Dеfendant Norman Joseph Leo was charged with three counts of second-degree criminal sexual conduct (esc 2d), MCL 750.520c(l) (a); MSA 28.788(3)(l)(a). Following a jury trial, defendant was convicted of one count of attempted second-degree criminal sexual conduct, MCL 750.92; MSA 28.287; MCL 750.520c(l)(a); MSA 28.788(3)(l)(a), and was found not guilty оf the additional two counts of esc 2d. Defendant was sentenced to serve sixty days in jail, to eighteen months’ probation, and to perform 270 hours of community service in lieu of an additional four months in jail. Defendant appeals as of right, and we reverse.
Defendant was a fifth-grade teacher at Harrison Park Elementary School in Grand Rapids during the 1988-89 school year and had been teaching at the school for fifteen years. The instant charges arose from the allegations of two fifth-grade students and one fourth-grade student, all of whom were best friends.
Before trial, defendant moved thе court for discovery against the Kent County Prosecutor’s office. *420 The lower court granted defendant’s motion and ordered that the prosecutor’s office advise defense counsel of any evidence of similar acts of wrongdoing and of any "bad act” testimony or witnesses, MRE 404(b).
Beforе trial, defendant moved for dismissal on the ground of prosecutorial misconduct for failure to comply with the discovery order. Defendant also moved for a motion in limine regarding rule 404(b) evidence because there had been no prior notice from the prosecution that it intended to present such evidence, as required by the discovery order. Since the prosecution represented that there would be no rule 404(b) evidence in its case in chief, the trial judge stated that he would not rule on the matter until rebuttal.
Following defendant’s testimony, the prosecution called twо witnesses as rebuttal witnesses under MRE 404(b). Following defendant’s objections that the testimony was improper rebuttal and violated the discovery order, the trial judge allowed the witnesses to testify.
PACTS
The first complainant testified that on January 17, 1989, during class, defendant stood behind her chair, put his hand under her blouse, down her bra strap, and inside her bra "near the beginning of the cup.”
The second complainant testified that, before Christmas break, when she and defendant were alone in the lunch room, defendant touched her between her legs. She also testified that on the day the girls met with the principal regarding the incident she was on the playground when the defendant called to her. She testified that defen *421 dant put his hand under her shirt and touched her breast.
The third complainant testified that on "Tuesday” something unusual happened when she was in defendant’s classroom. Defendant came to her desk and started rubbing her shoulders and then moved his hand down her right sidе, almost to her breast. When she twitched, defendant went over to the first complainant, began rubbing her shoulders, and then snapped her bra strap. The third complainant testified that defendant eventually came back to her, unbuttoned her shirt, and touched her by her breast.
Several other students from defendant’s class testified for the defense. One testified that he understood from conversations with the second and third complainants that the complaints they were going to make were lies. Another testified that the second complainant told her that she never liked defendant and wanted to get him out of school and that she also told her that her statements were untrue.
On direct examination, defendant denied that he ever touched the second complainant on the breast or between the legs. He also denied reaching down the first complainant’s shirt. Defendant testified thаt he thinks he squeezed the first complainant’s shoulder on the outside of her shirt, and also testified that he never unbuttoned the third complainant’s shirt or reached down the front of it.
On rebuttal, another student testified that defendant rubbed her back, bunched up her shirt, touched her skin and unsnapped her bra. Still anothеr testified that she became concerned when defendant began rubbing her neck, shoulders, down her back, and inside her clothing.
Defendant was acquitted of the charges relating to the second and third complainant’s and was *422 convicted of attempted esc 2d involving the first complainant.
i
Dеfendant asserts that the trial court abused its discretion in allowing the introduction of rebuttal testimony where the prosecutor "secured” the testimony during his cross-examination of defendant. We agree.
Rebuttal testimony may be used to contradict, repel, explain, or disprove evidencе presented by the other party in an attempt to weaken and impeach it.
People v
Kelly,
The prosecutor stated before trial that he did not intend to introduce any evidence of similar bad acts in his case in chief. Thus, the question is whether defendant introduced testimony in his case that was the proper subject of rebuttal. We conclude that defendant did not and that the rebuttal testimony was improperly admitted.
On direct examination, defendant denied any improрer touching of the three complainants, but testified that occasionally he would squeeze the shoulders or necks of the complainants and other students when praising them. The prosecutor then *423 elicited a general denial from defendant on cross-examination that he did not know "how bras got undone” in his class.
The prosecutor offered the rebuttal testimony on two grounds: (1) as evidence contrary to defendant’s statements that he knew nothing about bras, had not touched students on the skin, and had not unhooked any bras, and (2) as evidence of lack of mistake or accident рursuant to MRE 404(b).
Our review of the record reveals that the prosecution elicited a denial on cross-examination to enable it to introduce highly prejudicial evidence of similar, but uncharged, wrongful conduct on rebuttal. We are convinced that the prosecution was aware of the alleged violation of the discovery order which could prevent the introduction of the testimony in its case in chief. The defendant’s denial of improprieties was an improper basis for the rebuttal testimony.
