SUPREME COURT OF ARIZONA
En Banc
STATE OF ARIZONA, ) Arizona Supreme Court
) No. CR-11-0127-PR
)
Appellee, ) Court of Appeals
) Division One
v. ) No. 1 CA-CR 10-0276
)
) Maricopa County
PATRICK M. FERRERO, ) Superior Court
) No. CR2009-103770-001DT
)
Appellant. ) O P I N I O N
_________________________________ )
Appeal from the Superior Court in Maricopa County
The Honorable Joseph C. Kreamer, Judge
REVERSED
________________________________________________________________
Memorandum Decision of the Court of Appeals, Division One
Filed Apr. 7, 2011
VACATED AND REMANDED
________________________________________________________________
THOMAS C. HORNE, ARIZONA ATTORNEY GENERAL Phoenix
By Kent E. Cattani, Chief Counsel
Criminal Appeals/Capital Litigation
Robert A. Walsh,
Assistant Attorney General
Attorneys for State of Arizona
JAMES J. HAAS, MARICOPA COUNTY PUBLIC DEFENDER Phoenix
By Christopher V. Johns,
Deputy Public Defender
Attorneys for Patrick Michael Ferrero
________________________________________________________________
B E R C H, Chief Justice
¶1 The issue in this case is whether, in a prosecution for
sexual offenses, evidence of similar sexual conduct with the
same minor victim is “intrinsic evidence” that is not governed
by Arizona Rule of Evidence 404(c). We also consider whether
the type of evidence described in State v. Garner, 116 Ariz.
443, 569 P.2d 1341 (1977), is inherently intrinsic to the
charged act. We conclude that Rule 404(c) does not apply to
truly intrinsic evidence, but that Garner evidence is not
inherently intrinsic.
I. FACTS AND PROCEDURAL BACKGROUND
¶2 Patrick Ferrero was charged with three counts of sexual
conduct with a minor. Over Ferrero’s objection, the trial court
admitted evidence of “other uncharged acts” with the minor to
show Ferrero’s “sexual disposition” toward him. Although the
judge did not screen the evidence under Rule 404(c), he
nonetheless instructed the jurors that they could consider the
evidence to establish that Ferrero had a character trait “that
predisposed him to commit the crimes charged.” The jury found
Ferrero guilty on all three counts.
¶3 The court of appeals reversed Ferrero’s convictions on
two counts and found any error as to the third count (which is
not before us) harmless. The court held that the trial judge
must screen “Garner evidence” under Rule 404(c) and its failure
to do so required reversal. State v. Ferrero, 1 CA-CR 10-0276,
2011 WL 1326208, at *4 ¶ 16 (Ariz. App. Apr. 7, 2011) (mem.
decision).
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¶4 We granted the State’s petition for review because the
proper interpretation of Rule 404 is an issue of statewide
importance. We have jurisdiction pursuant to Article 6, Section
5(3) of the Arizona Constitution and Arizona Revised Statutes
§ 12-120.24 (2003).
II. DISCUSSION
¶5 Rule 404 controls the admission of character and “other
act” evidence. Section 404(b) prohibits evidence of other
crimes, wrongs, or acts to prove the defendant’s character to
act in a certain way, but may allow such evidence for other
purposes, such as showing “motive, opportunity, intent,
preparation, plan, knowledge, identity, or absence of mistake or
accident.” Ariz. R. Evid. 404(b).
¶6 Section 404(c) applies to propensity evidence in sexual
misconduct cases. It expressly permits evidence of other
similar crimes, wrongs, or acts to prove the defendant’s
character trait giving rise to an aberrant sexual propensity to
commit the charged offense, but only if the court first makes
specific findings.1 Id. 404(c)(1).
