BOYLE, J.

In this interlocutory appeal, we consider the Court of Appeals affirmance of a circuit court's order prohibiting the introduction of evidence of other crimes or wrongs in two second-degree criminal sexual conduct trials involving the defendant, Daniel VanderVliet. The prosecutor asserts that the testimony of the defendant's alleged victims, Todd F, Steven C, and John J, is admissible in each of the pending cases because it was not offered "to prove the character of a person in order to show that he acted in conformity therewith," in violation of MRE 404(b). We evaluate this claim in light of the clarified standard articulated today: First, that the evidence be offered for a proper purpose under Rule 404(b); second, that it be relevant under Rule 402 as enforced through Rule 104(b); third, that the probative value of the evidence is not substantially outweighed by unfair prejudice; fourth, that the trial court may, upon request, provide a limiting instruction to the jury. Consequently, we reverse the decision of the Court of Appeals in each case and remand to the trial court for further proceedings consistent with this opinion.

I

The evidentiary record consists of testimony given during the preliminary examination and two subsequent pretrial hearings held to determine the admissibility of the other acts evidence.

The defendant was employed by Kent Client Services as a case manager, working with developmentally disabled young men. In October, 1987, as part of his employment, the defendant became the case manager for a mildly retarded male in his mid-twenties named Steven C.

Steven C testified that on more than one occasion he accompanied the defendant to a house in the country belonging to the defendant's brother. On October 4, 1988, at the house, the defendant asked Steven to take a shower. Following the shower, Steven said the defendant proceeded to masturbate him. After Steven ejaculated, the defendant asked Steven to rub lotion on the defendant's back. Steven said he complied because he saw that the defendant's pants were unzipped and was afraid of what the defendant might do.

On October 5, 1988, Steven complained about defendant's conduct to an employee at Southwest Center, a sheltered workshop. This complaint was communicated to a recipient rights investigator and, eventually, to the defendant's supervisor, Fred Ward.

Mr. Ward testified that, following the complaint, he started to closely supervise the defendant. The defendant was specifically informed that future client contact should occur in essentially public places, including the sheltered workshop or licensed adult foster care homes. Mr. Ward stressed that, if client contact did occur at an individual's residence, it had to be documented closely on a timely basis and occur pursuant to the prearranged treatment plan. These instructions were documented in a letter in March 1989, which explicitly directed the defendant to inform his supervisor of any client activities that took place outside a workshop setting or an adult foster care home.

The defendant was allowed to continue client contact under these restrictions, and, in May 1989, he became the case manager for a developmentally disabled male in his mid-twenties named Todd F.

Todd testified that on several occasions between May 1989 and August 1989, he accompanied the defendant to the same house. There, the defendant watched Todd urinate and shower. Todd testified that defendant touched Todd's testicles on three occasions. He also testified that the defendant would wrestle with him and sit on his genitals for long periods of time. Todd said he objected to all these alleged activities.

In August 1989, Todd informed the service coordinator of Southwest Center, Grant Sutton, that he had been to the defendant's brother's house and had wrestled with the defendant there. Mr. Sutton immediately contacted his supervisor and informed recipient rights of this conversation.

Mr. Sutton testified that his concern was aroused for three reasons. First, he was aware of Steven C's accusations against the defendant. Second, Mr. Sutton believed it was questionable conduct for a case worker to wrestle with a client. Finally, he asserted that taking a client either to a case manager's own home or a relative's home was unacceptable and unprofessional conduct.

Following the second accusation, the defendant was suspended from client contact. Mr. Ward testified that during ensuing conversations, the defendant admitted he took Todd to his brother's house in violation of the conditions set forth in the memo.

A police investigation was begun in the fall of 1989. Detective Bruce Fogerty testified that the defendant voluntarily came to the Wyoming Police Department where he was informed of his rights. Defendant waived those rights.

Regarding Steven C, the defendant admitted taking Steven to his brother's house. He also admitted that he told Steven to take a shower on one occasion because Steven had a dental appointment and Steven smelled. Defendant denied that any sexual contact occurred.

Regarding Todd F, the defendant admitted taking Todd to his brother's house. The defendant claimed that Todd had had out-patient surgery and that he was directed by Todd's doctor to look for blood in Todd's urine. Pursuant to those instructions, the defendant told Fogerty that he checked the toilet for blood after Todd urinated. The defendant admitted to tickling Todd under his arms, and on one occasion physically sitting on him. However, the defendant denied sitting on Todd's intimate areas. He asserted that any contact occurring with those areas was inadvertent or accidental. The defendant denied he ever touched Todd's testicles.

During his investigation, Detective Fogerty uncovered another allegation of sexual misconduct involving the defendant and another of his clients, John J. This third case is uncharged at this time. Because this allegation came to light after Detective Fogerty's conversation with the defendant, he was not questioned about it.

