State v. Terrazas

¶1OPINION

¶2FACTS AND PROCEDURAL HISTORY

¶3On May 20, 1994, Timothy Sterns’ truck was stolen from his place of employment. Six days later, a police detective told defendant, Mario Amado Terrazas, that he thought there were stolen vehicles on defendant’s property. When defendant gave the detective permission to look around, the detective found the frame and glove box of Sterns’ truck, both of which contained the truck’s vehicle identification number. On a later *581date, Sterns identified more parts of his truck among items that had been found on defendant’s property. When the detective asked defendant about the pieces to Sterns’ truck, defendant claimed that he had been gone for four days and, while he was away, the vehicle parts had been left on his property by an unknown individual.

¶4Defendant waived his right to a jury trial. The state sought to introduce evidence of other crimes, wrongs, or acts, and defendant sought to exclude such evidence. The trial court stated that it would receive the evidence subject to a later ruling on admissibility.

¶5The state proceeded to offer evidence of three earlier incidents which it alleged showed defendant had committed earlier criminal acts with which he had never been charged. The first involved a 1985 Chevrolet Blazer S-10 owned by Tommy Medina that was stolen in March 1998. At that time, a friend of Medina’s saw someone driving Medina’s truck onto defendant’s property. The next day, Medina and the friend went with police onto defendant’s property and located parts belonging to Medina’s vehicle.

¶6The second item involved Jennifer Vasquez’ 1991 Chevrolet S-10 truck that had been stolen in 1992, two years before the truck involved in this case was stolen. When the Vasquez truck was stolen, there were several items in it, including a maroon backpack containing library books. While searching defendant’s property in connection with the present case, a detective found a maroon backpack and three library books. He seized the books but not the backpack. The books proved to be the library books that had been in Vasquez’ truck when it was stolen. No other connection between Vasquez’ truck and defendant was shown.

¶7The third item of alleged bad act evidence involved Richard Estrada’s stolen truck. A police detective showed Estrada pictures of items found on defendant’s property to determine whether they were parts of Estrada’s truck. Estrada, however, could not make any positive identification.

¶8At the end of the trial, the court relied on the other act evidence regarding Medina’s Blazer and the books from Vasquez’ truck, but disregarded evidence regarding Estrada’s truck because of the lack of evidence connecting it to defendant.

¶9The trial court found defendant guilty of class four felony theft, suspended his sentence, and placed defendant on probation. The court of appeals affirmed. We granted review and have jurisdiction pursuant to Arizona Constitution article VI, section 5(3) and Arizona Rules of Criminal Procedure 31.19.

¶10ISSUE

¶11In Arizona, what level of proof is required to show prior bad acts in a criminal case, assuming such evidence is otherwise admissible?

¶12DISCUSSION

¶13We granted review in this case to consider the level of proof trial judges should apply in determining whether to admit evidence of prior bad acts in a criminal case. We emphasize that this is a criminal case and is not intended to apply to civil cases, which present different considerations. This opinion assumes that all of the prerequisites for admission of the prior bad acts have been met and the only question remaining is with regard to the proper level of proof required for admission of those acts. At the trial court level, the defense argued for an admissibility standard similar to the standard set forth in State v. Hughes, 102 Ariz. 118, 426 P.2d 386 (1967). The defense stated that “there needs to be enough evidence of the prior bad act or wrong to survive a directed verdict.” The trial judge, on the other hand, applied a standard closer to the preponderance standard enunciated in Huddleston v. United States, 485 U.S. 681, 108 S.Ct. 1496, 99 L.Ed.2d 771 (1988). The trial judge státed that the only amount of evidence necessary was “enough to link the defendant to what’s going on.” He did not require “substantial evidence or beyond a reasonable doubt,” or enough evidence to “get past a directed verdict.”

