dissenting.
The majority approaches this case as one involving conflicting standards. It reads State v. Hughes, 102 Ariz. 118, 426 P.2d 386 (1967), as conditioning the admission of “other act” evidence on a finding by the judge that the defendant committed the other act by clear and convincing evidence. Huddle-ston v. United States, 485 U.S. 681,108 S.Ct. 1496, 99 L.Ed.2d 771 (1988), requires a judge to find that a jury could reasonably conclude by a preponderance of the evidence that the defendant committed the other act.
I do not agree with the majority’s reading of Hughes. Nor do I agree that Hughes necessarily conflicts with Huddleston. But if a conflict exists, there are four reasons to favor Huddleston: (1) it is consistent with our Rules of Evidence; (2) it achieves uniformity between the state and federal rules; (3) the fear of prejudice expressed by the majority is already protected by Rule 403, Ariz. R. Evid.; and (4) unlike the majority here, it does not confuse a standard applicable to the ultimate burden of persuasion with a preliminary question of admissibility.
1. State v. Hughes
Before our adoption of the Rules of Evidence, preliminary questions concerning the admissibility of “other act” evidence were resolved under the following standard: “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.’ ” Hughes, 102 Ariz. at 123, 426 P.2d at 391 (quoting State v. Hyde, 234 Mo. 200,136 S.W. 316, 331 (1911)). The meaning of this language remains uncertain over three decades later.
The trial judge in the present case applied a standard “closer to the preponderance standard.” Ante, at 581, 944 P.2d at 1195. The defendant argued that the Hughes standard requires only “enough evidence of the prior bad act or wrong to survive a directed verdict.” Id. A directed verdict requires more than a mere “scintilla” of evidence but substantially less than clear and convincing evidence. A motion for directed verdict “should be granted if the facts produced in support of the claim or defense have so little probative value, given the quantum of evidence required, that reasonable people could not agree with the conclusion advanced by the proponent of the claim or defense.” Orme School v. Reeves, 166 Ariz. 301, 309, 802 P.2d 1000,1008 (1990).
In adopting the clear and convincing standard for the admission of “other act” evidence, the majority purports to adopt and clarify the Hughes standard. But Hughes provides as follows:
While in some jurisdictions it has been held that evidence of a prior crime must be such that the jury would believe beyond a reasonable doubt that the defendant had committed it, the overwhelming weight of authority in other jurisdictions is that proof of a prior purported 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. 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.”
*588102 Ariz. at 122-23, 426 P.2d at 390-91 (citations omitted) (emphasis added).
Two critical admissibility issues are addressed in Hughes. First, Hughes speaks in terms of whether a jury could conclude that the other act was committed and that it was committed by the defendant. Hughes does not require the judge to conclude that the crime was committed and that it was committed by the defendant. Hughes does not support the majority’s position that “the judge [must] find the conditional fact by ‘substantial evidence sufficient to take the case to a jury.’ ” Ante, at 582, 940 P.2d at 1196 (emphasis added). The judge decides only whether a jury could find that the defendant committed the other act.
Second, Hughes does not adopt, the “clear and convincing” standard. It appears to adopt the “substantial evidence” standard. No ease cited by the majority supports the proposition that Hughes requires clear and convincing evidence. See State v. Valles, 162 Ariz. 1, 5, 780 P.2d 1049,1053 (1989); State v. McGann, 132 Ariz. 296, 298, 645 P.2d 811, 813 (1982); State v. Woods, 121 Ariz. 187, 190, 589 P.2d 430, 433 (1979); State ex rel. LaSota v. Corcoran, 119 Ariz. 573, 576, 583 P.2d 229, 232 (1978). In fact, no such case exists. Every case in which this court has determined admissibility under Hughes has required “substantial evidence sufficient to take the case to a jury.” See e.g., State v. Marahrens, 114 Ariz. 304, 307, 560 P.2d 1211, 1214 (1977); State v. Mitchell, 112 Ariz. 592, 594, 545 P.2d 49, 51 (1976). If we are to assume that Hughes means what it says, the defendant in the present case is correct in asserting that Hughes requires only enough evidence to defeat a motion for directed verdict.
But whatever Hughes means, it addressed the admissibility of “other act” evidence under the common law. Arizona adopted the Rules of Evidence in 1977. The Rules control over any conflict between them and our prior cases. State v. Schurz, 176 Ariz. 46, 51 n. 2, 859 P.2d 156,161 n. 2 (1993). Thus, our focus should be on the admission of “other act” evidence under the Arizona Rules of Evidence.
