State v. Ferrero

Decision Date11 April 2012
Docket NumberNo. CR–11–0127–PR.,CR–11–0127–PR.
Citation229 Ariz. 239,274 P.3d 509
PartiesSTATE of Arizona, Appellee, v. Patrick M. FERRERO, Appellant.
CourtArizona Supreme Court


Thomas C. Horne, Arizona Attorney General by Kent E. Cattani, Chief Counsel, Criminal Appeals/Capital Litigation, Robert A. Walsh, Assistant Attorney General, Phoenix, Attorneys for State of Arizona.

James J. Haas, Maricopa County Public Defender by Christopher V. Johns, Deputy Public Defender, Phoenix, Attorneys for Patrick Michael Ferrero.


BERCH, 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.


¶ 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).

¶ 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).


¶ 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).

¶ 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, 54 Cal.2d 115, 4 Cal.Rptr. 509, 351 P.2d 781, 785 (1960)).

¶ 9 Some courts have read Garner as creating an exception 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. 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, 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 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, 274 Mich.App. 58, 732 N.W.2d 546, 568 (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 preliminaries' 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 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...

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