ANALYSIS The Supreme Court set out some of the governing principles for our analysis in State v. Tena , 362 Or. 514, 518-21, 412 P.3d 175 (2018). In a nutshell, relevant evidence is admissible under OEC 402, "except as otherwise provided elsewhere in the Oregon Evidence Code, the state or federal constitutions, or other applicable laws."

See 299 Or. App. at 51–61, 448 P.3d at 1188–93 (Hadlock, P. J., dissenting). In State v. Tena , 362 Or. 514, 516, 412 P.3d 175 (2018), the Supreme Court recently considered the admissibility of purported motive evidence in a trial involving domestic violence charges. The defendant in Tena had a history of abusing intimate partners.

And it has led to overly broad statements regarding the admissibility of uncharged misconduct evidence, which essentially state that, if a defendant has intentionally committed other acts similar to the charged act, evidence of those other acts can be admitted to prove that the defendant intentionally committed the charged act. See, e.g. , State v. Tena , 362 Or. 514, 524, 412 P.3d 175 (2018) (quoted by the state for the proposition that the simple recurrence of an act " ‘increases the likelihood of a mens rea or mind at fault’ "); Leistiko , 352 Or. at 182, 282 P.3d 857 (describing the doctrine of chances as allowing for the admission of uncharged misconduct evidence on the theory that "the more often [a] defendant performs the actus reus , the smaller is the likelihood that the defendant acted with an innocent state of mind"). Those statements are false, to the extent that they state that uncharged misconduct evidence can be admissible to show that a defendant has a propensity to act in a certain way, and, therefore, it is more likely that the defendant did so when he committed the charged act.

The "basic idea" behind that theory of relevance is "the proposition that multiple instances of similar conduct are unlikely to occur accidentally." State v. Tena , 362 Or. 514, 524, 412 P.3d 175 (2018). Defendant advances two arguments as to why the evidence of past conduct was not sufficiently similar to the charged conduct to be admissible under that theory.

" Baughman II , 361 Or. at 407, 393 P.3d 1132. That is, "[t]he more often a defendant intentionally performs an act, the less likely it is that, when the defendant performs the act again, he or she did so accidentally or innocently." State v. Tena , 362 Or. 514, 524, 412 P.3d 175 (2018). "Lack of mistake" is a shorthand reference to a theory of admissibility based on the doctrine of chances.

Second, the trial court concluded that, even if the state could provide the necessary evidentiary support for the doctrine of chances, the state was misusing the doctrine. The trial court explained that, based on this court's case law, the doctrine of chances may be used only to prove that certain conduct was performed intentionally, rather than inadvertently, citing State v. Tena , 362 Or. 514, 412 P.3d 175 (2018). The trial court held that the state was improperly attempting to use the doctrine to establish defendant's identity as the murderer, rather than to prove that an act was committed intentionally.

Under OEC 404(3), and subject to OEC 403 balancing, evidence of other crimes, wrongs, or acts is admissible in a criminal trial for noncharacter purposes, including to establish defendant’s motive for the charged act. State v. Tena , 362 Or. 514, 520, 412 P.3d 175 (2018). The question before us is whether the evidence from August 6 was properly submitted to the jury as evidence relevant to defendant’s motive on August 5 or whether, as defendant contends, it was nothing but propensity evidence with respect to the alleged assault on August 5.

Id. at 20." Baughman, 361 Or at 404-05 (footnote omitted); see also State v. Sperou, 365 Or. 121, 142, 442 P.3d 581 (2019) (stating that Baughman "clarified the methodology for ruling on 'other acts' evidence with respect to evidence that could be admissible under either OEC 404(3) or (4)"); State v. Term, 362 Or. 514, 520, 412 P.3d 175 (2018) (under Baughman, "the admissibility of evidence of other acts is determined by means of a two-part test").

See State v. Tena, 362 Or. 514, 525-26, 412 P.3d 175 (2018) (After determining that evidence was not admissible under OEC 404(3), the court stated it could not, as a matter of law, determine admissibility under OEC 404(4) for the first time on review.). But because here, the trial court concluded that the evidence required no propensity reasoning, and we agree with that conclusion, we need not remand to the trial court to engage in a separate OEC 404(4) analysis.

The state relies on cases holding that evidence demonstrating a defendant's hostility toward a class of persons to which the victim belongs has "special relevance to the issue of a hostile motive." State v. Moen, 309 Or. 45, 68, 786, P.2d 111 (1990); see also State v. Term, 362 Or. 514, 521-23, 413 P.3d 175 (2018) (holding that the logical relevance of other-acts evidence under a hostile motive theory that does not involve the same victim "requires proof that the motive for committing the other acts was that the other persons were members of the class to which the victim belongs"); State v. Turnidge (S059155), 359 Or. 364, 447-53, 374 P.3d 853 (2016) (holding that evidence of the defendant's expression of anti-establishment and anti-law enforcement views was logically relevant to demonstrate his motive to plant a bomb that would result in killing law enforcement officers).