¶1concurring in the result.
¶2I concur in the result reached by the majority opinion but I do not agree that *178this case is controlled by State v. Forsland, 326 N.W.2d 688 (N.D.1982). In Forslandwe stated, at page 693:
“Taking into account the fact that the complaining witness at the trial could not, or rather did not, identify the defendant but identified two other persons who allegedly assaulted her, and in applying Rule 404(b) and the rule in Stevens [238 N.W.2d 251 (N.D.1975)], as reaffirmed in Phelps [297 N.W.2d 769 (N.D.1980)], we conclude that the evidence pertaining to the admission of the defendant’s prior plea of guilty on a similar offense could not be used in determining whether or not the defendant was guilty or innocent of the crime charged.”
¶3In this instance there was no wrong identification of the defendant by Russell; rather, as the majority opinion notes, she testified “every one of 'em was the same voice” and that the voice was Ferguson’s.
¶4Forslanddid not hold, as a matter of law, that there was no appropriate purpose for which the prior conviction evidence could serve as proof and that its only effect was to demonstrate criminal character or propensity. Rather, it was the use of the previous conviction under the particular facts of that case where the complaining witness could not identify the defendant, which the Forslandcourt found could not be used in determining whether or not the defendant was guilty or innocent of the crime charged.
¶5It is clear that the evidence of the previous conviction may be admissible for such purpose as proof of preparation and plan. Rule 404(b), N.D.R.Ev. The quotation in the majority opinion from the statement of the trial court reflects that the trial judge was aware the evidence was admissible for such purpose. However, the fact it was admissible does not mean it must be admitted. The trial judge may exclude evidence which he believes to be unduly prejudicial. See Rule 403, N.D.R.Ev. Rule 403 vests wide discretion in the trial court to control the introduction of evidence. See Explanatory Note to Rule 403. However, the statement of the trial judge as recited in the majority opinion leads me to the conclusion that the wide discretion vested in the trial judge by Rule 403 was not exercised in this instance.
¶6Although the transcript of the pre-trial conference at which the motion in limine was considered reflects that prejudice to the defendant was considered, the statement appears to indicate the trial judge believed he had no choice in determining whether or not to admit the evidence. However, because the trial judge deemed the evidence “terribly unfair” and further indicated that “it does not really seem to do a lot to prove whether or not the Defendant committed the act,” I believe the trial judge should have excluded the evidence under Rule 403, N.D.R.Ev. I therefore concur in the result reached by the majority opinion.