State v. Aguilar

SUPREME COURT OF ARIZONA
En Banc

) Arizona Supreme Court
STATE OF ARIZONA, ) No. CR-03-0332-PR
)
Appellee, ) Court of Appeals
) Division One
v. ) No. 1 CA-CR 02-0576
)
DAVID HERAN AGUILAR, ) Maricopa County Superior
) Court
Appellant. ) No. CR 2001-007665
)
________________________________) O P I N I O N

Appeal from Maricopa County Superior Court
No. CR 2001-007665
The Honorable Louis A. Araneta, Judge
The Honorable Michael A. Yarnell, Judge

REVERSED AND REMANDED
_______________________________________________________________

Court of Appeals, Division One
No. 1 CA-CR 02-0576 (Sept. 4, 2003) (mem. decision)

VACATED IN PART
_______________________________________________________________

Terry Goddard, Attorney General Phoenix
By: Randall M. Howe
Chief Counsel
Criminal Appeals Section
and Robert A. Walsh
Assistant Attorney General
Attorneys for Appellee

James J. Haas, Maricopa County Public Defender Phoenix
By: Joel M. Glynn
Deputy Public Defender
Attorneys for Appellant
________________________________________________________________

R Y A N, Justice

¶1 We granted review to determine whether the aberrant
sexual propensity exception to the prohibition against character

evidence, codified in Arizona Rule of Evidence 404(c),

encompasses sexual assaults against adults when the defendant

claims the victims consented. We hold that it can.

I.

¶2 In a single indictment, the Maricopa County Grand Jury

charged David Heran Aguilar with sexually assaulting four women

between November 9, 1999, and May 10, 2001.1 Aguilar admitted

that he had sexual contact with three of the women, but claimed

that each consented to the contact. Aguilar denied that he knew

the fourth woman. The charges involving this woman were later

dismissed by the State.

¶3 Before trial, Aguilar filed a motion to sever, arguing

that he was entitled as a matter of right to three separate

trials as to the charges relating to each victim. See Ariz. R.

Crim. P. 13.4(b) (providing that a “defendant shall be entitled

as of right to sever offenses joined only by virtue of Rule

13.3(a)(1), unless evidence of the other . . . offenses would be

admissible under applicable rules of evidence if the offenses

were tried separately”). Following oral argument on the motion,

the trial court found that under Arizona Rule of Criminal

1
The indictment also charged Aguilar with two counts of
aggravated assault, four counts of kidnapping, and one count of
armed robbery.

2
Procedure 13.3(a)(1),2 the counts as to all victims were properly

joined because they involved sufficient “same or similar

circumstances.”

¶4 In addition, with respect to the three victims, the

trial court found that the evidence as to each victim would be

admissible under Arizona Rule of Evidence 404(c) as to the

charges involving the other victims. The trial court noted that

“the circumstances and alleged facts as to all counts as to [the

victims]: (1) [were] shown by clear and convincing evidence; (2)

demonstrate[d] an emotional propensity for sexual deviance; and

(3) the prejudice of such facts [did] not outweigh their

probative value as to each such count.” See Ariz. R. Evid.

404(c)(1)(A)–(C). Because the offenses involving one victim

would be admissible in a trial of the offenses involving another

victim, the court held that under Rule 13.4(b) Aguilar would not

be entitled to a severance.

¶5 The jury returned guilty verdicts on three counts of

kidnapping, four counts of sexual assault, and two counts of

sexual abuse.3 The jury found “not true” the State’s allegations

2
Rule 13.3(a)(1) provides that if each offense “is stated in
a separate count, [two] or more offenses may be joined in an
indictment . . . if they . . . [a]re of the same or similar
character.” Ariz. R. Crim. P. 13.3(a)(1).
3
The jury returned not guilty verdicts on counts alleging
aggravated assault of one of the victims and armed robbery,
sexual assault, and sexual abuse of another.

3
of dangerousness with respect to three counts related to one of

the victims.

¶6 Aguilar appealed his convictions and sentences.

Relying on a then recent opinion of the court of appeals, which

this court later ordered depublished,4 the court of appeals

reversed. State v. Aguilar, 1 CA-CR 02-0576, mem. decision at

19, ¶ 29 (Ariz. App. Sept. 4, 2003). The court held that if

Aguilar were granted a separate trial as to each victim,

evidence of each incident would be cross-admissible under Rule

404(c) only if the State could show that the conduct charged was

abnormal or remarkable. Id. at 8, ¶ 12 (“[T]his court recently

rejected the same argument advanced by the State in the present

case, that Rule 404(c) is properly interpreted as applying ‘not

only to cases involving highly unusual sex acts, but also to

crimes involving heterosexual contact between adults, that

involves conduct that is not abnormal or remarkable except for

the fact that one of the parties did not consent to the

conduct.’” (quoting Feld v. Gerst, 205 Ariz. 91, 96, ¶ 17, 66

P.3d 1268, 1273 (App. 2003), depublished, 206 Ariz. 117, 75 P.3d

1075 (2003))). The court noted that the sexual contact in

Aguilar’s case was between two adults and the sole issue was

whether the acts were consensual. Id. at 8, ¶ 13. Thus, the

4
Feld v. Gerst, 205 Ariz. 91, 66 P.3d 1268 (App. 2003),
depublished, 206 Ariz. 117, 75 P.3d 1075 (2003).

4
court of appeals concluded that Rule 404(c) did not support

joinder of the charged offenses and therefore Aguilar’s motion

to sever should have been granted by the trial court.5 Id. at 8-

9, ¶ 13.

