No. 9	                    March 19, 2015	1

            IN THE SUPREME COURT OF THE
                  STATE OF OREGON

                  STATE OF OREGON,
                   Petitioner on Review,
                             v.
                SHAWN GARY WILLIAMS,
                  Respondent on Review.
          (CC 08CR0707; CA A145644; SC S061769)

   En Banc
   On review from the Court of Appeals.*
   Argued and submitted June 23, 2014.
   David B. Thompson, Assistant Attorney General, Salem,
argued the cause and filed the brief for petitioner on review.
With him on the brief were Ellen F. Rosenblum, Attorney
General, and Anna M. Joyce, Solicitor General.
   Kristin A. Carveth, Deputy Public Defender, Salem,
argued the cause and filed the brief for respondent on review.
With her on the brief was Peter Gartlan, Chief Defender,
Office of Public Defense Services.
   WALTERS, J.
   The decision of the Court of Appeals is reversed, and the
case is remanded to the Court of Appeals for consideration
of defendant’s remaining assignments of error.




________________
	 * Appeal from Josephine County Circuit Court, Pat Wolke, Judge. 258 Or
App 106, 308 P3d 330 (2013).
2	                                                       State v. Williams

    Defendant was charged with two counts of first-degree sexual abuse. At trial,
defendant moved to suppress evidence that he possessed two pairs of children’s
underwear at the time of the crime. The trial court denied defendant’s motion
and admitted the evidence under OEC 404(3), and a jury convicted defendant on
both counts. The Court of Appeals reversed, holding that the underwear evidence
was irrelevant under OEC 401 and therefore inadmissible. Held: (1) In criminal
cases, OEC 404(4) supersedes OEC 404(3) and permits the admission of relevant
evidence of the defendant’s other crimes, wrongs, or acts except to the extent
required by the state or federal constitution or other express statutory excep-
tions; (2) In prosecutions for child sexual abuse, due process requires that the
trial court determine whether the risk of unfair prejudice outweighs the proba-
tive value of the evidence under OEC 403; (3) Here, the underwear evidence was
logically relevant, the trial court properly engaged in balancing under OEC 403,
and defendant does not challenge the trial court’s application of OEC 403. The
trial court therefore did not err in admitting the underwear evidence.
     The decision of the Court of Appeals is reversed, and the case is remanded
to the Court of Appeals for consideration of defendant’s remaining assignments
of error.
Cite as 357 Or 1 (2015)	3

	          WALTERS, J.
	        Defendant was charged with two counts of first-
degree sexual abuse for conduct involving a five-year-old
child. The state offered evidence that defendant possessed
two pairs of children’s underwear at the time that he com-
mitted the charged acts. Defendant opposed the admission
of the evidence as irrelevant under Oregon Evidence Code
(OEC) 4011 and unfairly prejudicial under OEC 403.2 The
trial court admitted the evidence under OEC 404(3) 3 to show
that defendant had touched the victim with a sexual pur-
pose rather than accidentally. A jury convicted defendant
on both counts. The Court of Appeals reversed, holding that
the underwear evidence was not logically relevant to any
disputed issue and thus was inadmissible under OEC 401.
State v. Williams, 258 Or App 106, 308 P3d 330 (2013). The
state petitioned for review, which we allowed to determine
whether the evidence was admissible under OEC 401, OEC
403, or OEC 404. We conclude that the trial court did not err
in admitting the underwear evidence, and we reverse the
decision of the Court of Appeals.
	        The state charged defendant with two acts of sexual
abuse: putting his hand down the underwear of the five-year-
old victim and touching her vaginal area, and causing the
victim to touch defendant’s clothed penis. Defendant denied
committing either act. During a police interview, defendant
admitted that it was possible that he inadvertently could
have touched the victim’s genital area on three occasions:

	1
    OEC 401 provides:
 	 “ ‘Relevant evidence’ means evidence having any tendency to make the
 existence of any fact that is of consequence to the determination of the action
 more probable or less probable than it would be without the evidence.”
	2
    OEC 403 provides:
 	 “Although relevant, evidence may be excluded if its probative value is
 substantially outweighed by the danger of unfair prejudice, confusion of the
 issues, or misleading the jury, or by considerations of undue delay or needless
 presentation of cumulative evidence.”
	3
    OEC 404(3) provides:
 	   “Evidence of other crimes, wrongs or acts is not admissible to prove the
 character of a person in order to show that the person acted in conformity
 therewith. It may, however, be admissible for other purposes, such as proof
 of motive, opportunity, intent, preparation, plan, knowledge, identity, or
 absence of mistake or accident.”
4	                                          State v. Williams

once while he was carrying the victim on his shoulders, once
when he and the victim were wrestling, and once when he
fell asleep while the victim was lying on top of him. At trial,
defendant continued to maintain that he had never put his
hand under the victim’s underwear or placed the victim’s
hand onto his clothed penis.
	        The state sought to introduce two pairs of chil-
dren’s underwear that defendant’s landlord had found in
defendant’s residence after defendant vacated the property.
Defendant’s landlord testified that one pair of underwear
was between the mattress and box spring on defendant’s bed
and another pair was in a duffel bag. Defendant testified
that he did not know where the underwear had come from,
but that a female friend and her two young children had
spent the weekend at his residence and they possibly had
left the underwear behind on that occasion.
	        Defendant objected to the admission of the under-
wear evidence, arguing that the evidence did not estab-
lish that the underwear was in his possession. He further
argued that the underwear was irrelevant to any material
issue and that, even if relevant, the evidence was offered
only to suggest that defendant had “a problem with little
girls”—i.e., that he was a pedophile—and that he acted
in conformity with that character in touching the victim
in this case. Therefore, defendant asserted, the evidence
was unfairly prejudicial and inadmissible under OEC
403.
	       The state responded that the evidence was not
unfairly prejudicial and was admissible under OEC 404(3)
to show that defendant had touched the victim with a
sexual purpose rather than accidentally. The trial court
agreed and admitted the evidence under OEC 404(3). The
jury convicted defendant of two counts of first-degree sex-
ual abuse.
	        Defendant appealed, and the Court of Appeals
reversed, holding that OEC 403 and OEC 404(3) apply to
only evidence that is logically relevant under OEC 401, and
that the underwear evidence was not relevant to a “con-
tested issue in the case.” Williams, 258 Or App at 112-13.
Cite as 357 Or 1 (2015)	5

