(concurring):
{27 Although I agree that the result reached by the majority is consistent with prior authority of this court, I write separately to express my concern about the need for a disciplined approach to the admission of bad acts evidence.
1 28 "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." Utah R. Evid. 404(b). As the majority correctly notes, bad acts evidence may be properly admitted where (1) it is offered for a proper noncharacter purpose, (2) it is relevant, and (8) the probative value of the evidence outweighs any unfair prejudice to the defendant (Three-Part Test). See State v. Nelson-Waggoner, 2000 UT 59, ¶¶ 18-20, 6 P.3d 1120.
129 By its terms, rule 404(b) permits bad acts evidence to be admitted for purposes other than to prove the defendant's propensity to commit the criminal act charged. See Utah R. Eivid. 404(b). Those alternative purposes include, but are not limited to, "motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident." Id. Because the defendant pleaded not guilty to sexual abuse of a child, which is a specific intent crime, see Utah Code Ann. § 76-5-404.1(2) (2008), the majority concludes that intent was placed at issue and the bad acts evidence was properly admitted to prove that the defendant had the requisite mental state (Not Guilty Rule), see supra 124. I write separately because I do not believe that this Not Guilty Rule should be a substitute for a careful application of the Three-Part Test adopted by our supreme court.
30 In understanding the relationship between the Not Guilty Rule and the Three-Part Test, it is helpful to examine our prior authority. This court first considered a plea of not guilty to a specific intent crime as a basis for admitting bad acts evidence to prove intent in State v. Teuscher, 888 P.2d 922, 926-27 (Utah Ct.App.1994). There, the operator of a home day-care facility was charged with second degree murder after a child in her care died. See id. at 924-25. The trial court allowed the State to introduce evidence of other incidents of abuse to show identity of the perpetrator, intent, and the absence of mistake or accident. See id. at 925. After the jury reached a verdict of guilty on the lesser-included offense of manslaughter, the defendant appealed, claiming that the trial court erred in admitting the bad acts evidence. See id. at 926. In affirming the trial court, we explained our reasoning as follows:
Defendant argues that intent was not an element of the crime for which she was conviected-manslaughter. Defendant was charged, however, with second degree murder, a specific intent crime. "Where specific intent is an element of the crime, the prosecution may introduce evidence of other offenses to establish the element of intent even if the defendant has not placed intent into question." [People v.] Brown, 199 Ill.App.3d 860, 145 Ill.Dec. 841, 557 N.E.2d [611,] 621 [Ill.App.Ct.1990] (citing *847United States v. Brantley, 786 F.2d 1822 (7th Cir.1986)). In pleading not guilty, defendant put every element of the charge against her in issue.
Id. at 926-27 (emphasis added) (additional citations omitted). Although we cited favorably to the Not Guilty Rule, we also held that the specific defenses asserted by the defendant in Teuscher had placed intent, identity, and lack of accident at issue. See id. at 928 (noting that the defendant argued that the injuries to the child victim could have been caused by either of her teenaged daughters or when she accidently dropped the child in a playpen). Thus, even without application of the Not Guilty Rule, there were noncharac-ter purposes for admitting the evidence in Teuscher.
{ 31 In reaching our decision in Teuscher, we relied upon People v. Brown, [199 Ill.App.3d 860, 145 IIl.Dec. 841] 557 N.E.2d 611, 621 (Ill.App.Ct.1990), an Illinois Court of Appeals decision that, in turn, followed the Seventh Circuit's decision in United States v. Brantley, 786 F.2d 1322, 1829 (7th Cir.1986). See Teuscher, 883 P.2d at 926-27. The year after our decision in Teuscher, the Federal Rules of Evidence were amended to permit the introduction of evidence of a defendant's prior sexual assault or child molestation offense for the purpose of proving any matter to which it is relevant. See Fed.R.Evid. 418 (sexual assault); id. R. 414 (child molestation); id. R. 415 (civil cases involving child molestation or sexual assault).1 Thus, under the current federal rules, evidence involving sexual misconduct, like that offered in this case, "is admissible"2 to show the defendant's propensity to assault or molest the alleged victim of the current charge. Id. R. 413-415.