John J testified that the defendant was his caseworker. Although not identifying a specific time, John said that on one occasion the defendant told him to take a shower while both were at John's residence. Following the shower, the defendant touched John's penis, masturbating him. In response, John slapped the defendant's hand and told him to leave. The defendant then pulled his pants down a little bit and asked John to put cologne on the defendant's back. On another occasion, while the defendant and John were in the defendant's car, the defendant told John that they were going to his brother's house. The defendant then reached for John's penis. John slapped the defendant's hand before contact was made. John also testified that he was acquainted with Steven C, who had warned him about the defendant.

After the defendant was bound over on the charge of second-degree criminal sexual conduct, the prosecutor filed a memorandum concerning the admissibility of evidence under MRE 404(b). Relying on People v Engelman, 434 Mich. 204; 453 N.W.2d 656 (1990), the prosecutor argued that the defendant's conduct toward each of the three alleged victims was admissible in each of the pending cases because it did not violate MRE 404(b). The trial court held that the prosecutor could not introduce evidence of other misconduct in either Todd's or Steven's case. The prosecutor appealed.

The Court of Appeals affirmed the ruling of the trial court in an unpublished opinion per curiam, decided January 23, 1992 (Docket No. 138141). A divided panel held that, because the misconduct evidence was not "probative of a matter `in issue,'" id. at 2, it was inadmissible under the test enunciated in People v Golochowicz, 413 Mich. 298, 308; 319 N.W.2d 518 (1982). "Consequently, allowing the evidence would frustrate the policy underlying the general exclusion of similar acts evidence. . . ." VanderVliet, supra at 3. The Court of Appeals also held that the probative value of the evidence was outweighed by its prejudicial effect. Id.

Presiding Judge DOCTOROFF dissented. Relying on People v Engelman, supra, Judge DOCTOROFF concluded that "[t]he similar acts evidence in this case clearly establishes defendant's scheme, plan or system, and is material as proof that the charged act was committed," id. at 1.

We granted leave to appeal, 440 Mich. 871 (1992).

II

We begin the substantive portion of this opinion with a general discussion of the law regarding other acts evidence.

Logical relevance is determined by the application of Rules 401 and 402.

MRE 401 provides:

"Relevant evidence" means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.

MRE 402 provides:

All relevant evidence is admissable, except as otherwise provided by the Constitution of the United States, the Constitution of the State of Michigan, these rules, or other rules adopted by the Supreme Court. Evidence which is not relevant is not admissible.

Rules 401 and 402 define the universe of evidence that is logically relevant:

[I]f the item of evidence satisfies the normal standards for logical relevance, most courts resist defense attempts to impose additional spurious requirements purportedly based on "logical relevance." At one time, several American jurisdictions adhered to the view that an inference cannot be based upon another inference. That view made it difficult to introduce evidence which relied on lengthy chains of inference for its logical relevance. In particular, that view made it difficult to introduce uncharged misconduct evidence which relied on intermediate inferences for its relevance. Modernly, the courts have discredited the "no inference on an inference" rule. The acid test is logical relevance, and a logically relevant act is admissible even when the finding of logical relevance requires a long chain of intervening inferences. [Imwinkelried, Uncharged Misconduct Evidence, § 2:17, pp 45-46.]

Simply stated, "[l]ogical relevance is the `touchstone' of the admissability of uncharged misconduct evidence." Id.

Rule 404 is a rule of legal relevance, defined as a rule limiting the use of evidence that is logically relevant. Thus, Rule 404 presumes a showing of logical relevance. It is only then that considerations of legal relevance are implicated.

On its face, Rule 404 limits only one category of logically relevant evidence. As we explained in Engelman, supra at 212-213:

"[o]nly one series of evidential hypotheses is forbidden in criminal cases by Rule 404: a man who commits a crime probably has a defect of character; a man with such a defect of character is more likely . . . to have committed the act in question." [Citing 2 Weinstein, Evidence, ¶ 404(8), p 404-52.]

If the proponent's only theory of relevance is that the other act shows defendant's inclination to wrongdoing in general to prove that the defendant committed the conduct in question, the evidence is not admissible. The reason for the prohibition is twofold. As noted in Engelman, supra at 213, n 16, quoting Imwinkelried, supra, § 2:18, pp 48-49:

"[T]he thrust of this theory is the use of the defendant's uncharged misconduct as circumstantial proof of conduct. More specifically, the forbidden theory rests on two inferences that pose serious legal relevance issues.

"[T]he first step in this theory of logical relevance is inferring the defendant's character from the defendant's prior misdeeds. Rule 404(b) refers to this step as introducing the uncharged acts `to prove the character of a person.' This step poses the legal relevance danger of prejudice. In the process of deciding whether to draw the inference, the jury must focus on the type of person the defendant is. . . .

"The second step in this theory of logical relevance compounds the legal relevance dangers. The second step is inferring the defendant's conduct on a particular occasion from his or her subjective character. In the words of Rule 404(b), the plaintiff or prosecutor introduces the evidence of the defendant's subjective character `in order to show that he acted in conformity therewith.'

"When the proponent uses the defendant's subjective character as proof of conduct on a particular occasion, there is a substantial danger that the jury will overestimate the probative value of the evidence."

