specially concurring.
I concur with the reasoning and the result reached by the majority but make the following observations with respect to the dissenting opinion.
Even though the Rules of Evidence control in a conflict with prior cases, it must first be *585clear that a conflict exists. It would be inappropriate for this court to ignore precedent and fail to glean added perspective and meaning on matters that, as explained below, are not addressed in the Rules and do not present a conflict.
The current Rules of Evidence provide no guidance with respect to the standard of proof to be applied in determining the admissibility of “other crimes” evidence. Rule 104(b) requires that when relevancy depends upon fulfillment of a condition of fact, evidence is admissible only upon proof that supports a finding of the fulfillment of the condition. Nothing in Rule 104(b) suggests, implicitly or otherwise, what the standard for admissibility should be. Similarly, Rule 403, which provides for the exclusion of unduly prejudicial evidence even where relevant, does not articulate the standard of admissibility at issue here. It provides only for the weighing process as between relevance and prejudice. Rule 404(b), reflecting the common law, preserves and states the general rule that evidence of “other crimes” remains inadmissible unless shown to fall within one or more of the specific categories set forth in the Rule.
I acknowledge that “other crimes” evidence is admissible in Arizona if the three conditions set forth under Rules 104(b), 403, and 404(b) are met. Such acknowledgment, however, neither addresses nor resolves the issue now presented, namely, whether the standard for admissibility should be by evidence that is “clear and convincing” or by evidence that merely satisfies the lower “preponderance” test. The dissent indicates that the Rules do not speak of a higher standard for the admissibility of “other crimes” evidence. But neither do the Rules speak of a lower standard. Because of this, I conclude that the question of the choice of standard, as noted by the majority, is squarely presented and must now be resolved.
The Arizona Rules of Evidence do not conflict with State v. Hughes. Quite clearly, Justice Lockwood, who authored Hughes, left unexplored the “preponderance” standard urged by the dissent. Contrary to the view expressed by our dissenting justice, the phrase “substantial evidence sufficient to take the case to a jury” was equated by Justice Lockwood with the “clear” or “clear and convincing” standard, as is evident from the following pronouncement:
Regardless of whether the words “clear,” “clear and convincing,” or “substantial proof’ are used, the test appears to be that the 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.”
State v. Hughes, 102 Ariz. 118, 123, 426 P.2d 386, 391 (1967) (citations omitted). Justice Lockwood nowhere mentions the “preponderance” standard. Interestingly, she did point out that some jurisdictions had opted for the “beyond a reasonable doubt” standard, which is significantly higher than the “clear and convincing” standard. See Hughes, 102 Ariz. at 122-23,426 P.2d at 390-91.
Read in context, it is my impression that if Hughes had considered the “preponderance” standard, it would have rejected it and found that the standard requiring “clear and convincing” evidence was the appropriate measure by which to determine admissibility of “other crimes” evidence. Otherwise, I question why Justice Lockwood would state that “the overwhelming weight of authority in other jurisdictions is that proof of a prior reported crime, and the defendant’s connection with it, must be ‘clear’, ... or ‘clear and convincing’ or that there must be ‘substantial proof that the other crime has been committed by the defendant,____” Id., 102 Ariz. at 122, 426 P.2d at 390.
Our dissenting justice incorrectly implies that Hughes adopted a standard lower than clear and convincing. He refers to “only enough evidence to defeat a motion for directed verdict” and defines that standard by citing a civil case, Orme School v. Reeves, 166 Ariz. 301, 802 P.2d 1000 (1990), not applicable here, thus ignoring relevant authority in the criminal sector. The ease at bar is a criminal case, and the holding of the majority does not apply in civil cases but is expressly confined to the criminal forum.
Rule 20, Arizona Rules of Criminal Procedure, states: “[T]he court shall enter a judgment of acquittal ... if there is no substan*586tial evidence to warrant a conviction.” In State v. Spears, a unanimous 1996 opinion, this court stated in the context of Rule 20: “Substantial evidence is proof that reasonable persons could accept as sufficient to support a conclusion of a defendant’s guilt beyond a reasonable doubt.” 184 Ariz. 277, 290, 908 P.2d 1062, 1075 (emphasis added), cert, denied, — U.S.-, 117 S.Ct. 393,136 L.Ed.2d 308 (1996). Accordingly, while Hughes chose a standard for “other crimes” evidence that is lower than “beyond a reasonable doubt,” the court did require, at the very least, “substantial evidence sufficient to take the case to a jury.” By equating the term “substantial evidence” with the “clear and convincing” standard, Hughes appears to have avoided the “preponderance” standard.