1
The state must prove that the defendant committed the other
act, that the other act provides a reasonable basis from which
the jurors may infer that the defendant had the propensity to
commit the charged act, and that the value of the other act
evidence is not substantially outweighed by prejudice to the
defendant. See Ariz. R. Evid. 404(c)(1)(A)-(D); see also id.,
cmt. to 1997 amd. (citing State v. Terrazas, 189 Ariz. 580, 584,
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¶7 Arizona opinions provide imprecise guidance about the
proper application of sections (b) and (c) of Rule 404,
particularly in sex offense cases. We therefore take this
opportunity to clarify the terms “Garner evidence” and
“intrinsic evidence” and address the application of Rule 404 to
such evidence.
A. Garner Evidence
¶8 We begin by addressing what has become known as “Garner
evidence.” See Garner, 116 Ariz. at 447, 569 P.2d at 1345. The
defendant in Garner was charged with sexually assaulting his
minor son. Id. at 445, 569 P.2d at 1343. To prove the
defendant’s propensity to commit the charged crime, the
prosecutor offered evidence that, on two occasions more than a
year before the charged act, the defendant had oral sex with the
boy. Id. at 445-46, 569 P.2d at 1343-44. On review, this Court
stated that, “[i]n a case involving a sex offense committed
against a child, evidence of a prior similar sex offense
committed against the same child is admissible to show the
defendant’s lewd disposition or unnatural attitude toward the
particular victim.” Id. at 447, 569 P.2d at 1345 (citing People
v. Sylvia, 351 P.2d 781, 785 (Cal. 1960)).
¶9 Some courts have read Garner as creating an exception
944 P.2d 1194, 1198 (1997) (requiring that commission of the
other act be shown by clear and convincing evidence)).
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to the common law rule — now codified in Rule 404(b) — barring
admission of other acts to prove a defendant’s propensity to act
in a certain way.2 See, e.g., State v. Alatorre, 191 Ariz. 208,
213, 953 P.2d 1261, 1266 (App. 1998); State v. Jones, 188 Ariz.
534, 539, 937 P.2d 1182, 1187 (App. 1996). These courts have
interpreted Garner as always allowing the admission of evidence
of prior sexual acts with the same child victim, even if offered
to prove the defendant’s propensity to commit the charged act.
¶10 Twenty years after Garner, however, this Court
promulgated Rule 404(c). See Ariz. R. Evid. 404(c), cmt. to
1997 amd. The court of appeals subsequently recognized that
automatic admission of Garner evidence in cases involving sexual
offenses conflicts with 404(c), which permits use of evidence of
other acts to show the defendant’s “aberrant sexual propensity
to commit the crime charged” only if certain criteria are met.
2
Garner cites cases admitting “other act” evidence to show a
common scheme or plan and distinguishes the propensity exception
created by State v. McFarlin, 110 Ariz. 225, 517 P.2d 87 (1973),
and State v. Treadaway, 116 Ariz. 163, 568 P.2d 1061 (1977).
This suggests that the Court may have simply meant to recognize
another exception to the common law rule, similar to the
exceptions for plan, intent, motive, or opportunity. See
Garner, 116 Ariz. at 447, 569 P.2d at 1345 (citing State v. Van
Winkle, 106 Ariz. 481, 482, 478 P.2d 105, 106 (1970) (admitting
evidence of prior sexual assaults to show a “system, plan and
scheme”); State v. Finley, 108 Ariz. 420, 421, 501 P.2d 4, 5
(1972) (similar)); cf. State v. Vega, 228 Ariz. 24, 32 ¶¶ 34-35,
262 P.3d 628, 636 (App. 2011) (Thompson, J., concurring). This
reading is supported by the comments to Rule 404(c), which do
not mention Garner and affirmatively state that Rule 404(c) is
intended to substantially codify the McFarlin/Treadaway rule.
Ariz. R. Evid. 404 cmt. to 1997 amd.
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State v. Garcia, 200 Ariz. 471, 476 ¶ 31, 28 P.3d 327, 332 (App.
2001). Thus, Garcia held that Garner evidence, which it viewed
as necessarily offered to prove the defendant’s propensity to
act in a certain way, is subject to Rule 404(c) screening. Id.
