(dissenting).
I dissent.
I would reverse the judgment of the ha-beas court, as Roden was denied his constitutional right to effective assistance of counsel under Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).
The initial problem in this case was the State’s use of bad acts evidence, which passed by Roden’s trial counsel without objection. The minor victim was permitted to testify without objection about prior acts of sexual misconduct by Roden. Trial counsel’s failure to object to this testimony was apparently due to the trial court’s order granting the State’s pretrial motion to admit testimony of third party Wilburn, concerning prior acts of sexual misconduct by Roden. The majority reasons that this explains counsel’s failure to object to the *672more relevant testimony of the victim concerning prior bad acts without excusing it.
The majority also asserts that this court’s holding in Roden I, upholding the trial court’s decision to admit the testimony of Wilburn under the common plan or scheme exception to SDCL 19-12-5, was correct. I disagree. Neither common plan nor modus operandi was a material issue in this case, and neither should be used as convenient catch-all exceptions to admit bad act evidence under SDCL 19-12-5. See State v. Champagne, 422 N.W.2d 840,-844 (S.D.1988) (Sabers, J., dissenting). It is further evident that none of the other exceptions to SDCL 19-12-5 are applicable to admit the testimony of Wilburn. The prior sexual contacts between Roden and the minor victim may be admissible under a limited exception to SDCL 19-12-5, recognized by several courts. State v. Spreigl, 272 Minn. 488, 139 N.W.2d 167 (1965); Boutwell v. State, 719 S.W.2d 164 (Tex.Crim.App.1985); State v. Haala, 415 N.W.2d 69 (Minn.App.1987). This exception is relevant to the specific charge, as it discloses the relationship of the parties, the opportunity to commit such acts, and corroborates the victim’s claim. Haala, supra. However, this exception should not be extended to third party witnesses, as this would preclude a defendant from presenting any defense without the threat of automatic introduction of bad act evidence. Boutwell, supra. The exceptions to SDCL 19-12-5 cannot be used carte blanche for the automatic admission of pri- or bad acts. It should not be forgotten that the exceptions in the second sentence of SDCL 19-12-5 are exactly that — exceptions to the rule which prohibit prior bad acts.
Roden’s trial counsel should have objected to the highly prejudicial prior bad acts testimony of the victim because the State’s use of this evidence did not cease with its admission into evidence. In his closing argument, the prosecutor stated:
Now, this act, if you will, his technique, if you can call it that, ... the whole ball, right down the line, he’s got a one track mind and that one track mind likes little girls, young girls, as young as five. As young as the first grade.... He likes young girls.
Roden’s trial counsel failed to object to this argument also.
Even the majority opinion points out the abusive and prejudicial effect of such argument:
The prosecutor’s statement equates evidence of Roden’s alleged prior bad acts with a criminal propensity to sexually molest young girls. This statement by the prosecutor is exactly what SDCL 19-12-5 is designed to prevent! Trial counsel for Roden should have objected! No reasonable strategy would support allowing the prosecutor to misuse evidence in this manner. Although the admission of the prior bad act testimony of the victim may be justified under an exception to SDCL 19-12-5, its misuse by the prosecutor completely undermines its accepted use.
The failure of Roden’s trial counsel to object to the admission of bad acts testimony, and then by silent acquiescence permit the State to completely misuse this evidence is inexcusable.
Even the majority concedes that Roden’s trial counsel was clearly deficient in failing to object to certain hearsay testimony which implicated Roden. The cumulative effect of these errors establishes deficient performance by counsel and prejudice sufficient to require reversal for ineffective assistance of counsel under the two-prong test of Strickland, supra.