¶1concurring.
¶2I join in the decision to reverse Velez’s conviction. My reasons for doing so are somewhat different from Judge Singleton’s. I will therefore briefly set out my separate view of this case.
¶3In Lerchenstein v. State, 697 P.2d 312 (Alaska App.1985), affd, 726 P.2d 546 (Alaska 1986), we discussed the interplay between Alaska Evidence Rules 404(b) and 403. The trial court’s inquiry, we determined, in cases dealing with evidence of prior bad acts is two-fold. “First, the court must determine that the evidence sought to be admitted has relevance apart from propensity. Second, the court must determine that the nonpropensity relevance outweighs the presumed highly prejudicial impact of the evidence. ” 697 P.2d at 315-16. (emphasis added).
¶4Whenever a defendant defends a sexual assault case on the ground that the alleged victim consented, the defendant’s intent at the time the defendant engaged in the sexual act becomes an issue in the case. In order to convict the defendant, the jury must find not only that the victim did not consent, but also that the defendant recklessly disregarded the victim’s lack of consent. Therefore, Velez’s attack on S.F. was relevant to show his reckless disregard of whether G.J. consented. The case involving G.J., however, really appears to be a question of whether the jury believed Velez or G.J. If the jury believed G.J., there was no question that Velez attempted to sexually assault her. If the jury believed Velez, there was no question that he did not. It is not inconceivable, of course, *1308that the jury might try to reconcile the two stories. They might then conclude that G.J. did not consent, but that she did not adequately convey her lack of consent to Velez. This seems unlikely, however, based on the facts of the case. GJ.’s testimony was very strong concerning her resistance and her communication of that resistance to Velez.
¶5Balanced against this relevance is the presumed highly prejudicial effect of evidence of prior crimes. Faced with the testimony of three alleged victims, each claiming that Velez raped them, a jury would certainly tend to conclude that Velez was guilty because he stood accused by three different people. This use of the evidence to show propensity, however, is forbidden under Rule 404(b). It appears to me, therefore, that the relevance of the evidence of the two other sexual assaults was clearly outweighed by the prejudicial impact of that evidence. Accordingly, I join in the decision to reverse.
¶6, I have little difficulty distinguishing Davis v. State, 635 P.2d 481 (Alaska App.1981). Davis was charged with the kidnap and rape of M.M. Davis and Smith gave M.M. a ride after her car had broken down. Davis and Smith then drove M.M. off to a secluded area where Davis raped her. At trial, Davis argued consent. Smith was permitted to testify that on two prior occasions he and Davis had given women rides and Davis had sexually attacked the women. The testimony was admissible to show Davis’ intent when he picked up M.M. and to show why Smith acted as he did. Id. at 484. The testimony placed the incident with M.M. in a context. There was little danger that the jury would convict Davis because he was being charged in three separate incidents by three separate victims because the other victims never testified. The question in Daviscame down to whether the jury believed Smith and M.M., or believed Davis. In Davis, the testimony concerning the prior incidents merely tended to flesh out Smith's version of the story.