concurring:
I adopt those facts set forth in the majority opinion and agree with its approval of the admission into evidence of the witnesses’ statements given during the State’s case in chief.
Although I concur, I recognize, in these or similar circumstances, the potential threat of a substantial destruction or erosion of a defendant’s Fifth Amendment right, namely, an accused’s right to remain silent. We were not requested to decide that issue today.
In Wallace v. State, 77 Nev. 123, 359 P.2d 749 (1961), a narcotics case, this Court held admissible evidence of a separate offense, offered in rebuttal, to contradict the testimony of the defendant that he had never seen marijuana. Accord, Allan v. State, 92 Nev. 318, 549 P.2d 1402 (1976). In the case before us, the evidence was offered during presentation of the State’s case in chief. This distinction does not here impress me as being material. Accord, Overton v. State, 78 Nev. 198, 370 P.2d 677 (1962).
During trial, the appellant took the stand. He was without any prior convictions. My awareness of trial strategy informs me that had the appellant had a significant criminal record, he may have elected to exercise his Fifth Amendment right. This may have been the case, of course, unless he elected to waive that right in order to respond to the referenced case-in-chief testimony, which evidence, for the reasons expressed in the majority opinion, was held admissible. It seems apparent, too, that an accused, with or without a record of past criminal history, may as a trial tactic determine not to testify. An accused could well be compelled to be a witness in his own defense when it is his right not to do so. Ibsen v. State, 83 Nev. 42, 422 P.2d 543 (1967). Further, it is not a desirable order of proof that would permit a prosecutor, as was done here, to anticipate what an accused’s defenses might be, absent the admission of a confession, admission against interest, or the like.
*216Appellant had, prior to trial, attempted to explain his perverted conduct as a mistake or accident on one occasion and as an unintentional accident on another occasion. Although such extra-judicial statements were uttered testimonially by witnesses other than the appellant, they were material and relevant pursuant to NRS 48.045(2), which provides:
Evidence of other crimes, wrongs or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.
People v. Kelley, 424 P.2d 947 (Cal. 1967), would permit such testimony in these circumstances, “where the proof of defendant’s intent is ambiguous, as when he admits the acts and denies the necessary intent because of mistake or accident.” 424 P.2d at 956. See also, People v. Westek, 190 P.2d 9 (Cal. 1948); People v. Honaker, 22 Cal.Rptr. 829 (Cal.App. 1962). Appellant is within this pronouncement.
The appellant made the extra-judicial statements in the form of explanations, and in having done so, should have been aware that the same would be presented against him in court. This fact disposes of my Fifth Amendment concerns here.
The trial judge undertook the intermediate step of reviewing the proffered testimony out of the presence of the jury to bal-' anee its possible prejudicial effect against its probative value, Overton, supra; Tucker v. State, 82 Nev. 127, 412 P.2d 970 (1966); Nester v. State of Nevada, 75 Nev. 41, 334 P.2d 524 (1959), and then carefully admonished the jury as to the limited purpose for the introduction. The fact that the defendant took the stand in these circumstances with full knowledge of the foregoing, coupled with the substantial evidence supporting the guilty verdict, compels affirmance. Appellant’s due process rights were duly afforded him by the trial court.
I acknowledge that there are often compelling reasons for limiting the elicitation of such evidence, see, McMichael v. State, 94 Nev. 184, 577 P.2d 398 (1978), but the fact that the objected-to testimony was simply a “reiteration of the statements made shortly after the occurrences,” demonstrates that none of such reasons are present here.
The judgment of conviction should be affirmed.