State v. Ferrero

SUPREME COURT OF ARIZONA
En Banc

STATE OF ARIZONA, ) Arizona Supreme Court
) No. CR-11-0127-PR
)
Appellee, ) Court of Appeals
) Division One
v. ) No. 1 CA-CR 10-0276
)
) Maricopa County
PATRICK M. FERRERO, ) Superior Court
) No. CR2009-103770-001DT
)
Appellant. ) O P I N I O N
_________________________________ )

Appeal from the Superior Court in Maricopa County
The Honorable Joseph C. Kreamer, Judge

REVERSED
________________________________________________________________

Memorandum Decision of the Court of Appeals, Division One
Filed Apr. 7, 2011

VACATED AND REMANDED
________________________________________________________________

THOMAS C. HORNE, ARIZONA ATTORNEY GENERAL Phoenix
By Kent E. Cattani, Chief Counsel
Criminal Appeals/Capital Litigation
Robert A. Walsh,
Assistant Attorney General
Attorneys for State of Arizona

JAMES J. HAAS, MARICOPA COUNTY PUBLIC DEFENDER Phoenix
By Christopher V. Johns,
Deputy Public Defender
Attorneys for Patrick Michael Ferrero
________________________________________________________________

B E R C H, Chief Justice

¶1 The issue in this case is whether, in a prosecution for

sexual offenses, evidence of similar sexual conduct with the
same minor victim is “intrinsic evidence” that is not governed

by Arizona Rule of Evidence 404(c). We also consider whether

the type of evidence described in State v. Garner, 116 Ariz.

443, 569 P.2d 1341 (1977), is inherently intrinsic to the

charged act. We conclude that Rule 404(c) does not apply to

truly intrinsic evidence, but that Garner evidence is not

inherently intrinsic.

I. FACTS AND PROCEDURAL BACKGROUND

¶2 Patrick Ferrero was charged with three counts of sexual

conduct with a minor. Over Ferrero’s objection, the trial court

admitted evidence of “other uncharged acts” with the minor to

show Ferrero’s “sexual disposition” toward him. Although the

judge did not screen the evidence under Rule 404(c), he

nonetheless instructed the jurors that they could consider the

evidence to establish that Ferrero had a character trait “that

predisposed him to commit the crimes charged.” The jury found

Ferrero guilty on all three counts.

¶3 The court of appeals reversed Ferrero’s convictions on

two counts and found any error as to the third count (which is

not before us) harmless. The court held that the trial judge

must screen “Garner evidence” under Rule 404(c) and its failure

to do so required reversal. State v. Ferrero, 1 CA-CR 10-0276,

2011 WL 1326208, at *4 ¶ 16 (Ariz. App. Apr. 7, 2011) (mem.

decision).

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¶4 We granted the State’s petition for review because the

proper interpretation of Rule 404 is an issue of statewide

importance. We have jurisdiction pursuant to Article 6, Section

5(3) of the Arizona Constitution and Arizona Revised Statutes

§ 12-120.24 (2003).

II. DISCUSSION

¶5 Rule 404 controls the admission of character and “other

act” evidence. Section 404(b) prohibits evidence of other

crimes, wrongs, or acts to prove the defendant’s character to

act in a certain way, but may allow such evidence for other

purposes, such as showing “motive, opportunity, intent,

preparation, plan, knowledge, identity, or absence of mistake or

accident.” Ariz. R. Evid. 404(b).

¶6 Section 404(c) applies to propensity evidence in sexual

misconduct cases. It expressly permits evidence of other

similar crimes, wrongs, or acts to prove the defendant’s

character trait giving rise to an aberrant sexual propensity to

commit the charged offense, but only if the court first makes

specific findings.1 Id. 404(c)(1).

