dissenting.
The issue presented by this case is whether the rule stated by OEC 404(3) — that “[e]vidence of other crimes, *203wrongs or acts is not admissible to prove the character of a person in order to show that the person acted in conformity therewith” — makes the testimony of R and K regarding defendant’s prior uncharged crimes inadmissible. That rule “unquestionably forbids the admission of evidence solely to show propensity or that the defendant is a bad person.” State v. Johns, 301 Or 535, 548-49, 725 P2d 312 (1986). Thus, prior bad act, or character, evidence is admissible only if it is both “relevant and probative of something other than a disposition to do evil.” State v. Pratt, 309 Or 205, 210, 785 P2d 350 (1990). The state, as the party offering the evidence, bears the burden of proof. Id. In order to satisfy that burden, the state must prove that defendant’s uncharged crimes are sufficiently similar to the charged crime as to establish a “chain of logical relevance” that connects the prior act to the charged act in a manner that does not depend on an inference about defendant’s character or propensities. State v. Johnson, 340 Or 319, 338, 131 P3d 173, cert den, 549 US 1079 (2006). Because the state has not satisfied that burden, I respectfully dissent.
The majority finds the testimony of K and R to be logically connected to whether B consented to the sexual contact alleged in this case. But the majority does not describe the charged crime in its opinion. Defendant was charged with committing the following acts: when B gave defendant a hug, defendant held on longer than B expected; defendant then kissed B’s neck, face, and lips and pushed his hand under her bra to touch her breasts; B said “no” and tried to pull away, but defendant unbuttoned and unzipped B’s pants and put his finger in her vagina; defendant pushed B down to her knees causing his penis to come into contact with her breasts, put his penis into her mouth, and forced her to perform oral sex on him.
In contrast, defendant’s prior uncharged contacts involving K were that defendant “put his hand on [her] butt” to push her into his office on one occasion and that he had hugged her “real tight” on approximately four occasions.1 His *204prior uncharged contacts with R were that he twice rubbed her lower back with his hand for a couple of seconds, rubbed her shoulders, and hugged her in a manner that R believed suggested that defendant wanted to pull her into her bedroom.2
The majority relies on the Supreme Court’s opinion in Johnson for the “proposition that other prior bad acts by a defendant can be probative regarding the issue of whether the person consents to sexual contact.” 234 Or App at 200 (emphasis added). But it is a truism that Johnson applies only to the specific facts of that case. Johnson did not state a “bright line” rule, and the line between inadmissible character evidence and admissible evidence is narrow. That distinction depends on the specific facts of each case.3 Thus, the holding in Johnson is limited and must be evaluated within its factual context. For that reason, I recite the facts from Johnson in some detail.
In Johnson, the defendant was charged with murdering, raping, and sexually abusing a teenage girl. 340 Or at 339 n 12. The forensic pathology report indicated that the victim had died from strangulation, had a significant amount of morphine in her system at the time of death, and had had sexual intercourse with the defendant shortly before she died. Id. at 321-22. The state sought to introduce testimony by various young women that the defendant had given them “alcohol, morphine, or other drugs that caused them to black out or become ill” as probative of whether the victim was so incapacitated as to have been incapable of consenting to sexual intercourse. Id. at 337. The testimony included statements that the defendant had administered drugs such as morphine to them, that those drugs caused them to become *205incapacitated, and that defendant sexually abused them while they were so incapacitated. One woman had awakened while the defendant was having intercourse with her. Id. at 341.4
The Supreme Court stated that the similarities between, and the multiplicity of, the defendant’s prior bad acts and the charged crime suggested a pattern and allowed a logical inference that the defendant administered the morphine to cause the victim’s incapacity to consent to intercourse. Id. at 339, 342. The court concluded that, in order to admit the evidence under the facts of that case, it was “essential that the uncharged crimes evidence involve a method of incapacitation (administration of an intoxicating substance) that would support the narrow inference that * * * sexual contact between [the victim] and [the] defendant occurred while [the victim] was incapacitated by morphine that [the] defendant had administered.” Id. at 340. However, the court did not conclude, as the majority asserts, that evidence that a defendant had a method of obtaining sexual access to women without their consent was not only essential, but also sufficient, to satisfy the state’s burden of proof under OEC 404(3) in other circumstances.