The court explained that the issue of defendant’s intent was
not truly contested because defendant had not argued that,
if he had touched the victim as alleged, he did so without
criminal intent. Id. at 113-14. The court further reasoned
that, if defendant had performed the charged acts, then
those acts “strongly indicate a sexual purpose.” Id. at 114.
The court reversed and remanded for a new trial. Id. at 117.
This court allowed the state’s petition for review.
	       Before this court, the state contends that we need
not decide whether the underwear evidence was admissi-
ble under OEC 404(3) to demonstrate defendant’s sexual
purpose. The state argues that, in criminal cases, OEC
404(4) supersedes OEC 404(3) and makes relevant “other
acts” evidence admissible for all purposes. OEC 404(4)
provides:
   	 “In criminal actions, evidence of other crimes, wrongs
   or acts by the defendant is admissible if relevant except as
   otherwise provided by:
   	 “(a)  [OEC 406 through 412] and, to the extent
   required by the United States Constitution or the Oregon
   Constitution, [OEC 403];
   	 “(b)  The rules of evidence relating to privilege and
   hearsay;
   	   “(c)  The Oregon Constitution; and
   	   “(d)  The United States Constitution.”
	        The legislature enacted OEC 404(4) in 1997. Or
Laws 1997, ch 313, § 29. Before that date, a court’s analy-
sis of the admissibility of relevant “other acts” evidence in a
criminal case began with OEC 404(3), which provides:
   	 “Evidence of other crimes, wrongs or acts is not admissi-
   ble to prove the character of a person in order to show that
   the person acted in conformity therewith. It may, however,
   be admissible for other purposes, such as proof of motive,
   opportunity, intent, preparation, plan, knowledge, identity,
   or absence of mistake or accident.”
See State v. Johns, 301 Or 535, 549-50, 725 P2d 312 (1986)
(considering OEC 404(3) as first step in analysis). If the
evidence was admissible for a nonpropensity purpose
6	                                                State v. Williams

under OEC 404(3), a court then considered whether the
evidence nevertheless should be excluded under OEC 403.
See State v. Pinnell, 311 Or 98, 112-13, 806 P2d 110 (1991)
(determination that evidence was admissible under OEC
404(3) must be followed by determination that it was not
unduly prejudicial under OEC 403); see also State v. Shaw,
338 Or 586, 614-15, 113 P3d 898 (2005) (discussing fac-
tors in making determination under OEC 403). OEC 403
provides:
     	 “Although relevant, evidence may be excluded if its pro-
     bative value is substantially outweighed by the danger of
     unfair prejudice, confusion of the issues, or misleading the
     jury, or by considerations of undue delay or needless pre-
     sentation of cumulative evidence.”
	         OEC 404(3) represents “a specific application of
OEC 403.” Pinnell, 311 Or at 106. The purpose of both rules
is to exclude evidence that may be unfairly prejudicial to the
accused:
     	 “Bad character evidence (such as other crimes by the
     accused) is excluded under the propensity rule [of OEC
     404(3)], not because it is irrelevant, but because of the risk
     of unfair prejudice to the accused. The propensity rule’s
     general prohibition of bad character evidence, codified in
     OEC 404(2) and OEC 404(3), is a specific application of
     OEC 403. The theory is that the risk that the jury will con-
     vict for crimes other than those charged, or because the
     accused deserves punishment for his past misdeeds, out-
     weighs the probative value of the inference that ‘he’s done
     it before, he’s done or will do it again.’ * * * Another reason
     for the propensity rule in criminal cases is that it is viewed
     as unfair to require an accused to be prepared not only to
     defend against the immediate charge, but also to defend or
     explain away unrelated acts from the past. Additionally,
     courts are concerned with confusion of issues and undue
     consumption of time through what may be, in effect, a trial
     within a trial to ascertain the relationship between the
     purported other crime and the defendant.”
Id. at 105-07 (internal citations and footnotes omitted).
	       In this case, however, the state argues for a differ-
ent analytical paradigm. The state contends that, in crim-
inal cases, OEC 404(4) now supersedes OEC 404(3), and
Cite as 357 Or 1 (2015)	7

that relevant “other acts” evidence is now admissible for all
purposes unless, after conducting “due process balancing”
under OEC 403, the court determines that the federal Due
Process Clause requires the exclusion of that evidence. In
the state’s view, the Due Process Clause of the Fourteenth
Amendment to the United States Constitution requires
exclusion of “other acts” evidence only when the admission
of the evidence would render the trial fundamentally unfair.
The state cites Leavitt v. Arave, 383 F3d 809, 829 (9th Cir
2004), cert den, 545 US 1105 (2005), for the proposition that
the admission of “other acts” evidence renders the trial fun-
damentally unfair when that evidence “goes only to char-
acter and there are no permissible inferences the jury may
draw from it.” (Internal quotation marks omitted; emphasis
in original). The state argues that, because that circum-
stance is not present here, and because the underwear evi-
dence is logically relevant under OEC 401, it is admissible
under OEC 404(4).
	        Defendant responds that the state is arguing that, in
criminal cases, OEC 404(4) permits the admission of “other
acts” evidence for all purposes, including for the sole pur-
pose of establishing a defendant’s character and propensity
to act accordingly. He contends that, under the state’s con-
struction, OEC 404(4) would abrogate both OEC 404(3) and
“traditional” balancing under OEC 403. Defendant argues
that the legislature did not intend that result and that the
federal constitution precludes it. In defendant’s view, the
underwear evidence proffered by the state is relevant only to
establish his character as a pedophile, and it therefore must
be excluded under OEC 401, OEC 404(3), OEC 403, and the
principles of due process.
	       We begin our analysis of the parties’ arguments
with a discussion of the common-law origins of the eviden-
tiary rules precluding or limiting the admission of “other
acts” evidence to establish propensity and the extent to
which those rules are required by due process. See Stevens v.
Czerniak, 336 Or 392, 401, 84 P3d 140 (2004) (for purposes
of statutory interpretation, context includes preexisting
law). We then return to the text of OEC 404(4) to consider
whether it supersedes OEC 404(3) or abrogates or modifies
the balancing required by OEC 403.
8	                                                 State v. Williams