¶7 The court of appeals then concluded that “[b]ecause no

basis existed for the admission of evidence pursuant to Rule

404(c),” the trial court committed fundamental error when it, as

required by Rule 404(c)(2), instructed the jury as to how it

should consider the evidence of the other sexual assaults when

deciding Aguilar’s culpability on the charged offenses. Id. at

11, ¶¶ 17, 19. As a result, the court reversed Aguilar’s

convictions. Id. at 12-13, ¶ 19.

¶8 The State petitioned for review, arguing that Rule

404(c)’s sexual propensity exception should not be limited to

child molestation cases or those involving “highly unusual sex

acts.” We granted review because this matter involves an

interpretation of one of our rules and because of the statewide

importance of the issue. We have jurisdiction under Article 6,

5
The court also ruled that “[o]n remand, the trial court may
still determine whether any of the other exceptions available
under Arizona Rule of Evidence 404(b) might be applicable.”
Aguilar, 1 CA-CR 02-0576, mem. decision at 12-14, ¶ 21.
Specifically, “[b]ecause [Aguilar] was charged with
[kidnapping], a charge that placed his specific intent at issue,
evidence of each incident could possibly be introduced at
separate trials under Rule 404(b), and the trial court could
properly deny [Aguilar’s] motion to sever on that basis.” Id.
at 15, ¶ 23. Neither party challenged this ruling in this
court.

5
Section 5.3, of the Arizona Constitution and Arizona Revised

Statutes (“A.R.S.”) section 12-120.24 (2003).

II.

A.

¶9 “One of the oldest principles of Anglo-American law”

is that evidence of other bad acts is not admissible to show a

defendant’s bad character. David P. Leonard, In Defense of the

Character Evidence Prohibition: Foundations of the Rule Against

Trial by Character, 73 Ind. L.J. 1161, 1162 (1998). The

rationale for this principle is the recognition that character

evidence would have a highly prejudicial effect on a defendant’s

case — the jury might use the character evidence to improperly

conclude that the defendant is a bad person and therefore more

likely to have engaged in the charged offense. See State v.

McFarlin, 110 Ariz. 225, 228, 517 P.2d 87, 90 (1973). This

principle was set forth in the former version of Arizona Rule of

Evidence 404(a).6

6
Before its amendment in 1997, Rule 404(a) provided that
“[e]vidence of a person’s character or a trait of character is
not admissible for the purpose of proving action in conformity
therewith on a particular occasion,” except when a defendant
offers evidence of “a pertinent trait of [his own] character,”
when “evidence of a pertinent trait of character of a victim” is
relevant, or when a witness’ character is attacked “as provided
in Rules 607 [permitting any party to impeach a witness], 608
[permitting evidence of character and conduct of witness when
probative of witness’ character for truthfulness or
untruthfulness], and 609 [permitting impeachment by evidence of
a conviction of a crime].”

6
¶10 But the prohibition on other act evidence is not

absolute. “[E]vidence of other crimes is admissible when it is

offered for any relevant purpose other than to prove the

character of a person.” Morris K. Udall et al., Arizona

Practice: Law of Evidence § 84 (1991). Before 1997, Rule 404(b)

codified this maxim 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.7

Although the “listing of relevant purposes” is “not exhaustive,”

Udall, Arizona Practice: Law of Evidence § 84, admission of

other act evidence most often occurs in cases in which intent,

plan, knowledge, identity, or absence of mistake is an issue.

E.g., State v. Gulbrandson, 184 Ariz. 46, 61, 906 P.2d 579, 594

(1995) (finding that evidence of a previous assault was

admissible to show motive and intent for subsequent murder);

State v. Stuard, 176 Ariz. 589, 597-600, 863 P.2d 881, 889-92

As explained in ¶ 20, in 1997 this court adopted Rule
404(c). At the same time, the court amended Rule 404(a).
Thereafter, in addition to the exceptions contained in the pre-
1997 version of the rule, Rule 404(a) provides for the admission
of “evidence of the aberrant sexual propensity of the accused
. . . pursuant to Rule 404(c).” Ariz. R. Evid. 404(a)(1).
7
When this court adopted Rule 404(c), Rule 404(b) was
amended. The amendment added the following clause to the
beginning of the rule: “Except as provided in Rule 404(c)
. . . .” Ariz. R. Evid. 404(b).

7
(1993) (finding evidence of attempted murder admissible to prove

identity of the perpetrator of three separate murders); State v.

Mosley, 119 Ariz. 393, 399, 581 P.2d 238, 244 (1978) (finding

evidence of trackmarks admissible to prove appellant’s knowledge

of the nature of the drugs in question and his intent to possess

them); State v. Carner, 25 Ariz. App. 156, 157, 541 P.2d 947,

948 (1975) (finding testimony that the defendant had knowingly

purchased stolen goods on ten to fifteen occasions before the

charged offense was admissible to prove absence of mistake or

accident).

