State v. Marquez

                                                       Office of the
                                                           Director                 New Mexico
                                                                                    Compilation
                                                        2021.10.05                  Commission

                                                   '00'06- 15:19:29
          IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

Opinion Number: 

Filing Date: September 1, 2020

No. A-1-CA-37055

STATE OF NEW MEXICO,

      Plaintiff-Appellee,

v.

ISAAC MARQUEZ,

      Defendant-Appellant.

APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY
Alisa A. Hart, District Judge

Certiorari Granted, April 23, 2021, No. S-1-SC-38502. Released for Publication
October 12, 2021.

Hector H. Balderas, Attorney General
Santa Fe, NM
M. Victoria Wilson, Assistant Attorney General
Albuquerque, NM

for Appellee

Freedman Boyd Hollander Goldberg Urias & Ward, P.A.
Karen Grohman
Shammara H. Henderson
Christopher A. Dodd
Albuquerque, NM

for Appellant

                                       OPINION

ATTREP, Judge.

{1}   Defendant Isaac Marquez appeals his conviction for one count of criminal sexual
penetration in the first degree (child under thirteen), contrary to NMSA 1978, Section
30-9-11(C) (1995, amended 2009). Defendant was charged with acts of digital
penetration against his ex-wife’s granddaughter. He advances several claims of error,
one of which—the admission of evidence of uncharged sexual misconduct with the
victim—we deem the basis for reversal. In reaching this conclusion, we reaffirm that the
so-called “lewd and lascivious disposition” exception to the prohibition against
propensity evidence is abolished in New Mexico. Further concluding the State has
advanced no viable non-propensity reason for the admission of the uncharged sexual
misconduct evidence and that its admission was not harmless, we reverse Defendant’s
conviction and remand for a new trial. Because we reverse on this basis we do not
consider Defendant’s remaining claims of error.

BACKGROUND

{2}    The charges in this case stem from allegations made by J.K., the granddaughter
of Defendant’s ex-wife Judy, years after the abuse occurred. Defendant and Judy had a
contentious breakup in November 2009. Around that time, J.K. (by then an adult)
disclosed to Judy that Defendant sexually abused J.K. when she was between six and
eight years old. A grand jury eventually indicted Defendant in June 2015, charging him
with four counts of criminal sexual penetration. Trial commenced later that year.

{3}     Of relevance to this appeal, defense counsel moved the district court, prior to the
taking of any testimony, to prohibit the State from introducing evidence of certain
uncharged conduct as impermissible propensity evidence. Specifically, J.K. disclosed in
pretrial interviews that, during the same timeframe of the charged conduct, Defendant
also made J.K. touch his penis on several occasions. In addition, Judy was prepared to
testify that she witnessed Defendant walking around with an open robe in J.K.’s
presence. When asked by the district court to proffer an allowable purpose for this
evidence under Rule 11-404(B) NMRA, the State asserted: “[L]ewd and lascivious
conduct with the same victim is admissible under [Rule 11-]404(B), if it shows a pattern
of conduct with that victim and it shows an ongoing pattern of behavior with that victim.”
After reviewing case law cited by the State, and taking into consideration Rule 11-403
NMRA, the district court ruled the evidence admissible, reasoning: “It involves the same
victim. It’s during the same time frame. There is relevance with regard to the lewd and
lascivious disposition towards the particular victim. It also corroborates the victim’s
testimony and gives some context to this behavior.”

{4}     J.K. was twenty-five years old at the time of trial. J.K. testified that, sometime
between the ages of six and eight, she lived on and off with Judy and Defendant for a
couple of months where she slept on a couch in the living room. J.K. testified that
Defendant, on numerous occasions, would get up in the middle of the night to get
cookies from the kitchen. On his way, Defendant would stop and fondle J.K. underneath
her underwear and would “play with [her] clitoris” with the tips of his fingers. J.K. did not
remember these incidents with any specificity, testifying that they were “[j]ust a blur.”
After this testimony, the State elicited from J.K. that Defendant also did other
inappropriate things to her. When asked what those incidents were, J.K. testified: “In his
bedroom, during the day, if I had asked to go play with kids across the street or I had
asked for a candy, he would be sitting in his bed in his robe, and he would have me
come over, and he would use my hand to stroke his penis.” J.K. specifically
remembered that, on one occasion when Defendant did this to her, Judy was in her
bathroom taking a bath. The State also asked Judy at trial whether there had been any
incidents between Defendant and J.K. that caused her concern. Judy responded that
she once witnessed Defendant standing in front of J.K. with an open robe wearing only
his underwear. Defendant took the stand in his defense and testified that he never
touched J.K. sexually.

{5}     At the conclusion of the State’s case, the district court, on concession of the
State, entered a directed verdict on three of the four counts because J.K. described a
course of conduct and could not distinguish separate acts. The jury found Defendant
guilty of the remaining charge, and the district court sentenced Defendant to a term of
imprisonment of twelve years.