¶14On appeal, the court of appeals noted that although this court had never affirmatively adopted the Huddlestonpreponderance stan*582dard, we had referred to the Huddlestoncase in some of our opinions. State v. Terra-zas, 187 Ariz. 387, 390, 930 P.2d 464, 467 (App.1996). The court of appeals then applied Huddleston, holding that evidence of prior acts may be admitted “if the profferer produces sufficient proof to permit a fact-finder to conclude, by a preponderance of the evidence, that the prior act occurred and that the party against whom the evidence is offered committed the act.” Id.Upon consideration, we do not agree with the preponderance standard set forth in Huddleston, but hold that the standard to be applied to prior bad acts evidence is that set forth in Hughes, requiring proof by clear and convincing evidence.

¶15Evidence of prior bad acts committed by a defendant is usually inadmissible at trial. Ariz. R. Evid. 404(b); see Hughes, 102 Ariz. at 122, 426 P.2d at 390; State v. Garcia, 96 Ariz. 203, 205, 393 P.2d 668, 670 (1964). However, evidence of prior bad acts may be admissible to establish “motive, intent, absence of mistake or accident, identity and common scheme or plan.” Hughes, 102 Ariz. at 122, 426 P.2d at 390; Ariz. R. Evid. 404(b).1 The issue presented in this case is by what standard these prior bad acts must be proved to be admissible against the defendant in a criminal case.

¶16The first case to set forth the standard in Arizona was State v. Hughes. 102 Ariz. at 122-23, 426 P.2d at 390-91. In Hughes, this court noted that the overwhelming majority of other states required the proof to be “clear,” or “clear and convincing,” or that there must be “substantial proof’ that the other crime was committed by the defendant. Id.The court stated that, whether the standard is given by any of these phrases, “the test appears to be that the proof both as to the commission of another crime and its commission by the defendant, must be by.‘substantial evidence sufficient to take the case to a jury.’ ” Id. at 123, 426 P.2d at 391 (quoting State v. Hyde, 234 Mo. 200,136 S.W. 316, 331 (1911)). This court has subsequently cited and followed Hughes. See, e.g., State v. Valles, 162 Ariz. 1, 5, 780 P.2d 1049, 1053 (1989); State v. McGann, 132 Ariz. 296, 298, 645 P.2d 811, 813 (1982).

¶17In 1977, Arizona adopted the Federal Rules of Evidence. Even so, “we are not bound by the United States Supreme Court’s non-constitutional construction of the Federal Rules of Evidence when we construe the Arizona Rules of Evidence.” State v. Bible, 175 Ariz. 549, 580, 858 P.2d 1152, 1183 (1993). The United States Supreme Court interpreted the standard of proof required to allow evidence of prior bad acts under Federal Rules of Evidence 104(b)2 in Huddleston, 485 U.S. at 689-91, 108 S.Ct. at 1501-02. The standard adopted by the Supreme Court differs from the standard set forth in Hughes. Huddleston only requires a jury to be able to find the conditional fact by a preponderance of the evidence. Id. Hughes requires the judge to find the conditional fact by “substantial evidence sufficient to take the case to a jury.” 102 Ariz. at 123, 426 P.2d at 391 (quoting Hyde, 136 S.W. at 331). Because both Huddlestonand Hugheshave been cited by this court, a question has arisen as to which standard should now be used in Arizona. We clarify that we did not adopt the preponderance standard set forth in Huddleston. Rather, we adhere to Hughesand clarify that, for prior bad acts to be admissible in a criminal case, the profferer must prove by clear and convincing evidence that the prior bad acts were committed and that the defendant committed the acts.

¶18Although we have cited to Huddleston, we have not previously adopted the preponderance standard of Huddleston. When we last identified the issue, we declined to decide it. *583See State v. Schurz, 176 Ariz. 46, 51-52, 859 P.2d 156, 161-62 (1998). In a few cases where we cited to Huddleston, we cited it merely to highlight the four factors that Huddlestonidentifies as safety precautions embedded within the Federal Rules of Evidence. See State v. Gulbrandson, 184 Ariz. 46, 60, 906 P.2d 579, 593 (1995), cert, denied, — U.S. -, 116 S.Ct. 2558, 135 L.Ed.2d 1076 (1996); State v. Atwood, 171 Ariz. 576, 638, 832 P.2d 593, 655 (1992). The protective provisions found in the rules of evidence are:

(1) rule 404(b)’s requirement that the evidence be admitted for a proper purpose; (2) the relevancy requirement of rule 402; (3) the trial court’s assessment that the probative value of the similar acts evidence is substantially outweighed by its potential for unfair prejudice, see rule 403; and (4) rule 105’s provision for an appropriate limiting instruction, if the party requests one.