The decision below followed Garcia. See Ferrero, 2011 WL
1326208, at *4 ¶ 15.
¶11 We agree with Garcia and the court of appeals in this
case that when the prosecution offers Garner evidence to prove
the defendant’s propensity to commit the charged sexual offense,
the evidence must be screened under Rule 404(c). That rule
supplants Garner’s potential exception to the propensity rule.
We therefore relegate the term “Garner evidence” to shorthand
for the type of evidence at issue in that case — “evidence of a
prior similar sex offense committed against the same child.”
Garner, 116 Ariz. at 447, 569 P.2d at 1345.
¶12 But we disagree with the court of appeals that “Garner
evidence” is always subject to Rule 404(c) screening. Rule
404(b) and (c) create a framework for admitting evidence of
other crimes, wrongs, or acts that depends in part upon the
purpose for which the evidence is offered. As in Garner, the
State offered other-act evidence here to prove Ferrero’s
propensity (and the jury was so instructed), but that will not
always be the case. Garner evidence might also be relevant for
non-propensity purposes, such as showing motive, intent,
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identity, or opportunity. If the evidence is offered for a non-
propensity purpose, it may be admissible under Rule 404(b),
subject to Rule 402’s general relevance test, Rule 403’s
balancing test, and Rule 105’s requirement for limiting
instructions in appropriate circumstances. But if evidence of
other sex acts is offered in a sexual misconduct case to show a
defendant’s “aberrant propensity” to commit the charged act, as
it was here, Rule 404(c) applies.
¶13 Rules 404(b) and (c), however, apply only to evidence
of “other” crimes, wrongs, or acts. The admissibility of Garner
evidence therefore depends on a second question — that is,
whether the evidence is so intrinsic to the charged act as not
to constitute an “other” act.
B. Intrinsic Evidence
¶14 The intrinsic evidence doctrine arose from Rule
404(b)’s distinction between “charged” and “other” crimes,
wrongs, or acts. See State v. Nordstrom, 200 Ariz. 229, 248
¶ 56, 25 P.3d 717, 736 (2001); see also United States v. Bowie,
232 F.3d 923, 927 (D.C. Cir. 2000) (noting that Federal Rule of
Evidence 404(b) “creates a dichotomy between crimes or acts that
constitute the charged crime and crimes or acts that do not”).
Its premise is that certain acts are so closely related to the
charged act that they cannot fairly be considered “other” acts,
but rather are part of the charged act itself. See United
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States v. Green, 617 F.3d 233, 245 (3d Cir. 2010). The doctrine
recognizes that excluding evidence of these acts may prevent a
witness from explaining the charged act, making the witness’s
testimony confusing or incoherent. See Burke v. State, 624 P.2d
1240, 1250 (Alaska 1980); People v. Dobek, 732 N.W.2d 546, 568
(Mich. Ct. App. 2007). Thus, courts have used the doctrine to
admit evidence of other acts as intrinsic to the charged act
despite the danger that it might also show the defendant’s
propensity to act in a certain way. See Fed. R. Evid. 404(b),
cmt. to 1991 amd. (citing United States v. Williams, 900 F.2d
823 (5th Cir. 1990)).
¶15 We previously said that “evidence is ‘intrinsic’ when
[1] evidence of the other act and evidence of the crime charged
are ‘inextricably intertwined’ or [2] both acts are part of a
‘single criminal episode’ or [3] the other acts were ‘necessary
preliminariesʼ to the crime charged.” State v. Andriano, 215
Ariz. 497, 502 ¶ 18, 161 P.3d 540, 545 (2007) (quoting State v.
Dickens, 187 Ariz. 1, 18 n.7, 926 P.2d 468, 485 n.7 (1996)); see
Nordstrom, 200 Ariz. at 248 ¶ 56, 25 P.3d at 736 (also quoting
Dickens). Our opinions in Andriano and Nordstrom illustrate the
narrow scope of this definition.