B.

¶11 In addition to the most commonly used exceptions, this

court has long recognized a common-law propensity exception to

the exclusion of evidence of prior bad acts in cases involving

charges of sexual misconduct. This exception was first fully

articulated in McFarlin, 110 Ariz. at 228, 517 P.2d at 90.

In those instances in which the offense charged
involves the element of abnormal sex acts such as
sodomy, child molesting, lewd and lascivious
[conduct], etc., there is 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 perverted acts.

Id. This definition pointedly did not include sexual assault.

See State v. Williams, 111 Ariz. 511, 515, 533 P.2d 1146, 1150

(1975) (“The fact that one woman was raped is not substantial

evidence that another did not consent.” (citing Lovely v. United

8
States, 169 F.2d 386, 390 (4th Cir. 1948))). Consequently, when

a defendant was charged with offenses such as sodomy, child

molestation, lewd and lascivious conduct, or other similar

offenses, and Rule 404(b) did not permit admission of other act

evidence, the McFarlin rule permitted the introduction of

evidence of other acts if those acts tended to show that a

defendant had a “propensity to commit such perverted” offenses.

McFarlin, 110 Ariz. at 228, 517 P.2d at 90.

¶12 In State v. Treadaway, we re-examined the propensity

exception and further clarified the rule. 116 Ariz. 163, 165-

67, 568 P.2d 1061, 1063-65 (1977). Treadaway had been convicted

of the first-degree murder of a six-year-old boy by

strangulation. Id. at 164-65, 568 P.2d at 1062-63. The

evidence also established the boy had been sodomized. Id. at

164, 568 P.2d at 1062. The superior court admitted, “for the

purpose of showing emotional propensity,” that three years

before, Treadaway had committed fellatio and anilingus on a

thirteen-year-old boy. Id. at 165, 568 P.2d at 1063. We

reversed, explaining that the admissibility of other act

evidence under the propensity exception “depends initially upon

its relevancy, which involves complicated questions of sexual

deviancy in a sophisticated area of medical and scientific

knowledge.” Id. at 167, 568 P.2d at 1065. We further held that

until the state presented “reliable expert medical testimony

9
that . . . a prior act three years earlier tends to show a

continuing emotional propensity to commit the act charged,”

Treadaway’s prior bad act would be inadmissible. Id.

¶13 At the retrial of Treadaway’s case, the state sought

to introduce evidence of another incident, which the court

referred to as the “Brown incident.”8 State ex rel. LaSota v.

Corcoran, 119 Ariz. 573, 575, 583 P.2d 229, 231 (1978). Relying

on Treadaway, the trial court ruled that it must exclude this

other act evidence because the state failed to introduce

“reliable expert medical testimony that the same person would

have perpetrated the Brown incident and [this] homicide.” Id.

The state filed a special action with this court, challenging

the trial court’s ruling. We accepted review and explained that

the trial court “misconstrue[d] our holdings in [Treadaway] and

[McFarlin].” Id. at 576, 583 P.2d at 232. “Reliable expert

medical testimony is not always required before a prior act may

be admitted pursuant to the emotional propensity exception.”

Id. at 577, 583 P.2d at 233. Instead, we reasoned that when the

other “incident is both similar and near in time to the crimes

for which” an accused is charged, expert testimony is not a

necessary predicate for admission. Id. In short, we explained

8
The “Brown incident” involved an allegation that three
months before the murder, Treadaway, while nude, entered the
bedroom of a young boy and attempted to strangle the boy. State
ex rel. LaSota v. Corcoran, 119 Ariz. 573, 575, 583 P.2d 229,
231 (1978).

10
that Treadaway modified McFarlin to the extent that expert

testimony would be required only if the prior act was either

dissimilar to or remote in time from the crime charged. Id.

¶14 Accordingly, as clarified in Treadaway and LaSota,

McFarlin’s propensity exception applied to cases involving

offenses of sexual aberration, and if the other bad acts were

similar and not remote in time, expert testimony was not

required for admission. But if the other bad acts were remote

in time and dissimilar, expert testimony was required before a

trial court could find the other act admissible.

¶15 Nearly a decade later, however, in State v. Day, this

court appeared to expand the McFarlin rule. 148 Ariz. 490, 494,

715 P.2d 743, 747 (1986), rejected on other grounds by State v.

Ives, 187 Ariz. 102, 927 P.2d 762 (1996). In considering

whether the trial court was required to sever the counts against

Day, which involved charges arising from eight completed and

several attempted sexual assaults against several adult female

victims, we determined that the charges did not require

severance. Id. First, we concluded that because there were

similarities between the alleged assaults where one would expect

to find differences, the state had established the requisite

“visual connection” to join them as a common scheme or plan

11
under Arizona Rule of Criminal Procedure 13.3(a)(3).9 Day, 148

Ariz. at 493-94, 715 P.2d at 746-47. Second, we concluded that

any prejudice to Day by joinder of the offenses as a common

scheme or plan would not be mitigated by severance because the

same evidence would be cross-admissible at separate trials under

the emotional propensity exception. Id. at 494, 715 P.2d at

747. Without much explanation and arguably in dicta, we stated,

“[Day’s] bad acts — eight completed and several attempted sexual

assaults within a sixteen-month period — clearly fall well

within the ambit of McFarlin and Treadaway.” Id. This

statement seemingly blurred an otherwise clear limit on the

scope of the propensity exception — that other act evidence

could be admitted only when the charges involved sodomy, child

molestation, lewd and lascivious conduct, or some other aberrant

sexual offense.

