We Just Don’t Get It
Improper Admission of Other Acts Under Evidence Rule 404(b) as Needless Cause of Reversal in Civil and Criminal Cases*

by Hon. Robert L. Gottsfield

The "we" refers to some lawyers and some trial judges such as the author ¹ who have caused, aided and abetted, or permitted, the improper admission of unfairly² prejudicial other act evidence, causing a conviction or a jury verdict in a civil case to be reversed.³ While many of these cases are found in published decisions, it is believed, based on personal experience and an unscientific poll of some trial and appellate judges, that many other cases reversing under Rule 404(b) are found in unpublished opinions.⁴

"Other acts" means alleged actions, sought to be introduced for substantive purposes, that occurred prior to, contemporaneously with, or subsequent to⁵, the events constituting the gravamen of a civil claim or counterclaim, or, in a criminal matter, the acts charged in an indictment or information. Other acts need not constitute evidence of a particular crime.⁶

"Needless" as used above refers to the unfortunate circumstance that most often the admission of other act evidence was not essential for the prosecution to get a conviction or the plaintiff to obtain a jury verdict and was at most make-weight evidence, resulting in an enormous and unnecessary expenditure of time, energy and resources that the system can ill afford.⁷

Arizona Evidence Rule 404(b) states as follows:

Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action 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.

Evidence Rule 403, an essential step in the analysis of the admissibility of other acts evidence 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, waste of time, or needless presentation of cumulative evidence.

Adoption of Four-Part Huddleston Test

Arizona has adopted the four-part test for the admission of other act evidence as set forth by the United States Supreme Court in Huddleston v. United States,⁸ in both criminal⁹ and civil cases.¹⁰ As explained in State v. Atwood,¹¹ the foundation Arizona case concerning admission of other acts in criminal cases (and thus the reference to the "Huddleston/Atwood" test or factors) these are: "(1) Rule 404(b)’s requirement that the evidence be admitted for a proper purpose; (2) the relevancy requirement of rule 402; (3) the trial court’s assessment that the probative value of the similar acts evidence is substantially outweighed by its potential for unfair prejudice, see rule 403; and (4) rule 105’s provision for an appropriate limiting instruction, if the party requests one."¹² A substantially similar test was adopted for civil cases in Lee v. Hodge¹³ but without reference to the language of evidentiary rules.

Rule 404(b) as One of Inclusion/Relevancy Now Key

In an article in this journal,¹⁴ written after Huddleston but before Atwood and Lee, the author argued that the federal courts, including the Ninth Circuit, treat Rule 404(b) as one of inclusion¹⁵ (other acts are admissible when relevant), whereas Arizona courts in the main consider 404(b) as one of exclusion¹⁶ (presumptively inadmissible unless falls under some exception). It is believed that with the adoption of the Huddleston test by Atwood and Lee for all cases, Arizona has moved closer, if not joined, the federal interpretation of 404(b). As noted in the foregoing article, Chief Justice William Rehnquist discusses 404(b) as one of inclusion in Huddleston, noting that relevant evidence is admissible unless the rules provide otherwise;¹⁷ states that rules such as 404(b) do not "flatly prohibit the introduction of such evidence but instead limit the purpose for which it may be introduced";¹⁸ and quotes the Senate Report that, if evidence is offered for a proper purpose under 404(b), "‘the trial judge may exclude it only on the basis of those considerations set forth in Rule 403, i.e. prejudice, confusion or waste of time’".¹⁹ The Chief Justice concludes that, "Congress was not nearly so concerned with the potential prejudicial effect of Rule 404(b) evidence as it was with insuring that restrictions would not be placed on the admission of such evidence."²⁰

Lee, in holding there is no requirement that other acts be similar, analyzes the 404(b) issues from the standpoint only "that the evidence of a person’s prior acts must be relevant and thus tend to prove some fact material to the case before the court."²¹ Atwood, in ruling that a letter and telephone conversation wherein the defendant referred to his sexual interest in children were admissible under 404(b), similarly addresses the other act evidence in terms of relevancy.²² So as noted does Huddleston, on which both Atwood and Lee rely. Neither of the Arizona cases, both written by Justice Robert Corcoran, discuss or give any indication they are treating Rule 404(b) as one of preclusion. That Rule 404(b) is one of inclusion is strongly implied by Justice Frederick Martone in State v. Schurz.²³ After advising he is speaking only for himself, Justice Fred Martone notes that, if other act evidence "is relevant, it may be admitted, subject to any weighing under Rule 403, Ariz. R. Evid." citing Huddleston and Atwood.

But even if Rule 404(b) is treated as a rule of inclusion and relevancy is now the key to admissibility of other act evidence in Arizona, that evidence under Huddleston must still pass the weighing and balancing test of Rule 403. Moreover, contrary to the views expressed in the foregoing article, this author believes Arizona’s more cautious approach and limitation of other act evidence in the past has been proper and should be continued in the future. By rigorous application of Rule 403, it is both believed and hoped that the adoption of the Huddleston test will not cause a wholesale change in Arizona’s handling of 404(b) issues. Thus recent cases indicate that, even if other acts are admissible in part, the trial judge has a duty to narrow or restrict the evidence to reduce prejudice in some cases.²⁴