¶16 In Andriano, the defendant was convicted of murdering
her husband. 215 Ariz. at 502 ¶ 14, 161 P.3d at 545. We held
that evidence of Andriano’s extramarital affairs and attempts to
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procure insurance on her husband’s life was not intrinsic to the
murder because Andriano never actually procured the insurance,
id. at ¶¶ 20-21, and her affairs were unrelated to the murderous
act itself, id. at 503 ¶ 26, 161 P.3d at 546.
¶17 The connection between the charged and uncharged acts
in Nordstrom was similarly tenuous. Nordstrom murdered several
people in a bar. 200 Ariz. at 236-38 ¶¶ 1-7, 25 P.3d at 724-26.
We rejected the State’s argument that Nordstrom’s solicitation
of another person to burglarize the same bar two years earlier
was intrinsic to the subsequent murders. Id. at 248 ¶ 56, 25
P.3d at 736. We concluded that too much time had passed and the
acts were not sufficiently similar. See id. Thus, although the
acts in Andriano and Nordstrom shared some similarities or
connections to the charged acts, we found that the other acts
were not inextricably intertwined with, part of the same
criminal episode as, or necessary preliminaries to, the charged
acts.
¶18 Despite our efforts to narrowly constrain the intrinsic
evidence doctrine, some decisions have cited it to justify the
admission of evidence that is not truly intrinsic to the charged
act. See, e.g., State v. Herrera, 226 Ariz. 59, 64 ¶ 15, 243
P.3d 1041, 1046 (App. 2011). It has proved difficult for courts
to determine when an “other act” is necessarily preliminary to
the charged act or when evidence crosses the line from being
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admissible as “part of a single criminal episode” as the charged
act, to being inadmissible as merely arising “out of the same
series of transactions as the charged offense.” See, e.g.,
United States v. Siegel, 536 F.3d 306, 316 (4th Cir. 2008)
(applying “same series of transactions” test); United States v.
McLee, 436 F.3d 751, 760 (7th Cir. 2006) (same).
¶19 The Third Circuit noted similar problems in identifying
whether evidence is sufficiently “inextricably intertwined” to
make it intrinsic, remarking that “the [inextricably
intertwined] test creates confusion because, quite simply, no
one knows what it means.” Green, 617 F.3d at 246. In Green,
the defendant was convicted of attempted possession of cocaine.
Id. at 237-38. At trial, the court admitted evidence of a bomb
plot under the theory that the defendant sought to purchase
dynamite and cocaine in the same transaction, so the bomb plot
helped explain how the defendant attempted to procure the drugs.
Id. at 237. The Third Circuit found the evidence admissible for
non-propensity purposes under Rule 404(b), id. at 252, but it
disagreed with the trial court’s analysis and held that the
evidence relating to the bomb plot was not intrinsic to the
attempted cocaine possession, id. at 249. After extensively
analyzing the pitfalls of the intrinsic evidence doctrine
generally, and the “inextricably intertwined” category in
particular, the court decided to “reserve the ‘intrinsic’ label
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for two narrow categories of evidence.” Id. at 248. According
to the court, an “other act” is intrinsic only if it
(1) “directly proves the charged offense,” or (2) is “performed
contemporaneously with” and “facilitate[s] the commission of the
charged crime.” Id. at 248-49 (internal citations and quotation
marks omitted).
¶20 Given the difficulty Arizona courts have experienced in
applying the intrinsic evidence definition we espoused in
Andriano and Nordstrom, we adopt Green’s definition. It
desirably allows evidence of acts that are so interrelated with
the charged act that they are part of the charged act itself
without improperly admitting evidence that, although possibly
helpful to explain the charged act, is more appropriately
analyzed under Rule 404(b) or (c). Henceforth, evidence is
intrinsic in Arizona if it (1) directly proves the charged act,
or (2) is performed contemporaneously with and directly
facilitates commission of the charged act.3 See id. at 248-49.
