¶1(dissenting):
¶2¶ 9 I respectfully dissent.
¶3¶ 10 Although case law makes clear that when specific intent is an element of the charged crime, and the purpose of the evidence is not to attack the defendant’s character, prior bad-act evidence is not prohibited, see, e.g., United States v. Hernandez, 84 F.3d 931, 935 (7th Cir.1996) (stating “when a defendant is charged with a specific intent crime, the government may present other acts evidence [in its case-in-ehief] to prove intent” (quotations and citation omitted)), case law also makes clear that the such evidence must satisfy the requirements of rules 402 and 403, of the Utah Rules of Evidence, before it is deemed admissible.
¶ 11 To be admissible,
the evidence [first] must be directed toward establishing a matter in issue other than the defendant’s propensity to commit the charged crime. Second, the ‘other act’ must be similar to the charged conduct and be close enough in time to be relevant to the matter at issue. Third, the evidence [of the prior act] must be sufficient to support a jury finding that the defendant committed the similar act. Finally, the probative value of the evidence must not be substantially outweighed by the danger of unfair prejudice.
¶4Hernandez, 84 F.3d at 935.
¶5¶ 12 Here, because Rees had been convicted for the prior act in question, we may assume that the State satisfied the third element of the standard. Consequently, the analysis will turn on the outcome of the remaining three. First, we must examine whether the evidence was directed toward an issue in dispute and not toward showing Rees’s propensity to commit sex crimes. Although it may appear that the State’s deci*363sion to use the evidence was motivated by its desire to show Rees’s propensity to commit the charged crime,
¶6¶ 13 Second, we must consider whether the evidence satisfies the relevancy requirement of rule 402 of the Utah Rules of Evidence, or, in other words, we must determine whether the prior act is “similar to the charged conduct and ... [occurred] close enough in time to be relevant to the matter at issue.” Hernandez, 84 F.3d at 935.
¶7¶ 14 Although both acts involve an attempt at either sexual gratification, or an attempt to cause emotional pain, the similarities end there. In the prior case, Rees followed the victim and imposed himself upon her by grabbing and fondling her. In this case, Rees sought to have the victim approach and then displayed his exposed genitals to her. Although certain superficial similarities exist between the cases — i.e., they both involve sexual offenses — I do not share the lead opinion’s conclusion that Rees’s previous assault was similar enough to the instant case to justify its admission into evidence. Accordingly, I would conclude that the evidence does not satisfy all of the relevancy requirements necessary for admission under rule 404(b).
¶8¶ 15 Furthermore, if we assume that Rees’s prior assault was sufficiently similar to the instant case, thus satisfying any relevancy concerns, I believe that the probative value of the prior act evidence, as presented in this case, was substantially outweighed by the danger of unfair prejudice. Specifically, the prior act itself was inflammatory and of little real value to proving the elements necessary for conviction in the instant case. Moreover, the State’s decision to replicate the previous trial — virtually in its entirety — • was particularly inflammatory and of no real probative value to the instant case.
¶9¶ 16 After introducing its direct evidence, the State called the victim of the previous assault, called the officer who investigated the previous assault, admitted into evidence a photo of the previous crime scene, and played for, and submitted to, the jury an audio-taped interrogation of Rees made during the investigation of the prior act. Ac*364cepting, for the sake of this discussion, that the previous act evidence was admissible to prove Rees’s intent, the sheer volume of evidence amounted to a retrial of Rees’s previous assault. When viewed against the backdrop of the direct evidence presented to the jury concerning this assault, the State’s prior act evidence was overwhelming. The extraordinary detail presented concerning Rees’s prior act was simply not necessary to prove the contested element of intent and, instead, served only to inflame the jury’s hostility toward Rees.
¶10¶ 17 Because the prior bad-act evidence involved a sexual assault, albeit one substantially dissimilar from that alleged in the instant case, I believe that the trial court abused its discretion in determining that the evidence was not “substantially more prejudicial than probative.” Utah R. Evid. 403. Admittedly, the evidence demonstrated that Rees had a propensity to seek sexual gratification from women unknown to him. However, it did nothing to prove or disprove his guilt in this case. Nor did it provide a necessary connection to his methods, his patterns, his motive, or his identity. The evidence did, however, demonstrate to the jury that Rees is a reprehensible human being who had, in the past, inflicted himself upon an unsuspecting and unwilling young woman.. The importance of the prior act evidence to the instant case was insufficient to counterbalance the State’s decision to present it in an extremely detailed and inflammatory fashion. The quality and volume of the evidence prejudiced the jury and ensured that Rees was convicted for being a bad person, rather than for the crime in question. Consequently, the evidence was substantially more prejudicial than probative and it should never have been admitted as evidence in this trial.
¶11¶ 18 Accordingly, I disagree with the lead opinion’s conclusion that the evidence was properly admitted, and would, instead, reverse Rees’s conviction and remand this case for a new trial.
¶12. In United States v. Hernandez, 84 F.3d 931 (7th Cir.1996), the Seventh Circuit Court of Appeals outlined the factors to apply when "reviewing the admissibility of 404(b) evidence.” Id. at 935. I believe that these factors not only mirror the Utah requirements, they describe the process that a trial court should apply when faced with situations like that presented here.
¶13. Not only did the State call the victim of the prior act to testify, the State also called the police officer who investigated the prior act. The State additionally introduced into evidence a photograph of the previous crime scene and an audiotape of Rees’s interrogation performed during the investigation of the previous act, which the trial court then allowed into the jury room during its deliberations. Finally, during its closing argument, the State labeled Rees "a sexual predator” and argued that "we know what he did before, four months prior to this, and we know what he did with this.... He’s out there and he's just preying upon stranger women who he thinks are attractive.”
¶14. Rees was charged with attempted forcible sexual abuse, a violation of Utah Code Annotated sections 76-5-404 and 76-4-101 (1999). Because attempt is a crime of specific intent, see State v. Vigil, 842 P.2d 843, 846-47 (Utah 1992) (determining that, in Utah, attempt is a crime of specific intent), overruled on other grounds by State v. Casey, 2003 UT 33, 82 P.3d 1106, the State may properly introduce relevant prior act evidence to demonstrate Rees’s intent in the instant case.
¶15. Because the prior act occurred less than six months before this incident, I believe it satisfies the timing requirement set forth in Hernandez. See 84 F.3d at 935; see also State v. Nelson-Waggoner, 2000 UT 59,¶¶ 20, 29, 6 P.3d 1120. Accordingly, I address only the lack of similarities between the events.