T32 Utah has not adopted rules 418, 414, or 415. See Utah R. Evid. 413-415 (indicating that these rule numbers are reserved). Instead, Utah rule 404 was amended in 2008 to add 404(c), which only provides for the introduction of propensity evidence in cases involving the molestation of a child under the age of fourteen. See id. R. 404(c) Consequently, the framework for the admission of bad acts evidence in Utah in cases of sexual misconduct involving a person over fourteen years of age is governed by rule 404(b). Because N.H. was sixteen at the time of the offense, rule 404(c) is not applicable, and the introduction of the bad acts evidence must be evaluated under the more involved analysis required by rule 404(b).
1 33 While the federal approach has greatly simplified the analysis in federal sexual misconduct cases, our jurisprudence has been more complicated. One commentator de-seribed the Utah approach as follows:
If the prior bad acts involve sexual misconduct, or child abuse, or a combination of both, [the Utah] courts generally find a theory of admissibility, even if no specific theory of admissibility makes sense. The admission of prior bad acts of sexual misconduct offers prime examples of the "smorgasbord approach," where courts simply provide a long list of permissible uses without attempting to commect the wses with the facts of the case.
R. Collin Mangrum & Dee Benson, Mang-rum & Benson on Utah Evidence, 1 Utah Practice 172 (2008-2009 ed.) (emphasis added).
4 34 I agree that the Not Guilty Rule, in its broadest sense, does not require the trial court to connect the uses for the evidence with the facts of the case. Nevertheless, my reading of the prior decisions of this court and the supreme court convinces me that in the fifteen years since our decision in Teuscher we have rarely relied solely upon the Not Guilty Rule. Rather, we have also considered whether the specific noncharacter purposes for which the bad acts evidence is *848offered are responsive to the defenses raised. See State v. Holbert, 2002 UT App 426, ¶¶ 34-36, 61 P.3d 291 (affirming trial court's admission of bad acts evidence relying on both the Not Guilty Rule and the fact that the evidence was offered for the noncharac-ter purpose of proving motive); Salt Lake City v. Alires, 2000 UT App 244, ¶ 11, 9 P.3d 769 {affirming trial court's admission of bad acts evidence, noting that the defendant's identity was at issue both because he denied that he was the person who committed the criminal act and because he pleaded not guilty); State v. Widdison, 2000 UT App 185, ¶ 33, 4 P.3d 100 (affirming trial court's admission of bad acts evidence relying on both the Not Guilty Rule and the fact that the defendant had put absence of mistake or accident at issue), aff'd, 2001 UT 60, 28 P.3d 1278. But see Mangrum & Benson at 172-73 (describing the Utah decisions as admitting "prior sexual misconduct evidence with little more justification than a string listing of such factors as intent, motive, plan, and method of 3 There are two notable exceptions in our prior decisions.
135 In the first case, State v. Balfour, 2008 UT App 410, 198 P.3d 471, we granted interlocutory review of the trial court's denial of the defendant's motion to sever each of the four counts of forcible sexual abuse, involving four different women. See id. T1. As part of our analysis, we were required to consider whether the defendant would be prejudiced by trying the counts together. See id. T18; see also Utah Code Ann. $ Ti-8a-1(4)(@) (2008) ("If the court finds a defendant or the prosecution is prejudiced by a joinder ... for trial together, the court shall order an election of separate trials of separate counts ... or provide other relief as justice requires."). To make that determination, we examined whether the evidence related to the other counts would be admissible under rule 404(b) as bad acts evidence even if the counts were tried separately. See Balfour, 2008 UT App 410, ¶ 21, 198 P.3d 471 (citing State v. Lee, 831 P.2d 114, 118 (Utah Ct.App.1992)). Because the challenge to the trial court's refusal to sever the counts was before us on interlocutory review, the record did not contain the actual defenses asserted by the defendant at his future trial. Therefore, in holding that three of the four counts could be tried together, we relied upon the Not Guilty Rule. See id. 128. We also noted, however, that the State anticipated that the evidence would be relevant to the noncharacter purposes of demonstrating the defendant's intent, absence of accident or mistake, and the alleged victims' lack of consent. See id. Further, there was no indication that any of these issues were uncontested. See id.
