dissenting.
Once again, there is treatment of symptoms, not the illness, in this court’s misperception and, therefore, misapplication of Neb. Evid. R. 404(2) concerning “other acts” evidence. Moreover, reiteration that “evidence of [a defendant’s] other similar sexual conduct [is] recognized as having independent relevancy” has, unquestionably and unfortunately, come to mean that in a prosecution for a sexual crime, a defendant’s other sexual conduct has relevancy independent of the Nebraska Evidence Rules.
To its credit, the district court indicated that if Stephens’ case had been tried to a jury, evidence of Stephens’ “other acts” would have been presented to the court, and admissibility determined, outside the jury’s hearing. We have encouraged Nebraska trial courts to use Neb. Evid. R. 104 (preliminary questions of admissibility) to resolve certain admissibility questions outside the jury’s hearing. For instance, in State v. Olsan, 231 Neb. 214, 436 N.W.2d 128 (1989), which involved admissibility of a prior conviction offered under Neb. Evid. R. 609 to impeach a defendant’s credibility, we encouraged courts to employ a Rule 104 hearing for determination of admissibility questions such as whether more than 10 years had elapsed since the date of the conviction offered or whether the conviction was for a crime which “involved dishonesty or false statement.” Neb. Evid. R. 609(1) and (2). In Olsan, we recognized that, “as a suggested procedure, ” a Rule 104 hearing
*561is not a prerequisite to admissibility of evidence authorized by Neb. Evid. R. 609. Rather, the suggested procedure appears to be a practicable measure which may be an ounce of prevention at the trial level, obviating a pound of appellate cure and a ton of mistrials and retrials on account of improper impeachment from contravention of Neb. Evid. R. 609.
231 Neb. at 231, 436 N.W.2d at 138-39. What we have expressed in Olsan regarding a Rule 104 hearing for impeachment evidence through use of a prior conviction applies equally as well to avoid prejudicial error in a jury trial when “other acts” evidence is tendered under Rule 404(2).
At this point, however, I depart from approbation of the district court’s procedure, namely, reception of evidence concerning Stephens’ prior sexual conduct outside the act charged in the information.
Rule 404(2) provides:
Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he or she acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.
Rule 404(2) prohibits evidence offered for the sole purpose of establishing a defendant’s propensity to act in a particular manner and thereby supplying a basis for the inference that the defendant committed the crime charged. Thus, Rule 404(2) forbids a prosecutor’s introducing evidence of a defendant’s uncharged misconduct to support a general inference of bad character which increases the probability that the defendant committed the crime charged.
To approve admissibility of Stephens’ “other acts,” the majority intones what has become a Rule 404(2) litany, much akin to that traditional troika or inveterate and terrible trilogy “irrelevant, immaterial, and incompetent,” when the majority, referring to the trial court’s reasons expressed for admissibility of Stephens’ prior conduct, invokes the “other purposes” mentioned in Rule 404(2).
Particularly to be deplored is what might be called the
*562“smorgasbord” approach to analysis of other crimes evidence in which the court simply serves up a long list of permissible uses without any attempt to show how any of them are applicable to the case at hand. . . . What is to be avoided is the mere listing of possible uses in the hope that at least one will seem to the reader to be applicable to the facts of the instant case.
22 C. Wright & K. Graham, Federal Practice and Procedure § 5240 at 479 (1978).
In reference to “identity” under Rule 404(2), other acts may be used
[t]o prove other crimes by the accused so nearly identical in method as to earmark them as the handiwork of the accused. Much more is demanded than the mere repeated commission of crimes of the same class, such as repeated murders, robberies or rapes. The pattern and characteristics of the crimes must be so unusual and distinctive as to be like a signature.
McCormick on Evidence § 190 at 559-60 (E. Cleary 3d ed. 1984). See, also, People v. Alcala, 36 Cal. 3d 604, 632, 685 P.2d 1126, 1141, 205 Cal. Rptr. 775, 790 (1984) (in “identity” cases, the “other acts” and the crime charged must be related by “common marks which, considered singly or in combination, support the strong inference that the current crime bears [the defendant’s] signature”); People v Golochowicz, 413 Mich. 298, 311, 319 N.W.2d 518, 522 (1982) (“other acts” offered to prove a defendant’s identity must include circumstances which forge a link between the “other acts” and the crime charged, that is, a “unique and uncommonly distinctive style employed by the defendant.... It will not suffice that the ‘like act’ be simply another crime of the same general category or even of the same specific character”); United States v. Foutz, 540 F.2d 733, 737 (4th Cir. 1976) (the relationship between “other acts” and the crime charged must show “a uniquely ingenious stroke of criminal artistry”); United States v. Silva, 580 F.2d 144, 148 (5th Cir. 1978) (“[a] prior or subsequent crime or other incident is not admissible for [showing the accused’s identity] merely because it is similar, but only if it bears such a high degree of similarity as to mark it as the handiwork of the accused”); *563United States v. Myers, 550 F.2d 1036, 1045-46 (5th Cir. 1977) (“other acts” and the crime charged must “ ‘bear such peculiar, unique, or bizarre similarities as to mark them as the handiwork of the same individual’ ” (quoting from United States v. Goodwin, 492 F. 2d 1141 (5th Cir. 1974)).
