concurring.
I concur with the majority because I believe that State v. McFarlin, 110 Ariz. 225, 517 P.2d 87 (1973), and State v. Garner, 116 Ariz. 443, 569 P.2d 1341 (1977), compel the result we reach. Gamer holds that prior molestations of the same child are admissible to prove that the child was molested on the occasion giving rise to the charge. I write separately to point out that applied uncritically, Gamer loses its logical underpinning. I illustrate my point with a simple restatement of the facts of the case we decide today. The state wants to prove that the defendant molested the child on one occasion in December, the crime with which the defendant is charged. It introduces the child’s testimony that the incident occurred. To bolster its proof, the state introduces the assertion of the same child that the defendant molested her earlier in an incident for which the defendant has not been charged. Why, without more detail or independent corroboration, is the child’s testimony about the earlier incident any more credible than her testimony about the one for which the defendant is on trial? What does the evidence of the prior bad act add except repetition? Why isn’t the admission of such evidence mere bootstrapping? It is bootstrapping. In this case, the effect of this bootstrapping is ameliorated because there was independent evidence from the victim’s sister of the defendant’s penchant for molesting children.
The instruction to the effect that the jury could only consider the testimony about the prior molestations to prove the defendant’s state of mind was very imprecise and does not make much sense in the context of this case. It would have been more accurate to instruct that the evidence of prior acts could be considered to prove the defendant’s propensity to molest children. The instruction about proving intent was, however, innocuous.