(dissenting).
I respectfully dissent. I would hold that the district court erred in admitting the other crimes evidence. The crimes were not probative of an intent to kill or necessary to rebut a claim of accident. Appellant neither asserted nor put on a defense of accident. The State created the claim from an otherwise inadmissible answer appellant gave to the police in the confession that appellant sought to suppress. And the deplorable nature of the crimes posed such serious risks for unfair prejudice as to warrant exclusion. I would also hold that the other crimes evidence deprived appellant of his right to a fair trial.
My disagreement with the majority begins, fundamentally, with the term “stipulated evidence.” Over an hour after the shooting in North Minneapolis, appellant, Brewer, Graves, and Jourdain were driving around South Minneapolis when they happened upon a couple leaving a grocery store. The group robbed the couple at gunpoint, locked them in the trunk of a car, burglarized their apartment, stole their belongings (as appellant sexually assaulted the houseguest), fired three shots into the closed trunk, and eventually released the couple naked on the freeway. It was only after the court’s ruling to admit this evidence, made near the end of the state’s case-in-chief, that defense counsel agreed to submission of the evidence by stipulation instead of live testimony. The issue, more properly stated then, is whether the district court erred in admitting evidence of violent and heinous criminal acts occurring over an hour after the charged crime of first-degree felony murder to show intent to kill.
“Evidence of another crime, wrong, or act is not admissible to prove the character of a person in order to show action in conformity therewith.” Minn. R. Evid. 404(b).1 Other crimes may be admitted to prove certain facts such as intent or absence of mistake or accident, but only if “the probative value of the evidence is not outweighed by its potential for unfair prejudice to the defendant.” Id. Rule 404(b) is a rule of exclusion:
[Rule 404(b) ] bars not evidence as such, but a theory of admissibility. The risk that a jury will draw a deadly and decidedly improper three-step inference, from bad act to bad person to guilty person or give way to the emotional impulse to punish because the other act alone shows that punishment is deserved.
1 Christopher B. Mueller & Laird C. Kirkpatrick, Federal Evidence § 4:28, at 746 (3d ed.2007) (internal citations omitted) (internal quotation marks omitted). If the decision to admit the evidence is a close call, the evidence should be excluded. *326State v. Ness, 707 N.W.2d 676, 685 (Minn.2006).
Res Gestae/Immediate Episode. The district court admitted the other crimes evidence as res gestae or immediate episode evidence. The concept of proving inseparable crimes is sometimes “summed up in the mind-numbing and elastic term ‘res gestae,’ which pretends much but means little.” 1 Mueller & Kirkpatrick, supra, § 4:33, at 809. The label “res ges-tae,” or “inextricably intertwined offenses,” can serve as a “catchall for admitting acts that are far more prejudicial to the defendant than useful in determining guilt of the charged offense.” Id. I join the majority’s analysis that the other crimes evidence was not admissible as immediate episode evidence merely because the crimes followed the murder, or that they involved the same people or were committed as part of a broad plan to commit random robberies.
Specific Intent. The district court concluded the other crimes were probative of intent to kill, explaining that the crimes were “highly relevant to show a callous attitude, which is highly probative of an intentional shooting.” But the first-degree felony murder charge required an intent to kill, not just an intent to shoot. Appellant’s not guilty plea put specific intent in issue.2
For the criminal events in South Minneapolis, appellant was convicted of aiding and abetting the shooting into the trunk of the car. We have recognized that crimes committed after the charged offense can be relevant to show common scheme or plan, to refute claims of fabrication, and to rebut claims of entrapment.3 But the intent to aid and abet an assault does not inform the analysis of a prior intent to take a life without implicating propensity. In support of allowing the evidence, the State argued: “Well, we don’t know who fired into the trunk,” but “the intent of continuing to commit a crime spree armed with the same rifle shows [appellant’s] intent to commit a crime at the beginning of the evening.”4 Other crimes evidence is not saved from exclusion because it supports an inference “like intent if the necessary logical steps include an inference of general character or propensity, or if it seems likely that the proof will be used to support such an inference.” 1 Mueller & Kirkpatrick, supra, § 4:28, at 746-47 (emphasis original). The State’s rationale for admitting the other crimes involved propensity inferences prohibited by Rule 404(b). See Angus v. State, 695 N.W.2d 109, 122 (Minn.2005) (“[Ujsing a criminal act to demonstrate a defendant’s propensity is prohibited.”).