¶19Atwood, 171 Ariz. at 638, 832 P.2d at 655. We continue to agree with these four protective provisions. They are, in essence, merely a restatement of part of the Federal Rules of Evidence. See State v. Roscoe, 184 Ariz. 484, 493, 910 P.2d 635, 644 (stating that the four factors are “[f]our rules of evidence [that] protect defendants from the admission of unfairly prejudicial other acts ____”), cert. denied, — U.S. -, 117 S.Ct. 150, 136 L.Ed.2d 96 (1996).

¶20We also cited Huddlestonin support of our holding in State v. Williams, 183 Ariz. 368, 378, 904 P.2d 437, 447 (1995). In Williams, we said that “[e]vidence whose relevancy depends on the fulfillment of a condition of fact is admissible when a jury could reasonably believe from the evidence that the condition was fulfilled.” Id.We realize that this language may have caused some ambiguity. However, in Williams, we were only addressing an issue of admissibility, not the required level of proof. Now that the issue of the level of proof is squarely presented, we hold that Hughesis still good law.

¶21We further hold that Hugheswas not overruled by our adoption of the Arizona Rules of Evidence in 1977, which are patterned after the Federal Rules of Evidence. This court has continued to apply Hughesafter the adoption of the Arizona Rules of Evidence. See Valles, 162 Ariz. at 5, 780 P.2d at 1053; McGann, 132 Ariz. at 298, 645 P.2d at 813; State v. Woods, 121 Ariz. 187, 190, 589 P.2d 430, 433 (1979); State ex rel LaSota v. Corcoran, 119 Ariz. 573, 576, 583 P.2d 229, 232 (1978). No conflict is present between the Rules of Evidence and the Hughesstandard; the standard does not change the Rules, but merely provides a standard that must be met to admit the evidence under the Rules.

¶22Many other courts require clear and convincing proof of evidence of prior bad acts (both that the act occurred and that the defendant committed the act) before they will allow the evidence to be admitted. Johnson v. United States, 683 A.2d 1087, 1093 (D.C.App.1996) cert, denied, — U.S. -, 117 S.Ct. 1323,137 L.Ed.2d 484 (1997); Phillips v. State, 591 So.2d 987, 989 (Fla.App.1991); State v. Jackson, 625 So.2d 146, 149 (La.1993); Ayers v. State, 335 Md. 602, 645 A.2d 22, 37 (1994); State v. Spaeth, 552 N.W.2d 187, 193 (Minn.1996); State v. Wilson, 5 Neb-App. 125, 556 N.W.2d 643, 652 (1996); State v. Smith, 300 S.C. 216, 387 S.E.2d 245, 247 (1989); State v. McCary, 922 S.W.2d 511, 514 (Tenn.1996); see also State v. Cohen, 634 A.2d 380, 386 (Del.Super.1992); People v. Oaks, 169 Ill.2d 409, 215 Ill.Dec. 188, 208, 662 N.E.2d 1328, 1348 (1996), cert. denied, — U.S. -, 117 S.Ct. 191, 136 L.Ed.2d 129 (1996) (requiring less than a reasonable doubt but “more than mere suspicion”); State v. Howell, 557 N.W.2d 908, 911 (Iowa App.1996) (requiring “clear proof’); Winiarz v. State, 107 Nev. 812, 820 P.2d 1317, 1321 (1991); State v. Michaud, 135 N.H. 723, 610 A.2d 354, 356 (1992) (requiring “clear proof’ “firmly establishing”); Daniel v. State, 923 P.2d 728, 734 (Wyo.1996).