Rule 404(b) limits the use of logically relevant evidence only when both steps of the process are violated. Therefore, if the proffered other acts evidence is logically relevant, and does not involve the intermediate inference of character, Rule 404(b) is not implicated. Engelman, supra at 216. If the evidence is relevant to a fact in issue (facta probantia), there may be no inference to conduct. See Imwinkelried, supra, § 2:21, p 55. The question is not whether the evidence falls within an exception to a supposed rule of exclusion, but rather whether the "evidence [is] in any way relevant to a fact in issue" other than by showing mere propensity, Stone, The rule of exclusion of similar fact evidence: America, 51 Harv L R 988, 1004 (1938). "Put simply, the rule is inclusionary rather than exclusionary." Engelman, supra at 213. (Emphasis added.)

Thus, the Court of Appeals reference to "the general exclusion of similar acts evidence" is mistaken. There is no policy of general exclusion relating to other acts evidence. There is no rule limiting admissibility to the specific exceptions set forth in Rule 404(b). Nor is there a rule requiring exclusion of other misconduct when the defendant interposes a general denial. Relevant other acts evidence does not violate Rule 404(b) unless it is offered solely to show the criminal propensity of an individual to establish that he acted in conformity therewith.

III

The Court of Appeals conclusion that Golochowicz, supra, created a rule of general exclusion allowing admission of other acts evidence only for the purposes set forth in the rule, failed to acknowledge the inclusionary theory of admissibility. Rule 404(b) permits the judge to admit other acts evidence whenever it is relevant on a noncharacter theory. The Golochowicz "test" does not set the standard for the admissibility of other acts evidence.

The exclusionary approach was explicitly rejected in Engelman, supra at 212:

Properly understood, MRE 404(b) is a nonexclusive list of examples of situations in which the general rule excluding character evidence, MRE 404(a), is not offended because the evidence is probative of some fact other than the defendant's criminal propensity.

It [was] because of the combined value of those two factors, the unique and uncommonly distinctive style employed by the defendant in committing the "substantially proved" uncharged similar offense, and the same distinctive modus operandi employed in the charged offense, that the jury is permitted to infer, if it believes the evidence, that both crimes were the handiwork of the same person, the defendant. [ Id. at 311.]

Golochowicz identifies the requirements of logical relevance when the proponent is utilizing a modus operandi theory to prove identity.

However, the Golochowicz approach to modus operandi cases to show identity is not a "conceptual template" to "mechanically test" all misconduct evidence barring use of other permissible theories of logical relevance. Id. at 314.

If we ask, does [the] misconduct have to exhibit striking similarity with the misconduct being investigated, the answer is, only if similarity is relied on. Otherwise not. There are only two classes of case[s] [those in which similarity is relied on and those in which it is not], and they do not depend on the nature of the evidence, but on the nature of the argument. [Elliott, The young person's guide to similar fact evidence — I, 1983 Crim L R 284, 288.]

The method of analysis to be employed depends on the purpose of the offer and its logical relevance.

A

Turning from the theory of logical relevance illustrated by Golochowicz to the specifics of the four-pronged test it enunciated, we note that we have not defined the standard for assessing the first requirement of Golochowicz, that there be "substantial evidence" that the defendant committed the other act. However, as the Court of Appeals has recognized, People v Sorscher, 151 Mich. App. 122; 391 N.W.2d 365 (1986), a heightened standard of logical relevance is not required either by the explicit language of Rule 404(b) or by any other rule. Additionally, the United States Supreme Court has unanimously held that neither the language nor the legislative history of FRE 404 supports such a conclusion. Huddleston v United States, 485 U.S. 681; 108 S Ct 1496; 99 L Ed 2d 771 (1988).

The second requirement in Golochowicz, that a special circumstance or quality exist, "refers to the relationship between the charged and uncharged offenses which supplies the link between them and assures thereby that evidence of the separate offense is probative of some fact other than the defendant's bad character," id. at 310. This language does not require a showing of distinctive similarity between other acts and the charge at issue in every instance where Rule 404(b) evidence is proffered. Where the proponents' theory is not that the acts are so similar that they circumstantially indicate that they are the work of the accused, similarity between charged and uncharged conduct is not required. As we recognized in Engelman, the special link or circumstance is simply the inference other than to character. The trial court and the Court of Appeals erroneously concluded that Rule 404(b) relevance requires a high level of similarity between the proffered other acts evidence and the act charged. This approach misreads Golochowicz, Engelman, and other precedent of this Court.

The third "prong" of the Golochowicz "test," that the proffered evidence be relevant to some matter in issue, neither limits other acts evidence to the issue of identity nor restricts a determination that the other acts evidence is relevant to a matter in issue until the defendant actually raises the issue at trial. In all cases, the question is relevancy to a fact in issue. Where the trial court can reliably determine that a fact will be in issue before trial, it may determine admissibility. As we explained in Engelman, supra, the matter in issue might very well be the commission of the charged offense:

If it could be shown in this case that defendant did indeed follow a common scheme or plan in committing such acts against young children, it would defy logic to limit the use of that evidence to proof of identity or state of mind. The former will never be in dispute where the defendant and the victim know each other, and the defendant's state of mind is not an element of many of the offenses set forth in the criminal sexual conduct act. Yet, in many cases such evidence might be not only relevant to the determination of defendant's guilt or innocence, but also material in the sense required by Golochowicz, as proof that the act was committed. As explained in 2 Wigmore, Evidence (Chadbourn rev), § 304, p 249, "[w]hen the very doing of the act charged is yet to be proved, one of the evidential facts receivable is the person's design or plan to do it. . . ." [ Id. at 220-221.]

