dissenting.
I agree with Parts I, II, III and IV of the court’s opinion but, because I disagree with Part V, I respectfully dissent.
In the circumstances of this case, I believe the trial court erred in refusing to allow Leone to introduce evidence of other acts of Officer Payne that were highly probative of Officer Payne’s “motive, opportunity, intent, preparation [or] plan” in his pursuit of Leone in the woods on July 23,1988. See M.R.Evid. 404 advisers’ note. *401It is clear from the record that the trial court, as does this court, failed to address the argument of Leone that he did not seek to introduce this evidence to establish Payne’s character in order to show that Payne had acted in conformity therewith.1 The evidence was offered as being highly relevant to the real issues before the jury of whether, as contended by Leone, Payne was the aggressor using unjustified deadly force and whether Leone had acted in self-defense.
It is undisputed that at the time Payne and the other officers pursued Leone into the woods they knew nothing about Leone other than that he was an individual leaving the scene of what could appear to be an automobile accident — conduct that reasonably could have led the officers to believe that such an individual could be a misde-meanant; Leone had no previous knowledge of Payne; the only shots fired were from the guns in the possession of Officer Payne and Leone; each of the guns had cylinders accommodating six bullets; there was one bullet left in Leone’s gun2 and none in Payne’s; the other officers had heard six to ten gunshots; neither Payne nor Leone was visible to anyone else at the time the shots were fired; a bullet fired from Payne’s gun entered Leone’s left buttock and two bullets fired from Leone’s gun had entered Payne’s chest.
The State and Leone each filed a motion in limine seeking the trial court’s approval to admit certain evidence each had discovered after July 23. The State’s motion, inter alia, addressed evidence that on July 13, 1988 Leone had been released on bail for an alleged probation violation and that sometime between July 19 and July 23, 1988 Leone had allegedly stolen a .44 revolver and a motor vehicle. Leone's motion, inter alia, addressed evidence of Payne’s alleged use, prior to July 23, of violence and excessive force against fleeing misdemeanants. At a hearing on the motions, each party urged approval of that party’s motion on the ground that the proposed evidence was not being offered to show the character of the named individual or that he had acted in conformity therewith on the particular occasion in issue, but for the limited purpose of showing that individual’s motive and state of mind on that occasion. The trial court granted the motion of the State. Although Leone did not base his argument on any enumerated rule, the trial court denied Leone’s motion
on the grounds that there is no evidence or there’s been no suggestion made that the defendant was aware of this type of characterization ... of the victim. In other words, the defendant was not aware ... of the specific incidences of aggressiveness and aggressive behavior on the part of the victim, and the law in Maine is quite clear under these circumstances that [the] evidence must be excluded under [M.R.Evid.] 404(a).
The trial court’s ruling would have been proper had Leone’s defense rested on a claim that his after-acquired knowledge of Payne’s reputation for violence was justification in the circumstances of July 23 for Leone to have fired the first shot in self-defense. See M.R.Evid. 404(a) advisers’ note. Such is not the case here. Leone’s claim of self-defense was not that he had fired at Payne because of what Leone, based on Payne’s reputation for violence, thought Payne was going to do in the circumstances, but rather that Leone had only fired his gun after Payne had fired at Leone several times and had wounded Leone in the left buttock. Leone’s claim of self-defense was founded on what he claimed Payne did, not what Leone thought Payne would do. The issue before the fact finder was one of an objective occurrence, not of a subjective belief of Leone. Accordingly, the element that Leone have pri- or knowledge of the violent and overly aggressive acts of Payne in like circumstances was unnecessary. 1A J. Wigmore, Evidence § 63 (P. Tillers rev. ed. 1983); see also McCormick, Handbook of the Law of *402Evidence § 193 (E. Cleary 2d ed. 1984). M.R.Evid. 404(b) provides that “[ejvidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith.” While the rule itself does not speak to such limited admissions, the advisers’ note makes clear that the rule “does not exclude the evidence when offered for another purpose, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.” See, e.g., State v. McLaughlin, 567 A.2d 82, 83 (Me.1989); State v. Brown, 552 A.2d 12, 14 (Me.1988); State v. Whiting, 538 A.2d 300, 301-02 (Me.1988). There is nothing in the rule or in the advisers’ note that limits “other crimes, wrongs, or acts” to those committed by the accused in a criminal case.
The evidence of Payne’s prior acts sought to be introduced by Leone were highly probative of Payne’s intent, motive or plan relative to his pursuit of Leone, which in turn was highly probative of Leone’s claim that he was justified in using deadly force because he reasonably believed such force was necessary to defend himself from the deadly force being used against him.3 See 17-A M.R.S.A. § 107(4)(B)(1) (1983 & Supp.1989) (circumstances where private person justified in using deadly force). See also People v. Lynch, 104 Ill.2d 194, 83 Ill.Dec. 598, 470 N.E.2d 1018 (1984); Byrd v. State, 626 P.2d 1057 (Alaska 1980) (other acts of victim admitted to establish victim was aggressor in homicide case where accused claims self-defense). It was for the jury to determine the credibility of and the weight to be given this evidence in deciding whether Leone was guilty of murder or manslaughter or not guilty because he acted in self-defense. See State v. Anaya, 438 A.2d 892, 894 (Me.1981). As in the case of the evidence proffered by the State and admitted by the trial court, any risk that the jury may have been unduly diverted or confused by such evidence could have been offset by an instruction by the court limiting the jury’s consideration of that evidence. State v. Wyman, 270 A.2d 460, 462 (Me.1970). The trial court abused its discretion when it erroneously excluded the proposed evidence. In my opinion it cannot be said that it is highly probable that this error did not affect the jury’s verdict. State v. True, 438 A.2d 460, 467 (Me.1981). Accordingly, I would vacate the judgment of manslaughter and remand that count of the indictment to the Superior Court for further proceedings.
. See Fed.R.Evid. 404 (accused in homicide case claiming self-defense can offer evidence of character of victim to establish victim was aggressor).
. There was evidence before the jury that prior to the incident at issue Leone had accidentally discharged a bullet from his gun into his leg.
. Unlike the prior acts sought to be introduced in State v. Lagasse, 410 A.2d 537 (Me.1980), the prior acts of Officer Payne have great probative value on the issue of his state of mind at the time he decided to undertake his lone pursuit of Leone. In Lagasse, the victim's prior acts all involved alleged assaults against his ex-wife over a ten-year period and undertaken while the victim was intoxicated. This evidence had slight probative value when offered to show that the victim was the first aggressor during a confrontation with a stranger who was apparently assaulting a woman on a public street. In the present case, the prior acts of Officer Payne would tend to prove his motive, given the fact that his prior acts specifically involve his reaction to fleeing misdemeanants. Although this would require the jury to infer Payne's actions from his motives, such an inference is generally accepted, when offered by the prosecution, as a valid exception to Rule 404. Rather than divert the jury’s attention from "what actually occurred," M.R.Evid. 404 advisers’ note, the conduct of the victim is the focus of any claim of self-defense. The underlying policy of Rule 404 does not apply here because there is no danger of unfair prejudice to the defendant in admission of this evidence. Its probative value substantially outweighs any danger of prejudice.