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 
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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 nonpropensity 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 brightline 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 nonpropensity 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.