136 The second decision that warrants consideration in understanding the evolution of our adherence to the Not Guilty Rule is State v. Bradley, 2002 UT App 348, 57 P.3d 1139. Bradley was charged with sexual abuse of his two step-children and a biological son. See id. TY1-8. The counts involving the step-children were severed from the counts pertaining to the biological child. See id. 18. However, the biological son was permitted to testify during the trial of the charges stemming from Bradley's alleged abuse of the step-children. See id. T5. Bradley appealed his conviction, claiming that the trial court committed prejudicial error by admitting the bad acts evidence from the biological son. See id. In the lead opinion from this court, Judge Davis affirmed the trial court's admission of the biological son's testimony, stating, "if specific intent is an element of the offense, prior bad acts may be admissible to establish the element of intent." Id. 121. Judge Davis refused to consider Bradley's claim that the victims had fabricated the allegations of sexual abuse as a proper purpose for admitting the evidence because he was "concerned that allowing pri- or bad acts testimony to rebut a fabrication *849defense by, in effect, bolstering a victim's credibility would eviscerate[ ] the language and spirit of rule 404(b) in that the doctrine could be invoked in nearly every criminal case." Id. 120 n. 7 (alteration in original) (internal quotation marks omitted). Instead, Judge Davis concluded that: the bad acts evidence was properly admitted under the Not Guilty Rule. See id. 1 22.
T37 Judge Thorne and Judge Orme each concurred separately, agreeing that the evidence was admissible but expressing concern about admitting it pursuant to the Not Guilty Rule when Bradley had not put intent at issue, instead arguing that the incidents alleged by the victims did not happen. See id. 1170, 73 (Thorne, J., concurring specially); id. 1980-81 (Orme, J., concurring). Although Judges Thorne and Orme concluded that the evidence was properly admitted, that conclusion was based on the use of the bad acts evidence to rebut Bradley's claim that the victims had fabricated the allegations of sexual abuse. See id. While the panel in Bradley disagreed about whether the bad acts evidence was admissible to prove intent under the Not Guilty Rule or to rebut Bradley's fabrication defense, each judge was motivated by the concern that rule 404(b) retain some practical utility. See id. 120 n. 7 (majority opinion); id. 14 70, 78 (Thorne, J., concurring); id. TT 80-81 (Orme, J., concurring specially).
38 I agree with the Bradley panel that a request to present bad acts evidence should be carefully considered to avoid further erosion of an already porous rule, see generally State v. Reed, 2000 UT 68, ¶ 28 n. 3, 8 P.3d 1025 ("[ Wle note that the cireumstances that would allow [evidence of sex crimes against persons other than the complaining witness] to be admitted are rare and require the highest serutiny of the trial judge."). I also believe that application of the Not Guilty Rule in the absence of a meaningful evaluation of the relevance of that particular evidence to the matters actually at issue in the case is contrary to that goal. Indeed, the analysis employed by our supreme court supports the conclusion that there must be a link between the matters at issue and the bad acts evidence, even when the defendant contests guilt.
139 In State v. Widdison, 2001 UT 60, ¶ 45, 28 P.3d 1278, the supreme court affirmed our conclusion that the trial court did not err in admitting bad acts evidence, noting that the defendant had entered a not guilty plea. The Widdison court's reasoning, however, includes an analysis of the relevance of the bad acts evidence to the actual defenses raised:
As explained by the trial court, by pleading not guilty, defendant maintained she was not responsible for Breanna's [ (the child abuse victim) ] death or her injuries. Defendant further claimed that Breanna's injuries were caused by accident when Bre-anna was caught under her crib mattress or when she lay on toys. Defendant also claimed that Breanna had been in someone else's care when her shoulder was broken and that pneumonia was the sole cause of Breanna's death. Because of defendant's claims, the identity of Breanna's abuser and killer was at issue. Also at issue was the question of whether Breanna's injuries were intentionally or accidentally inflicted. The evidence to which defendant objects was relevant because it was introduced to show that Breanma's inguries were not the result of accident, and that defendant was the one who inflicted Breanna's injuries.
