(concurring in part, dissenting in *463part). I agree with the majority that reversal is required under the principles set forth in People v Baldwin, 405 Mich 550; 275 NW2d 253 (1979). But I disagree that upon retrial testimony of defendant’s acquittal on the charges introduced as similar acts cannot be offered into evidence. Rather, my position would fall somewhere between the majority opinion and the opinion expressed in the recent decision of a panel of this Court in People v Atkins, 96 Mich App 672; 293 NW2d 671 (1980).
In People v Atkins, supra, it was held that dismissal of charges and a directed verdict of acquittal as to alleged similar acts precluded the prosecution from using evidence of those similar acts against defendant in a subsequent criminal trial. I disagree with this holding because it is in direct contradiction to the Michigan Supreme Court’s decision in People v Oliphant, 399 Mich 472, 498, fn 14; 250 NW2d 443 (1976), and People v Johnston, 328 Mich 213, 227; 43 NW2d 334 (1950). Evidence of similar acts need not be proven beyond a reasonable doubt. People v Allen, 351 Mich 535, 547; 88 NW2d 433 (1958), People v Duncan, 402 Mich 1, 13-14; 260 NW2d 58 (1977). Hence, failure to convict defendant of the similar act on a prior occasion does not preclude introduction of evidence of that similar act at a subsequent trial.
At the same time, I cannot agree with the majority that "earlier verdicts pertaining to similar acts evidence is irrelevant and immaterial”. In establishing the similar acts of the defendant, the prosecutor must "* * * show that the defendant probably committed the other acts, or that the evidence offered 'may tend to show’ the defendant’s intent or common scheme in committing the charged offense.” (Emphasis supplied.) In short, while the proof need not be beyond a rea*464sonable doubt, there must be "substantial evidence indicating that the defendant committed the other acts”. People v Cook, 95 Mich App 645, 655-656; 291 NW2d 152 (1980), People v Davis, 343 Mich 348; 72 NW2d 269 (1955). To the extent that a prior acquittal. of the alleged similar act of the defendant reflects on the accuracy of the charge that defendant committed that act, then the defendant should be entitled to show that another jury determined that he did not commit the similar act.
I appreciate the validity of the rationale of the majority that withholding from the jury information of defendant’s acquittal for the similar acts avoids speculation "regarding the earlier trial”. However, because of the inherently prejudicial nature of similar acts evidence, I strongly believe that the defendant should have every opportunity for minimizing the impact of that evidence so long as it is relevant. In this regard, I consider evidence of defendant’s acquittal as relevant. His acquittal of the similar acts charges has a strong tendency to make more probable the fact that he did not actually commit those alleged similar acts, than it would be if that evidence had not been admitted. MRE 401.
On retrial, evidence that defendant had been tried and acquitted of the similar acts should be admitted upon request.