1
The state must prove that the defendant committed the other
act, that the other act provides a reasonable basis from which
the jurors may infer that the defendant had the propensity to
commit the charged act, and that the value of the other act
evidence is not substantially outweighed by prejudice to the
defendant. See Ariz. R. Evid. 404(c)(1)(A)-(D); see also id.,
cmt. to 1997 amd. (citing State v. Terrazas, 189 Ariz. 580, 584,

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¶7 Arizona opinions provide imprecise guidance about the

proper application of sections (b) and (c) of Rule 404,

particularly in sex offense cases. We therefore take this

opportunity to clarify the terms “Garner evidence” and

“intrinsic evidence” and address the application of Rule 404 to

such evidence.

A. Garner Evidence

¶8 We begin by addressing what has become known as “Garner

evidence.” See Garner, 116 Ariz. at 447, 569 P.2d at 1345. The

defendant in Garner was charged with sexually assaulting his

minor son. Id. at 445, 569 P.2d at 1343. To prove the

defendant’s propensity to commit the charged crime, the

prosecutor offered evidence that, on two occasions more than a

year before the charged act, the defendant had oral sex with the

boy. Id. at 445-46, 569 P.2d at 1343-44. On review, this Court

stated that, “[i]n a case involving a sex offense committed

against a child, evidence of a prior similar sex offense

committed against the same child is admissible to show the

defendant’s lewd disposition or unnatural attitude toward the

particular victim.” Id. at 447, 569 P.2d at 1345 (citing People

v. Sylvia, 351 P.2d 781, 785 (Cal. 1960)).

¶9 Some courts have read Garner as creating an exception

944 P.2d 1194, 1198 (1997) (requiring that commission of the
other act be shown by clear and convincing evidence)).

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to the common law rule — now codified in Rule 404(b) — barring

admission of other acts to prove a defendant’s propensity to act

in a certain way.2 See, e.g., State v. Alatorre, 191 Ariz. 208,

213, 953 P.2d 1261, 1266 (App. 1998); State v. Jones, 188 Ariz.

534, 539, 937 P.2d 1182, 1187 (App. 1996). These courts have

interpreted Garner as always allowing the admission of evidence

of prior sexual acts with the same child victim, even if offered

to prove the defendant’s propensity to commit the charged act.

¶10 Twenty years after Garner, however, this Court

promulgated Rule 404(c). See Ariz. R. Evid. 404(c), cmt. to

1997 amd. The court of appeals subsequently recognized that

automatic admission of Garner evidence in cases involving sexual

offenses conflicts with 404(c), which permits use of evidence of

other acts to show the defendant’s “aberrant sexual propensity

to commit the crime charged” only if certain criteria are met.

2
Garner cites cases admitting “other act” evidence to show a
common scheme or plan and distinguishes the propensity exception
created by State v. McFarlin, 110 Ariz. 225, 517 P.2d 87 (1973),
and State v. Treadaway, 116 Ariz. 163, 568 P.2d 1061 (1977).
This suggests that the Court may have simply meant to recognize
another exception to the common law rule, similar to the
exceptions for plan, intent, motive, or opportunity. See
Garner, 116 Ariz. at 447, 569 P.2d at 1345 (citing State v. Van
Winkle, 106 Ariz. 481, 482, 478 P.2d 105, 106 (1970) (admitting
evidence of prior sexual assaults to show a “system, plan and
scheme”); State v. Finley, 108 Ariz. 420, 421, 501 P.2d 4, 5
(1972) (similar)); cf. State v. Vega, 228 Ariz. 24, 32 ¶¶ 34-35,
262 P.3d 628, 636 (App. 2011) (Thompson, J., concurring). This
reading is supported by the comments to Rule 404(c), which do
not mention Garner and affirmatively state that Rule 404(c) is
intended to substantially codify the McFarlin/Treadaway rule.
Ariz. R. Evid. 404 cmt. to 1997 amd.

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State v. Garcia, 200 Ariz. 471, 476 ¶ 31, 28 P.3d 327, 332 (App.

2001). Thus, Garcia held that Garner evidence, which it viewed

as necessarily offered to prove the defendant’s propensity to

act in a certain way, is subject to Rule 404(c) screening. Id.