DISCUSSION

{6}     Defendant argues on appeal that the uncharged sexual misconduct evidence—
i.e., Defendant making J.K. touch his penis and walking around with an open robe in
front of J.K.—was improper propensity evidence admitted in violation of Rule 11-404(B).
Defendant also argues that, even if this evidence was admissible for a purpose other
than propensity, its admission was prohibited by Rule 11-403 because the prejudicial
effect of the evidence substantially outweighed its probative value. Finally, Defendant
argues that the erroneous admission of the evidence was not harmless. We first
examine whether the district court’s stated rationale—i.e., the lewd and lascivious
disposition exception—was a valid basis for admitting the uncharged sexual misconduct
evidence. Reaffirming once again that this exception has been abolished and thus
provides no basis for the admission of such evidence, we turn next to whether the other
grounds advanced by the State on appeal justify the district court’s ruling. Because they
do not and because the admission of the evidence was not harmless, we reverse
Defendant’s conviction and remand for a new trial.

I.     The District Court Erred in Admitting Evidence of Defendant’s Uncharged
       Conduct

{7}      Rule 11-404 prohibits the introduction of “[e]vidence of a crime, wrong, or other
act . . . to prove a person’s character in order to show that on a particular occasion the
person acted in accordance with the character.” Rule 11-404(B)(1). Such propensity
evidence, “although logically relevant to show that the defendant committed the crime
by acting consistently with his or her past conduct,” is inadmissible due to the likelihood
the jury will convict for crimes other than those charged, or because it simply believes
the defendant to be a bad person deserving of punishment. State v. Gallegos, 2007-
NMSC-007, ¶ 21, 

, 

. A trial court may nonetheless admit
such evidence for a purpose other than to show propensity, “such as proving motive,
opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of
accident.” Rule 11-404(B)(2). “This list is not exhaustive and evidence of other wrongs
may be admissible on alternative relevant bases so long as it is not admitted to prove
conformity with character.” State v. Otto, 

, 

, 

 (internal quotation marks and citation omitted). Critically, though, “it is incumbent
upon the proponent of Rule 11-404(B) evidence to identify and articulate the
consequential fact to which the evidence is directed” and to state with precision “the
rationale for admitting the evidence to prove something other than propensity.”
Gallegos, 

. Assuming the district court determines the evidence
admissible under Rule 11-404(B), it next is required to determine whether “the probative
value related to its permissible purpose is substantially outweighed by the factors
enumerated in Rule 11-403.” Gallegos, 

.

{8}    “We review a trial court’s decision to admit evidence under Rule 11-404(B) for
abuse of discretion.” State v. Romero, 

, 

, 

. “An abuse of discretion occurs when the district court’s decision can be
characterized as clearly untenable or not justified by reason.” State v. Ervin, 2008-
NMCA-016, ¶ 9, 

, 

 (internal quotation marks and citation
omitted). A district court also abuses its discretion when its “discretionary decision is
premised on a misapprehension of the law.” Aragon v. Brown, 

,

, 

.

A.      The Lewd and Lascivious Disposition Exception Is Not Good Law

{9}    At trial, the State primarily relied on this Court’s decision in State v. Casaus,

, 

, 

, to argue for the admission of the
uncharged sexual misconduct evidence. In particular, the State argued that the
evidence was admissible as “prior lewd and lascivious conduct with the same victim . . .
[in order to] place[] the criminal charge in context.” In permitting the admission of the
evidence, the district court accepted this rationale.

{10} On appeal, Defendant asserts the district court abused its discretion by relying on
this exception to Rule 11-404(B) that is no longer good law. 1 Defendant maintains that
this Court abrogated the lewd and lascivious disposition exception to Rule 11-404(B) in
Kerby I and that our Supreme Court did not alter this holding when it subsequently
affirmed this Court’s decision on other grounds. See State v. Kerby (Kerby II), 2007-
NMSC-014, 

, 

. Although the State acknowledges this Court
abrogated the lewd and lascivious disposition exception in Kerby I, it asserts, without
developing an argument as to why we ought to depart from settled law, that Kerby I has


1Defendant on appeal parses out the district court’s ruling as providing four separate reasons for
admitting the evidence—i.e., because it: (1) involved the same victim; (2) demonstrated a lewd and
lascivious disposition to the victim; (3) corroborated the victim’s testimony; and (4) provided context to the
charged behavior. Defendant proceeds to address why each reason is not a proper purpose. The
individual reasons Defendant addresses, however, are all part and parcel of the lewd and lascivious
disposition exception and we resolve Defendant’s argument accordingly. See State v. Landers, 1992-
NMCA-131, ¶¶ 23-25, 

, 

 (permitting evidence of a defendant’s lewd and
lascivious disposition toward the victim where the evidence corroborates the victim’s testimony and
places the charged acts in context), overruled by State v. Kerby (Kerby I), 

, 

, 

.
been placed in doubt. We take this opportunity to reaffirm that the lewd and lascivious
disposition exception in New Mexico is abolished. 2

{11} A review and reiteration of this Court’s prior decisions—in which we already have
laid out the shortcomings of the lewd and lascivious disposition exception—is
instructive. This Court first explicitly named the lewd and lascivious disposition
exception, which is rooted in the common law, in State v. Minns, 

, 

, 

, prior to the Rules of Evidence being adopted in 1973. Although
Minns recognized the general rule against the admissibility of propensity evidence, id. ¶
12, it concluded nonetheless that this rule was “inapplicable to other or similar sex
offenses committed by [the] defendant with the prosecuting witness[,]” id. ¶ 13. “Such
evidence, if not too remote,” Minns held, “is admissible as showing a lewd and
lascivious disposition of [the] defendant toward the prosecuting witness and as
corroborating evidence.” Id.