¶16 Nevertheless, since Day, most reported decisions in

Arizona that addressed the propensity exception concerned cases

in which the charged offense involved the kinds of crimes of

sexual aberration listed in McFarlin. E.g., State v. Roscoe,

9
This court later rejected this common scheme analysis,
holding that to establish a common scheme or plan, the state
must prove something more than mere similarities. Ives, 187
Ariz. at 107-09, 927 P.2d at 767-69. Instead, “the ‘common
[plan or scheme]’ must be ‘a particular plan of which the
charged crime is a part.’” Id. at 108, 927 P.2d at 768 (quoting
State v. Ramirez Enriquez, 153 Ariz. 431, 432-33, 737 P.2d 407,
408-09 (App. 1987)).

12
184 Ariz. 484, 492-93, 910 P.2d 635, 643-44 (1996) (admitting

evidence of prior sexual encounter with one fourteen-year-old

girl and lewd statements made to other young girls in case

charging child molestation, kidnapping, and murder of a seven-

year-old girl); State v. Jerousek, 121 Ariz. 420, 426-27, 590

P.2d 1366, 1372-73 (1979) (admitting evidence of prior child

molestation and lewd and lascivious conduct involving a seven-

year-old girl in case charging child molestation, commission of

lewd and lascivious acts upon a child under the age of fifteen,

and attempted rape of the same victim); State v. Garner, 116

Ariz. 443, 447-48, 569 P.2d 1341, 1345-46 (1977) (admitting

evidence of prior child molestation of victim beginning at age

five in case charging child molestation of same victim at age

nine); State v. Grainge, 186 Ariz. 55, 57-58, 918 P.2d 1073,

1075-76 (App. 1996) (admitting evidence of prior sexual conduct

with other minors in case charging sexual conduct with a minor,

child molestation, and furnishing obscene or harmful items to

minors); State v. Lopez, 170 Ariz. 112, 117-18, 822 P.2d 465,

470-71 (App. 1991) (admitting evidence of sexual conduct with

other minor victims in case charging sexual conduct with a

minor); State v. Spence, 146 Ariz. 142, 144, 704 P.2d 272, 274

(App. 1985) (admitting evidence of child molestation of the same

victim over an extended period of time in case charging child

molestation). As these cases demonstrate, courts generally

13
interpreted the emotional propensity exception as applying only

to crimes of child molestation, sodomy, and lewd and lascivious

conduct.

¶17 This understanding of the propensity exception

continued until this court adopted Rule 404(c) in 1997. We

therefore turn first to the background leading to the adoption

of the rule. We then discuss the rule itself. Finally, we

examine the trial court’s application of the rule in this case.

III.

A.

¶18 In 1994, Congress adopted Rule 413 of the Federal

Rules of Evidence. Violent Crime Control and Law Enforcement

Act of 1994, Pub. L. No. 103-322, Title XXXII, § 320935(a), 108

Stat. 2136. That rule provides the following: “In a criminal

case in which the defendant is accused of an offense of sexual

assault, evidence of the defendant’s commission of another

offense or offenses of sexual assault is admissible, and may be

considered for its bearing on any matter to which it is

relevant.” Fed. R. Evid. 413(a). The proponents of the federal

rule stressed the importance of adopting such a broad exception,

especially in sexual assault cases, contending that a

defendant’s commission of other rapes would be critical to a

jury’s assessment of a defendant’s claim that the sexual contact

was consensual. E.g., 140 Cong. Rec. H8991 (1994) (statement of

14
Rep. Molinari).

¶19 Apparently because this court had previously adopted —

with only a few minor changes — the Federal Rules of Evidence,

the proponents of the federal rule approached this court, urging

us to adopt an Arizona version of Rule 413(a). Proposed

Amendments to Arizona Rules of Evidence; Amending Rule 404 and

405; and Adding Rule 412 (Petition to Amend), R-96-0002 (Jan.

29, 1996). From its inception, the proposal was framed in terms

of both sexual assault and child molestation:

The adoption of special propensity evidence rules
in Arizona and other jurisdictions is a response to
the distinctive difficulties and issues of proof in
sexual offense cases. Relevant considerations include
the typically secretive nature of sexual crimes, and
resulting lack of neutral witnesses in most cases; the
difficulty of stopping rapists and child molesters
because of the reluctance of many victims to report
the crime or testify; and the gravity of the danger to
the public if a rapist or child molester remains at
large.

. . . .

Similarly, sex offense cases involving adult
victims are distinctive, and frequently turn on
difficult credibility determinations. Alleged consent
by the victim is rarely an issue in prosecutions for
other violent crimes . . . but claims are regularly
heard in rape cases that the victim engaged in
consensual sex with the defendant and then falsely
accused him. Knowledge that the defendant has
committed other rapes is often critical in assessing
the plausibility of these claims, and accurately
deciding cases that would otherwise become
unresolvable [sic] swearing matches between the
defendant and the victim.