Absence of Accident. The majority concludes the other crimes evidence was nec*327essary to refute a claim that the shooting in North Minneapolis was an accident. But it was the State, not appellant, who put accident in issue. The State raised the claim in its opening statement by reference to appellant’s confession and then proceeded to outline the expert evidence that would show “there is no defect in that rifle that would cause it to fire accidentally.” Neither appellant nor his attorney claimed accident; no witness alluded to accident; and no such claim was suggested through cross-examination of the State’s witnesses.
The only reference that the gun fired accidentally was a statement appellant made in response to a suggestion by police investigators. During appellant’s interrogation, the following exchange occurred:
Q. So why did you shoot the man?
A. I didn’t even want to.
Q. I know it, was it an accident?
A. Yeah.
Q. You were going for the legs or what?
A. No, I was scaring him, the trigger kinda slipped.
[[Image here]]
Q. How do you feel about, ah, killing that man up there? Any sense of remorse or do you just think it was an accident?
A. It was an accident.
‘Yeah ... the trigger kinda slipped.... It was an accident.” Nine words embedded in a 52-minute police statement served as grounds for the State’s claim of need for the other crimes. And appellant attempted to suppress this statement.
Subject to various exclusionary rules, police statements may be admissible as party admissions.5 But the exculpatory portions of police statements are typically excluded, on the State’s motion in limine, as inadmissible hearsay unless and until the defendant testifies. “‘Hearsay’ is a statement ... offered in evidence to prove the truth of the matter asserted.” Minn. R. Evid. 801(c). But “[a] statement is not hearsay if ... [t]he declarant testifies at the trial or hearing and is subject to cross-examination concerning the statement, and the statement is ... consistent with the declarant’s testimony and helpful to the trier of fact in evaluating the declarant’s credibility as a witness_” Minn. R. Evid. 801(d). Consequently, exculpatory portions of a defendant’s police statement are excluded when the defendant does not testify. E.g., State v. Bobadilla, 709 N.W.2d 243, 256-57 (Minn.2006) (explaining that exculpatory statements in police statement were not admissible because the cross-examination requirement had not been satisfied), vacating conviction on other grounds sub nom. Bobadilla v. Carlson, 570 F.Supp.2d 1098, 1112-14 (D.Minn.2008); State v. Mills, 562 N.W.2d 276, 286-87 (Minn.1997) (concluding that exculpatory portions of police statement were inadmissible hearsay); cf. United States v. Sadler, 234 F.3d 368, 372 (8th Cir.2000) (stating that exculpatory statement allegedly made prior to confession was excluda-ble hearsay).
What the State accomplished here was to present, in the guise of necessity, evidence that was not otherwise admissible. By placing the exculpatory portion of appellant’s confession before the jury, the State effectively opened the door for the *328other crimes. I would conclude that the State cannot “create” a Rule 404(b) exception based on an excludable answer the defendant gave in a police statement that he sought to suppress. Cf. State v. Dexter, 269 N.W.2d 721, 721-22 (Minn.1978) (explaining that the State cannot misuse the rules to expose the jury to hearsay under the guise of impeachment when the sole purpose in calling the witness is to introduce the witness’s prior statement); Boyd v. State, 899 Md. 457, 924 A.2d 1112, 1128 (2007) (stating rule that, as a prerequisite for application of Rule 404(b) mistake exception, defendant generally must make some assertion or put on a defense of mistake).6
In balancing the probative value of other acts evidence against the potential for unfair prejudice, the State’s need for the evidence is addressed. Ness, 707 N.W.2d at 690 (Minn.2006). “The prejudice to an opponent can be said to be ‘unfair’ when the proponent of the evidence could prove the fact by other, non-prejudicial evidence.” 22 Charles A. Wright & Kenneth A. Graham, Jr., Federal Practice and Procedure: Evidence § 5214, at 269 (1978). The State established absence of accident with forensic evidence. The firearms and toolmarks examiner testified that the gun was fully operational and had a trigger pull of 4-4½ pounds, which was normal for a gun of that type. The examiner explained that in order to fire the gun, one had to take a series of intentional steps: load the magazine with cartridges, disengage the safety, pull the slide back to chamber a cartridge, and pull the trigger. I would conclude that the State had a fair opportunity to establish absence of accident by the use of nonprejudicial evidence.
