dissenting.
Because I believe that the trial judge did not abuse his discretion in admitting the “other acts” evidence and that his ruling was well within the reasonable and permissible range, and because I also believe that the admission of such evidence, if error, was harmless and does not require reversal, I would affirm. Accordingly, I must respectfully dissent.
Because a finding that any error was harmless would necessarily resolve this case, I will address that issue first.
Even if the majority is correct that the trial judge committed error when he admitted the “other acts” evidence, we need not — and should not — reverse this conviction. Under Article VII (Amended), section 3, of the Oregon Constitution, and under the case law correctly cited by the majority, an appellate court must affirm despite error if two conditions are satisfied:
(1) There is substantial and convincing evidence of guilt,
and
*462(2) The error was unlikely to have changed the result of the trial.
This is the doctrine of “harmless error.” In the face of the other overwhelming evidence of guilt and the unlikelihood that the exclusion of the “other acts” evidence would have changed the outcome, we should unhesitatingly apply it to this case. If ever there was a clear case for its application, this is it.
The trial resulted in a mountainous record, encompassing the testimony of 60 witnesses, over 190 exhibits, and over 1,700 pages of transcript and involved countless rulings by the trial judge. Perhaps the most salient indication of the eminent thoroughness and fairness of this proceeding is the fact that defendant was able to muster only one complaint about the conduct of the trial — the admission of the “other acts” evidence, which was a relatively small part of the prosecution’s case.
The key element in a murder prosecution is intent. Intent is an operation of the mind. It is the equivalent of purpose. Without a confession or admission by the defendant, the only way to determine what is going on in the inner reaches of his mind is to examine his acts, conduct and other circumstances attending the particular act. From that examination, his mind can be read. The fact that such evidence may be wholly circumstantial — as the majority describes the evidence in this case — in no way reduces its probative value. It is important to be mindful that murder is not staged. Neither is it a spectator event designed to produce a perfect case for the prosecution. The best witness that the state could present in this case is dead.
It is with this backdrop that I will review what I believe to be the substantial and convincing evidence demonstrating defendant’s guilt, keeping in mind that the state’s theory is death by intentional homicide, while defendant’s theory is death by accidental shooting by the victim.
Defendant postulates that the victim fired two shots, the first at him, which lodged in the wall and a second, fatal shot into her own head. Although two bullets were found (one through a closet door and one in the victim’s head) experts were unable to determine which of the shots was fired first. Neither the victim’s nor defendant’s fingerprints were found *463on the gun. The victim’s hands did not have gun powder residue on them. Defendant’s hands did. Two police officers testified that they observed a black powdery substance which they identified as gun powder residue on defendant’s right middle finger, index finger and thumb. One police officer testified that he recognized the gun powder pattern on defendant’s hand as consistent with that on his own hand after he had fired his revolver. The police warned defendant not to wash his hands, but he washed them before tests could confirm the officiers’ observations. The officers handling the gun testified that the gun was very dirty with gun powder residue. A test firing of the gun by the state’s expert left distinctive markings of gun powder residue on the inner surface of the expert’s hand, particularly the index finger.
Defendant’s forensic expert initially testified on direct examination that test firing of the gun, using ammunition from defendant’s house, left only one or two flakes of residue. However, under cross examination, he stated that, in an earlier test using lab ammunition, “some residue” was deposited on the hands but that it was not black. He was then asked to read his report which stated that “some residue was deposited on the hand, however, the hands were not completely blackened by the residue.” In any event, the question is: Why did defendant’s hands get dirty while those of the victim, who supposedly fired both shots, stayed clean?
A pillow found under the victim had distinctive gun powder patterns. Defendant told the police in one version of the shooting that his hand was on the gun when the second, fatal shot was fired. The prosecution’s expert tried to replicate the gun powder pattern by simulating a hand over the barrel of the gun. When he test fired it, a different pattern emerged. Only when the gun was fired uncovered did the gun powder pattern on the test pillow replicate the original.
Those tests also showed that the gun could not have been fired when pressed hard into the pillow, a position of the gun consistent with one of the defense’s theories. Only if the gun was held adjacent to or lightly placed on the pillow did the test shot replicate the actual pattern of gun powder on the victim’s pillow.
Experts testified that the gun was fired with the muzzle from six inches to two and one-half feet from the *464victim’s head. The bullet’s trajectory was almost level or straight, back to front, across the top left side of the brain. Defendant’s theory would require the victim to have the gun in her right hand. It seems highly unlikely that the victim’s hand could have been contorted into such a position as to enable her to shoot herself in the back left side of the head with the muzzle at least six inches away.