	        Courts have excluded “other acts” evidence when
offered to show propensity since the late seventeenth century.
David P. Leonard, The New Wigmore, A Treatise on Evidence:
Evidence of Other Misconduct and Similar Events § 1.2, 2
(2009) (“One of the oldest principles of Anglo-American law
is that a person ‘should not be judged strenuously by refer-
ence to the awesome spectre of his past life.’ ”) (quoting M.C.
Slough & J. William Knightly, Other Vices, Other Crimes, 41
Iowa L Rev 325, 325 (1956)); see also 1 John H. Wigmore,
Evidence in Trials at Common Law § 57, 127 (1st ed 1904)
(“Our rule, then, firmly and universally established in pol-
icy and tradition, is that the prosecution may not initially
attack the defendant’s character.”). Historians of evidence
law frequently cite two seventeenth-century English cases
for the origins of that rule: Hampden’s Trial, 9 How St Tr
1053 (KB 1684), and Harrison’s Trial, 12 How St Tr 833 (Old
Bailey 1692). See 1 Wigmore, Evidence § 216 at 265 (discuss-
ing cases); Leonard, New Wigmore § 1.2 at 8 (same). Samuel
March Phillipps, the author of one of the earliest English
treatises on evidence and one of the first works on the law of
evidence published in the United States, also cited an 1810
case, Rex v. Cole, for the proposition that
     “[i]t would not be allowable to shew, on the trial of an indict-
     ment, that the prisoner has a general disposition to com-
     mit the same kind of offence as that charged against him.
     Thus, in a prosecution for an infamous crime, an admission
     by the prisoner that he had committed such an offence at
     another time and with another person, and that he had a
     tendency to such practice, ought not to be admitted.”
Samuel March Phillipps, A Treatise on the Law of Evidence
(1814) (cited in Leonard, New Wigmore § 2.2 at 21).
	        In 1892, the United States Supreme Court relied on
the common law to decide that evidence of the defendants’
prior robberies was inadmissible in a trial for murder com-
mitted during a robbery, stating:
     	 “Proof of [the robberies] only tended to prejudice the
     defendants with the jurors, to draw their minds away from
     the real issue, and to produce the impression that they
     were wretches whose lives were of no value to the com-
     munity, and who were not entitled to the full benefit of
     the rules prescribed by law for the trial of human beings
Cite as 357 Or 1 (2015)	9

   charged with crime involving the punishment of death. * * *
   However depraved in character, and however full of crime
   their past lives may have been, the defendants were enti-
   tled to be tried upon competent evidence, and only for the
   offence charged.”
Boyd v. United States, 142 US 450, 458, 12 S Ct 292, 35 L Ed
1077 (1892). One year later, the Oregon Supreme Court also
condemned the admission of evidence of a defendant’s prior
crimes to prove that the defendant had acted accordingly in
the charged circumstances. State v. Baker, 23 Or 441, 442-
43, 32 P 161 (1893). In Baker, the court explained that “no
enlightened system of justice” would permit the admission
of such evidence:
   	 “The general rule is unquestioned that evidence of a dis-
   tinct crime unconnected with that laid in the indictment
   cannot be given in evidence against the prisoner. Such evi-
   dence tends to mislead the jury, creates a prejudice against
   the prisoner, and requires him to answer a charge for the
   defense of which he is not supposed to have made prepara-
   tion. And while, as Lord Campbell says, ‘it would be evi-
   dence to prove that the prisoner is a very bad man, and
   likely to commit such an offense’ (Reg. v. Oddy, 5 Cox C. C.
   210), under no enlightened system of jurisp[r]udence can a
   person be convicted of one crime on proof that he has com-
   mitted another.”
Id.; accord State v. Saunders, 14 Or 300, 309, 12 P 441
(1886); State v. Martin, 47 Or 282, 285, 83 P 849 (1906). By
1948, that view was widespread. Michelson v. United States,
335 US 469, 475-76, 69 S Ct 213, 93 L Ed 168 (1948). As
the United States Supreme Court explained, “[c]ourts that
follow the common-law tradition almost unanimously have
come to disallow resort by the prosecution to any kind of
evidence of a defendant’s evil character to establish a proba-
bility of guilt.” Id. at 475.
	        When state and federal jurisdictions adopted rules
of evidence, those rules often reflected that common-law tra-
dition and precluded the admission of “other acts” to prove
propensity. In Oregon, OEC 404(3) and its predecessor stat-
utes have long provided that “other acts” evidence “is not
admissible to prove the character of a person in order to
show that the person acted in conformity therewith,” but is
10	                                                       State v. Williams

admissible for other purposes.4 Similarly, the Federal Rules
of Evidence (FRE) provide that:
      	 “(1)  * * * Evidence of a crime, wrong, or other act is not
      admissible to prove a person’s character in order to show
      that on a particular occasion the person acted in accor-
      dance with the character.
      	 “(2)  * * * This evidence may be admissible for another
      purpose, such as proving motive, opportunity, intent,
      preparation, plan, knowledge, identity, absence of mistake,
      or lack of accident.”
FRE 404(b).5
	        After the adoption of the Federal Rules of Evidence,
federal courts generally looked to the text of those rules
rather than to the common law or to the federal constitu-
tion to determine the admissibility of “other acts” evidence.6
That changed, however, as to cases in which a defendant
is charged with sexual assault or child molestation, when
Congress adopted FRE 413 and 414 in 1994. Pub L No 103-
322, § 320935, 108 Stat 2135 (1994).7 Because those rules
permit the admission of relevant “other acts” evidence in
such cases, federal courts were asked to interpret those
rules and determine whether they supersede FRE 404(b),

	4
        OEC 404(3) was enacted as part of the OEC in 1981. Or Laws 1981, ch 892,
§ 24. Prior to the enactment of the Oregon Evidence Code, evidence in Oregon
was governed by Field’s Model Code of Evidence, which dated to 1862. Laird C.
Kirkpatrick, Reforming Evidence Law in Oregon, 59 Or L Rev 43, 43 (1980).
	5
       Congress enacted the Federal Rules of Evidence in 1975. See Pub L No
93-595, 88 Stat 1929 (1975).
	6
        In 1991, the United States Supreme Court expressly reserved the question
whether an evidentiary rule would violate the Due Process Clause if it permitted
the use of prior crimes evidence to show a defendant’s propensity to commit a
charged crime. Estelle v. McGuire, 502 US 62, 75 n 5, 112 S Ct 475, 116 L Ed 2d
385 (1991).
	7
        FRE 413 provides, in part:
    	     “In a criminal case in which a defendant is accused of a sexual assault,
    the court may admit evidence that the defendant committed any other sex-
    ual assault. The evidence may be considered on any matter to which it is
    relevant.”
FRE 414 provides, in part:
    	     “In a criminal case in which a defendant is accused of child molestation,
    the court may admit evidence that the defendant committed any other child
    molestation. The evidence may be considered on any matter to which it is
    relevant.”
Cite as 357 Or 1 (2015)	11

