concurring.
I agree with the majority that two of defendant’s comments to L — “I like the way you smell this time of month” and “I like the way your hips move when you do that” — were *333too dissimilar to the charged incident to be admissible as evidence of defendant’s intent when he engaged in the charged act. No coiinterpart to those overtly inappropriate comments about a student’s body was present in the charged incident. Accordingly, those comments were not admissible. Because the error in admitting those comments was prejudicial, I agree that we must reverse and remand.
I disagree, however, with the majority’s analysis of the evidence concerning defendant’s touching L, H, and M and defendant’s statements that directly related to those incidents. I would hold that that evidence was admissible because a jury could infer from that pattern of similar conduct that defendant engaged in the conduct at issue with the intent to gratify his sexual desires.
The evidence here was offered to show that defendant’s intent in touching the victim was not innocuous, as he asserted. As the Supreme Court has observed, “[i]ntent or state of mind is often the most difficult element of a crime to prove because many crimes are unwitnessed and even if a witness is present, the witness can only surmise the actor’s state of mind.” State v. Johns, 301 Or 535, 551, 725 P2d 312 (1986). The difficulty of proving intent is especially great in a case such as this, where the conduct may have been innocuous or may have been carefully and deliberately calibrated to satisfy defendant’s sexual desires while allowing him to avoid complaints and repercussions.
The evidence at issue was part of a pattern of conduct in which defendant touched female students in a way that pushed the boundaries of acceptable physical contact between a teacher and a student and that made the students uncomfortable. Evidence of a pattern of conduct tends to suggest the intent underlying the conduct. That inference does not arise from an assessment of the defendant’s character. Rather, the relevance of the earlier conduct arises from the doctrine of chances — that is, the improbability that events will be repeated without the involvement of some intentional act. Johns, 301 Or at 552-55; see also State v. Carreiro, 185 Or App 19, 23-24, 57 P3d 910 (2002) (discussing case law concerning the doctrine of chances); State v. Johnstone, 172 Or App 559, 567, 19 P3d 966 (2001) (quoting part of Johns’s *334description of the doctrine of chances and noting that “[t]hus, under Johns, evidence of other bad acts can be used under some circumstances to demonstrate that a defendant acted with the requisite intent on one occasion because he had done so on other occasions”); State v. Wieland, 131 Or App 582, 587, 887 P2d 368 (1994) (“We read Johns as accepting [the doctrine of chances] theory of relevance for the purpose of proving that a defendant’s charged conduct was not accidental, i.e. that the defendant acted with the requisite intent.”).
The doctrine of chances involves an inductive reasoning process based on probability; each time that a possibly accidental event is repeated, it becomes more likely that the defendant acted with intent. Johns, 301 Or at 552-55. Accordingly, the more often the defendant engages in certain behavior, the less likely it is “ ‘that the defendant acted with an innocent state of mind. * * * In isolation, it might be plausible that the defendant acted accidentally or innocently; a single act could easily be explained on that basis. However, in the context of other misdeeds, the defendant’s act takes on an entirely different light.’ ” Id. at 552-53 (quoting Edward Imwinkelried, Uncharged Misconduct Evidence 8, § 5:05 (1984)); see also State v. Allen, 301 Or 569, 577, 725 P2d 331 (1986) (deciding, in a companion case to Johns, that evidence of an earlier arson to which the defendant had confessed was admissible in a trial for a subsequent arson to negate evidence that the fire was an accident).
The Johns court emphasized the particularized nature of the inquiry regarding admissibility:
“These decisions must be made case-by-case * * *. The more prior similar acts, the stronger the probative value; the fewer, the less the probative value. The same is true of the similarity of the prior acts and of the time element. The prior acts need not be identical. The greater the degree of similarity of the prior acts, the greater the relevancy; the less similarity, the less probative value. As to the time element, the closer in time of the prior act to the act charged, the greater the probative value; the more remote, the less probative value. No categorical rule controls inclusion or exclusion.”
301 Or at 555.
*335Following its discussion of the doctrine of chances and the fact-specific nature of the inquiry, the Johns court stated:
“To sum up, in evaluating prior crime evidence on the issue of intent or absence of mistake, the trial judge should make these determinations:
“(1) Does the present charged act require proof of intent?
“(2) Did the prior act require intent?
“(3) Was the victim in the prior act the same victim or in the same class as the victim in the present case?
“(4) Was the type of prior act the same or similar to the acts involved in the charged crime?
“(5) Were the physical elements of the prior act and the present act similar?
“(6) If these criteria are met, is the probative value of the prior act evidence substantially outweighed by the danger of unfair prejudice, confusion of issues or misleading the jury, undue delay or presentation of cumulative evidence?”