Duty of Trial Court to Make 403 Finding Even Sua Sponte

Courts must be vigilant in the admission of other act evidence because of the danger "the jury will think the defendant is an evil person and will convict him on lesser evidence than might ordinarily be necessary to support a conviction."²⁵ If 404(b) is a rule of inclusion and relevancy is the key to admission, only the weighing and balancing required by 403 can prohibit unfairly²⁶ prejudicial evidence from going to the jury or, conversely, permit proper other act evidence to go to the jury. It is suggested that since Atwood and Lee the Arizona trial court as part of its Rule 404(b) ruling must make a 403 finding on the record in all cases before approving admission of other act evidence.²⁷ This is the clear import of State v. Ives²⁸ where Justice James Moeller speaking for the Arizona Supreme Court, states:

"Because the other acts in this case are not admissible under Rule 404(b), there is no occasion to perform a Rule 403 weighing. However, we remind counsel and trial courts in future cases that the inquiry is not complete when a finding on Rule 404(b) admissibility is made. The rules of evidence are designed to provide fair trials, and trial judges should not treat Rule 403 as an empty promise. There will be situations in which evidence sought to be introduced is more prejudicial than probative, and those situations are very likely to arise in the prior bad act context. When called upon to weigh probative value against unfair prejudice under Rule 403, a trial judge must assure the state is not permitted to prove a defendant’s guilt of one act through excessively prejudicial evidence of other acts."²⁹

The Ives mandate is supported by other recent Arizona cases.³⁰ Consequently it is suggested that, even if not raised by the parties, the trial judge has an obligation to raise 403 sua sponte,³¹ when other act evidence is being considered.

Admittedly, absent fundamental error, error is usually considered to be waived on appeal unless objected to at the trial.³² Fundamental error is error that goes to the very foundation of the case and may be raised for the first time on appeal.³³ While Rule 403 when not raised in the context of a 404(b) issue can be waived³⁴ query whether in light of Huddleston, Atwood and Lee, which make Rule 403 the sine qua non of the admissibility of 404(b) evidence, the failure of a party to raise 403 when other bad acts issues are presented, can be waived? Arizona cases indicating there can be such a waiver appear to be of questionable authority especially in view of Ives.³⁵ Recent cases indicating that Rule 403 is a pervasive gatekeeper in areas outside the 404(b) context³⁶ are also helpful in making the argument that a Rule 403 finding and analysis is so basic to admission of other act evidence, the trial judge, sua sponte if necessary, must engage in it and it cannot be waived by a party.

Limiting Instruction Under Rule 105

The party against whom other act evidence is offered is entitled to a properly worded limiting instruction under Evidence Rule 105.³⁷ Notwithstanding the foregoing, a limiting instruction can be waived,³⁸ the trial judge need not raise the issue sua sponte,³⁹ and a wrongful denial to give such an instruction is not necessarily fundamental error.⁴⁰ When an instruction is requested, the better practice especially in a criminal case, and as is the case with all instructions given to the jury, is for the trial judge to aid in drafting it, if necessary.⁴¹

Sufficiency of Evidence of Other Acts

It has been the law of Arizona that, before evidence is admissible under Rule 404(b), the evidence of the other act (usually referring to a prior or subsequent crime) had to be substantial enough to take the case to the jury.⁴² Sometimes referred to as the Hughes standard⁴³ or an "additional hurdle"⁴⁴ under 404(b), a panel of Division One recently held, in State v. Terrazas,⁴⁵ it is no longer the law since the adoption of the Huddleston test. Huddleston holds that the additional hurdle is subsumed in the four-part 404(b) test as a court can find other bad acts are relevant "only if the jury can reasonably conclude that the act occurred and that the defendant was the actor."⁴⁶ In addition to this preponderance of the evidence standard, Huddleston further noted that the strength of the evidence establishing the other act is also one of the factors the court may consider when conducting the Rule 403 balancing.⁴⁷ The Arizona Supreme Court has recently granted review in Terrazas, and thus should give a final pronouncement in this area.

Not Whether But How It Tends to Establish Guilt

The real issue under 404(b) is not whether the proffered other act evidence tends to establish guilt in a criminal case or that the civil wrong occurred (i.e. it’s a given that it will be adverse and tend to do this), but how it tends to establish it.⁴⁸ This is so because 404(b) requires that evidence be admitted for a limited proper purpose, meaning it must prove something other than solely the person’s character and the person’s propensity to act in accordance with that character.

Because an in-depth analysis is required for a comprehensive discussion of the Arizona cases, which is beyond the scope of this article, suffice it to quote at this time from Judge Joseph Livermore, who has examined the "how" in a number of decisions.⁴⁹ In a leading other act case, a conviction of a sale of marijuana to an undercover police officer was reversed because the trial court permitted testimony (1) that the undercover investigation was undertaken because of citizen complaints; (2) of other occasions where defendant sold marijuana; (3) of a subsequent act where marijuana was seized from his home over one month after the date of the instant charge; and (4) from a police officer that he saw several young people going in and out of the residence, which was consistent with someone regularly selling drugs. Judge Livermore, in explaining why none of this testimony was admissible to show common plan or scheme or for any other relevant purpose, stated:

The question under Rule 404(b) is not whether evidence tends to establish guilt, but how it tends to establish it. If it tends to show a disposition toward criminality from which guilt on this occasion is to be inferred, it is inadmissible. If it establishes guilt in some other way, it is admissible. The common plan or scheme exception does not permit proof that the defendant is a longtime drug dealer or burglar. Instead it permits proof of his commitment to a particular plan of which the charged crime is a part. It is a matter of the particularity of the plan and thus of the probative force of the connection between one crime and another.⁵⁰

"Completes the Story" Argument

Truly a darling of the prosecutor’s nursery is the argument that the other act is admissible as it "completes the story" or is the "rest of the story," which the jury has a right to know about.⁵¹ This argument really begs the question. Rule 404(b) concerns the question "Is it relevant other than to prove character or propensity?" If an argument is made that other act evidence "completes the story," the court must then inquire "What is the relevancy of completing the story?" If the evidence explains the circumstances of the crime, wrong or act or helps the jury to understand the conduct of the actor, then it may be relevant.⁵² Otherwise it should not go in because it is not relevant. If it is relevant, then apply the remaining factors of the Huddleston test and especially Rule 403.