The intrinsic evidence doctrine thus may not be invoked merely
to “complete the story” or because evidence “arises out of the
3
Other jurisdictions have entirely abandoned the intrinsic
evidence doctrine. See, e.g., State v. Fetelee, 175 P.3d 709,
737 (Haw. 2008); State v. Rose, 19 A.3d 985, 1010-11 (N.J.
2011). Although the need for the doctrine may be questioned,
the parties have not asked that we abandon it, so we do not
decide that issue today.
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same transaction or course of events” as the charged act.4
¶21 Although we intend our definition to be narrow, the
varied circumstances in which parties may attempt to admit
evidence of other acts makes it impossible to fashion a bright-
line test for determining when evidence is intrinsic. Under our
definition, however, Garner evidence is not inherently intrinsic
to the charged act. Although prior sexual contact with the
victim may be so closely related to the charged sexual offense
that it is intrinsic and thus exempt from Rule 404 analysis, it
may also be sufficiently remote and unrelated that it neither
proves nor facilitates the charged act.
¶22 The nature of intrinsic evidence as part of the charged
act also shows why it is not subject to Rule 404(c) screening.
Because Rule 404(c) applies to other “crimes, wrongs, or acts,”
it does not apply if the proponent offers evidence of the
charged act itself. By its language, the rule also does not
apply if evidence of uncharged acts is offered to show something
other than the defendant’s propensity to commit the charged act.
Rule 404(c) thus does not extend to truly intrinsic acts, which
are not “other acts” and are not offered to prove the
4
Evidence that “completes the story,” “arises out of the
same transaction” as the charged act, or is “part and parcel” of
the charged act may well qualify as intrinsic evidence, but
those tests are broader than our formulation and should not be
invoked to analyze whether evidence is intrinsic to the charged
act.
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defendant’s propensity to commit the charged act. Accordingly,
intrinsic evidence — including Garner evidence that is intrinsic
— is not subject to Rule 404(c) screening.
¶23 Our narrow definition of intrinsic evidence will not
unduly preclude relevant evidence of a defendant’s other acts.
Non-intrinsic evidence will often be admissible for non-
propensity purposes under Rule 404(b). See Andriano, 215 Ariz.
at 502-03 ¶¶ 22-23, 26-27, 161 P.3d at 545-46 (finding evidence
of attempts to procure insurance and extramarital affairs not
intrinsic, but nonetheless admissible under Rule 404(b) to show
plan, knowledge, motive, and intent to kill). As the court
observed in Green,
[I]t is unlikely that our holding will exclude much,
if any, evidence that is currently admissible as
background or “completes the story” evidence under the
inextricably intertwined test. We reiterate that the
purpose of Rule 404(b) is simply to keep from the jury
evidence that the defendant is prone to commit crimes
or is otherwise a bad person, implying that the jury
needn’t worry overmuch about the strength of the
government’s evidence. No other use of prior crimes
or other bad acts is forbidden by the rule, and one
proper use of such evidence is the need to avoid
confusing the jury. Thus, most, if not all, other
crimes evidence currently admitted outside the
framework of Rule 404(b) as “background” evidence will
remain admissible under the approach we adopt today.
The only difference is that the proponent will have to
provide notice of his intention to use the evidence,
and identify the specific, non-propensity purpose for
which he seeks to introduce it (i.e., allowing the
jury to hear the full story of the crime).
Additionally, the trial court will be required to give
a limiting instruction upon request.
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617 F.3d at 249 (citations and internal quotation marks
omitted); see Ariz. R. Evid. 105 (jury instruction); Ariz. R.
Crim. P. 15.1(b)(7) (pretrial notice); see also Bowie, 232 F.3d
at 927 (“So far as we can tell, the only consequence[] of
labeling evidence ‘intrinsic’ [is] to relieve . . . the court of
its obligation to give an appropriate limiting instruction upon
defense counsel’s request.”).
