dissenting.
The first half of the majority’s opinion is beautifully written, for the most part. It is a shame that the opinion is, entirely, wrong.
The majority apparently rejects the state’s argument that the challenged evidence is relevant to prove defendant’s motivation to commit an assault, although it does not expressly say so. Although knowing the “victim” to be a peace officer making an arrest is an element of resisting arrest, ORS 162.315, it is not relevant to a charge for assault. I agree with the majority on that, even though its note 4 tends to obscure what it does mean to say.
The majority’s note 2 properly states the elements of assault in the second degree under ORS 163.175(l)(b). Unfortunately, the majority refuses to acknowledge that evidence that defendant was on parole or probation offers nothing by way of proof of any of those elements.
Evidence that defendant might have known that he was wanted on an arrest warrant requires a slightly more detailed analysis. A jury could make no reasonable inference *97that a wanted person would be more (or less) likely to know that hitting someone with a beer bottle could cause physical injury. It could also make no reasonable inference that defendant’s being wanted has any bearing on whether a beer bottle is a dangerous weapon or whether Reese suffered an injury. The only element to which the evidence could conceivably be relevant is whether defendant actually struck the blow.
The trial court reasoned:
“And that he was avoiding — trying to avoid being taken into custody, at least one could infer that, that that was the reason he left [the parole and probation office]. I suppose one could draw that same inference regarding his conduct toward the officers on this occasion. If the evidence is that he had this information and the officers did not that would explain [his] reluctance to remain and talk to them.”
By its very first witness, the state sought to prove that defendant might have known about the arrest warrant by introducing foundation testimony that also disclosed that he was on parole or probation1 for a previous offense, that he had violated the terms of his parole or probation and that, as his parole officer indicated as a witness, there was probably an outstanding warrant for that violation as well. The state’s need for that evidence must be evaluated in the light of its other evidence from which the jury could infer that defendant might have vigorously fought to try to get away.
The majority’s note 4 recites a number of inferences that the jury might have drawn from the challenged evidence. However, evidence that defendant was on parole or probation, had left the parole and probation office without permission and had violated his parole or probation all invited the jury to conclude that he is a bad person, which is wholly irrelevant to the crime charged. See, e.g., State v. Stone, 104 Or App 534, 802 P2d 668 (1990). The evidence might also have led the jury to believe that it was deciding whether *98defendant had violated his parole.21 would conclude that the prejudicial effect of the evidence, taken as a whole, substantially outweighs its probative value and, therefore, that its admission was outside the trial court’s range of discretion. OEC 402; OEC 403; OEC 404(3).
Of course, I would not reach defendant’s other assignment of error.
The trial judge explained that requiring the witnesses to speak of “parole and probation” rather than only of “parole” would mitigate any tendency the jury might have to infer that defendant’s previous conviction was for a serious crime. I note that the court did not explain why it thought that the jury was that sophisticated in its understanding of the criminal justice system, but it would have made no difference to my view if the witnesses had used only the term “probation.”
I also note that the first 2 witnesses that the jury heard testified only about the parole violation and said nothing at all about the assault.