dissenting.
In reversing the trial court’s decision excluding the proffered evidence, the majority concludes that the court abused its discretion by unreasonably excluding “highly persuasive” evidence in a situation “virtually devoid of any unfair prejudice to the defendant.” Because I disagree with the majority’s conclusion and would affirm the ruling as reasonable, I dissent. I do agree, however, with the majority that motions in limine requesting pretrial rulings on evidence should be discouraged.
Evidence of acts other than those for which a defendant is on trial may be admissible under OEC 404(3) to prove the motive, intent or plan for the crime charged. This type of evidence presents particular problems of relevance and prejudice, because the trier of fact may improperly infer from such *306evidence that the defendant has a criminal character or may become confused as to the issues in the case. For these reasons, evidence of other acts, although relevant to the crime charged, may be excluded under OEC 403 “if its probative value is substantially outweighed by the danger of unfair prejudice, [or] confusion of the issues.”
The trial court performed this balancing test under OEC 403 in deciding to exclude the evidence in question. In support of its ruling, the court recognized that the state is entitled to introduce evidence of other acts which are relevant to prove motive, plan, design and intent for the crime charged, but held that the probative value of the evidence offered by the state to prove motive to commit arson was substantially outweighed by its prejudicial effect. The court explained:
“* * * [T]he evidence that may tend to show that the Defendant committed the crime of attempted theft although having some probative value of plan, design, motive or intent, in respect to the alleged arson is by no means necessarily probative of that point. * * * [F]or purposes of analysis * * *, [defendant] might have hatched such a scheme after the arson occurred as distinguished from having planned and carried out the arson either from himself or through the agency of another person so that the probative value of the evidence relating to attempted theft is not as great as — as being necessarily indicative that the Defendant planned with one or more persons to carry out and did carry out a preceding arson. What I am saying is I think the probative value is not as great as it could be matched against — that is of course the prejudice to the Defendant not in terms of circumstantial evidence that the Defendant committed arson. What I’m saying is that the attempted theft might be circumstantial evidence of motive, plan, intent to support the arson theory but it is also direct evidence that the Defendant has committed a wrong, a crime, an independent crime which is not an element of the arson albeit following upon and the jury could find — being part of a circumstantial plan or intention to do both crimes. * * *”
In weighing the competing factors, the court ruled that the state is entitled to introduce evidence of the fact and the date that defendant obtained insurance on the premises that burned and that, following the fire, defendant submitted an insurance claim, including the amount of the claim under the policy. The court refused to permit the state to introduce *307evidence challenging the truthfulness and legitimacy of the insurance claim in the arson trial.
The majority acknowledges that the trial court has a range of discretion in deciding on the admissibility of evidence, within which its decision, if reasonable, will not be disturbed on appeal even though this court thinks the decision should have gone the other way. Carter v. Moberly, 263 Or 193, 501 P2d 1276 (1972). I think that the circumstances of this case are such that the trial court could reasonably have decided either to admit or to exclude the suppressed evidence. Any decision within this permissible range of reasonableness cannot be reversed as an abuse of discretion.
I do not agree that the evidence of insurance fraud, which is merely circumstantial evidence of the crime of arson, is so “highly persuasive” of defendant’s guilt of arson as to outweigh its prejudicial effect. State v. Ritchie, 50 Or App 257, 622 P2d 768 (1981). A factor which lowers the probative value and heightens the possibility of unfair prejudice of the evidence of insurance fraud is that this is a crime with which defendant has only been charged, but not convicted. I believe the trial court reasonably concluded that admission of this evidence would present a danger of unfair prejudice to defendant by suggesting an improper basis for the jury’s finding him guilty of arson. The trial court did not abuse its discretion in excluding this evidence. I would affirm the decision.