whether they are subject to FRE 403,8 and whether they
comport with due process.
	        Federal circuit courts that have considered the mat-
ter have held that Congress intended that FRE 413 and 414
supersede FRE 404(b).9 2 J.B. Weinstein & M.A. Berger,
Weinstein’s Federal Evidence § 413.04, at 413-10 to -11 (J.M.
McLaughlin ed., 2d ed 2010). In addition, federal circuit
courts that have considered the matter have decided that
evidence admitted under FRE 413 and 414 remains subject
to balancing under FRE 403 and that those rules do not
violate the Due Process Clause.10 Christopher B. Mueller
	80
        That rule, the text of which is nearly identical to that of OEC 403, provides:
    	 “The court may exclude relevant evidence if its probative value is sub-
    stantially outweighed by a danger of one or more of the following: unfair
    prejudice, confusing the issues, misleading the jury, undue delay, wasting
    time, or needlessly presenting cumulative evidence.”
	90
        See United States v. Jones, 748 F3d 64, 70-71 (1st Cir 2014) (“Rule 414
removes Rule 404(b)’s blanket ban on propensity inferences in child-molestation
cases.”); United States v. Larson, 112 F3d 600, 604 (2d Cir 1997) (FRE 414 per-
mits the admission of evidence that would have been excluded under FRE 404(b));
United States v. Guidry, 456 F3d 493, 501 (5th Cir 2006) (“Rule 413 relaxes the
longstanding bar to propensity evidence restricted by Rule 404(b) and allows
the admission of such evidence in trials that involve charges of sexual miscon-
duct.”); United States v. Seymour, 468 F3d 378, 385 (6th Cir 2006) (FRE 413 and
414 “create an exception to the general ban on propensity evidence contained in
Rule 404(b)”); United States v. Julian, 427 F3d 471, 486 (7th Cir 2005) (“Rule
413 * * * alters the legal landscape with respect to a defendant’s prior crimes in
cases like this one.”); United States v. Crawford, 413 F3d 873, 875 (8th Cir 2005)
(“Assuming the prior offenses are relevant, Rule 413 supersedes Rule 404’s pro-
hibition against character evidence.”); United States v. Sioux, 362 F3d 1241, 1244
(9th Cir 2004) (FRE 413 through 415 supersede Rule 404(b)’s restriction on the
admission of propensity evidence); United States v. McHorse, 179 F3d 889, 896
(10th Cir 1999) (intent of Congress in enacting new rules was to supersede FRE
404(b)).
	10
        See Johnson v. Elk Lake Sch. Dist., 283 F3d 138, 155 (3d Cir 2002) (find-
ing that Congress intended FRE 403 balancing be applied and noting that other
courts have held that, in absence of FRE 403 balancing, FRE 413 and 414 might
violate due process); United States v. Stamper, 106 Fed Appx 833, 835 (4th Cir
2004) (FRE 403 must be applied to “other acts” evidence; FRE 413 and 414 are
not unconstitutional); Guidry, 456 F3d at 503 (affirming application of FRE
403 to “other acts” evidence admissible under FRE 413); Seymour, 468 F3d at
385 (agreeing with other federal courts that FRE 403 applies); United States
v. Rogers, 587 F3d 816, 822-23 (7th Cir 2009) (FRE 403 applies to “other acts”
evidence under FRE 413 and 414, but analysis may be conducted differently);
United States v. Mound, 149 F3d 799, 800-01 (8th Cir 1998) (“Rule 413, subject
to the constraints of Rule 403, is constitutional.”); United States v. LeMay, 260
F3d 1018, 1026 (9th Cir 2001) (subject to Rule 403 balancing, FRE 414 does not
violate due process); United States v. Enjady, 134 F3d 1427, 1433 (10th Cir 1998)
(applying FRE 403 balancing before admitting evidence proffered under FRE 413
or 414 makes admission of such evidence constitutional).
12	                                                       State v. Williams

& Laird C. Kirkpatrick, 2 Federal Evidence § 4:84 (4th ed
2013) (stating that “several courts have commented that
being subject to Rule 403 is crucial to the constitutionality
of Rule 413”). The court’s reasoning is concisely stated in
one of those cases, United States v. LeMay, 260 F3d 1018,
1026 (9th Cir 2001): “As long as the protections of Rule 403
remain in place to ensure that potentially devastating evi-
dence of little probative value will not reach the jury, the
right to a fair trial remains adequately safeguarded.”
	       The United States Supreme Court used similar rea-
soning in a 1990 case. In Dowling v. United States, 493 US
342, 352-53, 110 S Ct 668, 107 L Ed 2d 708 (1990), the defen-
dant argued that the admission of “other acts” evidence to
prove identity under FRE 404(b) violated his right to due
process because it created a constitutionally unacceptable
risk that the jury would convict him on an improper basis.
The Court disagreed, concluding that “the trial court’s
authority to exclude potentially prejudicial evidence ade-
quately addresses this possibility.” Id. at 353.
	       That historical background is helpful, but it does
not resolve the question before us: Whether OEC 404(4) is
subject to OEC 404(3) or OEC 403. For that question, we
return to the text of OEC 404(4), and the state’s first argu-
ment, which is that that rule supersedes OEC 404(3). Again,
OEC 404(4) provides:
    	 “In criminal actions, evidence of other crimes, wrongs
    or acts by the defendant is admissible if relevant except as
    otherwise provided by:
    	 “(a)  [OEC 406 through 41211] and, to the extent
    required by the United States Constitution or the Oregon
    Constitution, [OEC 403];
    	 “(b)  The rules of evidence relating to privilege and
    hearsay;
    	   “(c)  The Oregon Constitution; and
    	   “(d)  The United States Constitution.”