¶24 In summary, evidence of the defendant’s prior sexual
conduct with the child victim of a sexual offense — Garner
evidence — is not inherently intrinsic; whether it is depends on
its relation to the charged acts. If it is not intrinsic, it
may nonetheless be admissible under Rule 404(b) if not offered
to prove the defendant’s propensity to commit the charged act,
or under Rule 404(c) if offered to prove the defendant’s
propensity to commit the charged act and the proponent satisfies
Rule 404(c)’s prerequisites.
C. Evidence of Ferrero’s Uncharged Acts
¶25 The court of appeals correctly held that the trial
court erred by failing to subject several categories of other
act evidence to Rule 404(c) screening because it was offered to
show the defendant’s propensity to commit the charged acts. For
example, the trial court, presumably relying on Garner,
permitted the prosecutor to introduce evidence that on the ride
to Ferrero’s house on the night of the first charged offense,
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Ferrero told the victim to pull down the victim’s pants and
underwear and expose himself. The victim acceded to Ferrero’s
demands because Ferrero threatened to leave him on the side of
the road if he did not comply. When they arrived at Ferrero’s
house, the victim talked with Ferrero’s mother and played
computer games for at least thirty minutes while Ferrero
showered. The victim then joined Ferrero in bed, at which time
Ferrero completed the first charged act.
¶26 The State offered the exposure evidence to show “that
Defendant had the emotional propensity to engage in sexual
misconduct” with the victim, and the jury was instructed that
the evidence could be used for that purpose. The evidence is
facially governed by Rule 404(c) because it involves an
uncharged sex act offered “to show that the defendant had a
character trait giving rise to an aberrant sexual propensity to
commit the offense charged.” The evidence is therefore exempt
from Rule 404(c) screening only if the uncharged act was truly
intrinsic to the charged act and thus not an “other act.”
¶27 The evidence of this uncharged act does not fit within
our narrow definition of intrinsic evidence. The two acts were
qualitatively different and constituted two separate instances
of sexual abuse. Thus, under the first prong of our definition,
forcing the victim to expose himself does not directly prove
that Ferrero later committed the charged sexual offense. The
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second prong — which requires that the act occur
contemporaneously with and directly facilitate the charged act —
is equally unavailing. Although forcing the victim to pull down
his pants in the vehicle may have facilitated the charged act by
weakening the victim’s defenses, it did not occur
contemporaneously with the charged act. The acts were separated
by at least thirty minutes, during which time the victim talked
to Ferrero’s mother and played computer games.
¶28 The forced exposure is therefore not intrinsic to the
charged act. Because the evidence was offered to prove the
defendant’s propensity to commit the charged act, the trial
court erred in admitting evidence of that act without screening
it under Rule 404(c).5
III. CONCLUSION
¶29 Although we agree with the court of appeals’ result, we
disagree with its analysis and therefore vacate its memorandum
decision and remand the case for a new trial on the first two
counts.6 If the State seeks to admit evidence of other acts on
5
Having found the victim’s testimony regarding his forced
exposure inadmissible absent Rule 404(c) screening, we need not
address the remaining uncharged acts. On remand, however, the
State may seek admission of the other uncharged acts pursuant to
the framework outlined above.
6
By remanding for a new trial with instructions for the
trial court to consider whether the evidence was intrinsic to
the charged acts, the court of appeals implicitly found that the
trial court’s failure to screen the evidence of other acts under
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remand, the trial court must determine whether the evidence is
offered to prove Ferrero’s propensity. If the evidence is
offered for a legitimate non-propensity purpose, the trial court
may admit it under Rule 404(b), subject to the other rules of
evidence. If, however, the evidence is offered to prove
propensity, the trial court must screen it under Rule 404(c).
_____________________________________
Rebecca White Berch, Chief Justice
CONCURRING:
_____________________________________
Andrew D. Hurwitz, Vice Chief Justice
_____________________________________
W. Scott Bales, Justice
_____________________________________
A. John Pelander, Justice
_____________________________________
Robert M. Brutinel, Justice
Rule 404(c) was not harmless error. In its petition for review,
the State challenged the court of appeals’ refusal to conduct an
explicit harmless error analysis, but we did not grant review on
that issue.
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