2. Arizona Rules of Evidence
“Other act” evidence, where otherwise admissible, is relevant only if the evidence tends to prove that the other act occurred and that the defendant was the actor. State v. Mott, 187 Ariz. 536, 545, 931 P.2d 1046, 1055, cert, denied, — U.S.-, 117 S.Ct. 1832, 137 L.Ed.2d 1038 (1997) (citing Hud-dleston, 485 U.S. at 689, 108 S.Ct. at 1501). It is, thus, conditionally relevant. Preliminary questions concerning the admissibility of conditionally relevant evidence, such as “other act” evidence, are resolved under Rule 104(b), Ariz. R. Evid. Id.; see also State v. Williams, 183 Ariz. 368, 378, 904 P.2d 437, 447 (1995); Huddleston, 485 U.S. at 689, 108 S.Ct. at 1501. Conditionally relevant evidence shall be admitted upon or may be admitted subject to “the introduction of evidence sufficient to support a finding of the fulfillment of the condition.” Rule 104(b), Ariz. R. Evid. Rule 104(b) does not call upon the judge to determine whether the commission of the other act by the defendant has been proven by the appropriate standard. The judge merely determines whether a jury could find that the defendant committed the act by the appropriate standard.
There is no per se exclusionary rule for “other act” evidence offered for a proper purpose. 10 Moore’s Federal Practice ¶ 404.01[5. — 2] (2d ed.1996). To the contrary, the drafters of the Rules of Evidence developed a rule of inclusion, excluding “other act” evidence under Rule 404(b) only when offered for the sole purpose of proving character. See Huddleston, 485 U.S. at 687-88, 108 S.Ct. at 1500; see also Morris K. Udall & Joseph M. Livermore, Arizona Practice: Law of Evidence § 84, at 178 (2d ed.1982); Crane McClennen, Admission of Evidence of Other Crimes, Wrongs, or Acts Under Rule 404(b) — It’s Time to Start Following the Rules, Ariz. Att’y, June 1990, at 13, 13. Nor do the Rules speak of a higher standard for Rule 404(b) evidence. Protection against unfair prejudice is provided by Rule 403, under which “other act” testimony may be excluded if “its probative value is substantially outweighed by the danger of unfair prejudice.”
Thus, under the Arizona Rules of Evidence, “other act” evidence is admissible if *589three conditions are met: (1) the evidence is relevant under Rule 402 — as enforced through Rule 104(b); (2) the probative value of the evidence is not substantially outweighed by the danger of unfair prejudice under Rule 403; and (3) the evidence is admitted for a proper purpose under Rule 404(b) or otherwise. Huddleston, 485 U.S. at 691, 108 S.Ct. at 1502. Additional protection is afforded under Rule 105, which entitles the defendant to a limited admissibility instruction. Id. at 692, 108 S.Ct. at 1502. These protections are inherent in the Rules themselves. The only real issue is what constitutes “evidence sufficient to support a finding” under Rule 104(b).
Preliminary factual findings under Federal Rule 104 are subject to the preponderance of the evidence standard. Huddleston, 485 U.S: at 690, 108 S.Ct. at 1501; Bourjaily v. United States, 483 U.S. 171, 107 S.Ct. 2775, 97 L.Ed.2d 144 (1987). Rule 104(b) requires the court to “examine[] all the evidence in the case and decide[] whether the jury could reasonably find the conditional fact ... by a preponderance of the evidence.” Huddle-ston, 485 U.S. at 690, 108 S.Ct. at 1501.
Although we are not bound by Supreme Court cases when we construe the Arizona Rules of Evidence, they are “instructive” and “persuasive.” Orme, 166 Ariz. at 304, 802 P.2d at 1003. “We ... subscribe to the principle that uniformity in interpretation of our rules and the federal rules is highly desirable.” Id. Because the language is the same, we should achieve consistency with the Federal Rules of Evidence absent a compelling reason to the contrary.
The majority imposes the higher clear and convincing standard because of a fear of prejudice. But “the protection against such unfair prejudice emanates not from a requirement of a preliminary factual finding by the trial court” but from the four Huddleston factors. Huddleston, 485 U.S. at 691, 108 S.Ct. at 1502.
