evidence that, two days before the defendant killed his wife, he had slapped her,
contending this was admissible both as
intrinsic evidence and as other act evidence
to show intent.
39 The trial court admitted
that evidence to show intent, and at oral
argument the state conceded that evidence
would not be admissible as intrinsic evidence under the Ferrero test.
40 In State v.
41 the Court cited Ferrero for the
general admissibility of other act evidence,
but did not mention intrinsic evidence.
Since the decision in Ferrero, in addi-
tion to its opinion in Herrera III, the
Arizona Court of Appeals has cited Ferrero
twice, in each case addressing the issue of
intrinsic evidence. In State v. Salamanca,
the defendant was speeding and weaving
on Route 66 when he fishtailed across five
lanes and collided head-on with another
vehicle, killing the driver. Blood and
breath samples taken shortly after the col-
lision showed the defendant had a blood
alcohol level more than twice the legal
limit. The state offered in evidence two
calls the defendant made on his cell phone
to his girlfriend that showed he was very
angry toward her, the first one made
approximately two minutes 15 seconds
before the collision, and the second one
made approximately 59 seconds before the
collision. The court held the trial court
properly admitted the second call as intrin-
sic evidence because it was close enough in
time to the collision, and the jurors could
have concluded that call caused the colli-
sion.44 For the first call, the court stated it
did not have to determine whether that
call was intrinsic evidence because it was
admissible under Rule 404(b) to show the
defendant’s state of mind.
In the second case, State v. Butler,
there was a longer period of time between
acts, the other act having happened “less
than one week earlier.”
47 The police had
executed search warrants on two houses
and had found large amounts of marijuana
and evidence defendant had been shipping
marijuana, and also found a cellular
telephone box containing nearly $13,000
in cash. In defendant’s car, they found a
property receipt from a Georgia sheriff’s
department indicating that, less than one
week earlier, personnel there had seized
from defendant a shoe box containing
a “large amount of U.S. currency.”
The Court upheld the admission of the
property receipt under Ferrero because
“it was reasonable for the trial court to
conclude that the receipt directly proved
1. See Crane McClennen & Robert Gottsfield,
Rule 404(b) and 404(c): New Definitions,
New Tests and New Rules,
34 ARIZ. ATT’Y
31 (June 1998). See also Robert Gottsfield,
We Just Don’t Get It—Improper Admission
of Other Acts Evidence Under Rule 404(b)
as Needless Cause of Reversal in Civil and
33 ARIZ. ATT’Y
1997); Crane McClennen, Admission of
Evidence and Other Crimes, Wrongs, or
26 ARIZ. ATT’Y
13 (June 1990);
Crane McClennen, Arizona Court Room
Evidence Manual, Rules 403 and Rules
404(b) and 404(c) (3rd ed. 1997); Robert
Gottsfield, Is Identity the Wild Card in
404(b) Other Acts Evidence Cases?
14 (April 2008).
2. 274 P.3d 509 (Ariz. 2012).
3. 926 P.2d 468 (Ariz. 1996).
4. Id. at 485 n. 7.
5. 927 P.2d 762 (Ariz. 1996).
6. Id. at 766–69. The most expansive use of
“common scheme, or plan” as used in Rule
13. 3(a)( 3) and thus applicable to Rule
404(b) was “similar and related conduct”
requiring “substantial similarities.” A sec-
ond definition called for a “visual connec-
tion” between the events compared which
was when “similarities exist where one
would normally expect to find differences.”
The Court adopted the third definition set
forth above in the text. Id. at 766–67.
9. 944 P.2d 1194 (Ariz. 1997).
10. Id. at 1196.
11. Order Amending Rules 404 and 405,
ARIZ.R.EVID., filed August 19, 1997.
12. The day after the Arizona Supreme Court
issued Dickens, the Arizona Court of
Appeals decided State v. Baldenegro, 932
P.2d 275 (Ariz. Ct. App. 1996), which used
the same intrinsic/extrinsic analysis and
cited the same federal cases as Dickens. Id.
at 280– 81. There the Court of Appeals
affirmed the trial court’s admission as other
act evidence gang activity by other members
when charged counts alleged assisting and
participating in a criminal syndicate for the
benefit of a criminal street gang.
13.926 P.2d at 485 n. 7.
14. Id. (“[T]he evidence is admissible absent a
Rule 404(b) analysis because it is intrinsic
15. 25 P.3d 717 (Ariz. 2001).
16.161 P.3d 540 (Ariz. 2007).
25 P.3d at 736; Andriano, 161
P.3d at 545.
18. Ferrero, 274 P.3d ¶ 25.
19. Id. ¶ 14.
20. Id. ¶ 22.
21. Id. at ¶ 18, citing State v. Herrera, 243 P.3d
1041, 1046 (Ariz. Ct. App. 2011) (Herrera I).
22. Ferrero, 274 P.3d ¶¶ 18–19.
23.617 F.2d 233, 248–49 (3rd Cir. 2010).
24. Ferrero, 274 P.3d ¶ 20.
25. Id. ¶ 20 n. 4. For a discussion of why complet-
ing the story is not a valid argument under
most circumstances, see Gottsfield, supra note
25, at 1.
26. Ferrero, 274 P.3d ¶ 27.
27.569 P.2d 1341 (Ariz. 1977).
28. Ferrero, 274 P.3d ¶ 9.
29. Id. ¶ 11.
30. Id. ¶ 12. In order for a trial court to admit
evidence under Rule 404(b) or Rule 404(c),
Judge Gottsfield is of the opinion that a trial
court must do a Rule 403 balancing, whereas
Judge McClennen is of the opinion that the
trial court must do so only if a party asks the
The New Restrictive “Intrinsic Evidence” Test
What is not clear is what is “contemporaneous.”
We will have to await further clarification from
the appellate courts on this point.