dissenting.
I agree that “preponderance of the evidence” is the proper standard for a trial court to apply to preliminary questions of fact in determining the admissibility of evidence. However, the trial court here found that, even if that were the proper standard, the evidence was inadmissible for other reasons. Therefore, deciding that issue should not affect the outcome.
The majority is also concerned about the trial court’s choice to apply that standard to test the similarity between the crime charged and the defendant’s alleged “other bad act” that the state proposes to present as evidence of intent and identity. That concern is misplaced. State v. Johns, 301 Or 535, 725 P2d 312 (1986), expressly requires a 6-step test when evidence of other bad acts is offered to show intent. I concur with the majority’s reasoning that the Supreme Court did not intend that test to be applied whenever any evidence of other bad acts is offered to show intent; it applies only when other similar acts are offered to prove intent as an inference from the similarities. The trial court in this case did not need to consider whether similarities between the crimes outweighed the differences. However, that it did so was harmless.
The majority seems to believe that, because the court examined the similarities, it could not have properly evaluated the probative weight of the evidence or the extent to which the state needed that evidence to prove its case. Therefore, the majority concludes, the trial court could not have properly weighed the probative value of the evidence against its prejudicial effect. The majority is mistaken. The trial judge *9observed that the state did not need the evidence of defendant’s participation in his wife’s death to show that he intended to kill Ha Kil, because “no one can plausibly maintain [that that shooting] was a hunting accident or a mistaken identification of an elk.” The court did not say that the state did not need the evidence to show intent because the acts were too dissimilar for the evidence to have sufficient probative value. Thus, even if the court had applied only the OEC 403 balancing test to determine whether the evidence was admissible to show intent, it still could (and would) have found the evidence inadmissible.
Moreover, the court also tested the evidence independently for admissibility to show defendant’s motive as evidence that he was the killer.1 That requires only the balancing of probative value against prejudicial effect, using the factors recited in State v. Johns, supra, 301 Or at 557-58. The court found that the evidence was not admissible, because the state had other evidence that was sufficient to prove that defendant had a motive to kill Ha Kil as part of a plan and that “the cumulative effect is inflammatory, unduly prejudicial, will certainly blacken defendant’s character, and cause immediate conviction by a jury.” The court demonstrated that, by even the least stringent test for admissibility, the prejudicial effect of the evidence outweighs its probative value.
The majority concludes that the probative value is “high” to show that defendant killed Ha Kil as part of a plan. However, it does not explain how evidence that defendant killed his wife adds anything to the other evidence available to prove the existence of a plan. It then concludes that the prejudicial effect of the evidence is “low.” It seems to reason *10that the greater the probative value of certain evidence, the less prejudicial will be its admission. The Supreme Court has pointed out that “[probative value and prejudice exist independently.” State v. Mayfield, 302 Or 631, 646, 733 P2d 438 (1987). Even if particular evidence conclusively could prove a material fact, it may still be too prejudicial to admit into evidence. The trial court properly recognized and maintained the distinction, but the majority would not.
The majority improperly substitutes its own discretion for that of the trial court. A trial judge errs if he “fails to exercise discretion, refuses to exercise discretion or fails to make a record which reflects an exercise of discretion.” State v. Mayfield, supra, 302 Or at 645. “[T]rial judges are granted broad discretion when findings are made on the record” to explain how they weighed probative value and prejudicial effect. 302 Or at 647. The majority merely concludes that “there is a clear need for the evidence”; it does not explain why it is needed. The trial judge did not think that the need was clear at all. In contrast to the majority, he provided a reasoned explanation for concluding that the state did not need the evidence, and he explained his reasoning and supported his balancing of prejudice against probative value with references to evidence in the record. Therefore, the trial court did not abuse its discretion and should be affirmed.
“In common usage intent and ‘motive’ are not infrequently regarded as one and the same thing. In law there is a distinction between them. ‘Motive’ is the moving power which impels to action for a definite result. Intent is the purpose to use a particular means to effect such result. ‘Motive’ is that which incites or stimulates a person to do an act.” Black’s Law Dictionary 914 (5th ed 1979).
Evidence of motive, when combined with evidence of means and opportunity, is sufficient to prove the identify of the perpetrator of a crime. If identify is established, other acts evidence of motive may support an inference that the defendant committed the criminal act intentionally. See Kirkpatrick, Oregon Evidence 154-55, 158 (2d ed 1989).