dissenting:
I respectfully dissent. The majority holds that Rule 404, Arizona Rules of Evidence, operates to exclude circumstantial use of character evidence in all civil cases, *419adopting the opinion of Division Two of this Court in Blankinship v. Duarte, 137 Ariz. 217, 669 P.2d 994 (App.1983).
I have previously concurred in an opinion which adopted the Blankinship rationale. Bell v. State, 143 Ariz. 305, 693 P.2d 960 (App.1984). I am now convinced that Blankinship was incorrectly decided and that my concurrence in Bell, on that particular point, was mistaken.
Rule 404(a)(2), Arizona Rules of Evidence, states:
(a) Character evidence generally. Evidence of a person’s character or a trait of his character is not admissible for the purpose of proving that he acted in conformity therewith on a particular occasion, except:
(2) Character of Victim. Evidence of a pertinent trait of character of the victim of the crime offered by an accused, or by the prosecution to rebut the same, or evidence of a character trait of peacefulness of the victim offered by the prosecution in a homicide case to rebut evidence that the victim was the first aggressor____
A split of authority exists, between both state and federal courts, regarding whether Rule 404 implies that evidence of character for peacefulness or propensity toward violence must be excluded in the civil assault context. See 1A Wigmore on Evidence § 64, at 1402 n. 3 (Tillers rev. 1983). The illogical and inequitable results of interpreting Rule 404 to mandate an absolute exclusion of character evidence in civil actions become especially apparent in this case. The major question presented to the jury was whether Gibson or, alternatively, Gunsch initiated the altercation at the Devilhouse. If this issue arose in a criminal assault action, the admissibility of evidence regarding Gibson’s character for peacefulness, to rebut Gunsch’s claim of self-defense, would be beyond question under Rule 404. See State v. Zamora, 140 Ariz. 338, 681 P.2d 921 (App.1984) (defendant charged with criminal assault may offer proof of victim’s reputation for violence when issue is who was the aggressor). The majority holds, based on Blankinship, that this evidence is inadmissible simply because the parties are litigating the matter in a civil proceeding. In discussing this seemingly warrantless distinction, the 1964 California Law Revision Commission indicated:
[I]t undoubtedly is thought by some that admission of ‘character’ evidence in civil actions would entail undue consumption of time, would involve distracting the attention of the jury from the main issues by the exploration of collateral issues, and might unfairly surprise the party against whom the evidence is offered. But if these reasons are insufficient as a basis for excluding evidence of good character in criminal actions, how can it be that they become sufficient reasons when the action happens to be a civil action? Surely it is just as important to determine civil actions rightly and fairly as it is so to determine criminal actions. If, then, a matter is relevant and conducive to the right determination of an issue (and is, therefore, admissible) when that issue arises in a criminal action, should not the result be the same when the issue arises in a civil action?
California Law Revision Commission, Tentative Recommendation and Study 658 (1964) (footnotes omitted) (emphasis added). See 1A Wigmore on Evidence, supra, at 1403-05.
Blankinship nonetheless holds, as the majority contends, that Rule 404 restricts the relevancy of character evidence, in the context of assault allegations, to criminal cases. In doing so, Blankinship relies upon the statement in M. Udall and J. Liver-more’s Law of Evidence § 83, at 170 (2d ed. 1982): “With the exception of credibility rules discussed elsewhere, Rule 404 makes clear that circumstantial use of character is permissible only in criminal cases.”
Udall and Livermore in turn rely upon the federal Advisory Committee Note to *420Rule 4041 to conclude that the rule of Mong Ming Club v. Tang, 11 Ariz. 63, 266 P.2d 1091 (1954) “apparently does not survive the enactment of the rules of evidence.” M. Udall and J. Livermore, supra, at 171, n. 6.
In my opinion, this “apparent” conclusion based upon the federal Advisory Committee Note is misplaced. As is pointed out in 2 Weinstein’s Evidence § 404[03], at 404-22 (1980), the federal Advisory Committee Note adopts the “orthodox position” of the federal courts on this issue. See e.g., Brown v. Evans, 17 F. 912 (C.C.D.Nev. 1883); Morgan v. Barnhill, 118 F. 24 (5th Cir.1902); Robinson v. Van Hooser, 196 F. 620 (6th Cir.1912). However, the “orthodox position” in Arizona is to the contrary. As stated in Mong Ming Club, supra:
In civil actions for damages for assault and battery, as in criminal prosecutions, the defendant, after laying a proper foundation by evidence tending to show that in committing the assault he acted in self-defense, may introduce evidence of the turbulent and dangerous character of the assaulted on the issue as to who was the aggressor.