Id. (emphasis added). Notwithstanding the not guilty plea, the supreme court tied the bad acts evidence to the defenses actually at issue before concluding that the evidence was offered for a proper, noncharacter purpose. See id.
«[ 40 Indeed, even the Seventh Cireuit, the jurisdiction this court originally followed in Teuscher, seems to have softened its application of the Not Guilty Rule. In United States v. Jones, 455 F.3d 800 (7th Cir.2006), the defendant appealed his conviction of possession with intent to distribute cocaine on the ground that the trial court erred in admitting evidence of a prior drug conviction. See id. at 804, 806. The government offered the evidence and the trial court admitted it "because possession with intent to distribute is a specific intent crime." Id. at 807. On appeal, the Jones court noted that the mechani*850cal reliance on the Not Guilty Rule by the trial court, although involving a recitation of "the governing principles from our case law," did not "reflect the sort of critical evaluation of the issue [of whether the evidence was offered for a noncharacter purpose] that we believe ought to be undertaken in determining whether, in an exercise of discretion, such [bad acts] evidence ought to be admitted on the issue of intent." Id. at 807-08. The Seventh Circuit conceded, however, that lapse well may be attributable, in part at least, to our own treatment of such matters on occasion; our cases have not always reflected a critical application of the principles reflected in the case law to the facts of the individual case." Id. at 808.
141 Reviewing that prior case law, the Jones court indicated that the admission of prior conviction evidence is justifiable in drug prosecution cases where the defendant admits possession but denies intent to distribute, and where the defendant claims to have been a "clueless bystander" to a drug trafficking scheme. Id. (internal quotation marks omitted). Nevertheless, the federal court of appeals cautioned, "[Dlespite the general utility of this evidence to establish intent, it is incumbent on the Government to affirmatively show why a particular prior conviction tends to show ... volition to commit the new crime." Id. (alteration in original) (internal quotation marks omitted). The Jones court then examined the record and concluded that the arguments made by defense counsel-that while the defendant controlled a small amount of cocaine, the larger portion of the drug could have been the property of one of the other persons at the scene-fairly placed the defendant's intent at issue. See id. at 808-09. In affirming the decision of the trial court to admit the evidence, the Seventh Cireuit criticized the application of the Not Cuilty Rule in the absence of a critical evaluation by the trial court, see id. at 807, and the Government's affirmative showing of why the prior conviction is probative of intent in the trial of the new crime, see id. at 808. See generally United States v. Jemal, 26 F.3d 1267, 1272-74 (3d Cir.1994) (discussing different approaches to the Not Guilty Rule applied by the federal circuits). I believe that at least this much is also required in Utah.
€42 Even when the defendant pleads not guilty to a specific intent crime, I would require the trial court to consider the extent to which the noncharacter purpose asserted for admission of the evidence is actually related to a contested issue in the trial of the current crime. See generally State v. Killpack, 2008 UT 49, ¶ 45, 191 P.3d 17 ("[Elvi-dence of a defendant's ... bad acts may be admitted if such evidence has a special relevance to a controverted issue and is introduced for a purpose other than to show the defendant's predisposition to criminality." (internal quotation marks omitted)). In a case like this, where the defendant asserts that the alleged conduct did not occur at all, the connection between intent and the bad acts evidence is more attenuated. Rather than arguing that he accidentally touched N.H., or that he did so without the requisite "intent to cause substantial emotional or bodily pain to any person or ... arouse or gratify the sexual desire of any person," Utah Code Ann. § 76-5-404.1(2) (2008), the defendant argued that N.H. fabricated the allegations due to his disappointment over not being paid for finding a stray cat.4 In my view, that difference should be taken into account when assessing whether the evidence should be admitted under rule 404(b). Therefore, I would not allow invocation of the Not Guilty Rule to exeuse a careful comparison of the specific bad acts evidence offered with the actual defense asserted.