This court has repeatedly acknowledged the sufficiency of these protections. In State v. Atwood, 171 Ariz. 576, 638, 832 P.2d 593, 655 (1992), we determined that the four protections set out in Huddleston “afforded all the protection due a criminal defendant against whom evidence of prior bad acts is admitted.” In State v. Williams, 183 Ariz. 368, 377, 904 P.2d 437, 446 (1995), we again used the four Huddleston factors to determine that the “other act” evidence was properly admitted. We rejected the defendant’s claim that “the state did not produce evidence sufficient to show that he committed the acts,” concluding that all that was required was a finding that “a jury could reasonably believe from the evidence” that the defendant committed the act. Id. at 377, 378, 904 P.2d at 446, 447. We used Huddle-ston in State v. Gulbrandson, 184 Ariz. 46, 60-61, 906 P.2d 579, 593-94 (1995), cert, denied, — U.S. -, 116 S.Ct. 2558, 135 L.Ed.2d 1076 (1996), in reviewing the propriety of admitting Rule 404(b) evidence. In State v. Roscoe, 184 Ariz. 484, 493, 910 P.2d 635, 644, cert, denied, - U.S. -, 117 S.Ct. 150, 136 L.Ed.2d 96 (1996), we concluded that the four inherent protections of the Rules of Evidence were sufficient to protect a defendant from the admission of unfairly prejudicial “other act” testimony. This very term, we recognized that Huddleston had been adopted by this court in Atwood, and we again resolved the admission of “other act” evidence under the four Huddleston factors. State v. Mott, 187 Ariz. 536, 545-46, 931 P.2d 1046,1055-56, cert, denied, — U.S.. -, 117 S.Ct. 1832, 137 L.Ed.2d 1038 (1997).
Not surprisingly, these decisions have led the legal community to believe that “Arizona has adopted the four-part test for the admission of other act evidence as set forth by the United States Supreme Court in Huddleston v. United States, in both criminal and civil cases.” Robert L. Gottsfield, We Just Don’t Get It: Improper Admission of Other Acts Under Evidence Rule 404(b) as Needless Cause of Reversal in Civil and Criminal Cases, Ariz. Att’y, April 1997, at 24, 25.
Our cases adopting and applying Huddle-ston are legion. Why abandon our approach now, when we know that “nothing [suggests] that admissibility rulings have been unreliable or otherwise wanting in quality because not based on some higher standard.” Bour-jaily, 483 U.S. at 175-76, 107 S.Ct. at 2779 (quoting Lego v. Twomey, 404 U.S. 477, 488, *59092 S.Ct. 619, 626, 30 L.Ed.2d 618 (1972)). This is especially true where we know that a more stringent standard will have the undesirable effect of artificially restricting the admissibility of relevant evidence. Richard D. Friedman, Conditional Probative Value: Neoclassicism Without Myth, 93 Mich. L.Rev. 439,446 (1994).
Logic, too, counsels against engrafting a clear and convincing standard onto Rule 104(b). Rule 104(b) applies to both criminal and civil cases. If “evidence sufficient to support a finding of the fulfillment of the condition” means evidence proved by clear and convincing evidence, then the standard for admissibility in civil cases would be higher than the ultimate burden of proof. This makes no sense. Nor would it make sense to use a different standard in civil cases: the common language of Rule 104(b) — “evidence sufficient to support a finding” — would then have two different meanings.
It is analytically unsound to transpose a proof standard to an admissibility setting. That a higher burden of proof exists in the criminal context does not alter this reality. The admissibility standard “is unrelated to the burden of proof on the substantive issues, be it a criminal case or a civil case.” Bourja-ily, 483 U.S. at 175, 107 S.Ct. at 2778 (citations omitted). The ultimate burden of persuasion has nothing to do with the threshold question of admissibility. “[TJhere is no logical connection between the standard appropriate in the two situations.” Dale A. Nance, Conditional Relevance Reinterpreted, 70 B.U. L.Rev. 447, 458 (1990).
Nothing in the Rules of Evidence requires, or even suggests, the application of a clear and convincing standard to questions of admissibility. The only justification the majority offers is its fear of prejudice. But that arises from its overly cautious approach to the admission of “other act” evidence, a view not shared by those who drafted the Federal and Arizona Rules of Evidence. I respectfully dissent.