People v Hernandez,
Defendant did not raise the issues of lack of mistake or accident, and rebuttal testimony on that ground was improper. Although defendant testified regarding touching students on various innocuous areas, defendant did not testify that improper touching occurred by, for example, а slip of the hand. Rather, defendant denied any sexual
*424
touching. See
People v Major,
The rebuttal testimony was highly prejudicial by its implication that defendant may have acted in conformity with the uncharged crimes. This was a closely contested credibility contest in which the defendant denied any wrongdoing. On the whole record before us, we cannot say that the cross-examination of the defendant and the introduction of rebuttal testimony was harmless beyond a reasonable doubt.
People v Winchell, 171
Mich App 662, 665;
ii
Defendant next asserts that the trial court erred in instructing the jury sua sponte with regard to attempted esc 2D over defendant’s objection. Specifically, defendant argues that the charging document did not provide defendant with "fair notice” to enable him to defend against the attempt charge because attempt is a specific-intent crime. We disagree.
A judge has the discretion, without request, to instruct on attempt.
People v Adams,
We reject defendant’s argument that attempt is
*425
so dissimilar to the charged offense of esc 2d that there was insufficient notice of having to defend against it. Although esc 2d is a general-intеnt crime,
People v Brewer,
Defendant was charged with engaging in sexual contact with a person under thirteen years of age. MCL 750.520c(l)(a); MSA 28.788(3)(l)(a). According to MCL 750.520a(k); MSA 28.788(1)00, "sexual contact” includes
the intentional touching of the victim’s or actor’s intimate parts or the intentional touching of the clothing covering the immediate area of the viсtim’s or actor’s intimate parts, if that intentional touching can reasonably be construed as being for the purpose of sexual arousal or gratification.
To be guilty of attempted esc 2d, the defendant must have intended to commit esc 2d. Therefore, defendant must have intended to touch the victim’s intimate parts or the clothing covering the victim’s intimate parts. CJI2d 9.1 Thus, the proofs required for both esc 2d and attempted esc 2d are substantially the same. The charging document gave defendant fair notice to defend against the crime of attempted esc 2D.
m
Having determined that defendant is entitled to a new trial on the charge of attempted second-degree criminal sexual conduct, we will only briefly address his remaining issue which may be relevant to the proceedings on remand.
Defendant claims that the prosecutor’s violation *426 of a discovery order and failure to provide exculpatory evidence сonstitutes prosecutorial misconduct which requires dismissal of the charges. We agree that the prosecutor’s actions in this case, as a whole, came close to the level of misconduct. However, we do not find that defendant was deprived of a fair trial, because the information was provided to defendant, albeit only three days before trial.
A
Defendant claims that the prosecutor interfered with his attempts to interview certain school officials and the complainants and also failed to make these witnesses available to him. While the record reveals that defendant may have been unsuccessful in contacting school officials because of the policy of the school board, additional evidence reveals that before declining defendant’s request the school officials indicated that they "had to talk to someone first.” While there is no clear indication in the record that the prosecutor directed the complainants not to speak with defendant, they too indicated that they had to "ask someone first.” In light of the fact that none of the witnesses specifically testified that they were instructed by the prosecutor not to talk to defense counsel, we conclude that the trial court did not abuse its discretion in ruling that there was no prosecutorial interference.
B
Defendant also maintains that the failure of the prosecutor to turn over certain drawings made at school by the complainants constituted prosecutorial misconduct. However, the record reveals that
*427
the original prosecutor informed defense counsel that the school board deemed their investigatory material confidential. The prosecutor’s office is not required to undertake discovery on behalf of a defendant.
People v McWhorter,
The case was assigned to a new prosecutor two weeks before trial. A week before trial, the new prosecutor received materials from the school board and produced them for defendant three days latеr. Defendant had several days to review the documents before cross-examining the complainants. We cannot conclude that the prosecutor’s actions amounted to prosecutorial misconduct.
c
Next, defendant objects to the failure of the prosecution and рolice to take notes at meetings with potential witnesses. Defendant also argues that the discarding of notes by a police officer denied him a fair trial. However, we note that the notes were summarized and typed in the form of an investigation report which was provided to defеndant. Additionally, defendant fails to establish that the notes were exculpatory in nature and fails to make a showing of bad faith on the part of the police.
Arizona v Youngblood,
D
Defendant argues that the prosecution withheld exculpatory information regarding statements made by two of the students who testified, in violation of the rule announced in
Brady v Maryland,
E
Lastly, defendant argues that the prosecution violаted the discovery order by failing to disclose MRE 404(b) evidence presented on rebuttal. The discovery order only required the prosecution to inform the defense of any witnesses who would present testimony under MRE 404(b), and the prosecutor stated that he did not intend to present such evidence in his case in chief. However, the prosecution presented rule 404(b) evidence in rebuttal. The result was that the prosecutor was able to introduce evidence in rebuttal which arguably was inadmissible in the case in chief because of the violation of the discovery order. While we will not sрeculate on the prosecutor’s motives in this case, we direct that upon retrial the prosecution is to comply with the discovery order in its entirety.
Brady, supra
at 87;
In re Bay Prosecutor,
IV
Defendant’s conviction is reversed, and the case is remanded for a new trial on the charge of attempted esc 2d only, because the conviction of the lesser included offense implicitly acquitted the defendant of the greater offense.
People v Phil Clark,
*429 Reversed and remanded for further proceedings consistent with this opinion. We do not retain jurisdiction.