Ives’ Narrowing of "Common Scheme or Plan"/Elimination of "Intent" in General Denial Cases

The view that it is better to have a more cautious approach with respect to 404(b) and a limiting of the use of other act evidence was given added impetus by the Arizona Supreme Court’s explicit adoption in State v. Ives⁵³ of the narrower definition of "common scheme or plan" found in such cases as Ramirez Enriquez,⁵⁴ Torres,⁵⁵ and Stuard.⁵⁶ Ives was charged with four counts of child molestation by directly or indirectly touching the private parts of three young girls. At the time of trial, at which each testified, they were ages 10 (testified to events 19 months before trial), 9 (38 months before trial) and 15 (seven to eight years before trial). In addition, a fourth girl, also 15 at time of trial, was allowed to testify about four other uncharged acts occurring 11 years earlier and three years prior to any of the activities described by the three victims. The state in closing argument noted that the fact defendant was charged with several similar crimes "helps us to see that the girls are being truthful."⁵⁷

Defendant was convicted of all four counts. The trial court set aside one count because of recantation and the Court of Appeals affirmed the remaining three counts. The Supreme Court unanimously reversed remanding for new trials on the three remaining counts because (1) the trial court should have granted defendants’ motion to sever⁵⁸ under Rule 13.3(a)(1) Ariz. Rules Crim. P.; and (2) there was no basis for admitting any of the charged or uncharged acts as other acts under Evidence Rule 404(b). The gravamen of the ruling is that, in order to find a "common scheme or plan" under Criminal Rule 13(a)(3) or a "plan" under Evidence Rule 404(b), which terms the Court finds are "coextensive," the State must demonstrate that the other act (i.e. either the other charged counts or the other uncharged bad acts) is part of "‘a particular plan of which the charged crime is a part.’"⁵⁹ The mere fact there is evidence someone is a long-time child molester, drug dealer or robber does not mean such evidence is admissible under a common scheme or plan. Quoting from Ramirez Enriquez, the Court notes: "‘The distinction is between proving a specific plan embracing the charged crime and proving a general commitment to criminality which might well have involved the charged crime.’"⁶⁰

Ives further disapproves of decisions that find a common plan or scheme requires only proof of a "‘visual connection’" between the crimes and that a "‘visual connection’" is established when "‘similarities exist where one would normally expect to find differences.’"⁶¹ Also brushed aside are those cases that have employed an even broader definition of common scheme or plan to mean solely "‘similar and related conduct’" and "‘substantial similarities.’"⁶² The Supreme Court concludes: "A broad definition of ‘common scheme or plan’ allows the State to raise the inference of guilt based solely on a ‘disposition toward criminality.’"⁶³ Because there was no evidence of "‘a particular plan of which the charged crime is a part’"⁶⁴ and because "the component acts of a ‘common scheme or plan’ must be sufficiently related to be considered a single criminal offense"⁶⁵ — and there was no such evidence in Ives — neither the evidence of each count nor the other bad act evidence would be admissible at separate trials on each of the other counts had those counts been severed for trial.

But Ives even does more than holding that the definition of "common scheme or plan" under Rule 13(a)(3) and the definition of "plan" as used in Rule 404(b), are coextensive and that the "inquiry should hereafter focus on whether the acts are part of an over-arching criminal plan, and not on whether the acts are merely similar."⁶⁶ Ives also holds that a defendant may remove intent (and motive, knowledge, absence of mistake or accident) as an issue by a blanket denial of engaging in a criminal act; that this does not require a statement by defendant that he wishes to stipulate to intent; and, that this is true whether or not the crime charged involves a general or specific criminal intent.⁶⁷ Thus, pursuant to Ives, if the issue is whether the defendant committed the acts at all and defendant maintains that he did not, there is no issue of intent and "the State may not introduce evidence of prior bad acts as part of some generalized need to prove intent in every case."⁶⁸

Robert L. Gottsfield is a Maricopa County Superior Court Judge.

ENDNOTES:

1. The author has been reversed on Rule 404(b) grounds in published (see Cuen, n. 2 infra) and, more often, in unpublished opinions. The latter circumstance is unfortunate because such opinions do not educate the bar or other trial judges. Unpublished opinions are sent by the appellate courts solely to the judge and lawyers involved; other judges learn of them only if circulated by that judge. See also n. 4 infra. Professor Tom Mauet of the University of Arizona Law School, who teaches evidence and is a frequent lecturer at judicial seminars, advises that more reversals of trial judges occur in 404(b) and 403 matters than any other evidence rule. Determinations of unfair prejudice under Rules 403 and 404(b) are reviewed under an abuse of discretion standard. State v. Bible, 175 Ariz. 549, 575, 593, 858 P.2d 1152, 1178, 1196 (1993); State v. Taylor, 169 Ariz. 121, 126, 817 P.2d 488, 493 (1991).

