(dissenting).
I would reverse and remand for a new trial because the trial court erred in denying defendant’s motion to exclude evidence of prior sexual contacts with R.H., the victim’s step-sister. The trial court held that *845her testimony was admissible under SDCL 19-12-5 to show intent, motive, and plan.
As stated by the majority opinion, other acts evidence may not be used to establish the impermissible inference that, since the defendant committed a similar offense on another occasion, he has a propensity to commit the offense under which he is presently charged. However, that is exactly what the majority opinion allows in this case.
I agree that a trial court must first determine relevancy. To be admissible, “other acts” must be relevant to some material issue in the case. United States v. Shaw, 701 F.2d 367 (Fifth Cir.1983), cert. denied 465 U.S. 1067, 104 S.Ct. 1419, 79 L.Ed.2d 744 (1984). State’s counsel must be prepared to (1) identify the consequential fact (motive, opportunity, etc.) to which the proffered evidence of other crimes, wrongs or acts is directed, (2) prove the occurrence of the other crimes, wrongs or acts, and (3) articulate precisely how the consequential fact (motive, opportunity, etc.) may be inferred from the proffered evidence. J. Weinstein and M. Berger, 2 Weinstein’s Evidence § 404, 1108 (1986). The majority opinion wholly fails to show how the proffered evidence is relevant to some material issue in this case; the trial court also failed to show relevancy. Obviously, the proffered evidence may be generally relevant to the crime charged but in order to be admissible it must be relevant to some material issue in the case. For this purpose we must examine the three factors relied upon by the trial court: (1) intent, (2) motive, and (3) plan.
1. Intent was not a material issue in this case. Champagne was charged with violating SDCL 22-22-7 (sexual contact with a minor). SDCL 22-22-7.1 defines sexual contact as a touching “with the intent to arouse or gratify the sexual desire of either party.” This specific intent element was required to be proved beyond a reasonable doubt. However, this is not a case where the accused bathes a child or has contact under such circumstances where he admits touching the child but denies any criminal intent. See State v. Rose, 324 N.W.2d 894 (S.D.1982). As the majority opinion indicates, courts have held that the question of intent is not an issue if the defendant does not raise the issue of intent in this manner (because defendant denies the touching occurred) or if the nature of the charge clearly implies what the defendant’s intent probably was. Champagne denied the alleged incidents of touching occurred; he did not claim that the incidents occurred but that the touching was accidental or innocent. Therefore, no dispute existed. The majority opinion points out that this court flatly rejected the dispute requirement in State v. Means, 363 N.W.2d 565 (S.D.1985). We were wrong to do so and we should reinstate the dispute requirement.
State claims the trial court was correct in concluding witness R.H.’s testimony was admissible under the “intent exception in SDCL 19-12-5.” The State even refers to SDCL 19-12-5 as an “inclusionary” rule. In my view and in the view of many of the cases and treatises this is a clear misinterpretation of the rule. R.H. was not the victim in the case at trial and testimony concerning the defendant’s prior bad acts with her was not relevant to the issue of the defendant’s intent as to the alleged criminal acts in this case. To admit evidence of the intent which the defendant may have had in an alleged prior bad act to be used to prove the alleged intent of the defendant in the charged crime is to raise this specific intent to the level of an immutable character trait. The result of admitting this testimony is no different from allowing the State to assert that the defendant has a continuing character flaw and that he acted in conformity therewith. Lest we all forget, the relevant issue really is whether the defendant committed the acts charged.
Other courts have acknowledged that as to evidence of other occurrences a distinction exists between sexual molestation cases and other crimes. See State v. Friedrich, 135 Wis.2d 1, 398 N.W.2d 763 (1987). However, this distinction and the greater latitude given to admission of prior bad acts in sex crimes is and should be exercised only in the context of same de*846fendant/same victim. The rationale for creating the distinction is that the victim’s testimony as to prior similar acts by the defendant is necessary to “disclos[e] the relationship between the parties, [the] opportunity and inclination to commit the act complained of, and [to] corroborate] ... the specific charge.” State v. Haala, 415 N.W.2d 69, 77 (Minn.App.1987). Testimony by the victim, but not by her step-sister, as to prior instances of sexual contact by the defendant may be relevant to the issue of intent in a charge for a violation of SDCL 22-22-7.
2. Plan was not a material issue in this case. The State claims plan includes “common plan or scheme” and “modus operan-di.” It is obvious from a fair reading of pages 3 and 4 of the majority opinion that plan, scheme, or modus operandi were not material issues in this case under those cases and definitions. Other courts have indicated that modus operandi means the defendant’s handiwork or signature on a crime. However, this cannot be a material issue in this case because identity was not at issue. Defendant’s defense was that he did not commit the acts and not that he was wrongly identified as the person who did. The majority opinion seems to concede these points, at least on modus operandi.
3. Motive was not a material issue in this case. As indicated above, the trial court also relied on the motive exception. However, it is obvious that motive cannot be a material issue where the defense is that the defendant did not commit the acts charged. This clearly makes motive a non-issue.
In summary it is clear that fair trials require a new interpretation of SDCL 19-12-5. We must stop allowing the first sentence of SDCL 19-12-5 from being “entirely swallowed up by the second sentence.” * We must enforce the rule.
The prejudicial effect of R.H.’s testimony substantially outweighed any possible probative value because probative value relates to material issues as indicated above. In addition, R.H.’s testimony was persuasive, more specific, and more credible, than the testimony of the victim herself. Whether the evidence from the victim and other witnesses was sufficient to enable the State to obtain a conviction is a difficult question. To force the defendant to defend himself against the victim’s testimony and that of R.H. denied him a fair trial and the prejudice substantially outweighed the minimal probative value.
State v. Rufener, 392 N.W.2d 424, 428 (S.D.1986) (Rufener I) (Morgan, J., concurring specially).