	11
        OEC 406 through 412 set out rules for the admissibility of evidence regard-
ing habit, subsequent remedial measures, settlement offers, offers to pay medical
expenses, withdrawn statements or pleas, and, in cases involving sex crimes, the
prior sexual history of the victim.
Cite as 357 Or 1 (2015)	13

(Emphasis added.) Thus, by its terms, OEC 404(4)(a) makes
relevant evidence of a defendant’s other acts admissible in
criminal cases, except as otherwise provided by specified
rules of evidence. By contrast, OEC 404(3) provides that
“other acts” evidence “is not admissible to prove the char-
acter of a person in order to show that the person acted in
conformity therewith.” (Emphasis added.)
	        The state contends that OEC 404(3) is not an
exception to the admissibility of evidence under OEC
404(4) and, in addition, because the two rules conflict,
OEC 404(3) must give way. See Carlson v. Myers, 327 Or
213, 235, 959 P2d 31 (1998) (“Ordinarily, if the legisla-
ture enacts a statutory requirement that conflicts with
another earlier-enacted statutory requirement, and the
conflict is irreconcilable, the earlier statute must yield to
the later statute.”); see also ORS 174.020(2) (“When a gen-
eral and particular provision are inconsistent * * * a par-
ticular intent controls a general intent that is inconsistent
with the particular intent.”); Smith v. Multnomah County
Board of Commissioners, 318 Or 302, 309, 865 P2d 356
(1994) (discussing that statute).
	       Defendant responds that OEC 404(4) and OEC
404(3) can be read together and do not conflict. Defendant
contends “other acts” evidence is not relevant under
OEC 404(4) unless it is relevant for a permissible pur-
pose and that OEC 404(3) sets out those permissible
purposes.
	        Considering the text and context of those two
rules, the state has the better argument. First, the legis-
lature explicitly made OEC 404(4) subject to certain spec-
ified rules of evidence; by contrast, the legislature did not
explicitly make OEC 404(4) subject to OEC 404(3). Second,
contrary to defendant’s argument, OEC 404(4) and 404(3)
are in conflict. OEC 404(3) does not provide that “other
acts” evidence is irrelevant; instead, it provides that “other
acts” evidence is inadmissible to prove propensity. Those
concepts are distinct. OEC 401 defines “relevant” evidence
as “evidence having any tendency to make the existence
of any fact that is of consequence to the determination of
the action more probable or less probable than it would be
14	                                                      State v. Williams

without the evidence.” Evidence that meets that standard
of relevance nevertheless may be inadmissible for any num-
ber of reasons under other provisions of the evidence code.
Under OEC 404(3), “other acts” evidence that is offered for
the purpose of proving a defendant’s character is inadmissi-
ble because it is unfairly prejudicial, not because it is irrel-
evant. Pinnell, 311 Or at 105-06. We think it doubtful that
the legislature used the word “relevant” in OEC 404(4) to
make “other acts” evidence inadmissible to prove propen-
sity. Instead, it is more likely that the legislature used the
word “relevant” to incorporate the requirements of logical
relevance found in OEC 401.

	        The legislative history of the enactment of OEC
404(4) supports that understanding. The legislature enacted
OEC 404(4) in 1997 in response to this court’s anticipated
invalidation of Ballot Measure 40 (1996), which, among
other provisions, provided crime victims with “the right
to have all relevant evidence admitted against criminal
defendants.” See Armatta v. Kitzhaber, 327 Or 250, 254, 959
P2d 49 (1998) (citing Measure 40, § 1(f)).12 The legislature
introduced Senate Bill (SB) 936 as a “legislative paraphrase
of selected provisions” of Measure 40 that did not require
amendment of the Oregon Constitution. State v. Fugate,
332 Or 195, 199, 26 P3d 802 (2001). Two sections of SB 936
related to the concern addressed in section 1(f) of Measure
40, which would have permitted “all relevant evidence [to be]
admitted against criminal defendants.” Section 1 of SB 936
prohibited trial courts from suppressing evidence obtained
through statutory (rather than constitutional) violations,13

	12
       In Armatta, this court held that Measure 40 violated the requirement of
Article XVII, section 1, of the Oregon Constitution that each amendment shall be
voted on separately, and that Measure 40 was therefore invalid. Id. at 252.
	13
        Section 1 of SB 936 provided:
    	    “A court may not exclude relevant and otherwise admissible evidence in a
    criminal action on the grounds that it was obtained in violation of any statu-
    tory provision unless exclusion of the evidence is required by:
    	    (1)  The United States Constitution or the Oregon Constitution;
    	 (2)  The rules of evidence governing privileges and the admission of
    hearsay; or
    	    (3)  The rights of the press.”
SB 936 (1997). That provision is now codified as ORS 136.432.
Cite as 357 Or 1 (2015)	15

and section 29 of SB 936 amended OEC 404 to add subsec-
tion (4). Opponents of SB 936 understood the bill to have
the effect of eliminating the restrictions imposed by OEC
404(3) in criminal cases, and expressed concerns that that
result could be unconstitutional. See Tape Recording, Senate
Committee on Crime and Corrections, SB 936, March 21,
1997, Tape 43, Side A (statement of Jim Arnesen, OCDLA)
(SB 936 would “allow the introduction of evidence against
the defendant that is not currently allowed * * *[, and] the
only limitation on keeping that evidence out when the state
wants to offer it will be the Federal Constitution and Rule
403 with respect to prejudice.”). From the text, context, and
legislative history of OEC 404(4), we conclude that the leg-
islature intended OEC 404(4) to supersede OEC 404(3) in
criminal cases, except, of course, as otherwise provided by
the state or federal constitutions.14
	        We reach a different conclusion with respect to the
relationship between OEC 404(4) and OEC 403, however. As
noted, the Oregon Legislative Assembly adopted OEC 404(4)
in 1997, just three years after Congress had adopted FRE
413 and 414. At that time, questions about whether evidence
proffered under FRE 413 and 414 was subject to balancing
under FRE 403 and whether those rules violated the Due
Process Clause were pending in the lower federal courts.
The Oregon Legislative Assembly recognized the unsettled
state of the law by expressly making OEC 404(4) subject
to OEC 403 “to the extent required by the United States

	14
        In reaching that conclusion, we reject defendant’s argument that this court
previously has decided that OEC 404(4) does not supersede OEC 404(3). In State
v. Lotches, 331 Or 455, 494 n 20, 17 P3d 1045 (2000), cert den, 534 US 833 (2001),
the court stated in a footnote that “OEC 404(4) expands the admissibility of cer-
tain other-crimes evidence in criminal cases” but that, under the circumstances
of the case, the court “need not address the potential applicability of OEC 404(4).”
In Shaw, 338 Or at 613-14, the court declined to apply OEC 404(4) because the
defendant in that case had committed the alleged crimes prior to the enactment
of OEC 404(4). In State v. Moore/Coen, 349 Or 371, 389, 245 P3d 101 (2010),
the court upheld OEC 404(4) against a defendant’s constitutional challenge. The
court held that “under OEC 404(4), traditional standards of relevancy are pre-
served, and in all events, no evidence may be admitted that would violate state
and federal constitutional standards.” Id. The court in that case did not address
the continued applicability of OEC 404(3). In State v. Leistiko, 352 Or 172, 180
n 6, 282 P3d 857 (2012), the court noted that the state had “not argue[d] that pro-
pensity evidence is relevant and thus admissible under OEC 404(4),” and there-
fore expressed no opinion as to that rule’s application.
16	                                                        State v. Williams

