dissenting.
I respectfully dissent. In my opinion, defense counsel opened the door to the admission of evidence relevant to Werne's intent by making the following claim in his opening statement: "We believe the evidence will show that this is the type of touching case where the touching occurred over the clothes." R. at 519.
In order to admit Indiana Evidence Rule 404(b) evidence, the trial court must (1) determine that the evidence is relevant to a matter at issue other than the defendant's propensity to commit the charged act, and (2) balance the probative value of the evidence against its prejudicial effect pursuant to Indiana Evidence Rule 403. Jackson v. State, 728 N.E.2d 147, 152 (Ind.2000). This balancing is reviewed for an abuse of discretion. Id. In addition, otherwise inadmissible evidence may become admissible where the defendant "opens the door" to questioning on that evidence. Id. The evidence relied upon to "open the door" must leave the trier of fact with a false or misleading impression of the facts related. Id.
Werne did not deny that the touching took place; rather, he attempted to minimize the conduct by emphasizing that the touching was "over the clothes," which suggests inadvertence. In so doing, he fostered the impression that he did not commit an act for which he was eriminally culpable. The child molesting statute under which Werne was charged, Indiana Code section 35-42-4-3(B), does not provide for degrees of penalty related to whether the touching is over or underneath clothing. Rather, the defendant is properly convicted of a Class C felony if the State satisfies its burden to prove that a defendant touched a child less than fourteen years of age with the intent to arouse or satisfy the sexual desires of the child or defendant. Thus, the only possible inquiry to which counsel's statement was directed was whether the touching took place with the intent to gratify a sexual desire. Counsel alluded to the State's inability to prove an essential element of the charged crime, intent to gratify a sexual desire, and the State had the right and obligation to rebut that argument with evidence of a prior bad act. The trial court did not abuse its discretion in admitting the testimony of S.M.
Moreover, reversal is compelled only if the record as a whole discloses that erroneously admitted evidence was likely to have had a prejudicial impact upon the mind of the average juror, thereby contributing to the verdict. Bonner v. State, 650 N.E.2d 1139, 1141 (Ind.1995). The evidence is overwhelming evidence that Werne committed the instant offense. N.A. testified that Werne touched her in the area "where she would pee" more than ten times. R. at 558. N.A.'s mother testified that she confronted Werne about the touching and Werne responded "I promise I'll never do it again." R. at 608. N.A.'s father testified that N.A. pointed to her crotch and reported that Werne had touched her there. Ben Frick, a neighbor of both Werne and N.A., testified that he saw Werne stop N.A. as she was trying to go to another neighbor's house and hold N.A. back as she struggled. Werne then *426reached around N.A. from behind and placed his hands into her pockets. Accordingly, the admission of S.M.'s testimony that Werne "put his hand on her butt," R. at 751, would not have contributed to the jury's verdiet.
I would affirm Werne's conviction of child molesting.