The decision below followed Garcia. See Ferrero, 2011 WL

1326208, at *4 ¶ 15.

¶11 We agree with Garcia and the court of appeals in this

case that when the prosecution offers Garner evidence to prove

the defendant’s propensity to commit the charged sexual offense,

the evidence must be screened under Rule 404(c). That rule

supplants Garner’s potential exception to the propensity rule.

We therefore relegate the term “Garner evidence” to shorthand

for the type of evidence at issue in that case — “evidence of a

prior similar sex offense committed against the same child.”

Garner, 116 Ariz. at 447, 569 P.2d at 1345.

¶12 But we disagree with the court of appeals that “Garner

evidence” is always subject to Rule 404(c) screening. Rule

404(b) and (c) create a framework for admitting evidence of

other crimes, wrongs, or acts that depends in part upon the

purpose for which the evidence is offered. As in Garner, the

State offered other-act evidence here to prove Ferrero’s

propensity (and the jury was so instructed), but that will not

always be the case. Garner evidence might also be relevant for

non-propensity purposes, such as showing motive, intent,

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identity, or opportunity. If the evidence is offered for a non-

propensity purpose, it may be admissible under Rule 404(b),

subject to Rule 402’s general relevance test, Rule 403’s

balancing test, and Rule 105’s requirement for limiting

instructions in appropriate circumstances. But if evidence of

other sex acts is offered in a sexual misconduct case to show a

defendant’s “aberrant propensity” to commit the charged act, as

it was here, Rule 404(c) applies.

¶13 Rules 404(b) and (c), however, apply only to evidence

of “other” crimes, wrongs, or acts. The admissibility of Garner

evidence therefore depends on a second question — that is,

whether the evidence is so intrinsic to the charged act as not

to constitute an “other” act.

B. Intrinsic Evidence

¶14 The intrinsic evidence doctrine arose from Rule

404(b)’s distinction between “charged” and “other” crimes,

wrongs, or acts. See State v. Nordstrom, 200 Ariz. 229, 248

¶ 56, 25 P.3d 717, 736 (2001); see also United States v. Bowie,

232 F.3d 923, 927 (D.C. Cir. 2000) (noting that Federal Rule of

Evidence 404(b) “creates a dichotomy between crimes or acts that

constitute the charged crime and crimes or acts that do not”).

Its premise is that certain acts are so closely related to the

charged act that they cannot fairly be considered “other” acts,

but rather are part of the charged act itself. See United

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States v. Green, 617 F.3d 233, 245 (3d Cir. 2010). The doctrine

recognizes that excluding evidence of these acts may prevent a

witness from explaining the charged act, making the witness’s

testimony confusing or incoherent. See Burke v. State, 624 P.2d

1240, 1250 (Alaska 1980); People v. Dobek, 732 N.W.2d 546, 568

(Mich. Ct. App. 2007). Thus, courts have used the doctrine to

admit evidence of other acts as intrinsic to the charged act

despite the danger that it might also show the defendant’s

propensity to act in a certain way. See Fed. R. Evid. 404(b),

cmt. to 1991 amd. (citing United States v. Williams, 900 F.2d

823 (5th Cir. 1990)).

¶15 We previously said that “evidence is ‘intrinsic’ when

[1] evidence of the other act and evidence of the crime charged

are ‘inextricably intertwined’ or [2] both acts are part of a

‘single criminal episode’ or [3] the other acts were ‘necessary

preliminariesʼ to the crime charged.” State v. Andriano, 215

Ariz. 497, 502 ¶ 18, 161 P.3d 540, 545 (2007) (quoting State v.

Dickens, 187 Ariz. 1, 18 n.7, 926 P.2d 468, 485 n.7 (1996)); see

Nordstrom, 200 Ariz. at 248 ¶ 56, 25 P.3d at 736 (also quoting

Dickens). Our opinions in Andriano and Nordstrom illustrate the

narrow scope of this definition.