Arizona joins other jurisdictions that, in recent years, have determined to follow the “clear and convincing” standard for the admissibility of “other crimes” evidence. See, e.g., Delaware v. Cohen, 634 A.2d 380, 386 (Del.Super.Ct.1992) (“To be admissible in trial where guilt or innocence is determined, other ‘bad acts’ or crimes must be established by evidence which is ‘plain, clear, and conclusive’.”); Phillips v. Florida, 591 So.2d 987, 989 (Fla.Dist.Ct.App.1991) (“Mere suspicion is insufficient; rather, the proof should be ‘clear and convincing’.”); Ayers v. Maryland, 335 Md. 602, 645 A.2d 22, 37 (1994) (“Admission of other crimes evidence must be closely scrutinized by courts”; “If one or more exceptions [to the rule] applies, the next step is to decide whether the accused’s involvement in other crimes is established by clear and convincing evidence____”); Minnesota v. Spaeth, 552 N.W.2d 187, 193 (1996) (trial court must find “clear and convincing evidence” that defendant participated in other incidents); Winiarz v. Nevada, 107 Nev. 812, 820 P.2d 1317, 1321 (1991) (“Before evidence of prior bad acts may be admitted, there must be clear and convincing evidence that such acts actually occurred.”); New Hampshire v. Michaud, 135 N.H. 723, 610 A.2d 354, 356 (1992) (trial court must determine that “(1) the evidence is relevant for a purpose other than to prove character or disposition; (2) there is “clear proof” that the defendant committed prior offense; and (3) the prejudice to the defendant does not substantially outweigh the probative value of the evidence”); Daniel v. Wyoming, 923 P.2d 728, 734 (1996) (trial court must consider, inter alia, “[t]he extent to which the prosecution ‘plainly, clearly, and conclusively’ can prove the other similar crimes”) (all emphasis added).
I favor the “clear and convincing” standard over the “preponderance” rule. The latter would, I believe, create a significant risk of unfair prejudice whenever evidence of “other crimes” is circumstantial or remote, as here and as in Hughes. The prejudicial impact in Hughes was the very thing that prompted this court to hold that “other crimes” evidence had been improperly admitted by the trial court. The “clear and convincing” standard, in my view, is more likely to accomplish substantial justice.
Moreover, we cannot overlook the common law, which held that evidence of other crimes or prior bad acts was considered prejudicial and thus inadmissible because it tended to distract the attention of the jury from properly considering the issues presented on the merits of the ease being tried, resulting in verdicts based on false issues. These concerns have not disappeared with the passage of time. Only in limited circumstances was “other crimes” evidence admissible at common law to establish such things as motive, intent, identity, mistake, etc. All of these are preserved in the current Rule 404(b).
Finally, the second to last sentence in the dissent characterizes the majority as adopting an “overly cautious approach to the admission of ‘other act evidence’” and states that this is “a view not shared by those who drafted the Federal and Arizona Rules of Evidence.” This assertion is inaccurate. Concern over “other crimes” evidence is deeply rooted in the common law and neither begins nor ends with the view of this court. The rule of exclusion applicable to evidence of “other crimes” was calculated to produce fairness at trial, and while adjustments to the rule may occur from time to time, it is not accurate to presume that the safeguards contemplated by the majority are no longer necessary. Concern for the integrity of the trial process is neither a subjective nor per*587sonal consideration but the court’s constitutionally mandated duty. Contrary to the dissenter’s stated view, the majority’s jurisprudential concern over the admissibility of this kind of evidence was and is shared by the drafters of the Rules as manifested by the exclusionary language of Rule 404(b) that preserves the general rule of inadmissibility.
I read Rule 404(b) as a rule of exclusion. The rule expressly declares that evidence of other crimes is not admissible when offered “to prove the character of a person in order to show action in conformity therewith.” This preserves the rule of the common law. Here, the majority simply holds that in criminal cases, courts should apply the clear and convincing standard when determining the admissibility of “other crimes” evidence under any stated exception to the rale.