{12} Nearly twenty years after the adoption of the Rules of Evidence, this Court in a
pair of cases addressed the lewd and lascivious disposition exception in light of Rule
11-404(B). First, in State v. Lucero, 

, 

, 

,
this Court noted that some jurisdictions had held that “any evidence of a defendant’s
sexual desires or practices may be relevant to prove a ‘licentious’ or ‘lewd’ disposition.”
Id. ¶ 11. Such a rule, Lucero discussed, had been rationalized in child sex abuse cases
on two grounds: (1) “the need to bolster the victim’s credibility”; and (2) “the belief that
sex crimes alone are more likely to follow a pattern based on the unique psychological
profile of a likely perpetrator.” Id. ¶ 15; see also 1 Edward J. Imwinkelried, Uncharged
Misconduct Evidence § 4:16 (rev. ed. 2020) (restating these rationales for a special
exception in sex crime cases as: (1) the purported difficulty of proof due to the secretive
nature of sex crimes, and (2) the suspected “high rate of recidivism among sex
offenders”).

{13} Lucero noted, however, that these rationales and the special exception itself
have regularly been condemned by scholars and courts. See Lucero, 

,
¶ 11 (“Some courts have likewise criticized the ‘lewd disposition’ exception and
expressly refused to adopt it.”); cf. State v. Aguayo, 

, ¶ 28, 

, 

 (rejecting, in similar context involving the physical abuse of an infant,
the “siren song” of interpreting the Rules of Evidence “more loosely in child abuse cases
because of the difficulty of proving a crime against a mute victim and because other
witnesses are usually unavailable”). Indeed, a prominent federal practice treatise,
quoted in Lucero, provided: “ ‘The need for the evidence has led some courts to rely on
debatable assumptions about recidivism and problematic psychiatric theories as support
for the proposition that propensity evidence is more reliable in the case of sex
offenders.’ ” Lucero, 

, ¶ 11 (quoting 22 Charles A. Wright & Kenneth


2To our knowledge, our New Mexico Supreme Court has never ruled on the validity of the lewd and
lascivious disposition exception. See Gallegos, 

 (concluding that the lewd and
lascivious disposition exception was inapplicable under the facts of that case and observing that that “the
lewd and lascivious doctrine is simply a euphemism for character evidence and should be rejected”
(internal quotation marks and citation omitted)).
W. Graham, Federal Practice and Procedure § 5239, at 462 (1978)); see also 1
Imwinkelried, supra, § 4:16 (rebutting the two common rationales for a special exception
in sex crime cases on the grounds that: (1) “critics [have] argued that the secretive
nature of sex crimes does not justify a special exception” as “[m]any crimes are usually
committed in a clandestine fashion,” and (2) “the most recent research largely discredits
the old medical literature sanctioning the lay belief” that “recidivism among sex
offenders is extraordinarily high” (footnotes omitted)). This Court agreed with the
criticisms “that the ‘lewd disposition’ exception is nothing more than a euphemism for
the character evidence which Federal Rule of Evidence 404(b) and its state
counterparts are designed to exclude.” Lucero, 

, ¶ 11. In line with this,
Lucero refused to create “a special, unrecognized exception under Rule 404(B)” and
declined to extend the lewd and lascivious disposition exception to include a
defendant’s sexual acts with a person other than the victim. Id. ¶ 15.

{14} In the second case, Landers, this Court again recognized criticisms that “the
‘lewd and lascivious’ exception . . . simply allow[s] otherwise inadmissible propensity
evidence.” 

, ¶ 23. Nonetheless, Landers declined to deviate from cases
upholding the exception for uncharged sexual misconduct involving the complaining
witness, following the promulgation of Rule 11-404(B). See Landers, 

,
¶ 23 (“[W]e believe the ‘lewd and lascivious disposition’ exception . . . is justified in
determining whether evidence of prior acts with the complaining witness is admissible,
even though use of the exception may not be justified in other situations.”); see also id.
¶ 16 (“This rule has been affirmed since the Rules of Evidence were adopted in cases
involving sex offenses committed upon children.” (citing State v. Scott, 1991-NMCA-
081, 

, 

; State v. Delgado, 

, 

,

; State v. Mankiller, 

, 

, 

)).
Landers premised its holding on the fact that “the evidence corroborated the victim’s
testimony and placed the charged acts in context.” 3 

, ¶ 25; see also id.
¶ 23 (justifying the exception because “without such evidence, the otherwise seemingly
isolated incident would seem incredible” (alterations, omission, internal quotation marks,
and citation omitted)).