Id. at 6 (citations omitted). The proposal would thus have

15
created a broad rule that would allow a court to admit evidence

of other sex crimes in most cases charging a sexual offense,

and, in particular, would permit such evidence to be considered

“in assessing the plausibility” of a defendant’s claim in a

sexual assault case that the sexual contact was consensual.

¶20 We ultimately rejected the broad scope of the federal

rule, and instead adopted a compromise version. That compromise

is codified in Rule 404(c), which provides in relevant part the

following:

In a criminal case in which a defendant is charged
with having committed a sexual offense, or a civil
case in which a claim is predicated on a party's
alleged commission of a sexual offense, evidence of
other crimes, wrongs, or acts may be admitted by the
court if relevant to show that the defendant had a
character trait giving rise to an aberrant sexual
propensity to commit the offense charged. In such a
case, evidence to rebut the proof of other crimes,
wrongs, or acts, or an inference therefrom, may also
be admitted.
(1) In all such cases, the court shall admit evidence
of the other act only if it first finds each of
the following:
(A) The evidence is sufficient to permit the
trier of fact to find that the defendant
committed the other act.
(B) The commission of the other act provides a
reasonable basis to infer that the defendant
had a character trait giving rise to an
aberrant sexual propensity to commit the
crime charged.
(C) The evidentiary value of proof of the other
act is not substantially outweighed by
danger of unfair prejudice, confusion of
issues, or other factors mentioned in Rule
403. In making that determination under Rule
403 the court shall also take into
consideration the following factors, among

16
 others:
(i) remoteness of the other act;
(ii) similarity or dissimilarity of the
other act;
(iii) the strength of the evidence that
defendant committed the other act;
(iv) frequency of the other acts;
(v) surrounding circumstances;
(vi) relevant intervening events;
(vii) other similarities or differences;
(viii) other relevant factors.
(D) The court shall make specific findings with
respect to each of (A), (B), and (C) of Rule
404(c)(1).
(2) In all cases in which evidence of another act is
admitted pursuant to this subsection, the court
shall instruct the jury as to the proper use of
such evidence.

. . . .

(4) As used in this subsection of Rule 404, the term
“sexual offense” is as defined in A.R.S. § 13-
1420(C).

Ariz. R. Evid. 404(c)(1), (2), (4).

¶21 Arizona Revised Statutes § 13-1420(C) (2001) defines

the term sexual offense as meaning any of the following: sexual

abuse, A.R.S. § 13-1404 (2001); sexual conduct with a minor, id.

§ 13-1405 (2001); sexual assault, id. § 13-1406 (2001); sexual

assault of a spouse, id. § 13-1406.01 (2001); molestation of a

child, id. § 13-1410 (2001); continuous sexual abuse of a child,

id. § 13-1417 (2001); sexual misconduct by a behavioral health

professional, id. § 13-1418 (Supp. 2003); commercial sexual

exploitation of a minor, id. § 13-3552 (2001); and sexual

exploitation of a minor, id. § 13-3553 (Supp. 2003). This list

of offenses clearly includes sexual offenses involving non-

17
consensual heterosexual contact between adults. E.g., A.R.S. §

13-1406(A) (“A person commits sexual assault by intentionally or

knowingly engaging in sexual intercourse or oral sexual contact

with any person without consent of such person.”).

B.

¶22 The court of appeals reasoned that Rule 404(c) does

not permit the admission of evidence of other acts when a

defendant is charged with sexual assault of an adult when the

sexual contact involves heterosexual contact and the defense is

consent because such a charge does not involve either abnormal

or remarkable conduct. Aguilar, 1 CA-CR 02-0576, mem. decision

at 8-9, ¶¶ 12-13. We disagree.

¶23 We interpret court rules according to the principles

of statutory construction. See State ex rel. Romley v. Superior

Court, 168 Ariz. 167, 168, 812 P.2d 985, 986 (1991) (applying

principles of statutory construction to the Arizona Rules of

Criminal Procedure). Relying on rules of statutory

construction, we may look to “the rule’s context, the language

used, the subject matter, the historical background, the effects

and consequences, and its spirit and purpose.” Id. at 169, 812

P.2d at 987 (citing Martin v. Martin, 156 Ariz. 452, 457, 752

P.2d 1038, 1043 (1988)). But when the rule’s language is

unambiguous, “we need look no further than that language to

determine the drafters’ intent.” Id. (citing Ariz. Newspapers

18
Ass’n v. Superior Court, 143 Ariz. 560, 562, 694 P.2d 1174, 1176

(1985)). Such unambiguous language will be given its usual,

ordinary meaning unless doing so creates an absurd result. See

Bilke v. State, 206 Ariz. 462, 464-65, ¶ 11, 80 P.3d 269, 271-72

(2003) (applying rules of statutory construction to statute

governing interlocutory appeals).

