¶1dissenting: While I agree with the majority on some of the issues raised by the defendant, I respectfully dissent from the majority’s holding that the admission of other crimes evidence pursuant to K.S.A. 60-455 was not erroneous.
¶2In my opinion, the testimony of P.A. and T.M. should not have been admitted into evidence for several reasons. The evidence was admitted by the trial court as being relevant to prove identity. The general rule relative to the admission of evidence of a prior wrongful act is that “[e]vidence that a person has committed a crime or civil wrong in the past is not admissible as an inference that the person committed a subsequent crime or civil wrong” except under certain limited circumstances. State *586v. Clements, 241 Kan. 77, 84, 734 P.2d 1096 (1987); K.S.A. 60-455. State v. Bly, 215 Kan. 168, 523 P.2d 397 (1974), was the first case to give in-depth consideration to the proper application of K.S.A. 60-455. In Blythe court set forth several basic principles to be followed in applying the statute, and, in discussing the use of prior wrongful conduct to prove identity, stated:
“Where a similar offense is offered for the purpose of proving identity, the evidence should disclose sufficient facts and circumstances of the other offense to raise a reasonable inference that the defendant committed both of the offenses. In other words to show that the same person committed two offenses it is not sufficient simply to show that the offenses were violations of the same or a similar statute. There should be some evidence of the underlying facts showing the manner in which the other offense was committed so as to raise a reasonable inference that the same person committed both offenses. As pointed out by Mr. Justice Kaul in State v. Johnson, 210 Kan. 288, 502 P.2d 802: ‘ “The quality of sameness is important when pondering the admission of other crimes to prove identity.” ’ (p. 294.) (Emphasis supplied.)” 215 Kan. at 177.
¶3The principle set forth in Blywas applied in State v. Breazeale, 238 Kan. 714, 714 P.2d 1356 (1986), where we stated:
“Where a prior conviction is offered for the purpose of proving identity, the evidence should disclose sufficient facts and circumstances of the offense to raise a reasonable inference that the defendant committed both offenses. State v. Williams, 234 Kan. 233, 670 P.2d 1348 (1983); State v. Bly, 215 Kan. at 177. Similarity must be shown in order to establish relevancy. State v. Henson, 221 Kan. 635, 644, 562 P.2d 51 (1977). It is not sufficient simply to show that the offenses were violations of the same or similar statutes; there should be some evidence of the underlying facts showing the manner in which the other offense was committed so as to raise a reasonable inference that the same person committed both offenses. State v. Bly, 215 Kan. at 178. In general see Comment, Evidence: Admissibility of Similar Offenses as Evidence of Identity in a Criminal Trial, 14 Washburn L.J. 367 (1975). However, the prior offenses need only be similar, not identical in nature. State v. Williams, 234 Kan. at 234.” 238 Kan. at 721.
¶4In the present case, the majority, trying to meet the test of relevancy, grasps at straws in its attempt to show sufficient similarity between the claimed prior offenses and the charged crimes. At the outset, there really are no facts in the present case even showing an attempted rape took place other than speculation based upon the fact that when Roxanne’s body was found it was nearly nude. Apparently, the coroner was of the opinion that a violent sexual act had occurred based upon the condition and *587position of the body, even though the autopsy by a recognized forensic expert revealed no signs of sexual attack or conduct.
¶5The similarities relied upon by the State and the majority are nothing more than the normal incidents present in the vast majority of sexual assaults. Certainly all three victims were women, all three incidents occurred at night, the defendant had been drinking on each occasion, and all three women had children. It is also asserted that the defendant knew all three victims. This statement is misleading in that the defendant had known T.M. and P.A. prior to the acts they complained of, while the defendant had only met Roxanne a few hours before she disappeared. In my opinion there were no relevant similarities which would justify the use of this evidence to prove identity. The meager facts relied upon by the majority are not sufficient to raise a reasonable inference that the defendant committed all three offenses and, without going into detail, are greatly outweighed by the dissimilarities. As merely one example, the two prior acts took place in the victims’ own homes with other persons present while the present attempted rape apparently occurred in an isolated area and not in the victim’s home. The only real similarity is that the defendant was charged with a sexual crime in all three cases, two of which the prosecution, with all its resources, was unable to prove.
¶6The use of the testimony of T.M. and P.A. is even more questionable in view of the fact that the juries in the prior cases did not find the defendant guilty. The defendant in the prior crimes did not deny that sexual conduct occurred but asserted that it was consensual and not criminal. The jury, in the case of T.M., acquitted the defendant and found him not guilty, while the trial of P.A.’s case resulted in a hung jury. While I recognize that we have never held that an acquittal of a prior crime precludes its use under K.S.A. 60-455, I think it should.
¶7In the case of T.M., the jury heard all of the evidence against the defendant and brought in a verdict of not guilty. The rule at common law, and as adopted universally by the courts of this country, is that a defendant is presumed innocent until proven guilty beyond a reasonable doubt by substantial competent evidence. One of the first cases decided by this court after Kansas became a state recognized this time-honored presumption. Horne *588v. State, 1 Kan. 42, 72 (1862). The presumption of innocence continues until the defendant is proven guilty. In the instant case, the defendant is presumably innocent of the charges asserted by T.M. and P.A. in the earlier cases. If the presumption that the defendant is innocent of the prior charges is to have any validity, the defendant must be entitled to its benefits in the present case. This defendant should not be required to again defend against the charge that he attempted to rape T.M. when he has been acquitted of that alleged offense.
¶8Neither do I agree with the majority that the prior crimes evidence is not barred by the doctrine of collateral estoppel as it applies to double jeopardy. The majority goes to great lengths in its attempt to demonstrate that, because the defendant was acquitted of the attempted rape of T.M. on the basis that the alleged sexual contact was consensual, the same evidence can now be used to show identity. I fail to understand this reasoning. In the case of T.M., the jury found, in effect, that no crime had been committed. As the sexual contact with T.M. was admitted, the only basis for the defendant’s acquittal had to have been the jury’s belief that no crime had occurred. If no crime had occurred in the T.M. case, how can the defendant’s actions in that case be relevant to prove identity or any other element in this case? In the case of P.A., the most that can be said is that the jury could not agree that the defendant committed the crime. If defendant did not commit the previous crimes, there is no logical inference based upon the previous acts that he attempted to rape Roxanne in the present case, and the doctrine of estoppel should apply.
¶9We have often stated that, in ruling on the admissibility of evidence of a prior crime or wrong under K.S.A. 60-455, the judge must (1) determine it is relevant to prove one of the facts specified in the statute, (2) determine that fact is a disputed material fact, and (3) balance the probative value of the prior act evidence against its tendency to prejudice the jury. State v. Clements, 241 Kan. at 84. In my opinion the evidence admitted in this case did not pass these crucial tests. While we have been liberal in our review of this issue in previous cases, none have been based upon such flimsy facts as are relied upon by the State in this case.
¶10*589Considering the lack of any credible relevant similarity between the previous acts and the crimes charged here, the prior crimes evidence should not have been admitted in this case. I would reverse the convictions in the present case and remand the case for a new trial.