Constitution.”15 In so providing, the legislature deferred to
the courts to determine whether the federal constitution
requires the application of OEC 403. Because the United
States Supreme Court is the final arbiter of federal consti-
tutional requirements, we must endeavor to determine how
that Court would decide the question that the parties pres-
ent: Whether the Due Process Clause requires the applica-
tion of OEC 403.
	       To date, the United States Supreme Court has not
addressed that issue. The Court has explicitly reserved the
question whether an evidentiary rule would violate due
	15
         OEC 404(4) also makes the admission of “other acts” evidence subject to
the Oregon Constitution. In this case, defendant does not argue that the Oregon
Constitution precludes the admission of the underwear evidence. However, we
note that two state supreme courts have held that the admission of propensity
evidence would violate their states’ constitutions. In State v. Cox, 781 NW2d 757
(Iowa 2010), the Iowa Supreme Court held that Article I, section 9, of the Iowa
Constitution, which provides that “no person shall be deprived of life, liberty, or
property without due process of law,” requires that “other acts” evidence offered
for propensity purposes be excluded:
     	    “Based on Iowa’s history and the legal reasoning for prohibiting admis-
     sion of propensity evidence out of fundamental conceptions of fairness, * * *
     the Iowa Constitution prohibits admission of prior bad acts evidence based
     solely on general propensity. Such evidence may, however, be admitted as
     proof for any legitimate issues for which prior bad acts are relevant and
     necessary.”
Id. at 767-68. The court explained that Iowa courts
     “ground the rejection of propensity evidence on ‘fundamental’ concerns of
     fairness and the presumption of innocence. The policy against admissibility
     of general propensity evidence stems from a fundamental sense that no one
     should be convicted of a crime based on his or her previous misdeeds. A con-
     comitant of the presumption of innocence is that a defendant must be tried
     for what he did, not for who he is. This concept is fundamental to American
     jurisprudence.”
Id. (internal quotations and citations omitted).
	    The Supreme Court of Missouri relied on Article I, sections 17 and 18(a), of
the Missouri Constitution, which provide that “no person shall be prosecuted
criminally for felony or misdemeanor otherwise than by indictment or informa-
tion” and that “in criminal prosecutions the accused shall have the right * * *
to demand the nature and cause of the accusation.” State v. Ellison, 239 SW3d
603, 606 (Mo 2007). The court explained that, based on those provisions, it “has
long maintained a general prohibition against the admission of evidence of prior
crimes” and held that “[e]vidence of prior criminal acts is never admissible for the
purpose of demonstrating the defendant’s propensity to commit the crime with
which he is presently charged,” but may be admissible for other purposes, includ-
ing that of establishing motive, intent, the absence of mistake or accident, a com-
mon scheme or plan, or the identity of the perpetrator. Id. at 606-07 (emphasis in
original).
Cite as 357 Or 1 (2015)	17

process if it permitted the use of “prior crimes” evidence to
prove a defendant’s propensity to commit a charged crime.
Estelle v. McGuire, 502 US 62, 75 n 5, 112 S Ct 475, 116 L Ed
2d 385 (1991). The Court’s decision in Dowling, 493 US at
353, tells us that an evidentiary rule—such as OEC 403—
that requires a trial court to determine whether the poten-
tial prejudice of “other acts” evidence outweighs its proba-
tive value is sufficient to safeguard a litigant’s due process
rights. However, that decision does not tell us whether the
Due Process Clause requires the application of such a rule.
Said another way, just because due process is served by a
particular evidentiary rule does not mean, at least neces-
sarily, that due process is violated if that rule is not applica-
ble. Thus, we must do our best to determine how the United
States Supreme Court would decide that question.
	         We know that “historical practice” is the primary
guide for determining whether an evidentiary rule is so
fundamental as to be embodied in the federal constitution.
See Montana v. Egelhoff, 518 US 37, 43-44, 116 S Ct 2013,
135 L Ed 2d 361 (1996) (“Our primary guide in determin-
ing whether the principle in question is fundamental is, of
course, historical practice.”). In LeMay, the Ninth Circuit
considered the “historical practice” prohibiting the use of
“other acts” to prove the charged crime and concluded that
“the general ban on propensity evidence has the requisite
historical pedigree to qualify for constitutional status.” 260
F3d at 1025. If this were a case in which defendant had
been charged with crimes other than child sexual abuse, we
might be persuaded that due process incorporates that his-
torical practice and therefore not only requires the applica-
tion of OEC 403, but also precludes the admission of “other
acts” evidence to prove propensity. However, in this case,
defendant is charged child sexual abuse, and the histori-
cal practice with respect to such charges is not as clear.16
	16
       In LeMay, the court observed that, “[i]n many American jurisdictions, evi-
dence of a defendant’s prior acts of sexual misconduct is commonly admitted in
prosecutions for offenses such as rape, incest, adultery, and child molestation”
by “stretching traditional 404(b) exceptions to the ban on character evidence or
by resorting to the so-called ‘lustful disposition’ exception.” Id. Accordingly, the
court also concluded that “ ‘the history of evidentiary rules regarding a criminal
defendant’s sexual propensities is ambiguous at best, particularly with regard to
sexual abuse of children.’ ” Id. at 1026 (quoting United States v. Castillo, 140 F3d
874, 881 (10th Cir 1998)).
18	                                         State v. Williams

We therefore think it prudent, as did the Ninth Circuit in
LeMay, to turn our attention to the principles that animate
the Due Process Clause.
	        In that regard, the Supreme Court has explained
that the admission of evidence that is so extremely unfair
that it violates “fundamental conceptions of justice” violates
the Due Process Clause. United States v. Lovasco, 431 US
783, 790, 97 S Ct 2044, 52 L Ed 2d 752 (1977). The Supreme
Court also has explained that “[t]he term ‘unfair prejudice,’
as to a criminal defendant, speaks to the capacity of some
concededly relevant evidence to lure the factfinder into
declaring guilt on a ground different from proof specific to
the offense charged.” Old Chief v. United States, 519 US 172,
180, 117 S Ct 644, 136 L Ed 2d 574 (1997). In Old Chief, the
Court recognized that such improper grounds include “gen-
eralizing a defendant’s earlier bad act into bad character
and taking that as raising the odds that he did the later bad
act now charged.” Id. Although the Court was not deciding
a constitutional issue in Old Chief, its discussion demon-
strates how the Court characterizes the prejudice posed by
“other acts” evidence. As the Court recognized in Dowling,
493 US at 352, the violation of due process that may result
from such unfair prejudice is obviated by the application of
a rule of evidence that permits a court to consider the risk of
prejudice and exclude the evidence when appropriate.
	        In the absence of controlling Supreme Court prec-
edent, we must determine, as best we can, how that Court
would rule if presented with the question before us. We con-
clude that, in a prosecution for child sexual abuse, the Court
would hold that subjecting proffered “other acts” evidence
to OEC 403 balancing is a due process requirement. In
such prosecutions, the historical record may not definitively
establish that it is always improper to admit “other acts”
evidence to prove propensity, but it at least demonstrates
a historical concern for the prejudice that such evidence
poses and the importance that balancing plays in protecting
against the harm that may result from its admission. In our
view, the only way that a court can ensure that the admis-
sion of “other acts” evidence is not unfairly prejudicial and
a violation of “fundamental concepts of justice” is to conduct
OEC 403 balancing. We therefore hold that that balancing
Cite as 357 Or 1 (2015)	19