¶24 Under the plain language of Rule 404(c), when a

defendant is charged with one of the sexual offenses listed in

A.R.S. § 13-1420(C), the state may introduce “evidence of other

crimes, wrongs, or acts,” if the court finds that such evidence

“provides a reasonable basis to infer that the defendant had a

character trait giving rise to an aberrant sexual propensity to

commit the crime charged.” Ariz. R. Evid. 404(c)(1)(B). As a

result, with the adoption of Rule 404(c), the types of sex

offenses for which other act evidence may be admitted are no

longer restricted to those offenses listed in McFarlin.

Instead, the offenses for which other act evidence may be

admitted are those listed in A.R.S. § 13-1420(C), which includes

sexual assault. Thus, the court of appeals erred in concluding

that when a defendant is charged with sexual assault of an adult

and the sexual contact involves heterosexual acts, evidence of

other acts is not admissible under Rule 404(c).

¶25 Nor does the comment to the rule support Aguilar’s

contention that Rule 404(c) precludes the admission of other act

19
evidence when a defendant is charged with sexual assault and the

other act involves “normal” heterosexual conduct and the

defendant claims that the victim of the other act consented.10

10
The comment to Rule 404(c), in relevant part, states the
following:

Subsection (c) of Rule 404 is intended to codify
and supply an analytical framework for the application
of the rule created by case law in [Treadaway] and
[McFarlin]. The rule announced in Treadaway and
McFarlin and here codified is an exception to the
common-law rule forbidding the use of evidence of
other acts for the purpose of showing character or
propensity.

Subsection (1)(B) of Rule 404(c) is intended to
modify the Treadaway rule by permitting the court to
admit evidence of remote or dissimilar other acts
providing there is a “reasonable” basis, by way of
expert testimony or otherwise, to support relevancy,
i.e., that the commission of the other act permits an
inference that defendant had an aberrant sexual
propensity that makes it more probable that he or she
committed the sexual offense charged. The Treadaway
requirement that there be expert testimony in all
cases of remote or dissimilar acts is hereby
eliminated.

The present codification of the rule permits
admission of evidence of the other act either on the
basis of similarity or closeness in time, supporting
expert testimony, or other reasonable basis that will
support such an inference. To be admissible in a
criminal case, the relevant prior bad act must be
shown to have been committed by the defendant by clear
and convincing evidence. State v. Terrazas, [189]
Ariz. [580], [944] P.2d [1194] (1997).

Notwithstanding the language in Treadaway, the
rule does not contemplate any bright line test of
remoteness or similarity, which are solely factors to
be considered under subsection (1)(c) [sic] of Rule
404(c). A medical or other expert who is testifying

20
We reach this conclusion for three reasons.

¶26 First, the plain text of the rule does not limit the

admission of other act evidence to only the type of conduct

described in McFarlin. By expressly making reference to A.R.S.

§ 13-1420(C), Rule 404(c) broadened the types of sexual offense

cases in which other act evidence might be admissible. Although

a comment may clarify a rule’s ambiguous language, a comment

cannot otherwise alter the clear text of a rule. Cf. Janson v.

Christensen, 167 Ariz. 470, 471, 808 P.2d 1222, 1223 (1991)

(stating that “we follow fundamental principles of statutory

construction, the cornerstone of which is the rule that the best

and most reliable index of a statute’s meaning is its language

and, when the language is clear and unequivocal, it is

determinative of the statute’s construction”); Wright v. Bank of

Cal. Nat’l Ass’n, 81 Cal. Rptr. 11, 14 (Ct. App. 1969) (noting

that the “plain language of the [California Commercial Code]

cannot be varied by reference to the comments” to either the

California Commercial Code or the Uniform Commercial Code); A.J.

Maggio Co. v. Willis, 757 N.E.2d 1267, 1269 (Ill. 2001) (looking

to the comment of a supreme court rule to determine the

pursuant to Rule 404(c) is not required to state a
diagnostic conclusion concerning any aberrant sexual
propensity of the defendant so long as his or her
testimony assists the trier of fact and there is other
evidence which satisfies the requirements of
subsection (1)(B).

21
rationale behind the rule, but noting that “we need not rely on

statutory comments where the language of the particular

provision is unambiguous”); Messing v. Bank of Am., N.A., 821

A.2d 22, 29 (Md. 2003) (stating that the comments to the Uniform

Commercial Code “are not controlling authority and may not be

used to vary the plain language of the statute,” but noting that

the comments “are an excellent place to begin a search for the

legislature’s intent when it adopted the Code”); Saber v. Dan

Angelone Chevrolet, Inc., 811 A.2d 644, 650 (R.I. 2002) (same).

Second, the comment’s reference to “[t]he rule announced” in

McFarlin and Treadaway primarily clarifies that expert testimony

is no longer required when the other acts are remote or

dissimilar from the charged offense. Because the text of Rule

404(c) does not clearly state this modification to the prior

case law, the comment serves to explain the rule’s ambiguous

language on this point.