¶16 In Andriano, the defendant was convicted of murdering

her husband. 215 Ariz. at 502 ¶ 14, 161 P.3d at 545. We held

that evidence of Andriano’s extramarital affairs and attempts to

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procure insurance on her husband’s life was not intrinsic to the

murder because Andriano never actually procured the insurance,

id. at ¶¶ 20-21, and her affairs were unrelated to the murderous

act itself, id. at 503 ¶ 26, 161 P.3d at 546.

¶17 The connection between the charged and uncharged acts

in Nordstrom was similarly tenuous. Nordstrom murdered several

people in a bar. 200 Ariz. at 236-38 ¶¶ 1-7, 25 P.3d at 724-26.

We rejected the State’s argument that Nordstrom’s solicitation

of another person to burglarize the same bar two years earlier

was intrinsic to the subsequent murders. Id. at 248 ¶ 56, 25

P.3d at 736. We concluded that too much time had passed and the

acts were not sufficiently similar. See id. Thus, although the

acts in Andriano and Nordstrom shared some similarities or

connections to the charged acts, we found that the other acts

were not inextricably intertwined with, part of the same

criminal episode as, or necessary preliminaries to, the charged

acts.

¶18 Despite our efforts to narrowly constrain the intrinsic

evidence doctrine, some decisions have cited it to justify the

admission of evidence that is not truly intrinsic to the charged

act. See, e.g., State v. Herrera, 226 Ariz. 59, 64 ¶ 15, 243

P.3d 1041, 1046 (App. 2011). It has proved difficult for courts

to determine when an “other act” is necessarily preliminary to

the charged act or when evidence crosses the line from being

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admissible as “part of a single criminal episode” as the charged

act, to being inadmissible as merely arising “out of the same

series of transactions as the charged offense.” See, e.g.,

United States v. Siegel, 536 F.3d 306, 316 (4th Cir. 2008)

(applying “same series of transactions” test); United States v.

McLee, 436 F.3d 751, 760 (7th Cir. 2006) (same).

¶19 The Third Circuit noted similar problems in identifying

whether evidence is sufficiently “inextricably intertwined” to

make it intrinsic, remarking that “the [inextricably

intertwined] test creates confusion because, quite simply, no

one knows what it means.” Green, 617 F.3d at 246. In Green,

the defendant was convicted of attempted possession of cocaine.

Id. at 237-38. At trial, the court admitted evidence of a bomb

plot under the theory that the defendant sought to purchase

dynamite and cocaine in the same transaction, so the bomb plot

helped explain how the defendant attempted to procure the drugs.

Id. at 237. The Third Circuit found the evidence admissible for

non-propensity purposes under Rule 404(b), id. at 252, but it

disagreed with the trial court’s analysis and held that the

evidence relating to the bomb plot was not intrinsic to the

attempted cocaine possession, id. at 249. After extensively

analyzing the pitfalls of the intrinsic evidence doctrine

generally, and the “inextricably intertwined” category in

particular, the court decided to “reserve the ‘intrinsic’ label

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for two narrow categories of evidence.” Id. at 248. According

to the court, an “other act” is intrinsic only if it

(1) “directly proves the charged offense,” or (2) is “performed

contemporaneously with” and “facilitate[s] the commission of the

charged crime.” Id. at 248-49 (internal citations and quotation

marks omitted).

¶20 Given the difficulty Arizona courts have experienced in

applying the intrinsic evidence definition we espoused in

Andriano and Nordstrom, we adopt Green’s definition. It

desirably allows evidence of acts that are so interrelated with

the charged act that they are part of the charged act itself

without improperly admitting evidence that, although possibly

helpful to explain the charged act, is more appropriately

analyzed under Rule 404(b) or (c). Henceforth, evidence is

intrinsic in Arizona if it (1) directly proves the charged act,

or (2) is performed contemporaneously with and directly

facilitates commission of the charged act.3 See id. at 248-49.