2. See generally, McClennen, Arizona Courtroom Evidence Manual, 2nd Edition, 1991 (Revised), Rules 403 and 404(b) for an excellent and exhaustive compilation of other acts cases. If relevant, other act evidence is admissible under 404(b) and it will usually be prejudicial to the opposing party. The real issue is whether the evidence is unfairly prejudicial after the weighing and balancing required by Rule 403. The Arizona Supreme Court (Martone,J.) has defined unfair prejudice by citing to the Fed. R. Evid. 403, Advisory Committee Note, as "‘mean(ing) an undue tendency to suggest decision on an improper basis’ . . . such as emotion, sympathy or horror." State v. Schurz, 176 Ariz. 46, 52, 859 P.2d 156, 162, (1993), cert.denied 114 S.Ct. 640 (1993). A thesis of this article is the author’s view that a Rule 403 analysis must now be done by the trial judge, even sua sponte, with respect to 404(b) issues under Huddleston v. United States, 485 U.S. 681, 691-92, 108 S. Ct. 1496, 1502 (1988). Huddleston has been adopted in Arizona in both criminal and civil cases. See notes 9 and 10 infra. Note also that under Rule 608 the trial court has discretion under 403 to limit or prohibit cross-examination of a witness concerning prior acts of the witness for the purpose of showing character for truthfulness. See McClennen, supra 608.b.050.

3. For fairly recent examples see the following. Note that in each instance the improperly admitted other act evidence was make-weight evidence not needed for a conviction or a civil jury verdict. As noted by Judge Fidel in State v. (Augustine) Salazar, 181 Ariz. 87, 91, 887 P.2d 617, 621 (App. 1995), rev. denied 1/25/95, citing Weinstein "more than one court has expressed concern ‘over the government’s readiness to jeopardize a conviction by use of other crimes evidence when the question of admissibility. . . is a close one.’" J. Weinstein and M. Berger, Weinstein’s Evidence, §404(18) at 404-123 to 124 (quoting United States v. Williams, 596 F.2d 44, 51 (2d Cir. 1979). For recent examples of reversals, see State v. Ives, 229 Ariz. Adv. Rep. 75 (SC, 11/7/96) (molestation counts improperly joined as part of common scheme or plan and evidence of each count as well as other bad act evidence would be inadmissible at separate trials had the counts been severed); State v. Fernane, 185 Ariz. 223, 914 P.2d 1314 (App. 1995), rev. denied 4/23/96 (probative value of evidence regarding a defendant’s prior alleged abuse of her other children was substantially outweighed by its prejudicial effect); State v. Taylor, supra n.1 (reversed for failure of trial judge to use Rule 403 analysis in judging admissibility of murder victim’s prior child abuse conviction); State v. (Leo) Salazar, 182 Ariz. 604, 898 P.2d 982 (App. 1995) (that defendant said he would shoot police a few hours earlier did not make it more likely than not he intentionally shot victim who was not a policeman; because case reverse on other grounds court declines to decide whether this grounds also for reversal); State v. (Augustine) Salazar, supra (admission of prior sexual assaults, some against minors, in attempted child molestation case unfairly prejudicial under Rule 403); Henson v. Triumph Trucking, Inc., 180 Ariz. 305, 884 P.2d 191 (App. 1994), rev. denied 11/29/94 (evidence of plaintiff bus driver’s misuse of prescription drugs on occasions from two to eight years before subject collision with truck improper); State v. Coker, 169 Ariz. 2, 816 P.2d 261 (App. 1991), rev. denied 9/12/91 (improper to admit evidence that on prior occasions defendant identified himself as his identical twin brother to the police, as used to rebut his defense that his brother and not he had negotiated transactions charged); State v. Torres, 162 Ariz. 70, 781 P.2d 47 (App. 1989) (wrong to admit evidence of defendant’s prior use of heroin in a possession of narcotic drug (heroin) for sale case); State v. Ott, 162 Ariz. Adv. Rep. 66, 70 (CA 1, 4/14/94) (drug convictions reversed where trial court abused discretion in allowing four witnesses to testify to more than 20 incidences of prior uncharged drug crimes); State v. Cuen, 153 Ariz. 382, 736 P.2d 1194 (App. 1987) (evidence of prior sexual misconduct in a sexual assault case where defense based on consent improper); State v. Ramirez Enriquez, 153 Ariz. 431, 737 P.2d 407 (App. 1987) (improper in sale of marijuana case to admit other occasions where defendant sold marijuana or that marijuana was found in his house one month after crime charged). Improper consideration of a bad act at sentencing can also require a resentencing. State v. Romero, 173 Ariz. 242, 841 P.2d 1050 (App. 1992). Cf. Dawson v. Delaware, 503 U.S. 159, 112 S.Ct. 1093 (1992).

4. See n. 1 supra. The author, admittedly unscientifically, but based on 17 years on the bench and numerous discussions with trial and appellate judges, is of the view that many reversals and/or sentencing remands because of improper admission of act evidence is often set forth in unpublished opinions.

5. Subsequent other acts are analyzed exactly as are prior other acts. State v. Schurz, 176 Ariz. at 51-52, 859 P.2d at 161-62; State v. Ashelman, 137 Ariz. 460, 464, 671 P.2d 901, 905 (1983); State v. Moreno, 153 Ariz. 67, 68, 734 P.2d 609, 610 (App. 1986), rev. denied 3/24/87, cert. denied, 484 U.S. 890 (1987).

6. State v. Robinson, 165 Ariz. 51, 57, 796 P.2d 853, 859 (1990), cert. denied 498 U.S. 1110 (1991); State v. Jeffers, 135 Ariz. 404, 419, 661 P.2d 1105, 1120, cert. denied, 464 U.S. 865 (1983).