¶23However, a number of states have chosen to apply a “preponderance”-type standard. See Ex Parte Hinton, 548 So.2d 562, 567 (Ala.1989); People v. Gamer, 806 P.2d 366, 370 (Colo.1991); State v. Kay, 129 Idaho 507, 927 P.2d 897, 905 (App.1996); State v. Krause, 82 Wash.App. 688, 919 P.2d 123, 126 (1996); see also Hawks v. State, 223 Ga.App. 890, 479 S.E.2d 186, 188 (1996) (state made “sufficient showing” that defendant committed the crimes); State v. Wilson, 108 *584N.C.App. 117, 423 S.E.2d 473, 476 (1992) (requiring “substantial evidence”); State v. McDonald, 500 N.W.2d 243, 246 (S.D.1993) (requiring “substantial evidence”); State v. McGinnis, 193 W.Va. 147, 455 S.E.2d 516, 525 (1994). Additionally, one state applies the standard of “beyond a reasonable doubt.” See Harrell v. State, 884 S.W.2d 154, 157 (Tex.Crim.App.1994).

¶24We believe there are important reasons to apply a clear and convincing standard, rather than some lesser standard, to evidence of prior bad acts. Such evidence is quite capable of having an impact beyond its relevance to the crime charged and may influence the jury’s decision on issues other than those on which it was received, despite cautionary instructions from the judge. Note, Winship on Rough Waters: The Erosion of the Reasonable Doubt Standard, 106 Harv. L.Rev. 1093, 1103 (1990). Studies confirm that the introduction of a defendant’s prior bad acts “can easily tip the balance against the defendant.” Edward J. Imwinkelried, Uncharged Misconduct Evidence, 1-SUM Crim. Just. 6, 8 (1986). Because of the high probability of prejudice from the admission of prior bad acts, the court must ensure that the evidence against the defendant directly establishes “that the defendant took part in the collateral act, and to shield the accused from prejudicial evidence based upon ‘highly circumstantial inferences.’” Vivian M. Rodriguez, The Admissibility of Other Crimes, Wrongs or Acts Under the Intent Provision of Federal Rule of Evidence JM(B): The Weighing of Incremental Probity and Unfair Prejudice, 48 U. Miami L.Rev. 451, 457 (1993). Applying the standard of “clear and convincing evidence” establishes a “clear, recognizable standard for courts and lawyers and is consistent with the due process owed under the federal and state constitutions.” Smith v. State, 267 Ga. 363, 478 S.E.2d 379, 381 (1996) (Fletcher, P.J., concurring). To allow a lesser standard in a criminal case is to open too large a possibility of prejudice. We have recently noted the potentially prejudicial effects of prior bad acts evidence and cautioned trial courts and counsel to exercise extreme care in its use, even where it is admissible. State v. Ives, 187 Ariz. 102, 111, 927 P.2d 762, 771 (1996). Therefore, before admitting evidence of prior bad acts, trial judges must find that there is clear and convincing proof both as to the commission of the other bad act and that the defendant committed the act.3

¶25In this case, library books that had been located in a truck stolen two years earlier were found on defendant’s property. We believe that this evidence is not clear and convincing proof that defendant controlled the stolen truck, knowing or having reason to know that the truck was stolen. Therefore, evidence concerning the books was improperly admitted and used.

¶26CONCLUSION

¶27The trial judge relied on prior bad act evidence in determining defendant’s guilt and stated that he probably would have reached a different conclusion if he had not received and considered prior bad act evidence. We cannot determine how the judge would have decided the case had he not received and considered improper bad act evidence. Therefore, defendant’s conviction and sentence must be set aside and the case remanded for a new trial consistent with this opinion.

¶33specially concurring.

¶34I concur with the reasoning and the result reached by the majority but make the following observations with respect to the dissenting opinion.

¶35Even though the Rules of Evidence control in a conflict with prior cases, it must first be *585clear that a conflict exists. It would be inappropriate for this court to ignore precedent and fail to glean added perspective and meaning on matters that, as explained below, are not addressed in the Rules and do not present a conflict.