The intrinsic evidence doctrine thus may not be invoked merely

to “complete the story” or because evidence “arises out of the

3
Other jurisdictions have entirely abandoned the intrinsic
evidence doctrine. See, e.g., State v. Fetelee, 175 P.3d 709,
737 (Haw. 2008); State v. Rose, 19 A.3d 985, 1010-11 (N.J.
2011). Although the need for the doctrine may be questioned,
the parties have not asked that we abandon it, so we do not
decide that issue today.

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same transaction or course of events” as the charged act.4

¶21 Although we intend our definition to be narrow, the

varied circumstances in which parties may attempt to admit

evidence of other acts makes it impossible to fashion a bright-

line test for determining when evidence is intrinsic. Under our

definition, however, Garner evidence is not inherently intrinsic

to the charged act. Although prior sexual contact with the

victim may be so closely related to the charged sexual offense

that it is intrinsic and thus exempt from Rule 404 analysis, it

may also be sufficiently remote and unrelated that it neither

proves nor facilitates the charged act.

¶22 The nature of intrinsic evidence as part of the charged

act also shows why it is not subject to Rule 404(c) screening.

Because Rule 404(c) applies to other “crimes, wrongs, or acts,”

it does not apply if the proponent offers evidence of the

charged act itself. By its language, the rule also does not

apply if evidence of uncharged acts is offered to show something

other than the defendant’s propensity to commit the charged act.

Rule 404(c) thus does not extend to truly intrinsic acts, which

are not “other acts” and are not offered to prove the

4
Evidence that “completes the story,” “arises out of the
same transaction” as the charged act, or is “part and parcel” of
the charged act may well qualify as intrinsic evidence, but
those tests are broader than our formulation and should not be
invoked to analyze whether evidence is intrinsic to the charged
act.

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defendant’s propensity to commit the charged act. Accordingly,

intrinsic evidence — including Garner evidence that is intrinsic

— is not subject to Rule 404(c) screening.

¶23 Our narrow definition of intrinsic evidence will not

unduly preclude relevant evidence of a defendant’s other acts.

Non-intrinsic evidence will often be admissible for non-

propensity purposes under Rule 404(b). See Andriano, 215 Ariz.

at 502-03 ¶¶ 22-23, 26-27, 161 P.3d at 545-46 (finding evidence

of attempts to procure insurance and extramarital affairs not

intrinsic, but nonetheless admissible under Rule 404(b) to show

plan, knowledge, motive, and intent to kill). As the court

observed in Green,

[I]t is unlikely that our holding will exclude much,
if any, evidence that is currently admissible as
background or “completes the story” evidence under the
inextricably intertwined test. We reiterate that the
purpose of Rule 404(b) is simply to keep from the jury
evidence that the defendant is prone to commit crimes
or is otherwise a bad person, implying that the jury
needn’t worry overmuch about the strength of the
government’s evidence. No other use of prior crimes
or other bad acts is forbidden by the rule, and one
proper use of such evidence is the need to avoid
confusing the jury. Thus, most, if not all, other
crimes evidence currently admitted outside the
framework of Rule 404(b) as “background” evidence will
remain admissible under the approach we adopt today.
The only difference is that the proponent will have to
provide notice of his intention to use the evidence,
and identify the specific, non-propensity purpose for
which he seeks to introduce it (i.e., allowing the
jury to hear the full story of the crime).
Additionally, the trial court will be required to give
a limiting instruction upon request.

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617 F.3d at 249 (citations and internal quotation marks

omitted); see Ariz. R. Evid. 105 (jury instruction); Ariz. R.

Crim. P. 15.1(b)(7) (pretrial notice); see also Bowie, 232 F.3d

at 927 (“So far as we can tell, the only consequence[] of

labeling evidence ‘intrinsic’ [is] to relieve . . . the court of

its obligation to give an appropriate limiting instruction upon

defense counsel’s request.”).