The majority acknowledges that “the factual circumstances in Johnson differ significantly from the circumstances in this case.” 234 Or App at 200. In light of those differences and in the absence of any explanation, the majority’s assumption — that defendant had a method of obtaining sexual access to women without their consent — that controls the outcome in this case is both perplexing and wrong.
The analytical framework set forth in Johnson demonstrates that the admissibility of character evidence for the purpose of showing a lack of consent to sexual behavior depends on a comparison of the uncharged prior misconduct to the charged crime. The requisite degree of similarity between the uncharged and charged crimes depends on the purpose for which the evidence is offered. For example, the *206court observed that character or prior misconduct evidence to prove identity based on modus operandi is admissible only if it demonstrates a “methodology that is highly distinctive” and bears a “very high degree of similarity” to the charged crime. Id. at 339 (citing State v. Pinell, 311 Or 98, 109-10, 806 P2d 110 (1991)). In contrast, the court observed that no such “distinctive methodology” must be shown when prior bad act evidence is offered for the purpose of showing a defendant’s intent. Id. at 339-40 (citing Johns, 301 Or at 555-56). Ultimately, the court concluded that the analysis required for the admissibility of the prior bad act evidence offered in Johnson for the purpose of showing a lack of consent to sexual contact “falls somewhere in between Pinell and Johns.” Id. at 340.
Thus, the court in Johnson established that character evidence offered for the purpose of showing a lack of sexual consent cannot be admissible without demonstrating the degree of similarity required under Johns. The Johns analysis depends on evaluating both the quality of the similarities between uncharged and charged acts as well as any differences:
“[Similarities cannot be considered in a vacuum. The circumstances of each crime as a whole must be compared. First, the trial judge must find that there are significant similarities in the physical elements of the two crimes. If that test is met, then the trial judge must consider the differences between the physical elements of the two crimes. The differences may be minimal — for example, the offender may have used different words to indicate his [or her] intent. On the other hand, the differences may be so great that they overwhelm the similarities. The point is: The dissimilarities must be as fully considered as the similarities in answering this question.
“Determining what constitutes a significant similarity is a matter to be decided on a case-by-case basis. Some similarities are so common as to be trivial (for example, the offender spoke English during 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). Most often the significance of the similarities will arise out of their combination.”
Pratt, 309 Or at 214 (interpreting Johns) (emphasis added).
*207In analyzing the significant similarities and dissimilarities of the challenged testimony to the charged acts, Johns provides a set of analytical questions to guide the inquiry. One of those questions is whether “the physical elements of the prior act and the present act [are] similar.” Johns, 301 Or at 556 (emphasis added).5 The stringency of that analytical framework, while more relaxed than the very stringent requirements for modus operandi evidence under Pinell, is nonetheless substantial.
For example, in Pratt, the Supreme Court rejected the state’s argument that evidence of the defendant’s prior rape and kidnapping of his ex-girlfriend was admissible character evidence in his trial on charges of aggravated murder committed in the course of an attempted rape. 309 Or at 214-15. In both the prior crime and the charged crime, the victims were transported from Washington to Oregon, the victims were sexually assaulted, and, during the commission of both crimes, someone was bound and gagged with duct tape and paper towels. Id. at 213. But the prior crime and the charged crime were also different in significant measure: The prior crime involved an abduction, a gun, a rape in a motel during an interruption in the trip, no other serious injuries, and the witnesses to the abduction, not the rape victim, were bound and gagged; the charged crime involved no abduction, no guns, evidence of a rape in a truck or by the side of a road, brutal injuries, and the murder victim was bound and gagged. Id. at 214. The Supreme Court concluded that, in light of those differences, the evidence showed only that the “defendant is the sort of man who commits rape” and was not otherwise probative of his intent to rape as charged. Id. Similarly, in State v. Bunting, 189 Or App 337, 343, 76 P3d 137 (2003), we held that the physical elements of the defendant’s prior misconduct of having intercourse with a 14-year-old girl were not sufficiently similar to the charged act of touching a 14-year-old girl’s clothed breast to be admissible as probative of intent. As another example, in State v. Dibala, 161 Or App 99, 105-06, 984 P2d 302 (1999), rev den, 332 Or 632 (2001), *208we concluded that the defendant’s prior conduct of touching the victim’s clothed genitals with his hands was too dissimilar from the charged conduct involving rubbing the victims’ clothed buttocks with his erect penis to be admissible as intent evidence.