¶36The current Rules of Evidence provide no guidance with respect to the standard of proof to be applied in determining the admissibility of “other crimes” evidence. Rule 104(b) requires that when relevancy depends upon fulfillment of a condition of fact, evidence is admissible only upon proof that supports a finding of the fulfillment of the condition. Nothing in Rule 104(b) suggests, implicitly or otherwise, what the standard for admissibility should be. Similarly, Rule 403, which provides for the exclusion of unduly prejudicial evidence even where relevant, does not articulate the standard of admissibility at issue here. It provides only for the weighing process as between relevance and prejudice. Rule 404(b), reflecting the common law, preserves and states the general rule that evidence of “other crimes” remains inadmissible unless shown to fall within one or more of the specific categories set forth in the Rule.

¶37I acknowledge that “other crimes” evidence is admissible in Arizona if the three conditions set forth under Rules 104(b), 403, and 404(b) are met. Such acknowledgment, however, neither addresses nor resolves the issue now presented, namely, whether the standard for admissibility should be by evidence that is “clear and convincing” or by evidence that merely satisfies the lower “preponderance” test. The dissent indicates that the Rules do not speak of a higher standard for the admissibility of “other crimes” evidence. But neither do the Rules speak of a lower standard. Because of this, I conclude that the question of the choice of standard, as noted by the majority, is squarely presented and must now be resolved.

¶38The Arizona Rules of Evidence do not conflict with State v. Hughes. Quite clearly, Justice Lockwood, who authored Hughes, left unexplored the “preponderance” standard urged by the dissent. Contrary to the view expressed by our dissenting justice, the phrase “substantial evidence sufficient to take the case to a jury” was equated by Justice Lockwood with the “clear” or “clear and convincing” standard, as is evident from the following pronouncement:

Regardless of whether the words “clear,” “clear and convincing,” or “substantial proof’ are used, the test appears to be that the proof both as to the commission of another crime and its commission by the defendant, must be by “substantial evidence sufficient to take the case to a jury.”

¶39State v. Hughes, 102 Ariz. 118, 123, 426 P.2d 386, 391 (1967) (citations omitted). Justice Lockwood nowhere mentions the “preponderance” standard. Interestingly, she did point out that some jurisdictions had opted for the “beyond a reasonable doubt” standard, which is significantly higher than the “clear and convincing” standard. See Hughes, 102 Ariz. at 122-23,426 P.2d at 390-91.

¶40Read in context, it is my impression that if Hugheshad considered the “preponderance” standard, it would have rejected it and found that the standard requiring “clear and convincing” evidence was the appropriate measure by which to determine admissibility of “other crimes” evidence. Otherwise, I question why Justice Lockwood would state that “the overwhelming weight of authority in other jurisdictions is that proof of a prior reported crime, and the defendant’s connection with it, must be ‘clear’, ... or ‘clear and convincing’ or that there must be ‘substantial proof that the other crime has been committed by the defendant,____” Id.,102 Ariz. at 122, 426 P.2d at 390.

¶41Our dissenting justice incorrectly implies that Hughesadopted a standard lower than clear and convincing. He refers to “only enough evidence to defeat a motion for directed verdict” and defines that standard by citing a civil case, Orme School v. Reeves, 166 Ariz. 301, 802 P.2d 1000 (1990), not applicable here, thus ignoring relevant authority in the criminal sector. The ease at bar is a criminal case, and the holding of the majority does not apply in civil cases but is expressly confined to the criminal forum.

¶42Rule 20, Arizona Rules of Criminal Procedure, states: “[T]he court shall enter a judgment of acquittal ... if there is no substan*586tial evidence to warrant a conviction.” In State v. Spears, a unanimous 1996 opinion, this court stated in the context of Rule 20: “Substantial evidence is proof that reasonable persons could accept as sufficient to support a conclusion of a defendant’s guilt beyond a reasonable doubt.” 184 Ariz. 277, 290, 908 P.2d 1062, 1075 (emphasis added), cert, denied, — U.S.-, 117 S.Ct. 393,136 L.Ed.2d 308 (1996). Accordingly, while Hugheschose a standard for “other crimes” evidence that is lower than “beyond a reasonable doubt,” the court did require, at the very least, “substantial evidence sufficient to take the case to a jury.” By equating the term “substantial evidence” with the “clear and convincing” standard, Hughesappears to have avoided the “preponderance” standard.