T483 Here, the defense asserted by the defendant-that N.H. fabricated his story about sexual contact-must also be considered in determining whether the testimony from M.A. and J.T.S. was offered for a non-character purpose. While my review of the
*851decisions from the Utah Supreme Court has not revealed a case that has expressly recognized rebuttal of a fabrication defense as a proper 404(b) purpose, the majority correctly notes that Bradley did so hold. See State v. Bradley, 2002 UT App 348, ¶¶ 70, 73, 57 P.3d 1139 (Thorne, J., concurring); id. ¶¶ 80-81 (Orme, J., concurring specially). Consequently, I would follow the conclusion of the Bradley majority on this issue that a proper purpose for bad acts evidence is to rebut a defense of fabrication. See State v. Thurman, 846 P.2d 1256, 1269 (Utah 1998) (recognizing that, in most instances, subsequent panels of the court of appeals should follow the decisions of a prior panel). However, but for our prior decisions, I would reverse and remand for a new trial so that the trial court could consider each prong of the Three-Part Test in the context of that purpose, as well as any relevance to the element of specific intent. Thus, I would require the trial court to "connect the uses with the facts of the case." R. Collin Mangrum & Dee Benson, Mang-rum & Benson on Utah Evidence, 1 Utah Practice 172 (2008-2009 ed.).
4 44 In conclusion, I believe that the fact a defendant pleads not guilty should not excuse the State from identifying the precise link intellectually disciplined between the bad acts evidence and a contested issue in the trial of the current crime. In my view, if there is a proper noncharacter purpose, the trial court should then critically consider whether, in fact, the bad acts evidence is relevant to that contested issue. See Utah R. Evid. 402. Last, the trial court should evaluate whether its probative value in relation to the specific defense asserted is outweighed by unfair prejudice to the defendant. See id. R. 408. Without such an approach, rule 404(b) will not serve as an effective check on the introduction of bad acts evidence. See generally State v. Reed, 2000 UT 68, ¶ 28 n. 3, 8 P.3d 1025 (noting that the admission of evidence of sex erimes against persons other than the alleged victim is rare). Although that was not done here, I acknowledge that it is not required under the existing authority from this court and, therefore, I must concur with the majority.
. Those rules have been the subject of significant criticism. See Fed.R.Evid. 413 advisory committee's notes.
. Out of a concern that the "is admissible" language in the rules would excuse the prosecution from meeting the requirements of Federal Rule of Evidence 403, which allows the trial court to exclude evidence if its probative value is outweighed by the risk of unfair prejudice to the defendant, the Supreme Court Advisory Committee proposed that rules 413, 414, and 415 be revised to state "is admissible if it is otherwise admissible under these Rules." Id. Congress did not make the suggested revision. See Fed. R.Evid. 413-415.
. The majority also relies upon State v. Marchet, 2009 UT App 262, ¶¶ 32-40, 219 P.3d 75 (following State v. Nelson-Waggoner, 2000 UT 59, ¶ 25, 6 P.3d 1120). In my view, Marchet simply followed the supreme court's holding in Nelson-Waggoner, see Marchet, 2009 UT App 262, 141 ¶¶ 32-40, 219 P.3d 75, which recognized proof of lack of consent as a proper purpose for the admission of bad acts evidence under certain circumstances in sexual assault cases, see Nelson-Waggoner, 2000 UT 59, ¶ 25, 6 P.3d 1120. I do not find either case helpful to the question of whether a not guilty plea allows the State to introduce bad acts evidence to prove intent irrespective of the defenses asserted.
. The defendant, however, did not enter into a stipulation expressly conceding that if the jury believed NH. the trial court could instruct it to also find the requisite intent. See generally United States v. Jemal, 26 F.3d 1267, 1269 (3d Cir.1994) ("[A] district court should generally refuse to admit evidence of a defendant's prior bad acts to show knowledge and intent when the defendant has proffered a comprehensive and unreserved stipulation that he possessed the requisite knowledge and intent (or other fact sought to be established by the prior bad acts evidence). ...").