(dissenting).
I would hold that the trial court erred in ruling that evidence of other alleged rapes would not be admissible in the present rape prosecution.
I need not belabor the point that evidence of the kind excluded here has long been recognized as admissible in a proper case, for the majority opinion establishes that fact beyond question. I would merely point to several cases that have specifically held that evidence of prior conduct is admissible in sex related offenses. See, e.g., United States v. Oliver, 8 Cir., 525 F.2d 731; Umbaugh v. Hutto, 8 Cir., 486 F.2d 904; People v. Thomas, 143 Cal.Rptr. 215, 573 P.2d 433 (recognizing the principal of admissibility but holding the proffered evidence inadmissible because of its remoteness); People v. Ing, 55 Cal.Rptr. 902, 422 P.2d 590; People v. Goodson, 80 Cal.App.3d 290, 145 Cal.Rptr. 489; People v. Sullivan, 96 Cal.App.2d 742, 216 P.2d 558; People v. Middleton, 38 Ill.App.3d 984, 350 N.E.2d 223. See generally United States v. Drury, 8 Cir., 582 F.2d 1181; United States v. Maestas, 8 Cir., 554 F.2d 834; United States v. Jardan, 8 Cir., 552 F.2d 216.
Under the principles discussed in the above cited cases and in those cases referred to in the majority opinion, I would hold that the proffered evidence is admissible under Rule 404(b) of the South Dakota Rules of Evidence to establish, at the vary least, proof of motive, opportunity, intent, preparation and plan.1 I cannot agree that *794intent is simply not one of the elements of the crime charged. The indictment charged that defendant had accomplished “an act of sexual penetration . . . through the use of force, coercion, or threats of immediate and great bodily harm against the victim, accompanied by apparent power of execution . . . Although there is no requirement in SDCL 22-22-1 of a specific intent to commit the crime of rape, the intent to accomplish the act of sexual penetration against the victim’s will is inherently a part of the offense charged, for it negates the defense of consent.
However debatable one might consider the admissibility of the proffered evidence with respect to the element of intent, there can be little question concerning its admissibility with respect to proof of opportunity, preparation, and plan. In light of the circumstances surrounding the other instances, it hardly seems open to question that the evidence of the prior alleged rapes established the fact of defendant’s careful, deliberate preparation to carry out his preconceived plan whereby he would lure the victims to his home, thereby giving him the opportunity to carry out his intent to have sexual relations (if one can call it that) with the victims against their will.
I recognize full well that rulings on the admissibility of evidence must of necessity be committed largely to the sound discretion of the trial court.2 The discretionary *795ruling of an able, experienced trial judge is not lightly to be overturned, but in this case I would do so, for I believe that the trial court applied the wrong standard in excluding the proffered evidence. Rule 403 of the South Dakota Rules of Evidence provides in part that “Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice . . (emphasis supplied) As the majority opinion points out, the trial court found that the evidence in question was relevant but concluded that the probative value of the evidence was outweighed by its prejudicial effect. I would hold that Rule 403, when read in the context of Rule 402, which provides that “All relevant evidence is admissible, except as otherwise provided . . .,” requires a more specific balancing of the prejudicial effect of the evidence against its probative value than that made by the trial court here. Presumably, all relevant evidence is prejudicial, but before it may be excluded its probative value must be substantially outweighed by the danger of unfair prejudice. In the context of the present factual setting, I would hold that the balance tips in favor of the admissibility of the evidence.
I would reverse the order appealed from.
. The state’s evidence, which I do not understand the defendant to contradict in any substantial way, established the following incidents:
L. F. RAPE
On March 17, 1977, L. F. accepted a dinner invitation from defendant. During supper and drinks, defendant discussed his considerable wealth. After supper and drinks, defendant asked L. F. if she would like to go to his house to see his special white dog. After L. F. stated that she would enjoy seeing the dog, defendant took her to his house.
Upon entering the house, L. F. excused herself to go to the bathroom. When she returned from the bathroom, she saw defendant standing nude in the hallway. When L. F. attempted to flee, defendant struck her on the head, causing unconsciousness. The next thing L. F. remembers after the blow was being on the bed without any clothes. Her clothes were not torn. Defendant held L. F. down on the bed and asked her to suck his rectum. When she refused, defendant slapped her across to face, grasped both of her arms by the wrists and entered her vagina with his penis. During intercourse, defendant methodically slapped L. F. and exclaimed “bitch” and “whore” and other similar words.
After intercourse, defendant offered L. F. a ride home and allowed her to leave after she refused the assistance. Later defendant became apologetic.
*794C. M. RAPE
On May 22, 1977, C. M. accepted a dance invitation from defendant at the Mocamba Club. After several dances and some conversation and drinks with defendant, C. M. began making plans with her female companion to have coffee. Defendant invited himself along and insisted that the three of them go in his vehicle.
After coffee, defendant took C. M.’s companion home and began driving north on Minnesota Avenue toward the Mocamba Club when he asked C. M. if she minded if he checked on his white “spitz” dog, which was at his house on the way to the Mocamba Club. After C. M. indicated she would not mind if he checked on his dog, defendant drove toward his house. He told C. M. of his considerable wealth.
Once at the house, defendant asked C. M. if she would like to come in to see the dog. After C. M. indicated she would like to see the dog, defendant took her into the house.
Once in the house, defendant went into the back room and C. M. sat on the couch. Defendant returned, sat down with C. M., and kissed her several times before trying to unbutton her blouse. When she resisted, defendant became violent. He grabbed C. M. by the throat, threatened to kill her and break her arm if she didn’t have intercourse with him, hit her in the face, took her clothes off in such a manner that they were not torn, dragged her into the bedroom and forced her to have intercourse with him. During this time, defendant held both of C. M.’s arms by the wrists. During intercourse he exclaimed “whore” and “pig.”
After intercourse, defendant apologized and offered to give C. M. a ride to her car.
B. S. RAPE
On June 16 1977, B. S. accepted an offer from defendant to have him buy her a drink at Shannon O’Neill’s Village. After a drink and some conversation about his considerable wealth, defendant asked B. S. if she would like to see his pet white fox. After B. S. indicated that she would like to see the animal, defendant took her to his house. Once in the house, B. S. excused herself to go to the bathroom. When she returned from the bathroom, she found defendant standing in the hallway. He demanded that she be his whore and have sex with him. When she refused, defendant became violent, struck her, threatened to physically harm her, took her clothes off in such a manner that they would not be torn, dragged her into the bedroom where he forced her to have oral and vaginal intercourse with him. During intercourse defendant held B. S. arms by the wrists, slapped her, and exclaimed “cunt,” “whore,” “bitch,” and “pig.”
After intercourse, defendant allowed B. S. to leave.
Although B. S. was unable to identify defendant in the courtroom on December 8, 1977, she testified as to the description of the man who forced her to have intercourse with him and she related that his name was Steve Houghton.
. For a singularly down-to-earth, practical review of the concept of trial court discretion, see M. Rosenberg, “Appellate Review of Trial Court Discretion,” 79 F.R D. 173 (1978). The concluding paragraph of Professor Rosenberg’s article is worth repeating here:
Discretion is an unruly concept in a judicial system dedicated to the rule of law, but it can be useful if it is domesticated, understood, and explained. To tame the concept requires no less than to force ourselves to say why it is accorded or withheld, and to say so in a manner that provides assurance for today’s case and some guidance for tomorrow’s. 79 F.R.D. at 185.