(dissenting).
I part company with the majority opinion allowing admission of C.G.’s testimony regarding her rape by White three weeks after Deibert’s death.
My point of contention rests with the balancing test of probative value versus unfair prejudice under SDCL 19-12-3 (Rule 403). In my opinion, if ever a case where the danger of testimony before a jury rose to the level of unfair prejudice outweighing probative value, this is it. State v. Ondricek, 535 N.W.2d 872, 873 (S.D.1995) (citing State v. Steele, 510 N.W.2d 661, 667 (S.D.1994)). Although no standard exists under South Dakota law delineating the point where unfair prejudice outweighs probative value, the majority in Ondricek stated:
[0]ur goal is “to avoid the introduction of extrinsic evidence which is likely to incite the jury to an irrational decision.”
Id. at 878 (quoting United States v. Williams, 816 F.2d 1527, 1532 (11th Cir.1987)). The court in Williams further provided:
[T]he standard we apply in determining when prejudice becomes unfair requires an assessment of the heinous nature of the extrinsic offenses. If the extrinsic offenses are of such a heinous nature that they are likely to sway the jury irrevocably to a decision of guilt, then they must be excluded under rule 403.*
816 F.2d at 1532. See also United States v. Ham, 998 F.2d 1247, 1252 (4th Cir.1993) (defining unfair prejudice as “a genuine risk that the emotions of the jury will be excited to irrational behavior, and that this risk is disproportionate to the probative value of the offered evidence”).
Addressing unfair prejudice, the Washington Supreme Court, in State v. Coe, 101 Wash.2d 772, 780-81, 684 P.2d 668, 673-74 (1984), held that it was error to admit Coe’s sexually explicit writings as evidence against him in a rape trial. The court stated:
The evidence of Coe’s sexually oriented writings was inflammatory on its face and carried with it a high probability of prejudice to his right to a fair trial. Careful consideration and weighing of both relevance and prejudice is particularly important in sex cases, where the potential for prejudice is at its highest. State v. Saltarelli, 98 Wash.2d 358, 363, 655 P.2d 697 (1982).
“One need not display an imposing list of statistics to indicate that community feelings everywhere are strong against sex offenders.... Once the accused has been characterized as a person of abnormal bent, driven by biological inclination [or anger], it seems relatively easy to arrive at the conclusion that he must be guilty, he could not help but be otherwise. When deciding the issue of guilt or innocence in sex cases, where prejudice has reached its loftiest peak, our courts ... [offer] scant attention to inherent possibilities of prejudice .... ”
Coe, 684 P.2d at 673-74 (quoting Slough & Knightly, Other Vices, Other Crimes, 41 Iowa L.Rev. 325, 333-34 (1956)). The Coe court held the testimony both irrelevant and unduly prejudicial.
This court stated in Steele, 510 N.W.2d at 667, that trial courts must be “ever vigilant” when considering this type of evidence. Vigilance should also be exercised in the appel*247late area. Does evidence regarding another rape with alleged threats to kill the victim and her husband (which there is no evidence of in the Deibert case) invite consideration of facts by the fact-finder, which appeal to making a decision based on emotion or allowing persuasion by illegitimate means?
I submit the answer in this case is yes. In closing argument, the prosecution argued basically that what White had done in the C.G. case, he also did in this case. This evidence was clearly used to show White had the propensity to do this type of act and was a bad person. White arguably could fall within the definition of a bad person, but that fact alone does not merit disregarding appropriate application of the rules of evidence to his case. SDCL 19-12-5 prohibits the admission of evidence to prove bad character to argue since White did it before, he also did it here. If this evidence is not unfairly prejudicial, I cannot believe there will ever be a set of facts where prejudice could possibly tip the scale against probative value.
The Advisory Committee's note on Fed.R.Evid. 403 provides in part as follows: " 'Unfair prejudice' ... means an undue tendency to suggest decision on an improper basis, commonly, though not necessarily, an emotional one." Fed. R.Evid. 403 advisory committee's note reprinted in 5 Christopher B. Mueller & Laird C. Kirkpatrick, Federal Evidence app. at 512 (1994).