7. See notes 1 and 3 supra. Generally other acts are not admissible to show that defendant has a propensity to commit bad acts, but an exception exists where the offense involves abnormal sex acts such as sodomy and crimes involving children. State v. McFarlin, 110 Ariz. 225, 228, 517 P.2d 87, 90 (1973). In such cases there is a sufficient basis to accept proof of similar acts near in time to the offense charged as evidence of the accused’s propensity to commit such acts. Id. If the other acts are not similar in nature or near in time, expert testimony is needed to establish that such acts show a continuing emotional propensity to commit the charged act. State v. Treadaway, 116 Ariz. 163, 167, 568 P.2d 1061, 1065 (1977); State v. McAnulty, 184 Ariz. 399, 909 P.2d 466 (App. 1995), rev. denied 1/17/96. Expert testimony is not needed and remoteness is not an issue when similar molestations occur incessantly over a long period of time against the same victim. State v. Jones, 230 Ariz. Adv. Rep. 24, 26 (CA1, 11/19/96); State v. Spence, 146 Ariz. 142, 144, 704 P.2d 272, 274 (App. 1985). As this article went to print the Arizona Supreme Court is being asked to adopt Federal Evidence Rules 413, 414 and 415 which permit the introduction of similar other acts in sexual assault (413), child molestation (414) and civil cases concerning either bad act (415). These rules became effective in federal courts on July 9, 1995. They should not be adopted in Arizona because they are in mandatory language and thus arguably bypass the four-part Huddleston test (see text and notes 8-24 infra) established by the United States Supreme Court in 1988 and adopted by Arizona in civil and criminal cases (Id.) and are contrary to the recent Arizona Supreme Court decision in Ives (see text and notes 28-35 infra). If they do permit a trial court analysis under 404(b) and 403 then they are superfluous as already included within the mandate of 404(b). See also Report of the Judicial Conference found under Historical Notes, Fed. Rules Evid. Rule 413, 28 U.S.C.A. p. 225 (1996 Supp.) where it is noted that the "overwhelming majority of judges, lawyers, law professors, and legal organizations who responded opposed new Evidence Rules 413, 414, and 415."

8. Supra n. 2.

9. State v. Atwood, 171 Ariz. 576, 638, 832 P.2d 593, 655 (1992), cert. denied, 506 U.S. 1084 (1993). Accord: State v. Hyde, 186 Ariz. 252, 921 P.2d 655, 679 (1996); State v. Roscoe (Roscoe II), 184 Ariz. 484, 493-94 910 P.2d 635, 644-45 (1996); State v. Gulbrandson, 184 Ariz. 46, 60-61, 906 P.2d 579, 593-4 (1995) cert. denied, 116 S.Ct. 2558 (1996); State v. (Aryon) Williams, 183 Ariz. 368, 377-78, 904 P.2d 437, 446-47 (1995); State v. Schurz, supra n. 2; State v. Terrazas, 215 Ariz. App. Rep. 45 (CA 1, 5/2/96); State v.(Jason) Williams, 182 Ariz. 548, 552, 898 P.2d 497, 501 (App. 1995); State v. Barr, 183 Ariz. 434, 440, 904 P.2d 1258, 1264 (App. 1995), rev. denied 10/24/95; State v. Ott, supra n. 3; State v. Romero, 178 Ariz. 45, 52, 870 P.2d 1141, 1148 (App. 1993), rev. denied 4/19/94; State v. Armstrong, 176 Ariz. 470, 473 n. 2, 862 P.2d 230, 233 n. 2 (App. 1993), rev. denied 11/30/93; State v. Huffman, 169 Ariz. 465, 467, 820 P.2d 329, 331 (App. 1991), rev. denied 11/19/91.

10. Lee v. Hodge, 180 Ariz. 97, 100-102, 882 P.2d 408, 411-12 (1994). See also Haynes v. Syntek Finance Corp., 184 Ariz. 332, 909 P.2d 399 (App. 1995), rev. denied 1/17/96; Amerco v. Shoen, 184 Ariz. 150, 161, 907 P.2d 536, 547 (App. 1995), rev. denied 12/19/95.

11. 171 Ariz. 576, 832 P.2d 592 (1992), cert. denied 506 U.S. 1084 (1983).

12. Id.

13. 180 Ariz. 97, 882 P.2d 408 (1994). While mentioning Atwood, Justice Corcoran set forth the test used by the Colorado Supreme Court in Boettcher & Co. v. Munson, 854 P.2d 199, 210 (Colo. 1993) whereby other act evidence is admissible if: "(1) the evidence is related to a material fact, (2) the evidence tends to make the existence of a material fact more or less probable than without the evidence, (3) the material fact that is more or less probable is something other than a party’s character and the person’s propensity to act in accordance with that character, and (4) the probative value of the evidence substantially outweighs the danger of unfair prejudice." As noted in Lee (n. 3 at 180 Ariz. 100, 882 P.2d 411): "These factors essentially restate our evidentiary rules."

14. Crane McClennen, Admission of Evidence of Other Crimes, Wrongs or Acts Under Rule 404(b), Ariz. Atty. June, 1990 at 13.

15. Id.; see cases cited in McClennen article at n. 7 being United States v. Traitz, 871 F.2d 368, 389 (3d Cir. 1989); United States v. Scarfo, 850 F.2d 1015, 1019 (3d Cir.), cert. denied, _____ U.S. _____, 109 S. Ct. 263 (1988); United States v. Long, 574 F.2d 761 (3d Cir.), cert. denied, 439 U.S. 985 (1978). See also United States v. Riggins, 539 F.2d 682 (9th Cir. 1976); United States v. Rocha, 553 F.2d 615 (9th Cir. 1977).