¶24 In summary, evidence of the defendant’s prior sexual

conduct with the child victim of a sexual offense — Garner

evidence — is not inherently intrinsic; whether it is depends on

its relation to the charged acts. If it is not intrinsic, it

may nonetheless be admissible under Rule 404(b) if not offered

to prove the defendant’s propensity to commit the charged act,

or under Rule 404(c) if offered to prove the defendant’s

propensity to commit the charged act and the proponent satisfies

Rule 404(c)’s prerequisites.

C. Evidence of Ferrero’s Uncharged Acts

¶25 The court of appeals correctly held that the trial

court erred by failing to subject several categories of other

act evidence to Rule 404(c) screening because it was offered to

show the defendant’s propensity to commit the charged acts. For

example, the trial court, presumably relying on Garner,

permitted the prosecutor to introduce evidence that on the ride

to Ferrero’s house on the night of the first charged offense,

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Ferrero told the victim to pull down the victim’s pants and

underwear and expose himself. The victim acceded to Ferrero’s

demands because Ferrero threatened to leave him on the side of

the road if he did not comply. When they arrived at Ferrero’s

house, the victim talked with Ferrero’s mother and played

computer games for at least thirty minutes while Ferrero

showered. The victim then joined Ferrero in bed, at which time

Ferrero completed the first charged act.

¶26 The State offered the exposure evidence to show “that

Defendant had the emotional propensity to engage in sexual

misconduct” with the victim, and the jury was instructed that

the evidence could be used for that purpose. The evidence is

facially governed by Rule 404(c) because it involves an

uncharged sex act offered “to show that the defendant had a

character trait giving rise to an aberrant sexual propensity to

commit the offense charged.” The evidence is therefore exempt

from Rule 404(c) screening only if the uncharged act was truly

intrinsic to the charged act and thus not an “other act.”

¶27 The evidence of this uncharged act does not fit within

our narrow definition of intrinsic evidence. The two acts were

qualitatively different and constituted two separate instances

of sexual abuse. Thus, under the first prong of our definition,

forcing the victim to expose himself does not directly prove

that Ferrero later committed the charged sexual offense. The

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second prong — which requires that the act occur

contemporaneously with and directly facilitate the charged act —

is equally unavailing. Although forcing the victim to pull down

his pants in the vehicle may have facilitated the charged act by

weakening the victim’s defenses, it did not occur

contemporaneously with the charged act. The acts were separated

by at least thirty minutes, during which time the victim talked

to Ferrero’s mother and played computer games.

¶28 The forced exposure is therefore not intrinsic to the

charged act. Because the evidence was offered to prove the

defendant’s propensity to commit the charged act, the trial

court erred in admitting evidence of that act without screening

it under Rule 404(c).5

III. CONCLUSION

¶29 Although we agree with the court of appeals’ result, we

disagree with its analysis and therefore vacate its memorandum

decision and remand the case for a new trial on the first two

counts.6 If the State seeks to admit evidence of other acts on

5
Having found the victim’s testimony regarding his forced
exposure inadmissible absent Rule 404(c) screening, we need not
address the remaining uncharged acts. On remand, however, the
State may seek admission of the other uncharged acts pursuant to
the framework outlined above.
6
By remanding for a new trial with instructions for the
trial court to consider whether the evidence was intrinsic to
the charged acts, the court of appeals implicitly found that the
trial court’s failure to screen the evidence of other acts under

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remand, the trial court must determine whether the evidence is

offered to prove Ferrero’s propensity. If the evidence is

offered for a legitimate non-propensity purpose, the trial court

may admit it under Rule 404(b), subject to the other rules of

evidence. If, however, the evidence is offered to prove

propensity, the trial court must screen it under Rule 404(c).

_____________________________________
Rebecca White Berch, Chief Justice

CONCURRING:

_____________________________________
Andrew D. Hurwitz, Vice Chief Justice

_____________________________________
W. Scott Bales, Justice

_____________________________________
A. John Pelander, Justice

_____________________________________
Robert M. Brutinel, Justice

Rule 404(c) was not harmless error. In its petition for review,
the State challenged the court of appeals’ refusal to conduct an
explicit harmless error analysis, but we did not grant review on
that issue.

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