From that body of case law, it is apparent that the degree of factual similarity must be both substantial and outweigh any factual differences. Where both criteria were satisfied in Johnson, the similarities between the uncharged and charged crimes provided the court with the necessary logical connection between the prior crime evidence and the charged crimes to allow the admissibility of the character evidence. 340 Or at 342. It is that same criteria that the state must prove to allow admissibility of the character evidence in this case.
Here, defendant’s prior misconduct toward K and R share the following similarities with his charged crime toward B:
• All three women were tenants of defendant’s and met with him, alone, when they were in need of his assistance in his capacity as landlord.
• All three women were described by the trial court as “younger.”
• Both B and K testified that defendant locked the door to his office prior to their meetings.
• All three women claim that defendant engaged in unwanted physical contact with them without their consent.
However, for the evidence of the prior acts to be admissible, the state has the burden to show that those similarities are significant and outweigh any differences. As an initial matter, the fact that B, K, and R were all women tenants who met with defendant in his capacity as landlord, when they were in need of assistance and alone, is unremarkable. Landlords frequently meet with their tenants alone to discuss their tenants’ individual needs. In addition, the circumstances prompting the meetings are different in each case. B scheduled a meeting with defendant to discuss an eviction notice for her failure to pay rent. K arrived in defendant’s office *209unannounced to talk about her difficulties paying rent, and R arrived unannounced because she was locked out of her apartment. Furthermore, both K and R testified that defendant initially resolved their problems — by negotiating a payment plan with K and by assisting R in opening her locked door — but the state’s theory in the charged crime was that defendant immediately began asking personal questions of B without addressing the purpose of her visit to his office. On that record, the similarities across defendant’s meetings with his three tenants are not “so unusual as to be significant even standing alone” (such as if defendant spoke to only B, K, and R in a foreign language). Pratt, 309 Or at 214. Rather, we must examine the similarities in combination with the other attending circumstances.
The additional fact that all of the women were “younger” is also not helpful to the state. At the time of trial, defendant was 50 years old. B was 38 years old, and the ages of R and K are not established in the record. Within that context, the fact that the three tenants were “younger” is not so unique as to satisfy the state’s burden for admissibility. Further, that defendant locked the door by turning a deadbolt when both B and K met with him in his office may be disturbing, but the record establishes that the door could be opened from inside the office without assistance, and nothing in the record provides any specific explanation for why defendant locked the door in that manner.
I turn then to the physical elements of the prior misconduct and the charged crime. The point of greatest similarity is that defendant hugged all three women. But, defendant was not charged with hugging B. In fact, B testified that she consented to that hug: she walked around his desk to give him the hug. Otherwise, defendant’s physical contact with each of the three women was:
• Defendant “put his hand on [K’s clothed] butt and kind of like went ahead and pushed” her into his office before negotiating with K over past-due rent and before locking the office door.
• Defendant twice rubbed R’s “lower back” for a couple of seconds while walking to her apartment and rubbed her shoulders after they were both inside her apartment.
