with whom RUDMAN, J., joins, dissenting.
[¶21] Because this Court ignores our prior case law on when identity of the defendant is at issue in a criminal trial, and fails to construe 15 M.R.S.A. § 2138(4)(E) (2003) in the context of other provisions of' the same statute, in effect leaving the “identity at issue” language of *777section 2138(4)(E) without significant meaning, I respectfully dissent.
[¶22] The Superior Court determined that Donovan failed to present prima facie proof that identity was at issue during the trial, and concluded that, in order to satisfy section 2138(4)(E), “identity must be an issue that was actually contested, litigated or placed in question at trial.” Although Donovan claims that the DNA test will reveal that he is not the source of the semen detected on the victim, he does not assert that the person whose semen was found on the victim is the perpetrator of the assault. Accordingly, what was at issue at Donovan’s trial, relevant to the DNA, was the source of the semen and Donovan’s claim that the victim had sex with another man after the alleged rape and before the hospital examination. This claim, if bolstered by the DNA results, would impeach the victim’s credibility. The claim does not mean, however, that the identity of the perpetrator was at issue. Donovan asserted there was no perpetrator.
[¶ 23] This Court concludes that identity is always at issue during a trial “‘unless the defendant admits having engaged in the alleged criminal conduct and relies on a defense such as consent or justification,”’ and that the State placed identity at issue when it introduced evidence linking Donovan to the crime. See Anderson, 831 A.2d at 865. In my view, the Court misunderstands the burden that Donovan is required to meet under section 2138(4)(E).
[¶ 24] Although not technically considered an element, see 17-A M.R.S.A. § 32 (1983), it is clear that in order to obtain a conviction, the State must always prove that the accused was the person who committed the crime. Merely because the State offers evidence linking the accused to the crime, however, does not mean that identity was at issue in the defendant’s trial.
[¶ 25] The Court is correct that identity is not at issue in a trial when the defendant admits to doing the act that is allegedly criminal, but relies on a justification such as consent or insanity. See People v. Urioste, 316 Ill.App.3d 307, 249 Ill.Dec. 512, 736 N.E.2d 706, 714 (2000). There are other cases when it is clear that identity is at issue, such as when it is obvious that the crime occurred, but there is a genuine dispute over who committed the crime; these are the “who done it” cases. See, e.g., State v. Brookins, No. 80001074DI, 2002 WL 31477997, at *2, 2002 Del.Super. Lexis 379, at *4 (Del.Super.Ct. Oct. 28, 2002). Here, Donovan was present with the victim when she alleged the criminal act occurred. His defense at his trial was that the crime never occurred.
[¶ 26] We have previously discussed whether identity is at issue during a trial. In the context of exceptions to M.R. Evid. 404(b), we have concluded that identity is not at issue when there is no question about who committed the crime, but only a question of whether the crime occurred. Rule 404(b) of the Maine Rules of Evidence excludes “[e]vidence of other crimes, wrongs, or acts ... to prove the character of a person in order to show that the person acted in conformity therewith.” Such evidence may be admissible, however, to prove intent, identity, motive, opportunity, plan, etc. State v. DeMass, 2000 ME 4, ¶ 12, 743 A.2d 233, 236; State v. Goodrich, 432 A.2d 413, 417 (Me.1981). In Goodñch, we held that a portion of one witness’s testimony as to a prior bad act of the defendant should not have been admitted on the issue of the defendant’s identity because there was no “question as to the identity of the perpetrator of the alleged crime. The defendant contended that the *778alleged rape did not, in fact, occur. Thus, evidence of other crimes would not have been admitted to prove ... identity.” 432 A.2d at 417.
[¶ 27] Moreover, the context of section 2138 does not support the Court’s broad construction of section 2138(4)(E). Section 2138 is a post-conviction statute. See 15 M.R.S.A. § 2137 (2003). Donovan has been convicted and his conviction was affirmed on appeal. State v. Donovan, 1997 ME 181, ¶1, 698 A.2d 1045, 1046. The statute provides that a defendant’s appeal from a court’s decision to deny a motion for DNA analysis or a motion for a new trial is discretionary, and not a matter of right. 15 M.R.S.A. § 2138(6), (11) (2003). The State, however, may appeal, as a matter of right, a court’s decision to grant a new trial. Id. § 2138(11). This statutory scheme demonstrates a rational and long-held reluctance to disturb a final judgment. See State v. Haskell, 515 A.2d 745, 746 (Me.1986).
[¶ 28] More importantly, we must construe a statute in its entirety to give effect to the intent of the Legislature. Fernald v. Me. State Parole Bd., 447 A.2d 1236, 1238 (Me.1982). In this case, should the DNA analysis provide results favorable to the defendant, a hearing would then be held, and the defendant would be required to convince the trial court that, on the basis of the test results, he is entitled to a new trial. Pursuant to 15 M.R.S.A. § 2138(8)(B)(l)-(3) (2003), however, a new trial will be granted to a defendant only if he proves by clear and convincing evidence that:
(1) Only the perpetrator of the crime or crimes for which the person was convicted could be the source of the evidence;
(2) The evidence was collected, handled and preserved by procedures that allow the court to find that the evidence is not contaminated or is not so degraded that
the DNA profile of the analyzed sample of the evidence can not be determined to be identical to the DNA sample initially collected during the investigation; and
(3)The person’s purported exclusion as the source of the evidence, balanced against the other evidence in the case, is sufficient to justify that the court grant a new trial.
(Emphasis added.)
[¶ 29] If Donovan were to succeed in having the evidence tested and the semen taken from the examination of the victim were shown to be from a person other than Donovan, because Donovan does not assert that the source of the semen is the perpetrator of any crime, Donovan could not satisfy section 2138(8)(B)(1), and pursuant to the statutory scheme, he would not be entitled to a new trial. Our interpretation of section 2138(4)(E) should be informed by, and that section must be construed in conjunction with, the language of section 2138(8), especially section 2138(8)(B)(1). The Legislature would not intend that costly DNA analysis should be conducted without a reasonable chance that results favorable to a defendant would lead to a new trial. The statutory scheme is strongly indicative that the Legislature intended that the “identity at issue” language in section 2138(4)(E) be given more significance than the Court gives it.
[¶ 30] The Superior Court properly construed the “identity at issue” language in section 2138(4)(E) as requiring Donovan to show that his “identity [as the perpetrator] was actually contested, litigated or placed in question at trial.” Because the fact of whether the crime occurred, but not the identity of the perpetrator of the crime, was what was at issue, I would affirm the Superior Court.