Even assuming the other crimes evidence had legitimate probative value, the nature of the acts carried serious risks for unfair prejudice. In deferring the decision on the admission of the evidence, the district court expressed concern that if admitted later, a juror might recall having read about the incident in the newspaper because “the releasing of the two people nude on the highway ... was a remarkable circumstance that distinguishes this case” from other crime reports. The State and the district court referred to the other crimes as random, senseless, and violent. “Where the acts (usually crimes) are heinous, violent or particularly shocking, they bring special risks of unfair prejudice.” 1 Mueller & Kirkpatrick, supra, § 4:80, at 776.
The risks for improper propensity inferences were peculiarly high, as demonstrated by the colloquy at trial over relevance. At one point, the court thought the crimes showed intent by means of “a continued pattern of violence, senseless criminal activity.” The State argued the crimes were relevant because appellant was part of the group still “committing violent acts, random, senseless acts of violence against multiple people.” Even on appeal, the State used character and propensity to justify the evidence, stating the crimes showed that appellant “and his accomplices were on a spree and indulging an indifference to human life and dignity, conduct that was consistent with a senseless killing.” The State suggested the other crimes were part of a “continuing plan [that] did not exclude other criminal opportunities that might arise, including the infliction of gratuitous suffering.” At oral argument, the State told us the evidence showed that appellant and his accomplices “were engaging in multiple occasions in the infliction of pain and suffering on other people for their own entertainment.” Because the heinous nature of the other *329crimes posed such serious risks for involving propensity as well as arousing emotionalism and anger, and there was other nonprejudicial evidence to prove the alleged disputed fact, I would conclude the admission of the other crimes evidence was error.
When there is a reasonable possibility that wrongly admitted evidence significantly affected the verdict, a new trial is required. Ness, 707 N.W.2d at 691 (citing State v. Bolte, 530 N.W.2d 191, 198 (Minn.1995)). In concluding that the erroneous admission of the criminal sexual conduct evidence was harmless error, the majority looked to other evidence on intent, the limiting instruction, the State’s closing argument and presentation of the evidence by stipulation instead of live testimony. While the stipulation may have mitigated some damage, even the stipulation to the other crimes had power to sway. In certifying appellant for adult prosecution, the juvenile court described the accusations of murder, crimes against the couple, and sexual assault of the houseguest as “three extremely serious and shocking criminal events.” In severing the murder from the other crimes in the prior trial, the district court recognized that “[jjoinder of the murder charge and the subsequent alleged offenses pose[d] greater danger of unfair prejudice.”
It is true that the State did not dwell on the other crimes in closing argument, but the State did not need to given the nature of the acts. The State mentioned the crimes: the robbery, kidnapping, burglary and “some other serious crimes.” The State reminded the jury that “at one point [the couple was] removed from the trunk of the car, told to strip naked, put back in the trunk of the car,” and “shot inside the trunk of the car.” The State noted that two discharged cartridge casings were “actually found in the clothes that they were forced to take off.” The State argued that because the other crimes were intentional acts, “so was the murder” of Brown. The State continued:
Now, in the middle of this long chain of intentional acts, [appellant] doing one thing after another intentionally, intentionally, intentionally intentionally, we get to the pulling of the trigger and that one and that one alone is an accident? Oops? That’s where the oops is? Everything else he does volitionally from arming himself to robbing, staying with the guys, to going on afterwards, everything is volitional, everything is intentional, except the one fact that really gets him in trouble for murder one, the intent. When [appellant] pulled that trigger, that was no accident. It was as intentional as everything else he did that night.
The precise disputed fact was whether appellant had the intent to kill. That appellant had the general intent to commit terrible crimes after the murder did not show the requisite intent for first-degree felony murder without involving propensity inferences.
The district court twice instructed the jury that the other-crimes evidence could only be used for the limited purpose of deciding whether appellant intended to kill Brown and could not be used for any other purpose. But the limiting instructions did not preclude the possibility that the jury, like the State and the district court, would “misuse” the evidence to support inferences of character and propensity. In the context of this trial, the limiting instructions more likely worked to highlight and “exacerbate[ ] its prejudicial effect” of the evidence that should not have been admitted in the first place. State v. Strommen, 648 N.W.2d 681, 687 (Minn.2002).