16. Supra n. 14. See such cases cited in McClennen article as State v. Valles, 162 Ariz. 1, 4, 780 P.2d 1049, 1052 (1989); State v. Torres, 162 Ariz. 70, 72, 781 P.2d 47, 49 (App. 1989); State v. Mosley, 119 Ariz. 393, 399, 581 P.2d 238, 244 (1978). But also see cases decided after the article was written such as State v. Taylor, supra n. 1 at 169 Ariz. 125-26, 817 P.2d 492-93 (1991) (Rule 403 balancing test will be most frequently used with 404(b) issues because of the risk of prejudice even relevant other acts brings to a case; remanding admission of other act evidence because trial judge did not explicitly weigh the prejudice of the victim’s prior conviction against its probative value; trial judge to advise whether he excluded victim’s prior conviction because he considered it irrelevant or because too prejudicial) and State v. Salazar, supra n. 3 where Judge Fidel states his view that while the Rules of Evidence, including 403, favor the proponent of evidence and its admissibility, "the suppositional balance no longer tilts toward admission" when a 404(b) issue is presented. See also Judge Fidel’s earlier opinion in State v. Castro, 163 Ariz. 465, 473-74, 788 P.2d 1216, 1224-25 (App. 1989).

17. Huddleston, supra n. 2 at 485 U.S. 687. Arizona courts are not bound by United States Supreme Court’s non-constitutional interpretations of evidentiary rules that are counterparts to Arizona rules, but the same are instructive. State v. Bible, supra n.1 at 175 Ariz. 580, 858 P.2d 1183; State v. Terrazas, 215. Adv. Rep. 45, 46 (CA 1, 5/2/96).

18. Id.

19. Id. at 485 U.S. 688.

20. Id. at 485 U.S. 688-9.

21. 180 Ariz. at 100, 882 P.2d at 411 (citation omitted, emphasis added).

22. 171 Ariz. at 638-39, 832 P.2d at 655-56.

23. 176 Ariz. at 51 n.2, 859, P.2d at 161 n.2.

24. State v. Fernane, supra n. 3; State v. (Augustine) Salazar, supra n. 3. Judge Fidel in Salazar suggests a three-part inquiry when analyzing Rule 403 issues: "One question is whether the probative value of the evidence is sufficient that it should be admitted in some form. A second question is what restrictions to place in jury instructions on the usage of the evidence. But a third, and frequently overlooked, question is whether the evidence can be narrowed or limited to protect both parties by minimizing its potential for unfair prejudice while preserving its probative value" (at 181 Ariz. 92, 887 P.2d 622). See also State v. Olea, 182 Ariz. 485, 491-92, 897 P.2d 1371, 1377-78 (App. 1995), rev. denied 7/11/95.

25. State v. Gamez, 144 Ariz. 178, 179, 696 P.2d 1327, 1328 (1985).

26. Supra n. 2.

27. In conducting the 403 inquiry "‘an on-the-record finding based on specific facts and circumstances’ regarding the Rule 403 balancing of prejudice and probative value is strongly recommended, if not required." State v. Fernane, supra n. 3 at 185 Ariz. 228 n. 2, 914 P.2d 1319 n. 2 (quoting and citing Taylor and Cannon, infra this note and Moreno, supra n. 5). If the trial court admits 404(b) evidence and does not conduct a 403 analysis on the record the appellate court should reverse unless after weighing the evidence under §403 it can conclude the trial court could have found that the probative value of other bad acts is not substantially outweighed by the potential for unfair prejudice. See State v. Schurz, supra n. 2 (not clear whether trial judge applied 403 analysis to a subsequent other act, but Arizona Supreme Court did so and found admission proper under 403); State v. Cannon, 148 Ariz. 72, 76, 713 P.2d 273, 277 (1985) (trial court did not err by failing to conduct 403 review sua sponte where only 404(b) objection urged to admission of a confession of uncharged robberies but court conducted own Rule 403 analysis finding no fundamental error); State v. Salmon, 182 Ariz. 359, 364, 897 P.2d 661 (App. 1995), rev. denied 6/29/95 (trial court did not have to raise 403 sua sponte when only 404(b) objection raised but court conducted own 403 inquiry finding no unfair prejudice under 403 and thus no fundamental error). If the trial court has excluded 404(b) evidence without a 403 finding the case may be reversed and remanded if the evidence could have passed a 403 analysis. See, e.g. State v. Taylor, supra n. 1 at 169 Ariz. 125, 817 P.2d 492. Although Taylor concerns a victim’s prior bad acts there is no difference in analysis. See McClennen, supra n. 14 at 17.

28. 229 Ariz. Adv. Rep. 75 (SC, 11/7/96).

29. Id. at 81 (emphasis added).

30. The same ruling, but not as forcefully, was made by the Arizona Supreme Court a few days prior to Ives in State v. Dickens, 228 Ariz. Adv. Rep. 44, 53 (SC, 10/31/96) (if other acts evidence is relevant for any of the proper purposes of 404(b) "the trial judge must determine if the probative value is substantially outweighed by the danger of unfair prejudice"). See also State v. Hyde, supra n. 9; State v. Roscoe (Roscoe II), supra n. 9; Lee v. Hodge, supra n. 10; State v. Stuard, 176 Ariz. 589, 599-600, 863 P.2d 881, 991-2 (1993); State v. Bible, supra n. 1 at 175 Ariz, 576, 858 P.2d 1179; State v. Schurz, supra n. 2; State v. Atwood, supra n. 3; State v. Taylor, supra n. 1; State v. (Aryon) Williams, supra n. 9; State v. (Jason) Williams, supra n.9; State v. (Augustine) Salazar, supra n. 3; State v. Ott, supra n. 3; State v. Romero, supra n. 9; State v. Fernane, supra n. 3. See also State v. Lacy, 233 Ariz. Adv. Rep. 3, 6 (SC, 12/31/96) decided after this article submitted.