¶27 Third, the plain language of Rule 404(c) does not

merely codify the rule announced in McFarlin. The McFarlin rule

required that the other act provide a “sufficient basis” that

such evidence demonstrates “the accused’s propensity to commit

[abnormal sex acts such as sodomy, child molestation, lewd and

lascivious conduct, etc.].” McFarlin, 110 Ariz. at 228, 517

P.2d at 90. Rule 404(c)(1)(B), on the other hand, requires that

the other act evidence “provide[] a reasonable basis to infer

22
that the defendant had a character trait giving rise to an

aberrant sexual propensity to commit” one of the offenses listed

in A.R.S. § 13-1420(C). Ariz. R. Evid. 404(c)(1)(B). Thus, the

question is not whether the other act per se involves abnormal

or aberrant conduct. Instead, the rule requires that the other

act evidence must lead to a reasonable inference that the

defendant had a character trait that gives rise to an aberrant

sexual propensity to commit the charged sexual offense. And as

the comment to Rule 404(c) explains, the admissibility of such

other act evidence will turn on either “the basis of similarity

or closeness in time [to the charged offense], supporting expert

testimony, or other reasonable basis that will support such an

inference.” Accordingly, the comment to Rule 404(c) does not

support Aguilar’s assertion that the admissibility of evidence

of other acts of sexual misconduct is necessarily limited to

acts that have traditionally been characterized as abnormal or

aberrant.

¶28 Consequently, we hold that the sexual propensity

exception of Rule 404(c) is not restricted to cases in which the

charges involve sodomy, child molestation, or lewd and

lascivious conduct. Instead, the exception applies to the

sexual offenses listed in A.R.S. § 13-1420(C), which includes

charges involving nonconsensual heterosexual contact between

adults.

23
 IV.

¶29 Having concluded that evidence of other sexual

assaults may be admissible in a case charging sexual assault, we

now turn to whether the trial court in this case properly found

the evidence as to each sexual assault cross-admissible as to

the others, thus obviating the need to grant a severance under

Rule 13.4(b). We review the trial court’s rulings on the

admissibility of the evidence for abuse of discretion. Roscoe,

184 Ariz. at 491, 910 P.2d at 642 (citing State v. Rivera, 152

Ariz. 507, 515, 733 P.2d 1090, 1098 (1987)).

A.

¶30 Before admitting other act evidence to show that the

defendant had a character trait giving rise to an aberrant

sexual propensity to commit the charged sexual offense, a trial

judge must make three determinations. First, the trial court

must determine that clear and convincing evidence supports a

finding that the defendant committed the other act. Ariz. R.

Evid. 404(c)(1)(A); State v. Terrazas, 189 Ariz. 580, 582, 944

P.2d 1194, 1196 (1997). Second, the court must find that the

commission of the other act provides a reasonable basis to infer

that the defendant had a character trait giving rise to an

aberrant sexual propensity to commit the charged sexual offense.

Ariz. R. Evid. 404(c)(1)(B). Third, the court must find that

the evidentiary value of proof of the other act is not

24
substantially outweighed by the danger of unfair prejudice,

confusion of the issues, or other factors mentioned in Rule 403.

Id. R. 404(c)(1)(C). In making the determination under Rule

403, the court also must consider the factors listed in Rule

404(c)(1)(C)(i)-(viii). Finally, the rule requires the trial

judge to make specific findings with respect to each of the

prerequisites for admission under the rule. Id. R.

404(c)(1)(D).11

¶31 The rationale for this latter requirement is twofold.

First,

the danger of undue prejudice [of evidence of other
sexual conduct] is particularly great [because] the
prosecution’s evidence of other instances of sexual
conduct will often involve sexual behavior that is
legally as well as socially abhorrent and thus is more
likely to lead the trier of fact to punish the
defendant because, in sexual matters, he is a bad man,
not because it has decided he has committed the sexual
wrong charged in the case at hand.

1A John Henry Wigmore, Evidence in Trials at Common Law § 62.3

11
If the superior court should admit evidence of other acts
under Rule 404(c), it must “instruct the jury as to the proper
use of such evidence.” Ariz. R. Evid. 404(c)(2). The comment
to the rule further expounds on this duty by advising that

[a]t a minimum, the court should instruct the jury
that the admission of other acts does not lessen the
prosecution’s burden to prove the defendant’s guilt
beyond a reasonable doubt, and that the jury may not
convict the defendant simply because it finds that he
committed the other act or had a character trait that
predisposed him to commit the crime charged.

Ariz. R. Evid. 404(c) cmt.

25
(1983). Thus, the requirement that the judge make specific

findings as to each of Rule 404(c)’s prerequisites for

admissibility helps focus the trial court’s discretion so that

only truly relevant other acts are admitted. Second, the rule’s

requirement of specific findings enables an appellate court to

effectively examine the basis for the trial judge’s decision to

admit other act evidence under Rule 404(c).

¶32 We now examine whether the trial court made the

necessary findings under Rule 404(c)(1)(D), and if not, whether

the failure to do so requires reversal.

B.

¶33 In this case, the trial court, in determining whether

the State met its burden under Rule 404(c), limited its review

to the transcript of the grand jury proceedings, the pleadings,

and the arguments of counsel at oral argument. None of these

materials contained testimony from the victims; the grand jury

transcript contained only a police officer’s descriptions of the

victims’ statements to the police. Based on these materials,

the court found that each sexual assault incident was cross-

admissible as to the others under Rule 404(c). However, the

court’s findings plainly did not satisfy the specificity

requirement of Rule 404(c)(1)(D), specifically as to the factor

set forth in Rule 404(c)(1)(A).