The Supreme Court has explained the basis for excluding character evidence:
*330“The state may not show defendant’s prior trouble with the law, specific criminal acts, or ill name among his neighbors, even though such facts might logically be persuasive that he is by propensity a probable perpetrator of the crime. The inquiry is not rejected because character is irrelevant; on the contrary, it is said to weigh too much with the jury and to so overpersuade them as to prejudge one with a bad general record and deny him a fair opportunity to defend against a particular charge. The overriding policy of excluding such evidence, despite its admitted probative value, is the practical experience that its disallowance tends to prevent confusion of issues, unfair surprise and undue prejudice.”
Old Chief v. United States, 519 U.S. 172, 181, 117 S.Ct. 644, 136 L.Ed.2d 574 (1997) (quoting Michelson v. United States, 335 U.S. 469, 475-76, 69 S.Ct. 213, 93 L.Ed. 168 (1948)). Appellant had a right to a fair trial. U.S. Const, amend. VI, XIV; Minn. Const, art. I, §§ 6, 7. In fact, “[t]he general exclusionary rule is grounded in the defendant’s constitutional right to a fair trial.” Ness, 707 N.W.2d at 685. I recognize that given the nature of appellate review, with its restrictions to the record and deference to the district court’s discretion, we rarely reverse the district court’s judgment as to the admissibility of prior bad acts evidence. We have, however, intervened in the exceptional case. E.g., Strommen, 648 N.W.2d at 686-89. I believe this is the exceptional case. The other crimes evidence was heinous and violent, admitted in error, and misused by the State at trial and on appeal. I cannot deem the admission of this evidence as harmless. I would reverse appellant’s conviction and remand for a new trial.
. Minn. R. Evid. 404(b) provides:
Evidence of another crime, wrong, or act is not admissible to prove the character of a person in order to show action 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. In a criminal prosecution, such evidence shall not be admitted unless (1) the prosecutor gives notice of its intent to admit the evidence consistent with the rules of criminal procedure; (2) the prosecutor clearly indicates what the evidence will be offered to prove; (3) the other crime, wrong, or act and the participation in it by a relevant person are proven by clear and convincing evidence; (4) the evidence is relevant to the prosecutor's case; and (5) the probative value of the evidence is not outweighed by its potential for unfair prejudice to the defendant. Evidence of past sexual conduct of the victim in prosecutions involving criminal sexual conduct, including attempts or any act of criminal sexual predatory conduct is governed by rule 412.
(Emphasis added.)
. The majority concludes the district court’s ruling was improperly based on propensity inferences and then moves on to address "the only real issue,” whether the gun fired accidentally or that appellant fired the gun intentionally.
. E.g., State v. Lynch, 590 N.W.2d 75, 78-79, 81 (Minn.1999) (holding that evidence of subsequent aggravated robbery was admissible for the purpose of showing identity and mo-dus operandi in felony murder trial); State v. Kennedy, 585 N.W.2d 385, 391-92 (Minn.1998) (holding that evidence of subsequent sexual assault crimes properly offered to refute defendant’s claim that victim's testimony was a fabrication in criminal sexual conduct trial); State v. Lynard, 294 N.W.2d 322, 323-24 (Minn.1980) (holding that evidence of subsequent crimes may be admitted to rebut a claim of entrapment).
.The majority suggests that appellant fired the shots into the trunk. Appellant was convicted of criminal sexual conduct using force. He was acquitted of criminal sexual conduct using a dangerous weapon and kidnapping in order to terrorize. Both the State and the court noted that they did not know who fired those shots.
. E.g., State v. Mitjans, 408 N.W.2d 824, 830 (Minn.1987) (holding police statement admissible as party admission under Minn. R. Evid. 801(d)(2)). While a statement that qualifies as a party admission "cannot be excluded as hearsay, it may still be excluded on constitutional grounds, by statute or because of specific exclusionary provisions found elsewhere in the Rules...." 4 Mueller & Kirkpatrick, supra, § 8:44, at 369.
. Both trial and appellate counsel protested the misuse of the evidentiary rules.