Id. at 555-56. In comparing the physical elements of the prior acts and the charged act, both the similarities and the dissimilarities must be fully considered. State v. Pratt, 309 Or 205, 214, 785 P2d 350 (1990) (determining that the dissimilarities between an earlier abduction and rape and the charged acts of rape and murder outweighed the similarities). The significance of the similarities must be decided on a case-by-case basis. “Some similarities are so common as to be trivial (for example, the offender spoke English dining both crimes) while others may be so unusual as to be significant even standing alone (for example, the offender spoke a foreign language when he intended to rape, but spoke English otherwise).” Id. The significance of the similarities generally arises out of their combination. Id.
With those principles in mind, I would conclude that the evidence concerning defendant’s hugging and singing to L, rubbing H’s shoulders and talking with her about that *336incident, and touching M’s lower back are admissible. The evidence satisfies the five pertinent factors in the Johns test.1
First, there is no dispute that the charged act required intent. Second, the prior acts of touching and related comments were intentional, not accidental.2 The trial court, in determining whether the evidence was admissible, could — and apparently did — find that the prior acts were carried out with a sexual intent. That finding is consistent with the Supreme Court’s description of the doctrine of chances, that is, that a repeated act is likely to be an intentional act. Having made that finding, the trial court could properly admit the evidence, and the jury could consider the evidence in deciding whether the charged act was intentional.
Third, the victim in this case, one of defendant’s female students, was in the same “class” (meaning category or type) as the girls whom defendant touched in the prior acts, who also were students in defendant’s classes or on a school team coached by defendant.
Fourth, the types of acts are similar. The physical contacts (hugging L, rubbing H’s shoulders, and touching M’s lower back) are similar to the charged act in which defendant touched the victim’s breasts. Each incident involved a touching, with defendant’s hand or arm, of a student in a way that could be viewed as innocuous but that pushed the boundaries of appropriate touching. During or as a direct consequence of *337most of those acts of touching, defendant made comments to the students that made light of the incidents. As he hugged L, he sang a song to her. After he rubbed H’s shoulders and she complained to a counselor, defendant asked her if she was uncomfortable, stated that he had been trying to cheer her up, and suggested that she “fix” any rumors about him. When he touched the victim, he jokingly said to her, “You better never miss my class again.” In each case, the nature of the comments and the connection to the touching are similar.
Fifth, the physical elements of the prior acts of touching and the present act were similar. Each act occurred at school, during school hours or scheduled school activities. Each involved defendant’s use of his hand or arm to touch a clothed female student on the upper portion of her body.
The evidence thus satisfies the Johns test. Returning to the big picture, then, the key question is this: Does the evidence that defendant touched L, H, and M make it more likely that, when he touched the victim, he did so with sexual intent? Without reference to defendant’s character, the jury could find from the evidence that defendant engaged in a pattern of touching female students in a way that made the students uncomfortable and that defendant, by calibrating the offensiveness of the touching and making minimizing comments, insulated himself from complaints about his conduct. From that, a jury could infer that defendant’s motivation for continuing to engage in such behavior, despite the discomfort that it caused the students, was to gratify his sexual desires. In other words, the repetition of the touching increases the possibility that it was intentional conduct rather than innocuous conduct that was misunderstood.
Of course, a reasonable jury might decline to draw the suggested inference, deciding instead that defendant had no sexual intent in any of the incidents. The fact that the evidence might be interpreted more than one way, however, generally does not preclude its admissibility. See State v. Hampton, 317 Or 251, 255, 855 P2d 621 (1993) (“The possibility that an inconsistent or contradictory inference may reasonably be drawn from the offered item of evidence does not destroy that item’s relevancy so long as the inference desired by the proponent is also a reasonable one.”); see also *338Johns, 301 Or at 559 (concluding that, “although reasonable minds could differ on the admissibility of the evidence concerning the [prior] incident, we cannot say as a matter of law that the evidence was not probative on the issue of intent”). I would allow the state to offer the evidence of defendant’s prior conduct to allow the jury to decide whether to draw an inference about defendant’s intent in the charged incident.
The sixth Johns factor is not pertinent here, because of OEC 404(4), which provides:
“In criminal actions, evidence of other crimes, wrongs or acts by the defendant is admissible if relevant except as otherwise provided by:
“(a) ORS 40.180,40.185,40.190,40.195,40.200,40.205,40.210 and, to the extent required by the United States Constitution or the Oregon Constitution, ORS 40.160;
“(b) The rules of evidence relating to privilege and hearsay;
“(c) The Oregon Constitution; and
“(d) The United States Constitution.”
In Johns, the court was addressing the admissibility of “prior crime evidence”- — -that is, the prior act at issue there was an incident that resulted in the defendant’s conviction of “common assault.” 301 Or at 555, 541. The Johns court thus was not required to consider the second element in a situation in which the prior acts may not have required criminal intent. Here, defendant apparently was never charged with any crime arising from the earlier acts, and we are not called on to decide that the earlier acts were criminal.