Finally, to the extent that Golochowicz or Engelman have been understood to have superimposed a heightened prejudice versus probative weighing of the evidence under 404(b), that view is simply unfounded. The fourth prong of Golochowicz is merely a restatement of the Rule 403 test applied to all evidence to determine its legal relevance. No authority has been cited for the proposition that the balancing process is other than that required by Rule 403, and there is no evidence that this Court intended a more restricted formulation of the balancing process than that contained in the federal rule, which does not include any superannuated weighing requirement. Moreover, the Supreme Court's observation in Huddleston that a heightened standard of logical relevance is inconsistent with the inclusive view of the admissability of other acts evidence, is equally applicable here.

Our focus in Engelman on logical relevance and the inclusive view of other acts evidence, clarified and limited the expansive reading of Golochowicz advocated by the defense and endorsed by the majority of the Court of Appeals. Golochowicz is not the general test for other acts evidence.

B

We conclude this discussion of the general principles applicable to other acts evidence with some ruminations on the remarkable tenacity of the "similar act" formulation of Rule 404(b).

Beyond the historical, philosophical, and legal dispute regarding whether the rule should be interpreted as inclusionary or exclusionary, there are several reasons that might explain why the Golochowicz formulation is so hearty a vine in the garden of our jurisprudence.

At a psychological level, the Golochowicz formula addresses the fear, which most lawyers and many judges share, that jurors will give misconduct evidence more weight than deserved. This fear conflicts with the intuitive sense that some bad acts evidence is so powerfully probative that it would pervert the truth-seeking process to prevent a jury from using what looks like ordinary common sense. Moreover, the Golochowicz formulation expresses a linear perspective of admissibility, which, while it "fits" the profession's visceral anxiety regarding misconduct evidence, fails to acknowledge both that the theory of Rule 404(b) is comprehensive and that the foundation of the rule is the familiar theory of multiple admissibility: evidence that is admissible for one purpose does not become inadmissible because its use for a different purpose would be precluded. Imwinkelried, § 3:01, pp 2-3; 1 Wigmore, Evidence (Tiller rev), § 13, pp 693-702.

Finally, and perhaps most importantly, "the four-pronged test" has the comfort-level appeal of a bright-line rule. The bench and bar do not have to struggle with the complexity of multiple theories of admissibility as applied in discrete instances, and the trial court does not have to make the weighing of substantial prejudice versus probative weight contemplated by Rule 403.

IV

As the previous discussion illustrates, the bright-line approach to other acts evidence is inadequate in assessing relevance under Rule 404(b). In place of the four-pronged test of Golochowicz, we direct the bench and bar to employ the evidentiary safeguards already present in the Rules of Evidence, as identified by the unanimous United States Supreme Court decision in Huddleston:

[F]irst, from the requirement of Rule 404(b) that the evidence be offered for a proper purpose; second, from the relevancy requirement of Rule 402 — as enforced through Rule 104(b); third, from the assessment the trial court must make under Rule 403 to determine whether the probative value of the similar acts evidence is substantially outweighed by its potential for unfair prejudice, see Advisory Committee's Notes on Fed Rule Evid 404(b), 28 U.S.C. App, p 691; S Rep No 93-1277 at 25; and fourth, from Federal Rule of Evidence 105, which provides that the trial court shall, upon request, instruct the jury that the similar acts evidence is to be considered only for the proper purpose for which it was admitted. [ Huddleston, supra at 691-692.]

The evidence must be relevant to an issue other than propensity under Rule 404(b), to "protect against the introduction of extrinsic act evidence when that evidence is offered solely to prove character." Id. at 687. (Emphasis added.) Stated otherwise, the prosecutor must offer the other acts evidence under something other than a character to conduct theory.

Second, as previously noted, the evidence must be relevant under Rule 402, as enforced through Rule 104(b), to an issue or fact of consequence at trial. 2 Weinstein Berger, Evidence, ¶ 404[08], p 404-49.

Third, the trial judge should employ the balancing process under Rule 403. Other acts evidence is not admissible simply because it does not violate Rule 404(b). Rather, a "determination must be made whether the danger of undue prejudice [substantially] outweighs the probative value of the evidence in view of the availability of other means of proof and other facts appropriate for making decision of this kind under Rule 403." 28 USCA, p 196, advisory committee notes to FRE 404(b).

Finally, the trial court, upon request, may provide a limiting instruction under Rule 105.

V

The relationship of the elements of the charge, the theories of admissibility, and the defenses asserted governs what is relevant and material. It is to this relationship and what it dictates for the evidence in these cases that we now turn.