77 Ariz. at 66, 266 P.2d at 1093.
I see nothing in the adoption of a Federal rule of evidence applicable to criminal cases that would impliedly overrule the Supreme Court’s adoption of a common law rule applicable to civil cases. I therefore conclude that Rule 404 was not intended to abrogate the rule in Mong Ming Club. Moreover, no clear basis exists for ruling that evidence of the victim’s character for peacefulness is not equally admissible, under Arizona law, in a civil assault setting where both parties claim they acted in self-defense.
A growing minority of courts has adopted the position that a party to a civil action should be permitted to introduce evidence of that party’s good reputation for the character trait related to the allegations. McCormick on Evidence § 192 (2d ed. 1972). In Strickland v. Jackson, 23 N.C.App. 603, 209 S.E.2d 859 (1974), the court noted this trend in stating that the minority:
“has been impressed with the serious consequences to the party’s standing, reputation, and relationships which such ... [charges], even in a civil action, may bring in ... [their] train, and has followed the criminal analogy, by permitting the party to introduce evidence of his good reputation for the trait involved in the charge.”
Id. at 606-07, 209 S.E.2d at 862 (citing McCormick on Evidence § 192 (2d ed. 1972)). The Strickland court was persuaded that evidence as to either party’s character for peacefulness was properly admitted where the question arose as to who initiated the aggression. Id. Accord Phillips v. Mooney, 126 A.2d 305 (D.C. 1956); Oller v. Hicks, 441 P.2d 356 (Okla. 1968). In Niemeyer v. McCarty, 221 Ind. 688, 51 N.E.2d 365 (Ind.1943), the court declared “it is settled beyond controversy” that evidence of character for peacefulness may be introduced by a defendant to a criminal charge of assault where he affirm*421atively pleads self-defense. Id. The Niemeyer court further remarked:
In a criminal case the evidence is permitted as tending to prove a substantive fact in issue. It is not extraneous or collateral. We can conceive of no reason why evidence which is held to establish a fact in issue in a criminal case should be excluded in a civil case where the same fact is in issue.
Id. at 369-70.
In Crumpton v. Confederation Life Insurance Co., 672 F.2d 1248 (5th Cir.1982), the court concluded that evidence of an insured’s good character was admissible in view of the insurer’s claim that he had raped the woman who killed him, and was, therefore, not entitled to accidental death benefits. Id. The Crumpton court cited the federal Advisory Committee’s Note on Rule 404 and its rejection of the expanded use of character evidence in civil cases, in stating:
[W]e do not view this as determinative of the circumstances of this case, which while actually civil, in character is akin to a criminal case. In Reyes [v. Missouri Pacific R.Co., [589 F.2d 791 (5th Cir. 1979) ], ... we said that the “general rule of exclusion” was applicable to both civil and criminal proceedings____ Thus by implication, when evidence would be admissible under Rule 404(a) in a criminal case, we think that it should also be admissible in a civil suit where the focus is on essentially criminal aspects, and the evidence is relevant, probative, and not unduly prejudicial.
672 F.2d at 1254 n. 7.
The majority distinguishes Crumpton from the present case, stating that Crumpton involved an “issue of rape” that resulted in a trial quite similar to a criminal “case for rape.” Such reasoning applies equally well here, however, in that the question of who initiated the altercation resulted in a trial that was in most respects similar to a criminal case for assault.
In my opinion, the reasoning in Crumpton, as well as the minority view on this issue, is sound and should be applied in the case at bar to affirm the trial court’s admission of testimony regarding Gibson’s character for peacefulness. I therefore disagree with Blankinship and disavow my concurrence in Bell v. State, supra, on this issue.
. The argument is made that circumstantial use of character ought to be allowed in civil cases to the same extent as in criminal cases, i.e. evidence of good (nonprejudicial) character would be admissible in the first instance, subject to rebuttal by evidence of bad character____ The difficulty with expanding the use of character evidence in civil cases is set forth by the California Law Revision Commission in its ultimate rejection of Uniform Rule 47, id., at 615:
Character evidence is of slight probative value and may be very prejudicial. It tends to distract the trier of fact from the main question of what actually happened on the particular occasion. It subtly permits the trier of fact to reward the good man and to punish the bad man because of their respective characters despite what the evidence in the case shows actually happened.
... [Expanding concepts of "character,” which seem of necessity to extend into such areas as psychiatric evaluation and psychological testing, coupled with expanded admissibility, would open up such vistas of mental examinations as caused the [U.S. Supreme] Court's concern in Schlagenhauf v. Holder, 379 U.S. 104, 85 S.Ct. 234, 13 L.Ed.2d 152 (1964). It is believed that those espousing change have not met the burden of persuasion.