{15} Over a decade later, this Court in Kerby I explicitly disavowed the lewd and
lascivious disposition exception in all contexts, deeming it “indefensible.” 2005-NMCA-
106, ¶ 29 (internal quotation marks and citation omitted). The defendant in Kerby I had
been charged with numerous counts of criminal sexual contact with a minor for touching
the victim’s vulva and buttocks. Id. ¶¶ 2-6. In rebuttal, the state presented evidence
establishing that the defendant had used a peephole to spy on the victim when she was
in the bathroom. Id. ¶¶ 10-15. The district court ruled the peephole evidence admissible
because it involved the same victim and because the defendant had elicited testimony
suggesting that his touching of the victim was innocent and not unlawful. See id. ¶¶ 21-
22. This Court reversed. Id. ¶¶ 1, 34.


3Relying on Landers, Casaus—upon which the State and the district court relied in this case—offered the
same rationale. See Casaus, 

, ¶ 27 (“The prior bad acts thus indicated [the d]efendant’s
lewd and lascivious disposition toward the victim and placed the criminal charge in context.”).
{16} In addressing the continued viability of the lewd and lascivious disposition
exception in the context of uncharged sexual misconduct involving the prosecuting
witness, Kerby I examined more recent commentary criticizing special exceptions in sex
crime cases. See 

 ¶ 27 (citing 1 Edward J. Imwinkelried, Uncharged Misconduct
Evidence § 4:18 (rev. ed. 2005)). Relying on that commentary, this Court made plain
that such an exception is flatly contrary to Rule 11-404(B) and that it was highly doubtful
the exception survived the adoption of the Rules of Evidence. See Kerby I, 2005-
NMCA-106, ¶ 28 (“Nothing in the express language of Rule 11-404 mandates the
perpetuation of a common-law exception to the general proscription of propensity
evidence; to the contrary, the lewd and lascivious disposition exception appears to flatly
contradict the general proscription of propensity evidence found in Rule 11-404(A) and
repeated in the first sentence of Rule 11-404(B).”); id. ¶ 27 (“To say that the exceptions’
survival [after the adoption of the Federal Rules of Evidence] is questionable is probably
an understatement. It is exceedingly difficult to reconcile the exceptions for evidence of
uncharged sexual misconduct with the clear language of [Federal Rule of Evidence]
404(b). The exception seems at odds with the prohibition in the first sentence of [that
rule].” (alteration, internal quotation marks, and citation omitted)). Kerby I also thought it
significant that, unlike in New Mexico, Congress added special rules to the Federal
Rules of Evidence in 1994 to allow for the admission of uncharged sexual misconduct in
criminal cases. See id. ¶ 27; see also Fed. R. Evid. 413, 414.

{17} This Court then addressed Landers, remarking “it exceedingly difficult to
reconcile the Landers exception for evidence of a lewd and lascivious disposition toward
the prosecuting witness with Rule 11-404.” Kerby I, 

.
Significantly, Kerby I noted that, in the context of considering whether to allow the
admission of evidence of uncharged sexual misconduct involving those other than the
complaining witness, we already had determined that the lewd and lascivious
disposition exception was nothing more than a euphemism for propensity evidence—
evidence that Rule 11-404(B) was designed to exclude. 

 (discussing Lucero, 1992-
NMCA-107, ¶ 11). Kerby I thought it unfortunate that, in Landers, “we did not critically
examine how the evidence of uncharged acts would have tended to corroborate the
victim’s testimony or place the charged acts in context other than through an inference
of the defendant’s propensity for improper sexual conduct towards the victim.” Kerby I,

 (emphasis added). Kerby I thus held: “Logical consistency
requires that we extend Lucero to the admission of uncharged misconduct with the
prosecuting witness.” Id. ¶ 29; see also State v. Williams, 

, ¶ 37 & n.1,

, 

 (Montgomery, C.J., specially concurring) (believing that the
distinction created by Lucero and Landers is “indefensible” and noting that “[t]he
anomaly of the Landers approach . . . has been recognized, at least implicitly, in a
number of cases that adhere to strict application of Rule 11-404(B)”), overruled on other
grounds by State v. Tollardo, 

, 

; State v. Sandate, 1994-
NMCA-138, ¶ 34, 

, 

 (observing that “[t]he rationale underlying
Landers may very well require reconsideration”).

{18} The State makes no developed argument as to why this Court ought to depart
from our holding in Kerby I, contending instead that Kerby I’s abrogation of the lewd and
lascivious disposition exception has “been placed in doubt” by Kerby II. See Trujillo v.
City of Albuquerque, 

, 

, 

(discussing the importance of stare decisis and the special justification required to
depart from prior precedent). Kerby II, however, did no such thing. Beyond abolishing
the lewd and lascivious disposition exception, Kerby I also rejected the State’s
argument that the peephole evidence was nonetheless admissible because the
defendant had opened the door to this evidence by contesting whether his touching of
the victim was unlawful. 

