SDCL 22-22-1 provides in part that the statute of limitation on a charge of rape will expire seven years after commission of the crime or when the victim turns twenty-five years old, whichever is longer. The South Dakota Legislature has spoken on this issue and criminal statutes of limítation are construed liberally in favor of the Defendant. See e.g., State v. Hirsch, 245 Neb. 31, 43, 511 N.W.2d 69, 78 (1994) (additional citations omitted). Therefore, even though the amended complaint did not broaden the charge, it substantially amended it to the prejudice of the Defendant.
[¶ 45.] We should not accept the State’s argument that the mere filing of the criminal complaint tolled the statute of limitation without exception. See e.g., SDCL 23A-8-11 (providing in part that although an order regarding a defect in an indictment or information is not a bar to subsequent prosecution on the same charge, the order will not affect the provisions of “any statute relating to periods of limitation”). When an amendment to a charging document affects the substantive rights of the accused, courts must inquire into the sufficiency of the document. See generally, Sehmick, 904 F.2d at 940; Elliott, 849 F.2d at 561; Friedman, 649 F.2d at 203; Grady, 544 F.2d at 601; Almeda, 560 A.2d at 392; Benitez, 904 P.2d at 1037. The changes to this criminal complaint were not mere changes in form. The record reveals that at the time the State filed the original complaint, it was based on the mistaken belief that Defendant committed forcible rape against J.C. in 1995. Changing the date to 1986 and the offense to statutory rape were substantive changes requiring that the Defendant be entitled to a new preliminary hearing according to SDCL 23A-6-19. The fact that he was entitled to a new preliminary hearing gives credence to Defendant’s argument that the amended complaint alleged a new and different offense for which the State should have been required to file a new complaint. *278Had the State filed a new complaint, clearly it would have been barred by the statute of limitation. Thus, the act of amending the original complaint could not operate to extend the statute of limitation and preserve the untimely prosecution on this charge. Defendant was prejudiced by being prosecuted on a crime that was juris-dictionally barred.
[¶46.] We have held that the State may amend an indictment when the amendment does not surprise, prejudice, or have an effect on the defendant’s substantial rights. State v. Timperley, 1999 SD 75, ¶¶ 8-9, 599 N.W.2d 866, 867-868. Furthermore, a charging document should advise the defendant of the charge with reasonable sufficiency, cite the appropriate statute and subsection and contain the material elements of the offense. See generally, State v. Boutchee, 406 N.W.2d 708 (S.D.1987). The amendment to this complaint does not overcome the barriers erected for the protection of defendants by our laws of criminal procedure as enacted by the South Dakota Legislature. Those barriers operate to ensure that defendants only face timely charges. They should not be circumvented so easily. Because the Defendant was tried and convicted of a crime upon which the statute of limitation expired, his substantial rights were prejudiced. The amendments to the complaint were substantial and the court was divested of jurisdiction over this Defendant as to this charge. The conviction should be reversed.
[¶ 47.] I dissent on Issue 2 also because the other act evidence received under SDCL 19-12-5 (Rule 404(b)) was clearly offered to prove bad character and was substantially outweighed by its prejudicial effect. Once that evidence was offered and received, Defendant had little chance for a fair trial. The majority opinion relies heavily on the claim that this “other act evidence” was offered only as evidence of the Defendant’s common scheme or plan, motive and intent, continuing course of conduct and identity. None of these factors were really in issue and are more pretextual than real. I submit that the State will continue to use this “laundry list” as long as the trial courts and this Court accept the same. This practice prevents meaningful review of the issues and permits highly prejudicial evidence to be admitted with no clear showing of its probative value. In light of the judiciary’s duty to provide fair criminal trials, this Court should require the State to stop this practice now.
[¶ 48.] To say this laundry list of “bad acts” and its probative value was not substantially outweighed by its prejudicial effect is a real stretch and also prevents meaningful review. The exceptions to SDCL 19-12-5 continue to swallow the rule. For these and the reasons I have stated in my previous writings on this issue, I dissent. See e.g. State v. Wright, 1999 SD 50, 593 N.W.2d 792 (Sabers, J., dissenting); State v. Loftus, 1997 SD 94, 566 N.W.2d 825; State v. Werner, 482 N.W.2d 286 (S.D.1992).
[¶ 49.] MEIERHENRY, Justice, joins this dissent.
. Defendant's alleged misconduct against this victim and C.O. was initially reported by their parents to the Department of Social Services and the State's Attorney in 1993, eight years before the statute of limitation expired and eight years before the State’s Attorney eventually took action on the case in April, 2001.