is required by the Due Process Clause. Even if due process
does not categorically prohibit the admission of “other acts”
evidence to prove propensity in prosecutions for child sex-
ual abuse, it at least requires that, on request, trial courts
determine whether the probative value of the evidence is
outweighed by the risk of unfair prejudice.17
	        Consequently, the admission of evidence under
OEC 404(4) remains subject to balancing under OEC 403.18
When a party objects, under OEC 403, to “other acts” evi-
dence offered under OEC 404(4), a trial court must engage
in the balancing anticipated by OEC 403. At one end of the
spectrum, “other acts” evidence that is offered for nonpro-
pensity purposes—i.e., to prove motive, intent, identity, or
lack of mistake or accident—generally will be admissible as
long as the particular facts of the case do not demonstrate a
risk of unfair prejudice that outweighs the probative value
of the evidence. Shaw, 338 Or at 614-15. At the other end

	17
        Given the result that we reach in this case—that the trial court correctly
admitted the underwear evidence under “traditional” or “subconstitutional”
balancing—we need not further explore the parties’ arguments about whether
“due process” balancing differs from “traditional” or “subconstitutional” balanc-
ing. Evidence that is admissible under “traditional” or “subconstitutional” bal-
ancing also would be admissible under any distinct “due process” balancing test.
	 We also note that Moore/Coen, 349 Or at 371, does not make a distinction
between “due process” and other balancing. In Moore/Coen, the court recog-
nized that, in Shaw, 338 Or at 613-14, this court had held that OEC 404(4) was
a “change in the law that favors only the prosecution by making the conviction of
a defendant more likely.” Id. at 389. In Moore/Coen, the court addressed the con-
stitutionality of OEC 404(4), both facially and as applied, and held that, “under
OEC 404(4), traditional standards of relevancy are preserved.” Id. The court did
not make a distinction between “due-process,” and “traditional,” or “subconstitu-
tional,” balancing, and we leave the significance of those distinctions, if any, to
another day.
	18
        Our understanding of due process requirements is consistent with expec-
tations that legislators may have had when they enacted SB 936, the bill that con-
tained the proposition that became OEC 404(4). As noted, opponents of the bill
expressed concerns that it could be unconstitutional. Assistant Attorney General
Gardner, who testified on behalf of one of the sponsors of the bill, responded that
constitutional law
    “require[s] that a trial judge balance the probative evidence versus the prej-
    udicial impact before the judge constitutionally can admit the evidence in a
    case. * * * What SB 936 does, it puts into statute the fact that we are still going
    to have a balancing test, because that’s what [OEC 403] presently requires.”
Tape Recording, House Committee on Judiciary, Subcommittee on Criminal Law,
SB 936, April 17, 1997, Tape 89, Side A (statement of Mark Gardner, Assistant
Attorney General).
20	                                                    State v. Williams

of the spectrum, as the state recognizes, when “other acts”
evidence “goes only to character and there are no permissi-
ble inferences the jury may draw from it,” it is more likely
that the evidence will be excluded. Such evidence generally
will have little or no cognizable probative value, and the risk
that the jury may conclude improperly that the defendant
had acted in accordance with past acts on the occasion of the
charged crime will be substantial	
	         OEC 404(4) nevertheless effects a significant change
in the law. Before the legislature enacted OEC 404(4), “other
acts” evidence offered to prove a defendant’s character and
propensity to act accordingly was categorically inadmissible
under OEC 404(3). That is no longer the rule. Now, in a
prosecution for child sexual abuse, the admission of “other
acts” evidence to prove character and propensity under OEC
404(4) depends on whether the risk of unfair prejudice out-
weighs the probative value of the evidence under OEC 403.19
That determination must be made on a case-by-case basis.
See, e.g., LeMay, 260 F3d at 1028 (setting out list of non-
exclusive factors that trial courts may consider in weigh-
ing the risk of prejudice presented by “other acts” evidence
offered under FRE 413 and 414).
	         In this case, the trial court considered the admis-
sibility of the underwear evidence under both OEC 401 and
403. That mode of analysis was correct under OEC 404(4).
As explained, OEC 404(4) makes “other acts” evidence
admissible if it is relevant under OEC 401 and admissible
under OEC 403.
	         At trial, the state argued that the disputed evi-
dence was both relevant and admissible to show that defen-
dant had touched the victim with a sexual purpose, and the
trial court admitted the evidence. Defendant appealed, and
the Court of Appeals decided that the trial court had erred
because the underwear evidence was not logically relevant
under OEC 401. 258 Or App at 112-13. The court opined that
OEC 401 requires courts to determine whether evidence is
“logically relevant to a contested issue” (emphasis added) and
that defendant’s intent was not truly at issue in the case. Id.
	19
        We need not, and do not, decide whether OEC 404(4) may be constitution-
ally applied in other types of prosecutions.
Cite as 357 Or 1 (2015)	21