. In Kerby II, our Supreme Court
disagreed only with the holding that the peephole evidence was inadmissible to prove
unlawful intent. 

. Kerby II said nothing about this Court’s
conclusion that the use of the lewd and lascivious disposition exception to admit
otherwise inadmissible propensity evidence could no longer logically be sustained. See
generally 

 Given this, the State’s assertion on appeal that Kerby II “placed in doubt”
our rejection of the exception is misplaced. See Sangre de Cristo Dev. Corp. v. City of
Santa Fe, 

, ¶ 23, 

, 

 (noting that “[t]he general
rule is that cases are not authority for propositions not considered”). Indeed, our
Supreme Court recognized Kerby I “continue[d] as good law” on matters not modified by
that Court. See Kerby II, 

. Further, our Supreme Court has
subsequently recognized that Kerby I overruled Landers. See, e.g., State v. Sosa, 2009-
NMSC-056, ¶ 31, 

, 

 (citing Landers for a proposition
pertaining to a prosecutor’s statement in closing and providing that Landers was
“overruled on other grounds by [Kerby I]”).

{19} In sum, this Court’s criticisms of the lewd and lascivious disposition exception in
both Lucero and Kerby I are well founded and reasoned, and we reaffirm them. Today
we again disavow the logical inconsistency between Lucero and Landers. We see no
principled reason to recognize that evidence of a person’s lewd and lascivious
disposition is inadmissible as propensity evidence when the prior acts involved a person
other than the complaining witness, but then hold the same type of evidence admissible
when the defendant’s acts involved the same victim at trial. Further, maintaining, as the
State and the district court did below, that the evidence is nonetheless admissible under
Rule 11-404(B) simply because it “corroborate[s] the victim’s testimony and place[s] the
charge in context[,]” Casaus, 

, ¶ 26, does nothing to ameliorate this
contradiction. Cf. 1 Imwinkelried, supra, § 6:6 (“Any similar uncharged act generally
corroborates in the sense that the act shows the defendant’s propensity toward that
type of crime and thereby increases the likelihood that the defendant committed the
charged act. But that is precisely the theory of logical relevance forbidden by [Federal
Rule of Evidence] 404(b).”); Basyle J. Tchividjian, Predators and Propensity: The Proper
Approach for Determining the Admissibility of Prior Bad Acts Evidence in Child Sexual
Abuse Prosecutions, 

, 339 (2012) (“[C]ollateral fact evidence
admitted for the stated purpose of corroboration can ultimately be categorized as
propensity evidence.”); State v. Nelson, 

 (S.C. 1998) (“[T]he
evidence is only relevant to show the ‘context’ of the crime when the assumption is
made that [the defendant] was acting in conformity with the character trait of being a
pedophile. . . . [T]his argument is but [a] cleverly disguised way of getting impermissible
character evidence before the jury.”).
{20} While we recognize the potential difficulties of prosecuting sex crimes against
children, we do not “support continued application of an exception which allows the
prosecution to accomplish what the general propensity rule is intended to prevent.”
Lannan v. State, 

 (Ind. 1992). Whether there are policy reasons
to admit uncharged misconduct evidence more freely in sex crime cases, particularly
those involving child victims, than in other criminal cases is a question we decline to
address. We think it more proper for this inquiry to be undertaken in the rule-making
process. 4 Accord Kerby I, 

 (“Adoption of a sex-crimes-againstchildren exception to Rule 11-404 is best carried out in the process of rule-making.”).

{21} We reaffirm our conclusion in Kerby I disavowing Landers and related cases and
reiterate our view that the lewd and lascivious disposition “exception is nothing more
than a euphemism for the propensity evidence that Rule 11-404 was designed to
exclude.” 5 Kerby I, 

. Consequently, the district court abused its
discretion when relying on the lewd and lascivious disposition exception to admit
evidence of Defendant’s uncharged sexual misconduct with J.K.

B.      The Uncharged Sexual Misconduct Evidence Was Not Admissible on Other
        Grounds

{22} Because the lewd and lascivious disposition exception is not good law and as
such cannot provide a basis for the admission of the uncharged sexual misconduct
evidence against Defendant, we next examine whether any allowable purpose for the
evidence advanced by the State on appeal authorizes its admission. See Gallegos,

 (holding that the appellate court “will affirm the [district] court’s
decision if it [is] right for any reason so long as it is not unfair to the appellant”). The
State advances two arguments why this evidence was admissible under Rule 11-404(B)
as something other than pure propensity evidence: (1) the evidence was relevant to the
issue of unlawfulness, and (2) the evidence rebutted Defendant’s theory of fabrication.
See Kerby I, 

 (“Under Rule 11-404(B), the proponent of evidence
of other acts must identify the particular consequential fact upon which the proffered
evidence bears and must explain how the proffered evidence makes the consequential
fact ‘more probable or less probable,’ Rule 11-401 NMRA, in a way that does not
depend upon an inference of a propensity for criminal behavior.”). We conclude that
these alternative bases for admission are without merit.