A

We deal first with the charge involving Todd F. At oral argument, the prosecutor and the defense acknowledged that the defendant had answered the criminal sexual contact charges with a general denial and had not asserted accident or mistake. While acknowledging that the defendant's theory at trial will not contest that the defendant was present at the times and places alleged, and suggesting he will question the "lack of veracity" of witnesses Todd F and Steven C, the defense contends that the defendant's general denial prevents the other acts evidence from being relevant to a matter in issue in the case of Todd F. We disagree.

The defendant is charged with two counts of second-degree criminal sexual conduct. The statute requires the prosecutor to prove beyond a reasonable doubt that sexual contact occurred. To prove sexual contact, the prosecutor must show that the defendant intentionally touched Todd's genitals or the clothing covering Todd's genital parts, and that this touching "can reasonably be construed as being for the purpose of sexual arousal or gratification."

During the preliminary examination and pretrial hearings, the prosecutor presented Todd F's testimony that the defendant sat on Todd's genitals for extended periods of time while they wrestled. Detective Fogerty testified that the defendant admitted to sitting on Todd on one occasion, that no sexual contact occurred, or that any contact with Todd's private areas was inadvertent or accidental. The defendant's supervisor Fred Ward testified that before the defendant took Todd to his brother's house, he had been informed that client contact should occur in public settings and had been directed to advise and document client contacts outside such a setting.

The defendant's admission to Detective Fogerty that he had tickled Todd, and that any contact between himself and Todd's private areas was accidental, together with Ward's testimony that defendant admitted that he had taken Todd to his brother's home despite a written directive not to do so except in accord with specified procedures, assures the relevancy of Steven C's testimony, the general denial notwithstanding.

As the United States Supreme Court recently explained in Estelle v McGuire, 502 U.S. 62; 112 S Ct 475, 480-481; 116 L Ed 2d 385 (1991), a defendant's general denial of the charged act does not prevent a matter from being at issue:

In holding the prior injury evidence inadmissible, the Court of Appeals also relied on the theory that, because no claim was made at trial that Tori died accidentally, the battered child syndrome evidence was irrelevant and violative of due process. . . . This ruling ignores the fact that the prosecution must prove all the elements of a criminal offense beyond a reasonable doubt. In this second degree murder case, for example, the prosecution was required to demonstrate that the killing was intentional. . . . By eliminating the possibility of accident, the evidence regarding battered child syndrome was clearly probative of that essential element, especially in light of the fact that McGuire had claimed prior to trial that Tori had injured herself by falling from the couch. The Court of Appeals, however, ruled that the evidence should have been excluded because McGuire did not raise the defense of accidental death at trial. But the prosecution's burden to prove every element of the crime is not relieved by a defendant's tactical decision not to contest an essential element of the offense. In the federal courts "[a] simple plea of not guilty . . . puts the prosecution to its proof as to all elements of the crime charged." Mathews v United States, 485 U.S. 58, 64-65; 108 S Ct 883, 887; 99 L Ed 2d 54 (1988).

In Michigan, as in the federal courts, a plea of not guilty puts the prosecution to its proofs regarding all elements of the crime charged. MCR 6.301(A); People v Eddington, 387 Mich. 551; 198 N.W.2d 297 (1972). Thus, a tactical general denial by a defendant does not prevent the prosecutor from introducing other acts evidence at trial. The other acts evidence is relevant to, and probative of, the defendant's innocent intent in the Todd F case. We therefore hold that the trial court erred in determining that the testimony of Steven C and John J was inadmissible.

A general denial presumptively puts all elements of an offense at issue. While it does not automatically entitle the prosecutor to a pretrial ruling that the proffered evidence is admissible, the defense may not bar such evidence where it disputes the material fact of consequence to which the other acts evidence is relevant. In short, a defense need not be formally set up to create an issue clearly within the facts. 2 Wigmore, Evidence (Chadbourn rev), § 307, p 262.

The consequential fact, i.e., defendant's innocent intent, is more than a plausible or speculative defense in the Todd F case. Moreover, Steven C's testimony is sufficiently similar to Todd F's testimony to make it objectively less probable that the defendant acted with innocent intent in the Todd F case. When other acts are offered to show intent, logical relevance dictates only that the charged crime and the proffered other acts "are of the same general category." Imwinkelried, Uncharged Misconduct Evidence, § 3:11, p 23. Evidence of both of the alleged assaults is logically relevant and probative of the defendant's intent in the Todd F case because it negates the otherwise reasonable assumption that the contact described in testimony by Todd F was accidental, as opposed to being for the purpose of sexual gratification. Finally, evidence of the assault of Steven C is not only relevant, but highly probative of the defendant's intent in taking Todd to his brother's house. Without such evidence, the factfinder would be left with a chronological and conceptual void regarding the events surrounding Ward's directive to the defendant, United States v Ostrowsky, 501 F.2d 318, 322 (CA 7, 1974).