31. In addition to Ives and Dickens, supra notes 29 and 30, see in particular Taylor, Salazar, Schurz, Stuard, Romero, Fernane, and Ott, n. 30 supra. See also State v. Torres, supra n. 3 at 162 Ariz. 73, 781 P.2d 50; State v. Moreno, supra n. 5 at 153 Ariz. 69, 734 P.2d 611.

32. State v. Holder, 155 Ariz. 83, 85, 745 P.2d 141, 143 (1987); State v. Cannon, supra n. 27.

33. Id.

34. See e.g. State v. Gonzales, 181 Ariz. 502, 511, 892 P.2d 838 (1995) (failing to object on Rule 403 grounds to the admission of blood drops and weatherstripping found at death scene is waiver).

35. See State v. Cannon, supra n. 27; State v. Salmon, supra n. 27; State v. Bruggeman, 161 Ariz. 508, 779 P.2d 823 (App. 1989). But see State v. Walden, 183 Ariz. 595, 613, 905 P.2d 974, 992 (1995) suggesting that failure to object on Rule 404(b) grounds can be waived. Note that Walden was disapproved in part in Ives, supra n. 28 in connection with the definition of "common scheme or plan." See also State v. DePiano, 181 Ariz. Adv. Rep. 16, 18-19 (CA1, 1/10/95) sentence modified at 224 Ariz. Adv. Rep. 34 (SC, 9/5/96). The Court of Appeals held that the objection "irrelevant" does not preserve a 404(b) issue and that same is not fundamental error.

36. State v. Hurles, 185 Ariz. 199, 914 P.2d 1291 (1996) (because defendant pleaded insanity defense the admission of prior acts need not be judged under the limitation of 404(b) as every act of the accused’s life throwing light on his sanity is relevant; but the evidence is still subject to a Rule 403 weighing); State v. Orantez, 183 Ariz. 218, 902 P.2d 824 (1995) (kidnapping and sexual assault convictions reversed and new trial should have been granted on newly discovered evidence that complaining witness used drugs and lied to jury about her use of drugs; trial court should also weigh under Rule 403 admissions concerning prostitution as possibly relevant on the issue of drug use by the victim); State v. Conner, 163 Ariz. 97, 786 P.2d 948 (1990) (where defendant’s statements to police officers are suppressed in violation of Miranda, must use Rule 403 analysis to determine if can be used for impeachment if defendant testifies); State v. Miller, 217 Ariz. Adv. Rep. 24 (CA 1, 5/28/96) (prior inconsistent statements in an Allred context (134 Ariz. 274, 655 P.2d 1326) should be weighed by use of Evidence Rule 801 but also 403).

37. Atwood, 171 Ariz. at 639, 832 P.2d at 656; Stuard, 176 Ariz. at 599, 863 P.2d at 991; Evidence Rule 105.

38. Atwood, supra n. 37.

39. Id.; Roscoe II, 184 Ariz. at 491, 910 P.2d at 642.

40. Atwood, supra n. 37.

41. Id.

42. State v. Hughes, 102 Ariz. 118, 122-23, 426 P.2d 386, 390-91 (1967). See also State v. Fierro, 166 Ariz. 539, 547, 804 P.2d 72, 80 (1990); State v. Marahrens, 114 Ariz. 304, 307, 560 P.2d 1211, 1214 (1977). Hughes required "proof both as to the commission of another crime and its commission by the defendant, must be by substantial evidence sufficient to take the case to a jury." (Id.) It is referred to as the Hughes standard. In State v. Terrazas, supra n. 17, the court held that the Hughes standard is no longer law having been "superseded by the standard that Huddleston attributes to Rule 104(b)." This means the "profferer produces sufficient proof to permit a fact-finder to conclude, by a preponderance of the evidence, that the prior act occurred and that the party against whom the evidence is offered committed the act." (Id.) The same holding was first made in State v. Romero, supra n. 9 without mentioning the Hughes standard.

43. Id.

44. State v. Schurz, 176 Ariz. at 51 n.2, 859 P.2d at 161 n.2.

45. Supra n. 42. Prior to Terrazas and Romero, supra n. 42, both Division One in State v. Armstrong, supra n. 9, and the Arizona Supreme Court in State v. Schurz, supra n. 2 identified the apparent inconsistency between the Hughes and Huddleston standard. In Schurz Justice Martone stated his personal view that Hughes had been superseded by Arizona’s adoption of the Rules of Evidence in 1977 and endorsed the Huddleston standard as correct (Id. at 176 Ariz. 51 n. 2, 859 P.2d 161). In State v. (Aryon) Williams, supra n.9 the Arizona Supreme Court approved of a preponderance standard without discussion. Division Two did the same in State v. Pereida, 170 Ariz. 450, 453, 825 P.2d 975, 978 (App. 1992). In two recent cases Division One tacitly approved of the Huddleston standard as appropriate to the application of Arizona’s Rule 404(b). State v. (Jason) Williams, supra n. 9; State v. Barr, supra n. 9. But Cf. State v. Dickens, supra n. 30 where the court cites to Marahrens and Fierro, supra n. 42 without mentioning the preponderance of the evidence dispute.

