concurring in part, dissenting in part.
It is readily agreed that the “acquittal first” instruction did not violate I.C. § 19-2132(c) or the United States Constitution and further agreed that there is no occasion today to address the propriety of the instruction under the Idaho constitution. Compare, State v. Pratt (Joseph), — Idaho —, — P.2d—, 93.15 ISCR 838-43 (1993) (Bistline, J., concurring, specially concurring, and dissenting). Notwithstanding those points of agreement with the majority opinion, my conclusion is that the conviction should be reversed because of the numerous evidentiary errors at trial.
First, the evidence regarding Raude-baugh coming to collect a drug debt was wholly irrelevant. While the fact that Gibbs owed Winkler (Raudebaugh’s girlfriend) some money and that Raudebaugh had come to the house to collect the owed money only tends to show his motivation for being there, rather than motive for the crime; the fact that the money was owed for illegal drugs had nothing whatever to do with motive. Thus, that portion of testimony was simply inadmissible under I.R.E. 402.1 To make matters worse, the admission of this irrelevant evidence, presumably purposely done, interjected serious and utterly unjustifiable information, all to the prejudice of Raudebaugh. The correct course would have been to allow the testimony as to the debt, even as to its amount, but without revealing the nature thereof. In that way, the State would have received all the permissible benefits of evidence which it wanted to lay before the jury and the prejudice to the defendant would have been avoided. But, be that as it may, the prosecution would be hard-put to convince competent practicing members of the bar that bringing drugs into the fore, as was here done, was not an impermissible invasion of, and a destruction of, defendant’s right to a fair trial even though the prosecuting counsel who represented the State have established that they are all well versed, capable and experienced advocates. Although one would prefer to believe that the interjection of the word “drugs” in connection with the collecting of an owed debt was unintentional, the State over a now considerable passage of time, has not been heard to so explain.
Likewise, Gill’s testimony about Winkler selling Gill illegal drugs on credit is only relevant to the extent that it establishes that Gill owed Winkler some money. Again, the fact that the money was owed for drugs does not establish motive and is logically irrelevant.
This irrelevant evidence served no purpose other than to unfairly prejudice the defendant. As the defense attorney put it:
I question whether the State would be fighting very hard to establish the nature of the debt if they believed it was over furniture which had been sold and not paid for, or whether it was a simple *771loan of money.... The reason the State is fighting so hard is because this is extremely prejudicial evidence, and they want this prejudicial evidence in front of the jury.
It is beyond peradventure that defense counsel is absolutely right. The prosecution wanted to establish that there was a drug debt in order to show that the defendant was associated with illegal activities and thus more likely to have committed the charged crime. To that extent any probative value of the evidence is substantially outweighed by its prejudicial effect. Moreover, this type of propensity evidence is expressly forbidden by I.R.E. 404(a). Seeing a need that the Court take appropriate action to preclude this all too common pros-ecutorial smear tactic, it follows that the time is now for the Court to take a firm stand and direct that the defendant be provided with a new trial which hopefully will be far less tainted with prejudicial error.
Moreover, the above were not the only evidentiary errors at trial. The majority admits that Moser’s testimony, as to the truthfulness of Aaseby and Gill, was also inadmissible. 124 Idaho at 767-769, 864 P.2d at 605-607. As is additionally noted in our majority opinion, Officer Staver’s testimony that Raudebaugh concealed some bloody clothing is obviously inadmissible under I.R.E. 701. 124 Idaho at 766-767, 864 P.2d at 604-605.
It is readily concluded that the cumulative effect of these errors deprived the defendant of a fair trial. Accordingly, the conviction and sentence should be reversed and the cause remanded for a new trial.
. The second sentence of Rule 402 clearly states: “Evidence which is not relevant is not admissible.” Moreover, Rule 403 presents the clearly worded caveat that: “Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.”