at 112. That was so, the court reasoned, because defendant
had not argued at trial that, if he had touched the victim
as alleged, he did so without criminal intent. Id. at 113-14.
Further, the court explained, if defendant had touched the
victim as alleged, the nature of his acts strongly indicated
that he had done so with a sexual purpose. Id. at 114.
	        On review in this court, the state contends that
the Court of Appeals stated the relevance requirement of
OEC 401 too strictly, and we agree. OEC 401 makes prof-
fered evidence admissible only if it has “any tendency to
make the existence of any fact that is of consequence to the
determination of the action more probable or less probable
than it would be without the evidence.” In this case, to prove
that defendant committed first-degree sexual abuse, ORS
163.427, the state was required to prove that defendant had
subjected the victim, a person under 14 years of age, to “sex-
ual contact.”20 “Sexual contact” is “any touching of the sexual
or other intimate parts of a person or causing such person to
touch the sexual or other intimate parts of the actor for the
purpose of arousing or gratifying the sexual desire of either
party.” ORS 163.305(6). Accordingly, to prove that element
of the charged crimes, the state was required to prove that
defendant had touched the victim’s genital area or caused
her to touch his genital area with a sexual purpose. Thus,
any evidence having a tendency to make it more probable
that defendant had a sexual purpose when he committed
the charged acts is logically relevant under OEC 401.
	In State v. Sparks, 336 Or 298, 308, 83 P3d 304
(2004), the court held that the defendant’s proposed stipu-
lation to an element of the crime “did not have the effect
of making otherwise relevant evidence irrelevant,” but pro-
vided “an alternate form of proof.” The court cited Laird C.
	20
       ORS 163.427 provides, in part:
   	    “(1)  A person commits the crime of sexual abuse in the first degree when
   that person:
   	    “(a)  Subjects another person to sexual contact and:
   	    “(A)  The victim is less than 14 years of age; [or]
   	    “* * * * *
   	    “(b)  Intentionally causes a person under 18 years of age to touch or con-
   tact the mouth, anus or sex organs of an animal for the purpose of arousing
   or gratifying the sexual desire of a person.”
22	                                                       State v. Williams

Kirkpatrick Oregon Evidence § 401.02, Art IV-4 (4th ed 2002)
(quoting 1981 Conference Committee to OEC 401) for the
proposition that “[t]he fact to which the evidence is directed
need not be in dispute.” Sparks, 336 Or at 308. Thus, under
Sparks, even though defendant in this case failed to argue
explicitly that he lacked a sexual purpose, and even if the
acts that defendant was charged with committing suggest
that he acted with such a purpose, the underwear evidence
is logically relevant as long as it had a tendency to increase
the probability that defendant committed the alleged touch-
ing to arouse or gratify a sexual desire.21
	       We turn to that question. The state argues that
the underwear evidence meets that test of logical relevance
because a jury reasonably could infer that defendant’s pos-
session of the underwear indicates that defendant has “a
sexual interest in little girls” and that defendant had acted
from that interest when he touched the victim.
	        At trial, defendant argued that the underwear that
was found in his residence likely had been left behind by a
friend with two small children when she and the children
spent the night. Defendant also disputed the state’s argu-
ment that the underwear had an inherently “sexual mean-
ing” and argued that the state’s submission of the under-
wear “suggest[ed] an inference based on very misleading
information.” On review, however, defendant does not explic-
itly press those arguments or contend that a jury could not
infer from the presence of the children’s underwear that
defendant had a sexual interest in children. Instead, defen-
dant argues that there is no difference between asserting
that defendant had a “sexual interest in little girls” and
	21
        As explained, the fact that such evidence is logically relevant under OEC
401 does not make it admissible under OEC 403. In conducting the balancing
inquiry under OEC 403, a trial court may consider whether other evidence that
does not carry the same risk of unfair prejudice is available to prove an element
of the charged crime. For instance, in Old Chief, 519 US at 174, the United States
Supreme Court held that a trial court had abused its discretion in rejecting the
defendant’s stipulation to an element of the charged crime (in that case, a prior
conviction), when the stipulation met all the government’s requirements for prov-
ing that element and the evidence proffered by the government “raise[d] the risk
of a verdict tainted by improper considerations.” The Court directed trial courts
to weigh “whether the danger of undue prejudice outweighs the probative value
of the evidence in view of the availability of other means of proof and other facts
appropriate for making decisions of this kind.” Id. at 184.
Cite as 357 Or 1 (2015)	23

asserting that he is a pedophile. No matter how the argu-
ment is phrased, defendant insists, the state’s purpose was
to suggest that his character is such that he has an interest
in sexually abusing children and that he acted accordingly
on the charged occasions.
	        In this case, there is a slim but distinct difference
between using the underwear evidence to establish defen-
dant’s character and propensity to act accordingly, and offer-
ing that evidence to establish defendant’s sexual purpose.
First, in this case, defendant’s sexual purpose is an element
of the charged crimes. The state did not offer the evidence
to establish that defendant committed the charged acts;
it offered the evidence to prove an element of the charged
crimes—defendant’s sexual purpose. Second, the state was
required to prove that defendant had acted with a sexual
desire that was aroused or gratified by contact with children.
Because most adults do not have such a desire, the state was
entitled to prove that defendant is an adult who does. The
fact that defendant has a sexual interest in children would
not, alone, establish that defendant acted on that interest in
the charged circumstances, but it is a fact that is logically
relevant to that issue.
	       If the jury inferred from the underwear evidence
that defendant had a sexual interest in children generally,
then the jury could take defendant’s interest into consid-
eration in deciding whether defendant had acted on that
interest and with that purpose on the charged occasion.
Defendant is correct that, if the jury found that defendant
had committed the charged acts, those acts themselves are
additional, and perhaps more persuasive, evidence of defen-
dant’s sexual purpose. However, as noted, that stronger
evidence does not make the underwear evidence logically
irrelevant; the evidence meets the minimal requirements of
OEC 401.
	        At trial, after determining that the underwear evi-
dence was relevant under OEC 401, the trial court conducted
the balancing required by OEC 403 and concluded that the
evidence was admissible. Defendant does not contend that
the trial court erred in its OEC 403 analysis, and we there-
fore do not consider that issue on review.
24	                                        State v. Williams

	        In summary, we conclude that OEC 404(4) super-
sedes OEC 404(3) in a criminal case except to the extent
required by the state or federal constitution. In a prosecu-
tion of child sexual abuse, the federal constitution requires
that a trial court determine whether the risk of unfair prej-
udice posed by the evidence outweighs its probative value
under OEC 403. In this case, the trial court did not err in
admitting the underwear evidence.	
	       As noted, because it concluded that the trial court
had erred in admitting the underwear evidence, the Court of
Appeals reversed the judgment of conviction and remanded
for a new trial. Williams, 258 Or App at 117. The Court of
Appeals therefore did not address three additional assign-
ments of error that defendant had raised on appeal. See id.
We reverse the decision of the Court of Appeals and remand
the case to that court for consideration of those remaining
assignments of error.
	        The decision of the Court of Appeals is reversed,
and the case is remanded to the Court of Appeals for consid-
eration of defendant’s remaining assignments of error.
