dissenting.
I respectfully dissent. The threshold question is whether Moore’s second prosecution for criminal deviate conduct was barred by the principles of double jeopardy. IND. CODE § 35^1-4-3 (1982 Ed.) provides in pertinent part:
“(a) A prosecution is barred if there was a former prosecution of the defendant based on the same facts and for commission of the same offense and if:
(1) the former prosecution resulted in an acquittal or a conviction of the defendant (A conviction of an included offense constitutes an acquittal of the greater offense, even if the conviction is subsequently set aside.).”
Once this Court affirmed Moore’s conviction for the factually included lesser offense of confinement, that action constituted acquittal of the greater offense. See Schiro v. State (1989), Ind., 533 N.E.2d 1201, 1207 (fundamental double jeopardy rule that conviction of lesser included offense constitutes acquittal of greater offense); cf. Buie v. State (1994), Ind., 633 N.E.2d 250, 261 (where underlying offense constitutes overt act element of conspiracy charge, conviction for conspiracy based on commission of underlying offense as overt act bars subsequent prosecution for underlying offense). Had this Court reversed and remanded for a trial as to all matters, the finding that sufficient evidence was presented for conviction would have allowed retrial on the greater charge as well as any appropriate lesser offenses.
Further, I disagree with the majority’s analysis of the propriety of admitting evidence of an unrelated crime pursuant to Ind. Evidence Rule 404(b) which was adopted in Lannan v. State (1992), Ind., 600 N.E.2d 1334. The State requested admission of the testimony by the victim of the rape for which Moore was convicted to “show purpose, mo-five, [and] intent on the part of’ Moore. Accordingly, the analysis must center on the propriety of admitting the evidence for the reasons set forth by the proponent of the evidence.12
In Wickizer v. State (1993), Ind., 626 N.E.2d 795, the court explained that:
“The intent exception in Evid.R. 404(b) will be available when a defendant goes beyond merely denying the charged culpability and affirmatively presents a claim of particular contrary intent. When a defendant alleges in trial a particular contrary intent, whether in opening statement, by cross-examination of the State’s witnesses, or by presentation of his own case-in-chief, the State may respond by offering evidence of prior crimes, wrongs, or acts to the extent genuinely relevant to prove the defendant’s intent at the time of the charged offense. The trial court must then determine whether to admit or exclude such evidence depending upon whether ‘its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, or needless presentation of cumulative evidence.’”
Id. at 799. In the present case, Moore placed his intent at issue in his opening statement. Moore contended that the victim invited him to follow her to a party, that he flashed his lights to notify her that he was lost, that she entered his car voluntarily and that she then initiated an attack upon him. Evidence that Moore was convicted of rape under substantially the same circumstances directly refuted Moore’s contention regarding his intent in the present case.
Under Wickizer, the trial court acted within its discretion in determining that the probative value of the evidence of the unrelated crime substantially outweighed the danger of unfair prejudice once Moore placed his intent at issue. Although I believe that the second trial of Moore for attempted criminal deviate conduct violated double jeopardy, the admis*1022sion of evidence of the unrelated crime was not error.
I would vote to reverse the conviction on double jeopardy grounds.
. Further, I disagree with footnote 6 in the majority opinion that proof of motive, intent, and purpose are subsumed into the common scheme or plan exception. See Lannan, 600 N.E.2d at 1339 n. 11 (404(b) consistent with Indiana's rule that evidence of criminal activity admissible to "prove intent, purpose, motive, identity, or common scheme or plan”.