As some commentators have observed:
The prosecution should only be permitted to introduce evidence of other crimes under the identity exception where the question of identity is in issue. Sometimes, for example, in sex crimes the victim and the accused are well-known to each other and there is not the slightest possibility of mistaken identity; the real issue in the case is whether the crime took place. To admit evidence of other crimes under the present exception in such a case is simply an evasion of the general rule that evidence of other crimes cannot be used to prove the conduct of the defendant through an inference as to his character.
22 C. Wright & K. Graham, supra, § 5246 at 514-15.
In Stephens’ case, there was no real issue of identity; hence, the “other acts” evidence was inádmissible for that purpose. Clearly, the evidence was offered to show Stephens’ character or propensity pertaining to sexual conduct and, therefore, is a violation of Rule 404(2), an error which necessitates a new trial for Stephens.
The majority refers to a “presumption” that a trial court, in a bench trial or nonjury case, considers only admissible and relevant evidence in resolving a factual dispute or question. That “rule” and its “corollary,” however, do not involve a presumption, that is, a fact inferred from another known or proved fact or facts. The “rule” and “corollary” expressed by the majority is actually a principle of appellate procedure which requires that the defendant show that the trial court actually made a factual determination, or otherwise resolved an issue, through use of inadmissible evidence. This procedural principle differs from the rule for an appellate review of a jury trial involving inadmissible evidence: “In a jury trial of a criminal case, whether an error in admitting or excluding evidence reaches a constitutional dimension or not, an erroneous evidential ruling results in prejudice to a defendant unless the *564State demonstrates that the error was harmless beyond a reasonable doubt.” State v. Cox, 231 Neb. 495, 504, 437 N.W.2d 134, 140 (1989). Accord State v. Lonnecker, ante p. 207, 465 N.W.2d 737 (1991).
There is a reasonable foundation for a healthy skepticism that the trial court disregarded Stephens’ previous sexual involvement with his teenage stepdaughter, for that very conduct was the basis of Stephens’ California conviction for a sexual offense which the trial court expressly considered in determining the sentence imposed on Stephens. Ironically, a felony conviction based on Stephens’ other acts and offered for the purpose of impeachment would have been excluded by the 10-year limitation for admissibility under Rule 609(2).
Stephens’ case is not just a continuation of this court’s misunderstanding concerning character or propensity evidence prohibited by Rule 404(2), a continuity of the majority’s misperception of “other acts” evidence most recently reflected in State v. Yager, 236 Neb. 481, 500, 461 N.W.2d 741,752 (1990) (Shanahan, J., dissenting): “The ‘other acts’ evidence was inadmissible in Yager’s case. Today’s decision has done nothing to rein a runaway rule which threatens to trample on a defendant’s right to a fair trial.” Rather, Stephens’ case is still another indication that this court ignores time as a restrictive factor in admissibility of “other acts” evidence, since, irrespective of the time interval between a prior act and evidence of that act offered at trial, “other acts” evidence is admissible “within the discretion of the trial court.” On a review of the Nebraska decisions where “remoteness” was raised as an issue for admissibility of “other acts” evidence under Rule 404(2), there appears to be no decision in which this court concluded that a trial court’s ruling was an “abuse of discretion” relative to the span of time between a prior act and evidence of the prior act offered in a defendant’s trial.
Better the majority should worry about its umfarshtendenish* of Rule 404(2), not Stephens’ chutzpah.
As reflected by Yager issued 4 months ago, and until today, 20 years was the extreme in the timespan between a defendant’s prior act and evidence of that prior act received at trial. Today, however, we have extended temporal acceptability in “other *565acts” evidence to 28 years and probably have expanded a trial court’s “discretion” into absolute latitude. If the trend continues in this court’s construction and application of Rule 404(2) concerning “other acts” evidence, conduct throughout a defendant’s lifetime will be admissible and, if reincarnation is a fact, will be admissible from another life.
* Yiddish for “misunderstanding”