(concurring):
¶ 70 While I concur with the analysis of the lead opinion concerning most of the issues Bradley has presented on appeal, and with the results reached in that opinion on every issue, I disagree with Judge Davis’s reliance upon intent in determining the outcome of the 404(b) issue. My review of the record suggests that intent was never really in issue. Rather, Bradley steadfastly denied that the abuse had ever occurred and claimed that the accusations were most likely fabricated by his ex-wife. Thus, the State sought to admit J.B.’s testimony primarily to refute this defense, rather than to prove that Bradley possessed the requisite intent to sexually abuse S.S. and A.S. I, therefore, would follow a different analytical path to determine that the trial court did not err in admitting J.B.’s testimony.
¶ 71 Bradley argues that the trial court committed reversible error in admitting into evidence other acts of sexual abuse allegedly committed by Bradley against his son, J.B. The admissibility of evidence of other bad acts committed by a defendant is governed by rule 404(b) of the Utah Rules of Evidence and the standard articulated by the Supreme Court in State v. Decorso. See 1999 UT 57, ¶ 20, 993 P.2d 837; see also State v. Fedorowicz, 2002 UT 67, ¶ 26, 52 P.3d 1194; State v. Nelson-Waggoner, 2000 UT 59, ¶¶ 18-20, 6 P.3d 1120. Rule 404(b) provides:
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....
Utah R. Evid. 404(b). However, “[t]he list provided by the rule is not exhaustive,” United States v. Cohen, 888 F.2d 770, 776 (11th Cir.1989), rather, it is merely illustrative and “any purpose for which bad-acts evidence is introduced is a proper purpose so long as the evidence is not offered ... to prove character.” United States v. Miller, 895 F.2d 1431, 1436 (D.C.Cir.1990).1 Included among these purposes is the preemption of a defendant’s claim that the charges were fabricated. See id.
¶ 72 “In determining whether evidence of [other] bad acts is admissible, the trial court must initially decide whether the evidence is offered for a proper, noncharac-ter purpose rather than only to show the defendant’s propensity to commit the crime charged.” Fedorowicz, 2002 UT 67 at ¶ 26, 52 P.3d 1194 (citation omitted). If the court determines that the evidence is being offered for a proper, non-character purpose, the court must then determine whether the bad-act evidence is relevant to the case at hand, under rule 402 of the Utah Rules of Evidence, and whether the evidence violates the principles of rule 403 of the Utah Rules of Evidence. See id. (citation omitted). The trial court will exceed its permitted range of discretion if it does not scrupulously examine the evidence to (1) determine that it is offered for a proper, non-character purpose, (2) that it is relevant to the case at hand, and (3) that it satisfies rule 403, before admitting the evidence. See id. at ¶ 24 (citations omitted).
A. Purpose of the Evidence
¶ 73 As a threshold matter, we must review the record to determine whether the State offered J.B.’s testimony for a proper, non-character purpose. To meet this threshold, the “ ‘evidence must have probative value other than to show an evil propensity or [a] criminal temperament.’ ” Id. at ¶ 27 (quoting State v. Reed, 2000 UT 68, ¶ 24, *11548 P.3d 1025). In the instant case, the State offered the evidence for a proper, non-character purpose: to refute Bradley’s claim that the victim’s mother had either fabricated the charges herself or had encouraged the victims to lie. See Miller, 895 F.2d at 1435 n. 9 (“Because the Government could ‘fairly anticipate [the defendant’s] defense’ that [a witness] had falsely implicated [the defendant] in the check-forging scheme, it was entitled to preempt this line of argument through relevant bad-acts ‘evidence ... as part of its case in chief.’ ” (final alteration in original)); see also Fedorowicz, 2002 UT 67 at ¶ 30, 52 P.3d 1194 (citing cases permitting the use of prior bad-act evidence to rebut a defense raised exclusively on cross examination of the State’s witnesses). To refute Bradley’s defense, the State offered J.B.’s testimony that highlighted “a pattern of behavior in which defendant engaged that was consistent with” the claims of the victims in the instant case. Nelson-Waggoner, 2000 UT 59 at ¶25, 6 P.3d 1120.
¶ 74 J.B. testified on direct examination that Bradley would instruct him to go into the bedroom, remove his clothing, and lie face down on the bed. He further testified that Bradley would then place his penis in J.B.’s “rear end,” and that Bradley also forced J.B. to perform oral sex on Bradley. During cross-examination, J.B. testified that Bradley made him watch “nasty movies” and that he had seen a vibrator in Bradley’s dresser drawer. J.B. also testified that Bradley never performed any of these acts in the presence of the other children and that he had never witnessed Bradley abuse either S.S. or A.S. Because J.B.’s testimony focused on the similarities between his alleged abuse and the abuse inflicted upon both S.S. and A.S., and not Bradley’s character, the trial court did not' abuse its discretion. See Nelson-Waggoner, 2000 UT 59 at ¶ 25, 6 P.3d 1120; Decorso, 1999 UT 57 at ¶ 27, 993 P.2d 837.
