(dissenting)—The majority contends there is no issue of intent in the subject case. Intent, like motive, plan and design, does not have to be an element of the crime in order for evidence to be admissible under ER 404(b) in a proper case. Saltarelli affirmatively placed his intent in issue when he testified that he had engaged in sexual intercourse with the victim, but that it was consensual. The court instructed the jury on intent as follows: "A person acts with intent or intentionally when acting with the objective or purpose to accomplish a result which constitutes a crime". Instruction 11. Thus, intent was at issue in the present case.
I am persuaded by the reasoning of jurisdictions which have admitted evidence of prior sexual assaults where a defendant affirmatively raises the defensive theory of consent to a rape charge. See, e.g., Rubio v. State, 607 S.W.2d 498 (Tex. Crim. App. 1980); People v. Jackson, 110 Cal. App. 3d 560, 167 Cal. Rptr. 915 (1980); People v. Pendleton, 25 Cal. 3d 371, 599 P.2d 649, 158 Cal. Rptr. 343 (1979); People v. Enriquez, 42 Colo. App. 309, 597 P.2d 1048 (1979); Williams v. State, 95 Nev. 830, 603 P.2d 694 (1979); Davis v. State, 635 P.2d 481, 485 (Alaska Ct. App. 1981); State v. Smith, 216 Kan. 265, 530 P.2d 1215 (1975).
The California Court of Appeals analyzed the issue as follows in Jackson, at page 566:
Defendant's trial theory, that the victim had consented to the sexual acts, was tantamount to a denial that he had intended to achieve oral copulation and sexual intercourse by force or intimidation. Evidence of prior offenses was thus admissible to establish defendant's intent in *368the present offense by corroborating the victim's testimony that she had not consented to the sex acts, so long as those prior offenses were not too remote and were similar to the offense charged.
As the Alaska Supreme Court stated in Freeman v. State, 486 P.2d 967, 978 (Alaska 1971):
Within the context of a sex related offense, the classic example of proper use of prior misconduct as proof of intent is where the accused admits the act charged, but claims to have had a benign intent.
In the Freeman case, the defendant acknowledged touching a child but asserted his innocent intent. Although the Freeman court ultimately concluded Jimmy Freeman had failed to advance the defense of lack of intent, the reasoning of the court is persuasive in the context of the present case.
The evidence of the prior attempted rape was properly admitted for the purpose of proving Saltarelli's likelihood to threaten and use force in sexual encounters where the victim did not consent. This evidence is relevant to his intent to use force in the present case. The facts of the rape here, and the previous attempted rape, are sufficiently similar to pass the test of relevancy under ER 404(b). In both cases, the victims were clerks in retail stores and the defendant was a customer who kept returning to the store until the victim consented to go out with him. On dates with each victim, the defendant boasted of his prowess as a karate expert and then raped or attempted to rape the victim. The defendant then threatened "to get" each victim if she complained to the police.
The evidence regarding the prior attempted rape also relates to Saltarelli's motive in the present case, which is relevant to the requisite element of nonconsent before the jury. "Motive" has been defined by this court as "An inducement, or that which leads or tempts the mind to indulge a criminal act". Black's Law Dictionary (4th rev. ed. 1968), quoted in State v. Tharp, 96 Wn.2d 591, 596-97, 637 P.2d 961 (1981). Here, the admitted evidence is proba*369tive of Saltarelli's general hostility toward women, which relates to his motive in the subsequent attack. Additionally, the evidence goes toward showing that Saltarelli, having had some success with the use of forcible compulsion in the past, may have had a reason for using it again.
The balancing of the relevancy and desirability of the evidence against its prejudicial effect is within the discretion of the trial court. State v. Adams, 76 Wn.2d 650, 458 P.2d 558 (1969). Judicial discretion has not been abused unless the reviewing court concludes no reasonable person would take the view of the tried court. State v. Johnson, 56 Wn.2d 700, 355 P.2d 13 (1960).
In deciding to admit the evidence of the prior attempted rape, the trial court stated:
The court having read the statement of [the witness] reciting an episode that took place on the 24th day of January, 1975, and the Court finds that the recitation of those statements seem to have a pattern similar to the episode that is before us in this action.
The Court will rule that the rule of evidence, Rule No. 404, seems to authorize the admissibility on the basis of the similarity of facts, and also allowed it to be used for the purposes as the State intends to use it, for a determination of credibility, motive and intent, but I think you argued modus operandi, but I don't think that is part of the rule. Up to that point, the Court has no trouble in admitting the testimony.
The point of strain comes where you are looking at events that are almost five years old. However, because of the similarity of the pattern, and of the cases cited by the State, I am going to deny the motion in limine.
I am doing it because I think the similarity of the facts of the two events are so close that I think that would justify my reaching back almost five years to allow it in. It might be reversible error in doing so, but I think that because of the facts, I will allow it.
Report of Proceedings II, at 241-42. This is precisely the "conscious determination" a trial court must make in balancing the necessity of admission of evidence against its possible prejudicial effect, under Tharp, at 597.
The trial court further limited the use of the evidence by *370instructing the jury as follows:
Anthony Michael Saltarelli is not on trial for any act or conduct not alleged in the information. Any testimony received by you regarding prior acts by the defendant is not to be used in determining whether the defendant is guilty or not guilty of the offense now charged. You are instructed that such evidence is to be used only insofar as it reflects upon the defendant's motives or intent.
(Italics mine.) Instruction 12.
Conclusion
Intent and motive are relevant to the element of nonconsent which was the primary issue before the jury. The trial court did not abuse its discretion in determining that the probative value of the other attempted rape outweighed its possible prejudicial effect, as the balancing process of the court in the record reflects. Additionally, the court mitigated the damaging effects the evidence might have by its limiting instruction.
For these reasons, I would affirm the trial court and the Court of Appeals.