{23} First, relying on Kerby II, the State posits that the uncharged sexual misconduct
evidence was admissible because it tended to prove the element of unlawfulness. See §

4Some states have adopted rules analogous to Rules 413 and 414 of the Federal Rules of Evidence. See
Tchividjian, 39 Am. J. Crim. L. at 342 (“Though no state has adopted them in their entirety, approximately
eleven states have codified rules which are similar in substance and application to [Federal Rules of
Evidence] 413 and . . . 414.”).
5After Kerby I, this Court in State v. Dietrich, 

, 

, 

, relied on
Landers to uphold the admission of extrinsic evidence of the defendant’s sexual misconduct because it
“directly bolster[ed] the complaining witness’s testimony by providing significant corroboration.” 

 ¶¶ 42-
44 (internal quotation marks and citation omitted). To the extent Dietrich relied on the lewd and lascivious
disposition exception for this holding, it is overruled.
30-9-11(A) (“Criminal sexual penetration is the unlawful and intentional . . . causing of
penetration[.]”). Unlike here—where Defendant never admitted to touching J.K.—the
defendant in Kerby II admitted to touching the victim’s intimate parts but insisted he did
so innocently. See 

. Consequently, whether the defendant had
sexual intent when he touched the victim was squarely before the jury in Kerby II. See

 (“[The d]efendant’s state of mind was the crucial issue in the case.” (internal
quotation marks and citation omitted)). Although the State acknowledges Kerby II is
different from this case, it contends the Rule 11-404(B) evidence was admissible to
prove unlawfulness because “in meeting its burden of proving all essential elements
beyond a reasonable doubt, the State is not limited to presenting evidence only on
those issues expressly put in issue by [D]efendant.”

{24} Case law on this point, however, cuts strongly against the State’s position. We
have long understood that “[t]he rule in New Mexico and many other jurisdictions is that
evidence is not admissible under Rule 404(b) to prove a material element of the crime
charged unless that element is in issue.” State v. Beachum, 

, ¶ 7, 

, 

 (emphasis added). “[I]f a fact is wholly undisputed, the only
additional probative value extrinsic-act evidence would have on that issue would be to
show a person’s propensity. Evidence solely having value as propensity evidence is
inadmissible under Rule 11-404(B) and is to be excluded under that rule automatically.”
Gallegos, 

; see also, e.g., State v. Gwynne, 

, ¶
21, 

 (“[T]he [s]tate fails to establish that ‘opportunity’ was even a fact in
issue, meaning that it could not have served as the basis for the admission of the [Rule
11-404(B)] testimony.”); State v. Ruiz, 

, 

, 

 (reading prior case law as limiting “the ‘absence of mistake’ exception under Rule
11-404(B) to situations when a defendant claims to have made a mistake, such as when
the accused admits to touching the victim but says it was accidental or by mistake”).

{25} In this case, unlike the situation in Kerby II—in which our Supreme Court
determined the defendant had “injected the issue” of unlawfulness by presenting
evidence that he innocently touched the victim’s buttocks, 

, ¶ 26—the
defense was simply that Defendant did not touch J.K.’s intimate parts. Where, as here,
a defendant denies the touching entirely, the defendant’s state of mind is not a material
issue. See People v. Bagarozy, 

 (N.Y. App. Div. 1987) (“In the
trial of sex offenses, extrinsic evidence of intent is admissible only in those cases where
there is no challenge to the occurrence of the physical contact itself, but the intent of the
actor is at issue because the nature of the contact is subject to varying interpretations.”);
State v. Fonseca, 

 (S.C. Ct. App. 2009) (“[B]ecause [the a]ppellant
denies that the contact ever occurred, intent was not made a material issue. . . . [I]f we
hold this evidence admissible, prior sexual acts would be admissible to prove the
required intent in all prosecutions of subsequent sex crimes.”); cf. State v. Bailey, 2017-
NMSC-001, ¶ 22, 

 (“[W]here a defendant refutes allegations of sexual
contact with a minor victim by claiming that the sexual contact was parental or medical,
we conclude that evidence of other acts directed to that victim that bear on a
defendant’s specific, unlawful intent to commit the charged offense are admissible
under Rule 11-404(B)(2).”). Because of this, the uncharged sexual misconduct evidence
was not admissible as tending to prove the unlawfulness of the touching denied by
Defendant. See Nelson, 

 (“[The p]etitioner denied any sexual contact
with the victim, making it highly questionable whether the element of intent was a
material issue in the case. We find the [s]tate’s argument this evidence was relevant to
show motive or intent is merely a cleverly disguised way of asserting [the p]etitioner
committed the crimes because he has a propensity to commit sexual offenses.”).