46. Huddleston, 485 U.S. at 689, 108 S. Ct. at 1504.

47. Id. at n. 6 of opinion.

48. State v. Ramirez Enriquez, 153 Ariz. at 432, 737 P.2d at 408.

49. Id.; Henson v. Triumph Trucking, Inc., supra n. 3; State v. Coker, supra n. 3, on the issue of "how" it tends to establish guilt. See also State v. Torres, supra n. 3; State v. Cuen, supra n. 3.

50. State v. Ramirez Enriquez, supra n. 48.

51. See McClennen, supra. n. 2 at 404.b.cr.210 for this well-established argument for the admission of other act evidence. See in particular State v. Mincey, 141 Ariz. 425, 433-4, 687 P.2d 1180, 1188-9 (1984), cert.denied, 469 U.S. 1040 (1984); State v. Chaney, 141 Ariz. 295, 309, 686 P.2d 1265, 1279 (1984).

52. For a recent excellent analysis by Judge Ehrlich of the improper use of the "completes the story" argument see State v. Levato, 183 Ariz. 558, 561, 905 P.2d 567, 570 (App. 1995), rev. denied 11/21/95 on completes the story issue, but granted and remanded on the issue of accepting verdicts in the defendant’s absence, 224 Ariz. Adv. Rep. 44 (SC, 9/5/96). The Court of Appeals found that the trial court’s admission of victims’ testimony that disclosed the sources of funds lost by them in defendant’s fraudulent investment scheme was improper and should not be admitted in subsequent proceedings. The Supreme Court did not grant review of this evidentiary issue, but because it held (unlike the Court of Appeals) the trial court did not err in receiving the verdicts in defendant’s absence under the peculiar facts of the case, the Supreme Court remanded to the Court of Appeals to determine whether the "completes the story" evidence was merely harmless error or fundamental error. See also excellent discussions in State v. Ramirez Enriquez; supra n. 3; State v. Simms, 176 Ariz. 538, 541, 863 P.2d 257, 260 (App. 1993), rev. denied 12/15/93 (officer stating he had information that defendant was selling narcotics in drug case under guise of completing the story strongly disapproved and can constitute reversible error where evidence not strong on main charge); State v. Weaver, 158 Ariz. 407, 762 P.2d 1361 (App. 1988). Courts should also not permit unfairly prejudicial or otherwise irrelevant 404(b) evidence to be "laundered" through an expert’s testimony. Henson v. Triumph Trucking Inc., supra n. 3 and State v. Ramirez Enriquez, supra.

53. Supra n. 28.

54. Supra n. 3.

55. Supra n. 3.

56. Supra n. 30.

57. Supra n. 28 at 76.

58. If counts are joined only pursuant to Rule 13.3(a)(1), Ariz. R. Crim. P. (allowing joinder of same or similar character offenses) then a defendant is entitled of right to a severance under Rule 13.4. If the counts are properly joined pursuant to Rule 13.3(a)(3) (allowing joinder of acts that are part of a common scheme or plan) there is no right to severance. But even if a Defendant is entitled to severance as a matter of right there is no reversible error if the evidence of other acts or crimes would be admissible at trial anyway. Ives, at 77.

59. Id. at 78.

60. Id. at 77 quoting from Ramirez Enriquez, supra n. 3. See also discussion of apparently contrary view taken by Federal Evidence Rules 413-415, supra n. 7.

61. Citing such cases as State v. Walden, 183 Ariz. 595, 605, 905 P.2d 974, 984 (1995), cert. denied, 116 S.Ct. 1444 (1996); State v. Day, 148 Ariz. 490, 493-94, 715 P.2d 743, 746-47 (1986).

62. Citing State v. Newman, 122 Ariz. 433, 436, 595 P.2d 665, 668 (1979); State v. Rodriquez, 145 Ariz. 157, 170, 700 P.2d 855, 868 (App. 1984).

63. Supra n. 28 at 78 quoting Ramirez Enriquez, supra n. 3.

64. Supra n. 58.

65. Supra n. 28 at 79 quoting Ramirez Enriquez, supra n. 3.

66. Supra n. 28 at 79.

67. Id. at 79-81. Note that identity and modus operandi were not in issue in Ives as noted by the court at 79. Also note that the Advisory Committee Notes to the equivalent federal rule points out that Rule 404(b) "does not extend to evidence of acts which are ‘intrinsic’ to the charged offense." Evidence of other acts is ‘intrinsic’ according to United States v. Williams, 900 F.2d 823, 825 (5th Cir. 1990) "when the evidence of the other act and evidence of the crime charged are ‘inextricably intertwined’ or both acts are part of a ‘single criminal episode’ or the other acts were ‘necessary preliminaries’ to the crime charged." See recent discussion in State v. Baldenegro, 229 Ariz. Adv. Rep. 59, 62 (CA2, 11/1/96) (evidence of gang activity by others in gang admissible because part of proof of charge of participating in a criminal syndicate for the benefit of a criminal street gang); State v. Dickens, 228 Ariz. Adv. Rep. 44, 53 and 59 n. 7 (SC, 10/31/96) (in felony murder and armed robbery case the prior theft of the gun used in the murders and robberies admissible under a 404(b) and 403 analysis but Court in footnote advises the evidence is admissible without a 404(b) analysis because it is "intrinsic" evidence and that 404(b) only applies to "extrinsic" evidence — cited cases omitted).

68. Id. at 80.