dissenting.
Believing that evidence of the Foster incident was improperly admitted and unfairly prejudiced defendant, I respectfully dissent and vote for a new trial.
The majority concedes this evidence was not admissible to prove defendant’s identity as the perpetrator of the crime because identity was not at issue. I agree and can find no other basis upon which the evidence was properly admitted.
The majority says the evidence was admissible to prove a similar modus operandi, motive, intent, preparation and plan. I disagree. It is, of course, proper to prove that two crimes were committed with the same or similar modus operandi and defendant committed one of the crimes in order to prove that defendant was the perpetrator of the other crime for which he is being tried. The justification for admitting such evidence rests on proving identity. Where identity is not in issue there is no justification for admitting the evidence on this theory.
Motive and intent are no more at issue in this case than identity. First degree sexual offense requires neither motive nor specific intent. Thus there is no justification for admitting the evidence to show these things.
It is also permissible to prove that defendant planned or prepared to commit a crime in order to prove that he committed it. Such a plan or preparation must occur, however, before the crime has been committed. The Foster incident occurred some ten weeks after the incident for which defendant was being tried. It could not have been evidence that defendant planned or prepared to commit the crime for which he was being tried.