There is, of course, the matter of defendant’s gratuitous video “reenactment” of the event according to the way he remembered it. Suffice it to say that, in the light of the contrary physical evidence and simple common sense, defendant’s manipulation of the victim’s arm and hand into a self-inflicting position with a resulting lateral wound is too farfetched for even the most fertile imagination. As the state notes in its brief, defendant’s demonstration of how his wife accidentally killed herself is reminiscent of Rose Mary Woods’ demonstration of how she inadvertently erased 18 minutes of White House tapes and is even less credible.
The state’s theory of an intentional shooting is confirmed by the physical evidence; the defense theory requires that we not only discount the physical evidence but also that we believe that the victim mistook her husband for an intruder and shot at him and missed, at 9 a.m., in good daylight, a few minutes after she had spoken with him and after, as the evidence indicates, he had already been in the bedroom.
Defendant’s multiple accounts of what happened were also inconsistent. In some, he “dove for cover” and “hit the floor”; in others, he tripped and fell forward on the victim.
Not only does the physical evidence strongly support the theory of an intentional shooting, but the record is replete with defendant’s reasons and motives for the killing. Numerous witnesses testified about defendant’s marital problems and emotional state. He attempted to engage in affairs with at least two other women. He told both of them that he married the victim to get a permanent resident visa. He told one of those women that his wife was sleeping in a separate room and the other that his relationship with her was “practically nil.” He also told her, “I’m not getting any help from that old bitch anymore so I’m thinking of moving back to New Zealand.” He asserted that he was positive that she was having an affair and that he would kill her if he found her with another man. He *465told the other woman that he was afraid his wife would get the house (which was hers from a previous marriage) in the divorce and recalled that his ex-wife had been awarded most of the property in his New Zealand divorce.
Defendant told one friend that he wanted to build a specialty motorcycle shop but that he did not have the funds; he then predicted better times to come. He told an investment counselor that he would have between $50,000 and $100,000 to invest after Christmas. His wife had a $20,000 equity in the house and insurance policies of $80,000 and $110,000 for accidental death, with defendant as beneficiary. One of the policies, which insured both spouses, was obtained in June, 1983, five months before the death. Shortly after the death, defendant said that he was going to start a business with the insurance money. Two witnesses, friends of defendant, recalled specific threats of defendant to kill or “get rid of’ his wife. He also told one of these friends that “my wife is a liability not an asset and I got to figure out how to get rid of her.”
Given the actual physical facts of the shooting, the lack of credibility in defendant’s myriad renditions of what happened at the death scene, the outpouring of unequivocal evidence regarding defendant’s reasons and motives for the killing, as well as an abundance of other circumstantial evidence, the conclusion is inescapable that defendant’s guilt has been inexorably established — independently of any “other acts” evidence. It becomes exceedingly clear that any error was harmless. We should affirm this conviction.
This concludes my discussion of the harmless error question. I have proceeded on the assumption — for the sake of argument — that the trial judge did commit error when he admitted the “other acts” evidence. Although my proposed resolution of the harmless error question necessarily decides this appeal, I also believe that we should affirm the trial judge’s evidentiary ruling.
The state contends that defendant intentionally shot and killed his wife; defendant contends that his wife’s death was inadvertent or accidental. These conflicting theories formulate the key issue — defendant’s state of mind at the time of his wife’s demise. It was on this issue that the case was tried *466and eventually submitted to the jury. Defendant was convicted. On appeal, his sole argument is that the trial judge was wrong in allowing the state to introduce evidence of two instances, so-called “other acts,” for the jury’s consideration on the issue of his state of mind. Specifically, the admitted evidence concerned (1) the 1977 assault by defendant against his ex-wife in New Zealand and (2) a 1983 incident involving defendant’s explanation and demonstration of the use of firearms to two women in his wife’s presence. The majority accepts defendant’s argument that this evidence should have been excluded. I would reject it.
The question is one of relevance. Under the code, the test for relevance is whether the evidence being offered has some tendency to make the existence of a fact that is of consequence to the proceeding more or less probable than it would be without the evidence. OEC 401. The test is further refined in OEC 404(3), which specifically permits the admission of evidence of other acts if, inter alia, it shows “intent * * * knowledge, * * * or absence of mistake or accident.” Applying the test here, it is quite apparent that the evidence of the two “other acts” is relevant to the central issue of defendant’s state of mind.