The other acts testimony of Steven C is relevant under Rule 404(b). However, because Rule 403 determinations are best left to a contemporaneous assessment of the presentation, credibility, and effect of testimony, we remand this case to the trial court for further proceedings.

B

The testimony provided in the Todd F case by the defendant's supervisor, Fred Ward, that the defendant had been allowed to continue client contact on the specific condition that such contact occur in public or on a documented basis pursuant to a treatment plan, and that the defendant had admitted to Ward that he nonetheless took Todd to his brother's house without documentation, does not implicate Rule 404(b) and is admissible for its bearing on the defendant's state of mind.

The defendant's conduct on the job, including his failure to comply with Ward's instructions and to document his nonpublic contact with clients, did not amount to a civil or criminal legal wrong. Therefore, Ward's testimony is admissible for its probative force to prove the accusation against the defendant, Rule 401, United States v Hatch, 926 F.2d 387 (CA 5, 1991).

However, to underscore our observation that Rule 404 is not a combination lock requiring particular numbers to be spun before the door to admissibility swings open, we observe that even assuming the defendant's violation of Ward's directive is another wrong "act," admission would not violate Rule 404(b). The defendant does not dispute that he was present at the times and place alleged. Thus, the uncontested violation of Ward's directive bears directly on the credibility of the defendant's general denial and is relevant to the defendant's state of mind. In this configuration, there is no requirement that the other act bear any similarity to the charged act. Because there is no inference to character, and because the evidence is powerfully probative of a primary issue in dispute, the defendant's state of mind, we hold that Ward's testimony would be admissible even if it were another act within the meaning of Rule 404(b).

C

We deal next with the admissibility of the other acts evidence in the charge involving Steven C.

During the preliminary examination and pretrial hearings, Steven C testified that the defendant asked him to take a shower, and that following that shower the defendant proceeded to masturbate Steven. The alleged assault occurred at the defendant's brother's house while the defendant was Steven's caseworker. Detective Fogerty testified that while the defendant admitted taking Steven to his brother's house and asking him to take a shower, he denied any sexual contact occurred. The defendant answered these charges with a general denial. Under Rule 404(b), the defendant's general denial makes presumptively relevant other acts evidence bearing on an issue other than propensity. Accordingly, as in the Todd F case, the trial court and the Court of Appeals erred in concluding that other acts testimony was not admissible because the defendant had not formally indicated what would be contested at trial.

In Engelman, we rejected the defendant's contention that the proffered evidence was inadmissible because the defendant had denied commission of the offense and had not put in dispute his identity or state of mind; "[c]learly, such a scheme, plan, or system on the defendant's part, if properly established, would serve as the intermediate inference necessary to ensure that the evidence sought to be admitted is not character evidence, and thus not necessarily excluded under the rule," supra, p 220. When relevance to an issue other than mere propensity is found, Rule 404(b) is not violated.

In the Steven C case, as in the Todd F case, the evidence of both other acts is relevant because the defense is a general denial. Sexual purpose is an element of the offense, see United States v Marin-Cifuentes, 866 F.2d 988 (CA 8, 1989), and the testimony is sufficiently similar to be relevant to intent under the theory of improbability. As the Supreme Court explained in Huddleston, other acts evidence is especially pertinent where the trial court determines that the issue "involves the actor's state of mind and the only means of ascertaining that mental state is by drawing inferences from conduct." Id. at 685.

Thus, the relevance requirement of Rule 404(b) is not violated by introduction of the other acts evidence in the Steven C case. However, as with the admissibility of Steven C's and John J's testimony in the Todd F case, the record is insufficient to reliably assess the probative value of the evidence under Rule 403. Moreover, because Golochowicz erroneously linked relevance to the issues actually disputed at trial, id. at 316, we are concerned that the pretrial posture of the defense may have been detrimentally affected by the notion that a general denial precludes all offers of Rule 404(b) evidence. Fairness requires remand to the trial court.

VI

On remand, the trial court is to further explore and identify the probative value of the other acts evidence in the Todd F and Steven C cases to the fact of consequence, i.e., mens rea, and determine whether the probative value of the other act testimony is "substantially outweighed" by its potential for unfair prejudice, MRE 403. The parties must also be afforded the opportunity to further support or rebut other theories, such as modus operandi and unlikely coincidence, for relevancy to actus reus. However, we caution the bench and bar that other acts evidence must move through a permissible intermediate inference, such as mens rea, lack of accident, or common plan or scheme, to be relevant to actus reus. Absent such an intermediate inference, the other acts evidence bears only on propensity and is inadmissable.

The source of the burden imposed on trial courts when assessing relevance under Rule 404(b) and admissibility under Rule 403 is not in abstract propositions of governing law. The root of the problem is the inherent complexity of evaluating the life of the modern day trial within a shifting mosaic of consequential facts, relevance of the evidence, state of the proofs, and predictions about the state of mind of the factfinder.

In the formalistic days of the common law, ascertaining the hypothesis which governed a particular controversy was — in theory at least — simple; one looked to the pleadings. A line of proof could not be directed to a proposition unless it had been placed in issue by the pleadings, and thus had been explicitly labeled as a consequential fact. [1 Weinstein, Evidence, ¶ 401(04), p 401-27.]