¶ 75 Next, we must ensure that J.B.’s testimony was relevant to the instant case. “A trial court has broad discretion in deciding whether evidence is relevant, and we review a trial court’s relevance determination for abuse of discretion.” Fedorowicz, 2002 UT 67 at ¶ 32, 52 P.3d 1194 (citation omitted). “[U]nless the other crimes evidence tends to prove some fact that is material to the crime charged — other than the defendant’s propensity to commit crime — it is irrelevant and should be excluded by the court pursuant to rule 402.” Decorso, 1999 UT 57 at ¶ 22, 993 P.2d 837. However, “Extrinsic acts evidence may be critical to the establishment of the truth as to a disputed issue....” Huddleston v. United States, 485 U.S. 681, 685, 108 S.Ct. 1496, 1499, 99 L.Ed.2d 771 (1988).
¶ 76 Here, as we have previously discussed, J.B.’s testimony was relevant to Bradley’s anticipated defense that the victims in this case were fabricating the charges of sexual abuse. In fact, Bradley’s sole defense was that the allegations made by the two child victims had never occurred and were, most likely, an attempt by his ex-wife to gain leverage in seeking custody of their young daughter. J.B., however, did not share the same relationship with Bradley’s ex-wife, thus, he had little or no reason to fabricate either his alleged abuse or the circumstances surrounding the abuse. Therefore, J.B.’s testimony was probative of the circumstances surrounding the abuse of S.S. and A.S. and to refute Bradley’s expected defense of fabrication. Accordingly, the trial court did not err in determining that J.B.’s testimony was relevant to the instant case.
¶ 77 The proper analytical framework would normally, at this point, focus on determining whether the prior bad-act evidence comports with the expectations of rule 403 of the Utah Rules of Evidence. However, because I believe that the lead opinion has fully and properly addressed this element, I do not address this element.
¶ 78 While I disagree with the method, I concur with the lead opinion concerning the admissibility of J.B.’s testimony regarding Bradley’s other bad-acts. Absent this disagreement, I concur in the lead opinion. I also concur in Judge Orme’s opinion.
ORME, Judge(concurring specially):
¶ 79 I agree with the views expressed by Judge Thorne on the “prior bad acts” issue dealt with in Section I of the lead opinion, and so Judge Thorne’s opinion controls that issue and sets forth the basis on which we affirm the trial court’s decision to permit *1155J.B.’s testimony. Like Judge Thorne, I join the lead opinion with respect to the remaining issues.
¶ 80 I write separately to add two points to the discussion. First, I simply do not see how prior bad acts can come in to prove intent in any case involving a specific-intent sex crime — even if the defendant has not meaningfully challenged the intent element— if it is true, as our Supreme Court recently said, that circumstances when such evidence of prior sexual acts could be admitted are “rare.” State v. Reed, 2000 UT 68, ¶ 28 n. 3, 8 P.3d 1025. Such circumstances will most certainly not be “rare” if nothing more is required by way of an intent “hook” than that the crime charged has a specific-intent element. Because of how damning other sexual misdeeds will be in the eyes of a jury, more should be required in order to view prior bad acts as bearing on intent. As examples, prior instances of similar sexual misconduct could properly be admitted in most cases where the defendant admitted to touching the victim, but claimed it was inadvertent, for the purpose of administering a medicine or ointment, or for some other proper purpose.
¶ 81 Second, this area appears to be something of a minefield. Despite the Supreme Court’s admonition in Reed, there are decisions cited in the lead opinion that seem to open the door to evidence of prior bad acts coming in to prove intent even if intent is not really in issue. Thus, defendants would be well advised, in those cases where the defense is “it never happened” or “I wasn’t the one,” to make clear at the outset of trial that there is no challenge to the specific-intent element, i.e., that it is conceded that if the claimed touching happened, it was for no purpose other than sexual gratification. With such a concession made, there surely would be no occasion for the prosecution to belabor the intent element, whether by seizing upon evidence of prior bad acts or otherwise.
.
Although the Federal rules of Evidence are a separate body of law from the Utah Rules of Evidence, if the reasoning of a federal case interpreting or applying a federal evidentiary rule is cogent and logical, we may freely look to that case, absent a Utah case directly on point, when we interpret or apply an analogous Utah evidentiary rule.
State v. Fedorowicz, 2002 UT 67 n. 1, 52 P.3d 1194; see also Utah R. Evid. 404 advisory committee’s notes (stating "Rule 404 is now Federal Rule of Evidence 404 verbatim.”).