However, just because proffered evidence satisfies the test of relevance does not mean that it is admissible. The code recognizes that, under certain circumstances, even evidence of unquestioned relevance may not be admissible. One of the well-defined reasons for exclusion — and the one on which this defendant relies — is if the probative value of the evidence is “substantially outweighed by the danger of unfair prejudice.” OEC 403. What is the meaning of “prejudice” in this context, and who decides what is and what is not “prejudice”?
It is understandable why defendant contends that the contested evidence was “prejudicial.” To him, the evidence was clearly detrimental; it pointed to his guilt. However, that is not the legal standard for evaluating prejudice. If it were, the more probative the evidence of guilt, the more prejudical it would be, with the illogical result being that the clearest evidence of guilt would be inadmissible in a court of law. The capacity of evidence to prove guilt is not determinative of prejudice. Whether relevant evidence may be inadmissible as prejudicial depends on whether the alleged prejudice is unfair. *467OEC 403 specifies the danger of “unfair prejudice.” Unfairness is the vice. The standard is defined in the legislative commentary:
“ ‘Unfair prejudice,’ in the context of [OEC] 403, means an undue tendency to suggest decisions on an improper basis, commonly although not always an emotional one.* * *”
What is the role or responsibility of the trial judge in determining admissibility, when, on the one hand, the evidence being offered has probative value but, on the other, there are considerations concerning on possible prejudice? The judge becomes a weighmaster. It is his task to conduct a balancing test and to determine whether the value of the evidence outweighs or is outweighed by the contrary considerations. Because this process is an exercise of judgment, it is recognized as being subject to judicial discretion. Accordingly, the issue on an appeal from the trial judge’s ruling is whether he abused his discretion.
In Carter v. Moberly, 263 Or 193, 200-01, 501 P2d 1276 (1972), the Supreme Court indicated the proper guideline for an appellate court in evaluating abuse of discretion:
“* * * We simply determine whether, on the facts of the particular case, the trial court’s ruling was within the reasonable or permissible range. We need not determine whether his ruling was the only one possible. It may be that the record will support either admission or exclusion; if so, the trial court’s ruling will be affirmed, regardless of which solution we would prefer.”
The rule has evolved that, unless the reviewing court can say that “the relevance of such evidence was * * * completely outweighed by prejudice to the defendant,” the trial court did not abuse its discretion in admitting the evidence. State v. Madison, 290 Or 573, 579-80, 624 P2d 599 (1981).
Applying this test here, I am satisfied that the trial judge did not abuse his discretion. His ruling was well within the reasonable and permissible range. In support of this conclusion, I turn now to what I believe to be significant portions of the record.
The record shows that the physical aspects of the New Zealand assault, as well as the circumstances surrounding that incident, present a remarkable and chilling similarity *468to the fatal shooting six years later in Beaverton. Both victims were wives of defendant. Both assaults occurred when defendant unexpectedly entered his wife’s premises early in the morning; one on Christmas Day, the other on the Sunday before Thanksgiving. A gun was used in both cases.1 In the New Zealand incident, defendant pointed a loaded rifle at his wife, Barbara, and cocked the trigger, apparently intending to kill her.2 She pushed the gun away and managed to escape after being beaten on the head. Unlike Barbara, rather than being beaten on the head, the victim here was shot in the head. After both incidents, defendant denied any assaultive behavior. On both occasions, he called the police afterwards and talked about committing suicide.
In addition to these physical and on-the-scene similarities, the circumstances leading up to the assaults are strikingly similar. Defendant’s marriages exhibited parallel problems. According to Barbara, defendant was moody and unpredictable and was also “picking and nagging” at her. He blamed her for everything wrong. He told her that, if they “couldn’t be together in life, he wanted them to be together in death.” He also said that he would see to it that it would be a long time before she ever trusted another man. She stated that he used these threats as emotional blackmail to get her to *469return to him. She found that his threats and criticism caused her to lose self-confidence. She was unable to argue or to fight back.
Letters from the victim to her lover and the testimony of friends show similar marital discord in the Beaverton marriage. The letters described her husband as nagging and abusive. She wrote that he was emotionally unstable and unbalanced and that, for the purpose of hurting her, defendant falsely told her that he had cancer. According to her letters, his threats and abuse left her unable to respond or to fight back. He told her that everything that went wrong was her fault. About nine months before her death, she told a friend that defendant had threatened her with a gun.
In both marriages, defendant was financially dependent on his wife and had difficulty holding a job. On the other hand, the record indicates that both wives were quite successful in their employment and community endeavors. That caused defendant to be depressed and bitter.