¶34 In making its finding under Rule 404(c)(1)(A), the

26
court stated that clear and convincing evidence established that

Aguilar committed the other acts because Aguilar admitted to the

police that he had sexual contact with the three victims. But

that misses the point. The question here is not simply whether

Aguilar had sexual contact with the victims, but also whether

that sexual contact was without the victims’ consent. Thus, the

court’s focus should have been on whether clear and convincing

evidence established that Aguilar committed the other sexual

assaults, not on Aguilar’s admission that he had consensual

sexual contact with the victims.

¶35 The resolution of this issue — whether the victims

consented to the sexual contact — turns largely on the

credibility of the witnesses. Consequently, the trial court had

to make a credibility determination that the victims’ accounts

of the assaults were more credible than Aguilar’s for the court

to make the necessary finding that clear and convincing evidence

established that the sexual contact in each incident was non-

consensual. That could not have occurred here, when the court

neither heard from the victims nor was presented with any prior

testimony from them. The court’s findings on this element of

Rule 404(c)(1) were insufficient to support the cross-admission

of the three allegations of sexual assault.

¶36 In view of our conclusion with respect to the trial

court’s findings on Rule 404(c)’s first prerequisite for

27
admission of other act evidence, we find it unnecessary to

examine whether the trial court’s findings as to the second and

third criteria of Rule 404(c)(1) satisfied the specificity

requirement of Rule 404(c)(1)(D) with respect to the other two

criteria. We do note, however, that Rule 404(c)(1)(D) requires

something more than just repeating the language of the three

elements of Rule 404(c)(1)(A) through (C); it mandates some

specific indication of why the trial court found those elements

satisfied.

C.

¶37 The trial court’s failure to make a sufficient finding

as to the first factor of Rule 404(c) might be harmless error if

the record contained substantial evidence that the requirements

of admissibility were met. See State v. Marshall, 197 Ariz.

496, 499, ¶ 7, 4 P.3d 1039, 1042 (App. 2000). But the materials

reviewed by the trial court in this case are insufficient for us

to conclude that the State met its burden as the materials

largely consist of a third party’s recitation of the victims’

claims that Aguilar sexually assaulted them versus his claim

that they consented. Compare State v. Lee, 189 Ariz. 590, 599,

944 P.2d 1204, 1213 (1997) (finding that defendant’s

descriptions of his involvement in different murders satisfied

the clear and convincing standard for admissibility of the

murders under Rule 404(b)). Under these circumstances, it is

28
impossible for us to find the error harmless.12 As a result, we

are compelled to conclude that the trial court’s finding that

each sexual assault was cross-admissible in a trial involving

the others was erroneous.13

¶38 As mentioned earlier, the charges involving the three

victims were joined solely because they were of the “same or

similar circumstances.” See Ariz. R. Crim. P. 13.3(a)(1).

Therefore, Aguilar was entitled to severance as a matter of

right, unless the charges “would be admissible under applicable

rules of evidence if the offenses were tried separately.” Id.

R. 13.4(b). A denial of a motion to sever under Rule 13.4(b)

“is reversible error only if the evidence of other crimes would

not have been admitted at trial ‘for an evidentiary purpose

anyway.’” Ives, 187 Ariz. at 106, 927 P.2d at 766 (quoting

Stuard, 176 Ariz. at 596-97, 863 P.2d at 888-89). Given that

this record does not support the finding of cross-admissibility

12
Nor can we rely on the jury verdicts in this case.
Although the trial court instructed the jury to consider the
evidence supporting each count separately, it also instructed
the jury that “[e]vidence of abnormal sexual acts ha[d] been
presented” to them and that they “must consider this evidence in
determining whether [Aguilar] had a character trait that
predisposed him to commit the crimes charged.” (Emphasis added).
In light of the latter instruction, we cannot say that a jury
would have reached the same verdict on each sexual assault if
the charges had not been tried together.
13
Our conclusion does not prohibit the State on remand from
presenting evidence to support the cross-admissibility of each
sexual assault under Rule 404(c).

29
of the sexual assaults under Rule 404(c), the trial court erred

in denying the motion to sever. Thus, we must reverse and

remand for a new trial. See Lee, 189 Ariz. at 597-98, 944 P.2d

at 1211-12 (holding that “[t]o justify reversal based on [the

trial court’s error in denying severance], [the] court must

find the trial court clearly abused its discretion”); State v.

Garland, 191 Ariz. 213, 218, ¶ 9, 953 P.2d 1266, 1271 (App.

1998) (stating that “if the evidence of the other acts would not

have been admitted under [one of the exceptions contained in

Rule 404], the denial of severance must be reversed”).

V.

¶39 For the foregoing reasons, we vacate in part the

decision of the court of appeals, reverse the convictions and

sentences, and remand this matter to the trial court for further

proceedings consistent with this opinion.

__________________________________
Michael D. Ryan, Justice

CONCURRING:

_________________________________________
Charles E. Jones, Chief Justice

_________________________________________
Ruth V. McGregor, Vice Chief Justice

30
_________________________________________
Rebecca White Berch, Justice

_________________________________________
Andrew D. Hurwitz, Justice

31