{26} Relatedly, we dispose of the State’s argument that Defendant did in fact dispute
the element of unlawfulness at trial. Quoting Otto, 

, the State
asserts Defendant created a “potential inference” that he “did not penetrate [J.K.] and
that, if he touched her, he did not and would not, do so in a sexual manner.” The
portions of the transcript cited by the State, however, do not support this contention. For
instance, the State notes that Judy and the lead detective investigating this case
testified at trial that Defendant, when denying J.K.’s allegations to them, stated “I didn’t
do anything to her, why would I?” It is not at all clear to us why the State thinks this is
anything other than a blanket denial of wrongdoing by Defendant. The State also notes
that Defendant responded “No” when his counsel asked him on direct examination: “Did
you ever touch [J.K.] sexually?” Counsel followed up by asking, “In any way?”
Defendant again stated “No.” In context, we are convinced the defense line of
questioning was designed to convey to the jury that Defendant claimed never to have
touched J.K.’s intimate parts—not, as the State would have it, as an implicit admission
that Defendant did touch J.K.’s intimate parts, just not in a sexual manner.

{27} In sum, we think it clear from the record that Defendant simply denied ever
touching J.K.’s intimate parts. 6 This is unlike Otto where the defendant’s theory was that
he mistakenly touched the victim. See 

 (“A potential inference of
mistake or accident was created by [the d]efendant’s statement to the detective that he
‘was ready to finger [the victim] but he woke up but he didn’t think he had.’ ”); see also
Bailey, 

 (explaining that “[t]he defendant in Otto claimed that he
was asleep and unconsciously molested the child victim”). It also is unlike Kerby II,
where the defendant “injected the issue of intent by calling his mother to testify that [the
d]efendant told her the touch was merely a fatherly pat on the bottom.” 2007-NMSC-
014, ¶ 26. What differentiates this case from Otto and Kerby II—and makes the
admission of the uncharged sexual misconduct evidence to prove unlawfulness
impermissible—is that, notwithstanding the State’s parsing of the testimony, Defendant
here never made any acknowledgement that he did (or may have) touched an intimate
body part of J.K.

{28} Second, we also reject the State’s one-paragraph argument that the uncharged
sexual misconduct evidence was admissible because “Defendant put at issue the

6We note that, prior to this appeal, we heard the State’s interlocutory appeal from the district court’s
determination that Defendant received ineffective assistance of counsel when trial counsel failed to
advise Defendant about the possibility of requesting a jury instruction on the lesser-included offense of
criminal sexual contact of a minor. See State v. Marquez, No. 35,818, mem. op. (N.M. Ct. App. Feb. 21,
2017) (non-precedential). This Court reversed the district court, concluding the lower court’s finding of
prejudice “difficult to comprehend” given the clear record that Defendant’s trial strategy was one of “total
denial.” Id. ¶ 11. We find nothing in the record to change our assessment of the defense.
question of [J.K.]’s credibility” by suggesting that Judy had “influenced [J.K.] to fabricate
the accusation against Defendant.” As already discussed, we reject the notion that Rule
11-404(B) evidence involving the same victim is admissible simply because it may
corroborate the victim’s testimony. See Part I.A, paragraph 19, supra. Further, we fail to
see how—other than suggesting Defendant’s propensity to sexually abuse J.K.—
evidence of Defendant’s uncharged sexual misconduct would have made it more or less
probable that Judy did not influence J.K. to fabricate the allegation. Cf. State v. Jones,

, ¶ 15, 

, 

 (“Although the [s]tate argues that
the other crime would be admissible to show ‘common scheme’ and to rebut the claim
of consent, the way the evidence accomplishes this is through the prohibited method of
proving propensity.”).

{29} Although the State cites State v. Jordan, 

, 

, 

, in support of its theory that this evidence was admissible to rebut a claim of
fabrication, that case is different. 7 In Jordan, the defendant theorized that the victim’s
father spoke to the victim after she spent time with the defendant to encourage the
victim to fabricate a story. See id. ¶¶ 4-5. Unlike here, the victim’s father in Jordan knew
about the prior misconduct when he spoke with the victim. Id. ¶ 17. Hence, the evidence
in Jordan was admissible to rebut the defendant’s fabrication theory because it
“explain[ed] why the victim’s father questioned [the victim after the incident giving rise to
the charges].” Id. ¶ 16. In this case, by contrast, the Rule 11-404(B) evidence had no
bearing on the genesis of the conversation in which J.K. made her disclosure to Judy
and did not rebut Defendant’s theory in a way other than “show[ing] on a particular
occasion [Defendant] acted in accordance with [his] character.” Rule 11-404(B)(1).

{30} We therefore reject the State’s alternative grounds for admission of the
uncharged sexual misconduct evidence. There being no non-propensity basis for the
admission of this evidence, it was an abuse of discretion for the district court to admit
the same. See Gallegos, 

 (“Evidence solely having value as
propensity evidence is inadmissible under Rule 11-404(B) and is to be excluded under
that rule automatically.”).