Amendment of the pleadings to conform with the proofs is now universally accepted, and in Michigan authorized by MCL 600.2301; MSA 27A.2301, and MCR 6.112(G). Adding to the complexity of "ascertaining the hypothesis" that governs a trial under contemporary standards for amendment of the pleadings, the trial courts of this state must also evaluate the admissibility of other acts evidence against the backdrop of the law governing included and cognate offenses. The defendant is not required to contest an element of the charged offense to create an issue of fact regarding necessarily included offenses deemed to be encompassed by the information. People v Ora Jones, 395 Mich. 379; 236 N.W.2d 461 (1975). Furthermore, the doctrine of cognate offenses seemingly permits a disputed issue to be raised by the testimony of any witness, irrespective of whether the theory of defense actually encompasses the evidentiary theory that testimony might create. People v Beach, 429 Mich. 450, 490; 418 N.W.2d 861 (1988). Finally, the trial court may not instruct a jury that uncontested elements of an offense are established. People v Reed, 393 Mich. 342; 224 N.W.2d 867 (1975). These considerations exclude a formalistic approach that defines consequential facts either by reference to the pleadings alone or by reference to those facts expressly made material at trial. They also define the parameters of the dilemma, which, simply stated, is that no judge can be expected to correctly assess the evidentiary issue unless and until the court is presented with a concrete theory of defense that allows the court to determine relevancy. Without such a concrete presentation, a defendant's general posture, as here, requires the trial judge to assume the relevancy of other acts proffered under noncharacter theories of admissibility.

These considerations underscore the wisdom of embracing an approach to discovery, undertaken by many state courts and the federal judiciary, which promotes reliable decision making. To assist the judiciary in this extraordinarily difficult context and to promote the public interest in reliable fact finding, we intend to adopt a modification of Rule 404(b). We require the prosecution to give pretrial notice of its intent to introduce other acts evidence at trial, and authorize the trial judge, consistent with the law in ten other states, to require the defendant to articulate his theory or theories of defense.

Where pretrial procedures, including requests for offers of proof, do not furnish a record basis to reliably determine the relevance and admissibility of other acts evidence, the trial court should employ its authority to control the order of proofs, require the prosecution to present its case in chief, and delay ruling on the proffered other acts evidence until after the examination and cross-examination of prosecution witnesses. If the court still remains uncertain of an appropriate ruling at the conclusion of the prosecutor's other proofs, it should permit the use of other acts evidence on rebuttal, or allow the prosecution to reopen its proofs after the defense rests, if it is persuaded in light of all the evidence presented at trial, that the other acts evidence is necessary to allow the jury to properly understand the issues, United States v Colon, 880 F.2d 650 (CA 2, 1989).

We strongly encourage this flexible approach to determining admissability. The probative value of other acts evidence and its true potential for prejudice is often unclear until the proofs are actually presented. Other acts evidence relevant to elements technically at issue because of a not guilty plea may initially have only marginal probative value in comparison to the potential prejudice generated by the evidence. Where, for example, the real issue contested is whether the act was committed, and the prosecution's claim is that the disputed issue of mens rea requires admission of other acts evidence in the case in chief, the trial court should defer the ruling on admissability where the jury would be likely to determine criminal state of mind from the doing of the act, allowing admission in the case in chief only if the evidence of other acts meets the standards for admission as proof of actus reus. On the other hand, in some cases the cross-examination of witnesses in the case in chief may make it clear that the intent with which the act was committed is likely to be a matter of significant concern to the factfinder. The prosecutor should not be allowed to introduce other acts evidence only because it is technically relevant, nor should the defendant be allowed to interdict proofs that are highly probative of a truly contested issue. By waiting to determine the admissability of other acts evidence relevant to an element only technically at issue, the trial court is able to forestall gamesmanship by the parties and insure the admission of evidence that possesses significant probative value. The ultimate goal is an enlightened basis for the trial court's conclusion of relevance and for the attendant inquiry under MRE 403.

CONCLUSION

We reverse the decision of the Court of Appeals. The testimony of Fred Ward is relevant and admissible in the Todd F case. The testimony of Steven C and John J is relevant in the Todd F case. The testimony of Todd F and John J is relevant in the Steven C case. We remand the case to the trial court for further proceedings consistent with this opinion.

BRICKLEY, RILEY, GRIFFIN, and MALLETT, JJ., concurred with BOYLE, J.

LEVIN, J. (separate opinion).

It is difficult to argue with much of what is said in the majority opinion. I agree, for example, with the "clarified standard articulated today" on p 55.

I also agree that MRE 404(b) is "inclusionary," not "exclusionary."

I further agree that "similarity between charged and uncharged conduct is not required." MRE 404(b) speaks of "other crimes, wrongs, or acts," not "similar" acts.

