dissenting:
My brother Batjer and I believe admission of the two women’s testimony was erroneous. We would remand for a proper trial.
*217In People v. Kelley, 424 P.2d 947, 956 (Cal. 1967), the California Supreme Court stated:
It is not and should not be the law, . . . that defendant’s not guilty plea places his intent in issue so that proof of sex offenses with others is always admissible. Such evidence is admissible in cases where the proof of defendant’s intent is ambiguous, as when he admits the acts and denies the necessary intent bebause of mistake or accident (citations omitted). But where the acts, if committed, indisputably show an evil intent and the defendant does not specifically raise the issue of intent, the better reasoned cases hold that evidence of other crimes is admissible only when they were performed with the prosecuting witness (citation omitted), or where the offenses are not too remote and are similar to the offense charged and are committed with persons similar to the prosecuting witness.,
Kelley is consistent with Nevada’s evidence code, which specifically precludes the use of “[e]vidence of other crimes, wrongs, or acts ... to prove the character of a person ... to show that he acted in conformity therewith.” NRS 48.045(2). The majority indicate that the testimony of the two witnesses, who had allegedly been molested some nine years before, was admissible “to show intent, or absence of mistake or accident.” We suggest, however, that in truth the evidence was merely used to show appellant’s bad character.
Here, appellant’s not guilty plea raised no issue of either intent or mistake; he took the stand, and submitted himself to cross-examination, categorically denying the occurrence. Although the alleged prior misconduct bore some similarity to the charged offense, it ostensibly related to much older girls, nine years before the present incident. Under these circumstances, other than as impermissible evidence of bad character, we fail to see what relevance such remote acts have in demonstrating'appellant’s present intent or lack of mistake. This is precisely why other courts have held that prior bad acts, too remote in time, are inadmissible to show present intent. Cf. Freeman v. State, 486 P.2d 967 (Alaska 1971); Kelley, cited above; Commonwealth v. Bradley, 364 A.2d 944 (Pa.Super.Ct. 1976); Hall v. State, 528 P.2d 1117 (Okla.Crim. 1974); State v. Chapman, 168 N.E.2d. 14 (Ohio App. 1959).
While the majority concede that “the other acts of molestation were remote in point of time,” they apparently justify admissibility because “[tjheir testimony at trial was simply a reiteration of statements made shortly after the occurrences and, to that extent, possess a trustworthiness which, perhaps, they would not possess-if uttered for the first time nine years *218later.” The statement completely ignores the fact that those reiterated statements were hearsay, inadmissible at trial. See NRS 51.035. We recognize that prior consistent statements may be used to rebut an express or implied charge, of recent fabrication, NRS 51.035(2)(b), but here appellant made no such charge.
In McMichael v. State, 94 Nev. 184, 188, 577 P.2d 398, 401, decided less than a month ago, this court expressly stated that, ‘‘this type evidence, to be relevant, should not be admitted unless the acts are similar and proximate in time.” (Emphasis added.) We noted that the exception recognized in McMichael was a narrow one, explicitly stating:
Because of the dangers of creating assumptions of guilt in the minds of the triers of fact, the risks attendant to compelling the accused to meet collateral charges and possible confusion of the issues, this exception mandates proof of similar offenses which are near in time to the principal offense and which do not apply to mere criminal propensities in general but rather to specific sexual proclivities. The evidence should be received with extreme caution, and if its relevancy is not clear, the evidence should be excluded. (Emphasis added.) 94 Nev. at 190, 577 P. 2d at 401.
Quite obviously, there is no way to reconcile the statements this court unanimously endorsed in the McMichael case, which are consistent with the law elsewhere, and the court’s contrary holding today.
Batjer, C. J., concurs.