*210• After hugging B, defendant kissed her neck, face, and lips; he pushed his hand under her bra to touch her breasts; B said “no” and tried to pull away, but defendant unbuttoned and unzipped B’s pants and put his finger in her vagina; defendant pushed B down to her knees causing his penis to come into contact with her breasts, put his penis into her mouth, and forced her to perform oral sex on him .
The majority does not discuss the factual differences in the physical elements between K’s and R’s testimony and defendant’s charged crimes.
We have refused to admit character evidence based on similar differences. For example, in Bunting, we distinguished intercourse from touching of a clothed breast. In Dibala, we distinguished a defendant’s touching of the victim’s clothed genitals from the charged conduct of rubbing the victim’s buttocks with his penis.
Similarly, here, the state has introduced no evidence that defendant’s physical contacts with K and R involved anything more than momentary touchings over clothing. To be sure, unconsented sexual contact of that nature may be criminal. ORS 163.415(l)(a)(A); see also State v. Woodley, 306 Or 458, 463, 760 P2d 884 (1988) (defining sexual contact of “intimate body parts of a person”); State v. Williams, 96 Or App 543, 544, 773 P2d 25, rev den, 308 Or 198 (1989) (touching of buttocks may be sexual contact). However, sexual contact of an intimate body part encompasses a wide range of misconduct — from momentary touching of an intimate body part over clothing to prolonged skin-to-skin genital contact. See State v. Rodriguez/Buck, 347 Or 46, 217 P3d 659 (2009) (discussing ORS 163.427). The analysis of similarity under OEC 404(3) requires a comparison not of the offenses but of the physical elements of the criminal acts. Johns, 301 Of at 556. Where, as in this case, the physical elements of the prior acts involve only momentary touching over clothing and the physical elements of the charged acts involve prolonged genital contact, the state has not satisfied its burden to establish a sufficient similarity to warrant admissibility of the prior misconduct evidence. The majority cites to no cases in which prior misconduct evidence so dissimilar to the charged crimes was deemed admissible character evidence; the majority also *211presents no reason to create a new standard for assessing the admissibility of that character evidence.
In sum, there is no logical chain of relevance that connects the testimony of K and R to the issue whether B consented to the sexual contact alleged in this case. Rather, the prior bad act evidence serves the sole purpose of establishing, as K testified, that defendant had previously engaged in “creepy” behavior. That evidence serves solely to suggest that defendant had the propensity or bad character of someone who would commit different sexual crimes at a later time. Thus, the state has failed to meet its burden of proof in this case, and I conclude that the evidence is inadmissible under OEC 404(3).
I respectfully dissent.
Armstrong and Sercombe, JJ., join in this dissent.The majority quotes K for the proposition that defendant would not allow her to move out without paying back the money that she owed him. 234 Or App at 197. Further explanation is in order. K admitted that she had owed defendant $410. K explained that she had submitted a rental application for another apartment but that the application was denied because she owed defendant money. *204K recalled that defendant would not tell her prospective landlord that she did not owe defendant money until she paid her debts. That was why K borrowed money from her parents to pay defendant. In that context, I do not understand how that portion of K’s testimony is at all relevant to the issue in this case.
The majority describes defendant’s actions with K and R as “initiat[ing] sexual contact.” 234 Or App at 199. ORS 163.305(6) defines sexual contact. The majority’s use of the phrase sexual contact is not consistent with the statutory definition, and it is confusing.
In contrast to Shakespeare who wrote “What’s in a name? That which we call a rose by any other name would smell as sweet,” William Shakespeare, Romeo and Juliet, act 2, sc 2, inadmissible character evidence can become admissible plan evidence. It all depends on the disputed issues in the charged case.
The defendant in Johnson did not separately assign error to the admission of each witness’s prior bad act testimony. Accordingly, the court could not distinguish the admissibility of the testimony of any one of the challenged witnesses. Johnson, 340 Or at 337.
The other questions include whether the present charged act and the prior act both require proof of intent, whether the victim is in the same class as the victims from the prior acts, and whether the type of prior act is the same as or similar to the acts involved in the charged crime. Johns, 301 Or at 555-56.