specially concurring.
I agree with the court, but would go further and admit evidence of bribery, overcharging and fraud, the exclusion of which the court upholds at the very end of its opinion. Ante, at 412-413.
The court characterizes the evidence of other frauds as substantially dissimilar and possibly offered to prove character rather than intent. This is a case of consumer fraud in which the plaintiff seeks punitive damages. To prove punitive damages the “plaintiff must prove that defendant’s evil hand was guided by an evil mind.” Rawlings v. Apodaca, 151 Ariz. 149, 162, 726 P.2d 565, 578 (1986). Any similarity requirement is, as the court notes, a question of relevance under Rule 401, and not some independent requirement under Rule 404(b). This is especially true in cases of fraud, where other frauds are admissible. McCormick on Evidence § 197 at 836 (4th ed. 1992) (“When other misrepresentations are used to show intent or knowledge, they need not be identical nor made under precisely the same circumstances as the one in issue.”). See In re Brandon, 55 N.Y.2d 206, 448 N.Y.S.2d 436, 439, 433 N.E.2d 501, 504 (1982) (noting the failure of some courts to distinguish between the weak similarity requirement of the intent exception from the strong similarity requirement of the common plan exception).
Thus, evidence of Hodge’s fraud was not being offered to prove his character, which was not an issue, but was being offered to show his intent, knowledge, and his evil *103mind. Our own court of appeals has acknowledged that a merchant’s past deceptive sales practices are relevant to both the issue of whether a merchant is currently involved in deceptive sales practices, and to the issue of punitive damages. Dunlap v. Jimmy GMC of Tucson, Inc., 136 Ariz. 338, 343, 666 P.2d 83, 88 (App.1983).
What then would be examples of prior bad acts that would not be relevant and would be offered to prove the bad character of the defendant? I submit that a prior bad act wholly unrelated to the business practices of the defendant would be properly excluded. This would include such things as drunkenness or prostitution, acts wholly unrelated to the intent underlying consumer fraud.
Perhaps on remand, in light of our opinion today, the trial judge will make a different discretionary call about this evidence and admit it. I read the majority’s opinion as suggesting that it is within the court’s discretion to do so.