II.     The Error Was Not Harmless

{31} Having determined the district court abused its discretion by admitting evidence
of Defendant’s uncharged conduct, we must next determine whether the error was
harmless. See Tollardo, 

 (“Improperly admitted evidence is not
grounds for a new trial unless the error is determined to be harmful.”). Noting the State
on appeal does not address Defendant’s harmless error argument, and based on our
examination of the record, we agree with Defendant that the error was harmful.




7Jordan appears to rely, at least in part, on the defendant’s lewd and lascivious disposition toward the
victim in concluding that the district court did not abuse its discretion by admitting the defendant’s
uncharged sexual misconduct with the victim in that case. See id. ¶ 21. To the extent Jordan relied on the
lewd and lascivious disposition exception for its holding, it is overruled.
{32} Non-constitutional errors, such as the erroneous evidentiary ruling at issue in
this case, are “harmless when there is no reasonable probability the error affected the
verdict.” Id. ¶ 36 (emphasis, internal quotation marks, and citation omitted). In
holistically assessing the harmfulness of the error, we consider, among other things, the
circumstances of the error, the emphasis placed on the error, evidence of a defendant’s
guilt apart from the error, the importance of the improperly-admitted evidence, and
whether the erroneously admitted evidence introduced new facts or was merely
cumulative. Id. ¶ 43. In addition, we are mindful that “[w]here, as here, the improperly
admitted evidence goes to the primary issue of credibility in a sexual abuse case, it is
more likely to be prejudicial.” State v. Duran, 

, 

.

{33} In this case, the only direct evidence of the charged conduct came from J.K. who
testified that, approximately seventeen years earlier, Defendant fondled her at night.
After J.K.’s brief testimony on the charged conduct, the State then elicited from J.K. that
Defendant, on several occasions, would also make her stroke his penis. Unlike J.K.’s
recall of the charged conduct, which she repeatedly testified was “[j]ust a blur,” J.K.
remembered with specificity one of these uncharged incidents. The erroneously
admitted evidence thus introduced a new and concrete set of facts into the trial—facts
that were not merely cumulative of the charged conduct. Moreover, the State, in closing
argument, emphasized the Rule 11-404(B) evidence, telling the jury that “it’s something
for you to consider for its lewd nature” and asserting that it served as corroboration.
Importantly, at its core, this case came down to the jury making a credibility
determination between Defendant and J.K. See Marquez, No. 35,818, mem. op. ¶ 12
(“[I]t seems abundantly clear that the verdict rendered in this case is fundamentally
reflective of a credibility determination.”).

{34} Given the centrality of credibility in this case and the nature and emphasis placed
on the erroneously admitted evidence, we conclude there is a reasonable probability the
error affected the jury’s verdict in this case. See State v. Garcia, 

, ¶ 16,

 (“Given the importance of credibility . . . , we have grave doubts
concerning the fairness of the trial and conclude that the [erroneous] admission of
[evidence] amounted to plain error that was not harmless.”); Duran, 

 (concluding the admission of improper testimony was harmful because, even though
the testimony was only discussed briefly, “it was designed to lead the jury to . . . [make]
an inference that would support [the v]ictim’s credibility”); see also State v. Lucero,

, ¶ 22, 

, 

 (concluding the admission of
improper testimony was harmful “[b]ecause credibility was a pivotal issue in [the] case, it
is likely that the jury was swayed by [the] improper testimony”). The erroneous
admission of the Rule 11-404(B) evidence was harmful and we accordingly reverse and
remand for a new trial.

III.   Defendant’s Remaining Claims of Error

{35} Having reversed Defendant’s conviction on the Rule 11-404(B) issue, we do not
reach his other claims of error. Specifically, Defendant’s claims that (1) he was denied
the right to an impartial jury because the district court excused a juror for cause after the
jury was sworn; (2) the State misled the jury regarding the reasonable doubt standard;
and (3) he was denied the right to effective assistance of counsel are rendered moot by
our reversal on other grounds. See, e.g., State v. Stanley, 

, 

, 

 (“In light of the reversal of the evidentiary issues, we do not
review [the d]efendant’s ineffective assistance of counsel claim or his issue dealing with
the refusal of the trial court to hold a hearing on his motion for a new trial.”). Defendant’s
remaining claims of error pertain to evidentiary and discovery matters. We decline to
reach these issues because it is unlikely they will arise in the same manner on remand,
and we avoid issuing advisory opinions. See Santa Fe S. Ry., Inc. v. Baucis Ltd. Liab.
Co., 

, 

, 

 (“Our concern with issuing
advisory opinions stems from the waste of judicial resources used to resolve
hypothetical situations which may or may not arise.”).

CONCLUSION

{36} For the foregoing reasons, we reverse Defendant’s conviction and remand for a
new trial.

{37}   IT IS SO ORDERED.

JENNIFER L. ATTREP, Judge

WE CONCUR:

JULIE J. VARGAS, Judge

KRISTINA BOGARDUS, Judge