(dissenting).
The prosecution of this defendant was entirely dependent upon violating almost every rule of fair play in respect to prior bad acts. If we fail to send this case back for a fair trial, the futility and expense of attempting to educate Judicial personnel on “prior bad acts” through our "Judicial Conferences” will be a joke. The State was permitted to put the “bad before the good” to such an extent that the first five witnesses were all prior bad act witnesses. The trial probably doubled in length to 5 days simply because of testimony on uncharged acts. Justice was nowhere to be found.
*297This same issue arose recently in Florida in the William Kennedy Smith rape trial. Although three instances of alleged prior bad acts with other victims were tried in the press, they were excluded from the trial. But not in South Dakota. Here, our liberal and almost automatic admission of prior bad acts makes them the focal point of the trial. Justice is nowhere to be found.
The danger of unfair prejudice so substantially outweighs the probative value of these prior bad acts that the defendant was denied the fair trial guaranteed by the United States and South Dakota Constitutions. Attempting to assess the impact of these prior bad acts on the jury is like speculating on the damage a bull might do in a china shop. The prior bad acts testimony in this case painted the defendant not only as a bad man but also as an evil and conniving man. Once a juror has heard such testimony, the defendant loses any chance of receiving a fair trial. “[Tjhere is no way that a criminal defendant can have a fair trial after this kind of evidence is admitted.” J. Larson, South Dakota Evidence § 404.2[1], p. 154 (1991) (citing other authorities).
A defendant should be tried on the evidence of the crime charged, not on the evidence of all of the other uncharged acts in his life.
A man should not be convicted because he is a ‘bad man’; or, that previously he acted as a ‘bad man’ in a given factual situation for, if convictions were secured in such fashion, the principle that a man may be punished only for those acts with which he was charged, would be violated.
State v. Chief Eagle, 377 N.W.2d 141, 147-8 (S.D.1985) (Henderson, J., dissenting). See also, State v. Perkins, 444 N.W.2d 34, 41 (S.D.1989) (Sabers, J. dissenting); and Wedemann, 339 N.W.2d at 116-117 (Henderson, J. dissenting).
For the state’s attorney to offer, the trial court to admit and the majority to affirm defendant’s conviction based on most of the exceptions in SDCL 19-12-5 is error. To admit testimony of these prior bad acts based on the pretext of showing “motive, opportunity, intent, common scheme or plan” simply denies fair trials. In reality, none of these exceptions were material to the issue in this case. Defendant’s defense was simply that he did not commit the acts charged. Motive was not a material issue. In fact, in this sex molestation case, motive is obvious, not material. No material issue existed as to “opportunity, common scheme or plan” either. The same is true of intent. See Champagne, 422 N.W.2d at 845-846 (Sabers, J., dissenting). The exceptions continue to swallow the rule. Id.
The South Dakota Legislature could, within constitutional limits, make all prior bad acts admissible in sex molestation eases. It could do so simply by enacting a law which states that all such evidence is admissible without regard to relevancy, materiality and prejudice. However, until the legislature does so, we should enforce the law and require the prosecutor to prove relevancy, materiality and that the prejudicial effect of such evidence does not substantially outweigh its probative value. Id.
Additionally, the majority’s ruling completely fails to account for the relevant ten year time limit in SDCL 19-14-13.* As indicated in the majority opinion, these uncharged prior bad acts occurred up to twenty-eight years prior to the time of this trial. In effect, their admission creates a double standard in South Dakota criminal law. One rule for the state, another rule for the defense. In State v. Caylor, 434 N.W.2d 582, 584 (S.D.1989), this court held under SDCL 19-14-13 that a “15 year old conviction [was] stale and inadmissible as a matter of law” and could not be used to impeach a state’s witness. Here, we are not even dealing with a conviction. We are *298dealing with prior uncharged acts which simply tended to show that the defendant was a bad man. Therefore, these uncharged prior bad acts were too prejudicial and too remote and prevented the defendant from receiving a fair trial. See State v. Rufener, 392 N.W.2d 424, 434 (S.D.1986) (Sabers, J. dissenting).
If we fail to send this case back for a fair trial, our message to prosecutors is clear— open season stays open forever, keep winking at the rules.
We should reverse and remand for a fair trial.
SDCL 19-14-13 (609(b)) states in part:
Evidence of a conviction under § 19-14-12 is not admissible if a period of more than ten years has elapsed since the date of the conviction or of the release of the witness from the confinement imposed for that conviction, whichever is the later date, unless the court determines, in the interests of justice, that the probative value of the conviction supported by specific facts and circumstances substantially outweighs its prejudicial effect[.]