And I agree, as set forth in Huddleston v United States, 485 U.S. 681; 108 S Ct 1496; 99 L Ed 2d 771 (1988), that a trial court need not itself make a preliminary finding that the people have proved the "other act" by a preponderance of the evidence before it admits other acts in evidence; other acts evidence may be admitted if there is sufficient evidence to support a finding by the jury that the defendant committed the other act.

The opinion directs the bench and bar to "employ the evidentiary safeguards" identified in Huddleston and quotes from pp 691-692 of the opinion. Earlier in the opinion, Chief Justice Rehnquist emphasized that the issue on which the other acts evidence is offered must concern a "material issue," a "disputed issue."

The reliance on Estelle v McGuire, 502 U.S. 62; 112 S Ct 475; 116 L Ed 2d 385 (1991), is, I think, misplaced. The United States Supreme Court did not there hold or say that "a defendant's general denial of the charged act does not prevent a matter from being at issue." The holding reported in that case, as set forth in the syllabus in the United States Supreme Court Reports, Lawyers' Edition, Second Series, report, was:

Introduction of evidence to prove "battered child syndrome" at California murder trial for allegedly killing infant, and jury instruction as to evidence's use, held not to violate due process. [ 116 L Ed 2d 385. Emphasis added.]

Estelle v McGuire is one of many decisions in which the United States Supreme Court has limited the use of federal habeas corpus to review state court decisions on asserted federal constitutional grounds. The United States Supreme Court in Estelle v McGuire held only that the Due Process Clause did not prevent the use made of other acts evidence in that case. The United States Supreme Court did not preclude the adoption, in the federal courts or in other state courts of standards more protective of the accused's right to a fair trial.

I

My concern with the majority opinion is that it does not stress that the other acts evidence must be probative of a disputed material issue.

The issue in the instant case is more like the issue presented in People v Engelman, 434 Mich. 204; 453 N.W.2d 656 (1990), than the issue presented in People v Golochowicz, 413 Mich. 298; 319 N.W.2d 518 (1982).

In Golochowicz, there was no dispute that a crime had been committed. The disputed issue was whether Golochowicz had committed it. Other acts evidence was used to identify him as the perpetrator.

In Engelman, the issue was whether, as here, a crime had been committed. The prosecutor sought to introduce other acts evidence — a photograph of the defendant standing next to a nude young woman — to show that Engelman, who was charged with third-degree criminal sexual conduct, had placed his mouth on the penis of a fifteen-year-old boy. This Court held, in an opinion by Justice BOYLE, signed by Chief Justice RILEY and Justices BRICKLEY and GRIFFIN, and in a concurring opinion which I wrote, signed by Justices CAVANAGH and ARCHER, that the other acts evidence (a photograph) was not admissible.

This case is much like Engelman in the sense that VanderVliet is charged with criminal sexual conduct, and the disputed issue is not identity, as in Golochowicz, but whether he engaged in criminal sexual conduct.

Steven C testified that VanderVliet asked him to take a shower, and that, following the shower, VanderVliet masturbated him and he ejaculated. Todd F testified that VanderVliet touched his testicles on three occasions. John J testified that VanderVliet masturbated him.

There is a suggestion in Todd F that VanderVliet may claim that any genital contact was accidental. If he so asserts at trial, other acts evidence might indeed be admissible to show that the genital contact was not accidental.

It is, however, unlikely that VanderVliet will contend at trial that he accidentally masturbated Steven C or John J, or that, while conceding that he did masturbate them, he did so, e.g., as part of his supervisory responsibility, to determine whether Steven C or John J could achieve an erection or ejaculate, and did not do so "for the purpose of sexual arousal or gratification."

It clearly would be a misuse of other acts evidence to allow such evidence to be used to prove that VanderVliet did indeed touch the testicles and masturbate (the actus reus) one or more of the persons who were under his care and supervision. As stated in a standard treatise on federal practice and procedure:

Where the proof of other acts is offered to show that the person engaged in the disputed conduct, the weak probative value of the evidence of other crimes, wrongs, or acts is swamped by the countervailing considerations of fairness and efficiency. Therefore, the general rule is, as stated in Rule 404(b), that other acts may not be used to prove the conduct of the actor. [22 Wright Graham, Federal Practice Procedure, § 5239, p 438.]

II

The court rule, subparagraph b of MRE 404, quite explicitly, bars the use of other acts evidence to prove that the disputed conduct (actus reus) was, in fact, committed by the defendant. The rule states that other acts evidence is not admissible "to prove the character of a person in order to show that he acted in conformity therewith." (Emphasis added.) It is admissible under the court rule only "for other purposes." (Emphasis added.)

The preceding subparagraph a of MRE 404 states the same policy: "Evidence of a person's character or a trait of his character is not admissible for the purpose of proving that he acted in conformity therewith on a particular occasion" (emphasis added) with exceptions not here pertinent.

The concept that character evidence is not admissible — in the words of the catchline heading to MRE 404, to "prove conduct" — is fundamental.

III

Unless VanderVliet claims at trial that the claimed touchings were accidental or were not for the purpose of sexual arousal or gratification, other acts evidence should not be admitted at his trial for any of the purposes so far identified by the prosecutor.