¶43Arizona joins other jurisdictions that, in recent years, have determined to follow the “clear and convincing” standard for the admissibility of “other crimes” evidence. See, e.g., Delaware v. Cohen, 634 A.2d 380, 386 (Del.Super.Ct.1992) (“To be admissible in trial where guilt or innocence is determined, other ‘bad acts’ or crimes must be established by evidence which is ‘plain, clear, and conclusive’.”); Phillips v. Florida, 591 So.2d 987, 989 (Fla.Dist.Ct.App.1991) (“Mere suspicion is insufficient; rather, the proof should be ‘clear and convincing’.”); Ayers v. Maryland, 335 Md. 602, 645 A.2d 22, 37 (1994) (“Admission of other crimes evidence must be closely scrutinized by courts”; “If one or more exceptions [to the rule] applies, the next step is to decide whether the accused’s involvement in other crimes is established by clear and convincing evidence____”); Minnesota v. Spaeth, 552 N.W.2d 187, 193 (1996) (trial court must find “clear and convincing evidence” that defendant participated in other incidents); Winiarz v. Nevada, 107 Nev. 812, 820 P.2d 1317, 1321 (1991) (“Before evidence of prior bad acts may be admitted, there must be clear and convincing evidence that such acts actually occurred.”); New Hampshire v. Michaud, 135 N.H. 723, 610 A.2d 354, 356 (1992) (trial court must determine that “(1) the evidence is relevant for a purpose other than to prove character or disposition; (2) there is “clear proof” that the defendant committed prior offense; and (3) the prejudice to the defendant does not substantially outweigh the probative value of the evidence”); Daniel v. Wyoming, 923 P.2d 728, 734 (1996) (trial court must consider, inter alia, “[t]he extent to which the prosecution ‘plainly, clearly, and conclusively’ can prove the other similar crimes”) (all emphasis added).

¶44I favor the “clear and convincing” standard over the “preponderance” rule. The latter would, I believe, create a significant risk of unfair prejudice whenever evidence of “other crimes” is circumstantial or remote, as here and as in Hughes. The prejudicial impact in Hugheswas the very thing that prompted this court to hold that “other crimes” evidence had been improperly admitted by the trial court. The “clear and convincing” standard, in my view, is more likely to accomplish substantial justice.

¶45Moreover, we cannot overlook the common law, which held that evidence of other crimes or prior bad acts was considered prejudicial and thus inadmissible because it tended to distract the attention of the jury from properly considering the issues presented on the merits of the ease being tried, resulting in verdicts based on false issues. These concerns have not disappeared with the passage of time. Only in limited circumstances was “other crimes” evidence admissible at common law to establish such things as motive, intent, identity, mistake, etc. All of these are preserved in the current Rule 404(b).

¶46Finally, the second to last sentence in the dissent characterizes the majority as adopting an “overly cautious approach to the admission of ‘other act evidence’” and states that this is “a view not shared by those who drafted the Federal and Arizona Rules of Evidence.” This assertion is inaccurate. Concern over “other crimes” evidence is deeply rooted in the common law and neither begins nor ends with the view of this court. The rule of exclusion applicable to evidence of “other crimes” was calculated to produce fairness at trial, and while adjustments to the rule may occur from time to time, it is not accurate to presume that the safeguards contemplated by the majority are no longer necessary. Concern for the integrity of the trial process is neither a subjective nor per*587sonal consideration but the court’s constitutionally mandated duty. Contrary to the dissenter’s stated view, the majority’s jurisprudential concern over the admissibility of this kind of evidence was and is shared by the drafters of the Rules as manifested by the exclusionary language of Rule 404(b) that preserves the general rule of inadmissibility.

¶47I read Rule 404(b) as a rule of exclusion. The rule expressly declares that evidence of other crimes is not admissible when offered “to prove the character of a person in order to show action in conformity therewith.” This preserves the rule of the common law. Here, the majority simply holds that in criminal cases, courts should apply the clear and convincing standard when determining the admissibility of “other crimes” evidence under any stated exception to the rale.