Clearly, the physical evidence of the assaults, combined with the disintegration of both marriages, shows parallel circumstances.
It is very difficult for me to understand how the majority is able to conclude that the evidence has absolutely no relevance or probative value whatsoever. Clearly, the circumstances of this case are such that the trial judge could reasonably have decided either to admit or exclude the evidence. He conducted the balancing test in the exact manner that the legislature and the appellate courts have prescribed. Now, we are telling him that there was nothing for him to balance. It seems to me that, in effect, the majority has dismantled the balancing test, leaving the trial judge without any judgmental role in these kinds of cases — except for what I fear may become the mechanical response of routinely excluding evidence where there is any possibility of prejudice. The real vice in the majority’s approach of excluding evidence “as a matter of law” is that we are substituting our judgment for that of the trial judge’s in an area where we do not belong. I would prefer that we honor OEC 403 and the existing case law on this subject and not disturb the ruling of a trial judge when it is within the permissible range of reasonableness, as it was *470here. Under the existing test, there is absolutely no basis for saying that the trial judge abused his discretion in admitting this evidence.3
I also believe that the trial judge did not abuse his discretion in admitting the testimony of the two neighbors.
About seven or nine months before the shooting, defendant invited two women neighbors into his home to see his guns. The victim was present but simply sat in a chair and never spoke. Defendant told the women that, if they were ever to use a gun against someone, to make sure that the person was inside the house and, he added, if they shot, “to make sure to kill, not to maim.” He then showed the women one of his guns, which he unloaded in their presence. Later, when one of the women asked about the need for a safety on a gun, defendant raised the gun to her face, pulled the trigger and said, “That’s why.” The woman was terrified; defendant thought the incident amusing.
Here, too, I would hold that the facts present a situation in which the probative value of the contested evidence outweighs any arguable “unfair prejudice.” How defendant and his wife handled and felt about firearms was clearly probative of their states of mind. This incident was a convincing part of that evidence. The only allegedly improper basis for the jury’s use of the evidence was that defendant was careless and trigger-happy but nonetheless serious about the use of his guns. Under the facts of this case, however, those very inferences were directly probative of defendant’s guilt, particularly in the light of the defense’s corresponding claims about Edna’s attitude toward guns. The circumstances again demonstrate one of those areas of reasonable and permissible discretion, as discussed in State v. Madison, supra. The decision to admit the evidence was a proper “judgment call” by the trial court and should not be disturbed on appeal.
*471I would hold that the trial judge ruled correctly on the “other acts” evidence. We should affirm.
As the majority notes, the 1983 shooting was done with a handgun, and the New Zealand weapon was a rifle. The majority argues that this difference in weaponry is important, because it shows a dissimilarity between the two events. First, I would note, as a matter of law, that exact physical similarity is not required when the prior act is used to show absence of accident and not for identity purposes. Second, I would also note, as a matter of common sense, that guns are guns. Rifles are not unlike pistols. Both fire deadly projectiles when their triggers are squeezed.
The majority rejects the New Zealand evidence as having any probative value, noting that, because it is not clear that defendant possessed the intent to kill in the 1977 incident, the evidence is not strongly probative of his acting with the intent for the crime charged. Barbara testified that she believed that he intended to kill her. Defendant told a New Zealand police officer that, when he pointed the gun at her initially, he wanted to shoot her and himself to end their love. He then commented that, luckily, during the struggle, the safety was on and the gun did not go off. In a letter defendant later wrote to Barbara, which was shown to the jury, he acknowledged his intent to kill her.
“Only I know you and I know what happened on Xmas Day exactly. I could have been charged with attempted murder. * * * When I loaded the gun, you did the right thing to grab it and to scream. At that point I knew I couldn’t do it cold bloodly. * * * as every attempt (to get you back) was being rejected and you made it totally clear you wouldn’t love me again on Xmas morning I woke so lonely for you and your touch and LOVE that if I couldn’t have you in life anymore, we would be together in death.”
Moreover, as a further indication of the fairness exhibited by the trial judge, the following cautionary instruction was given to the jury:
“The State has presented evidence that the defendant was involved in an incident with his former wife in New Zealand. This evidence is only relevant to the issue of absence of mistake or accident in the present case. You may not use this prior event in New Zealand as evidence that Mr. Johns is a bad person or is not a trustworthy person, but simply give it what weight you believe it deserves on the issue of absence of mistake or accident in the present case.”