 1       IN THE SUPREME COURT OF THE STATE OF NEW MEXICO

 2 Opinion Number:

 3 Filing Date: October 13, 2016

 4 NO. S-1-SC-35395

 5 STATE OF NEW MEXICO,

 6        Plaintiff-Respondent,

 7 v.

 8 JASON BAILEY,

 9        Defendant-Petitioner.

10 ORIGINAL PROCEEDING ON CERTIORARI
11 Denise Barela-Shepherd, District Judge


12 Bennett J. Baur, Chief Public Defender
13 C. David Henderson, Assistant Appellate Defender
14 Santa Fe, NM

15 for Petitioner


16 Hector H. Balderas, Attorney General
17 Maris Veidemanis, Assistant Attorney General
18 Santa Fe, NM

19 for Respondent
 1                                      OPINION

 2 VIGIL, Justice.

 3 I.      INTRODUCTION

 4   {1}   Defendant Jason Bailey appeals his conviction for second-degree criminal

 5 sexual contact of a minor pursuant to NMSA 1978, Section 30-9-13(B) (2004).

 6 Defendant argues that admission of evidence of his uncharged conduct was improper

 7 under Rule 11-404(B)(1) NMRA and Rule 11-403 NMRA. Because the other-act

 8 evidence that Defendant objects to was properly admitted for the purpose of

 9 demonstrating Defendant’s intent under Rule 11-404(B)(2), and the evidence was not

10 unduly prejudicial under Rule 11-403, we affirm the conviction. And, by this opinion,

11 we further explicate the proper application of Rule 11-404(B) in our district courts

12 as it pertains to admission of other-act evidence bearing on an accused’s intent.

13 II.     BACKGROUND

14   {2}   Victim came to live with her father, Defendant, upon removal from her

15 mother’s home by the Children, Youth, and Families Department (CYFD) following

16 sexual abuse perpetrated upon Victim by the mother’s boyfriend and Victim’s older

17 half-sister. At the time, Defendant was living in Albuquerque with his wife and two

18 young daughters. Victim was removed from Defendant’s home on April 10, 2008,

19 when police responding to an unrelated disturbance, decided that Victim and the other
 1 children needed to be placed into CYFD custody. Victim then reported in a S.A.F.E.

 2 House interview that she had been sexually abused by Defendant on three different

 3 occasions while in his custody. The family had moved several times before Victim’s

 4 removal, with the alleged abuse occurring chronologically at apartments in

 5 Albuquerque, Rio Rancho, and Albuquerque again. The location of the abuse is

 6 relevant because Defendant was charged in Bernalillo County, and the Second

 7 Judicial District Court has no jurisdiction over the conduct that occurred in Sandoval

 8 County.

 9   {3}   Defendant was indicted on nine felony counts in light of the allegations of

10 sexual abuse. Victim’s testimony and statements to third parties formed the basis for

11 the charges. There were two trials, the first ending with a directed verdict in favor of

12 Defendant on five of the counts and a hung jury with respect to the remaining four.

13 Defendant was retried on those four counts and ultimately found guilty of criminal

14 sexual contact of a minor.

15   {4}   The first incident of Albuquerque abuse (the masturbation incident), occurred

16 after Victim exited the shower and walked into her room where she saw her younger

17 sister “doing something and [she] did that same thing.” Defendant then came into the

18 sisters’ room, where Victim describes him as saying they were masturbating, and


                                              2
 1 instructed Victim to stop before he briefly left the room to retrieve some ointment.

 2 Then, using his finger, Defendant put the ointment around the outside of Victim’s

 3 genitals, making Victim uncomfortable and causing her to ask him to stop and to let

 4 her do it herself. Defendant complied, and she continued. When asked at trial whether

 5 Defendant had told her not to masturbate, Victim testified that “[h]e told me not to

 6 do it at first, but then he came in and basically showed me how to do it.”

 7   {5}   The second incident of abuse, occurring in Rio Rancho (the uncharged

 8 Sandoval County incident), happened one night when Victim was roused from her

 9 sleep by Defendant to watch a movie in the living room. After joining Defendant on

10 the living room couch, Defendant lay down and “put [Victim] on top of him and then

11 he stuck his hands down” the front of her pants. In doing so, Defendant was alleged

12 to have put ointment on his finger, rubbed the outside of Victim’s genitals, and

13 digitally penetrated Victim with his finger. Victim testified that this made her feel

14 “uncomfortable,” “like [she] was forced to let those things happen.” With respect to

15 the digital penetration, Victim’s pretrial statement was inconsistent with both her

16 initial S.A.F.E. House statement and trial testimony—she told defense counsel

17 pretrial that she really did not think it had actually occurred.

18   {6}   The third incident of abuse (the shower incident), occurred in Albuquerque.


                                              3
 1 Some of the abuse that occurred while Victim lived with her mother had occurred in

 2 the shower with her half-sister. Victim testified that while living with Defendant she

 3 disliked showering, so she would often just turn on the water and pretend as though

 4 she had bathed. One day, when Victim untruthfully told Defendant that she had

 5 showered, he inspected the bar of soap to see if it was dry—and it was, making

 6 Defendant mad. Determined to make her bathe, Defendant brought Victim into the

 7 shower with him. He instructed her not to turn and look at his body, but Victim

 8 testified that she was unable to avoid doing so. Defendant scrubbed Victim’s body

 9 with the washcloth and soap, causing her genital discomfort. It is these facts that

10 underlie Defendant’s conviction for criminal sexual contact.

11   {7}   Before the first trial the State moved to admit, amongst other things, evidence

12 of the uncharged Sandoval County incident pursuant to Rule 11-404(B)(2). The

13 district court declined to admit the evidence, emphasizing that it did not have

14 jurisdiction over conduct occurring in Sandoval County. The State did not object to

15 the Court’s decision to preclude admission of the evidence during the first pretrial

16 hearings. As the first trial progressed though, the State realized that the issue of intent

17 was Defendant’s main argument—i.e., he lacked an unlawful intent because the

18 contact in the charged incidents was merely parental conduct that Victim was


                                                4
 1 misinterpreting—and thus, the State determined that the uncharged Sandoval County

 2 incident would indeed be quite relevant. Therefore, before the second trial, the State

 3 renewed its motion to admit the evidence under Rule 11-404(B)(2) in order to

 4 demonstrate Defendant’s unlawful intent, arguing that the evidence was necessary to

 5 rebut Defendant’s presentations at the first trial that the contact during both the

 6 masturbation incident and shower incident occurred for hygienic, medical, or

 7 “parental” reasons. The State claimed that the evidence of the uncharged Sandoval

 8 County incident would put “into issue that the witness is misinterpreting [the

 9 conduct]” as being sexual instead of hygienic or medical, and that Defendant had

10 opened himself up to admission of the evidence by arguing that he committed the acts

11 but lacked an unlawful sexual intent during their commission.

12   {8}   The district court once again denied the State’s motion to admit the evidence

13 under Rule 11-404(B)(2) because this evidence was “only being offered to prove the

14 witness’ understanding,” and not one of the Rule 11-404(B)(2) exceptions, and

15 because it was “more prejudicial than probative.” Yet, the district court provided the

16 caveat that “should the defense open the door, you’ll always have the opportunity to

17 ask the Court for reconsideration or maybe even bring it in as rebuttal.”

18   {9}   At the second trial, Defendant conceded that “intent is always an issue . . . [i]t’s


                                                5
 1 an issue here,” and that the defense strategy hinged on a psychologist’s testimony that

 2 would support Defendant’s assertion that “the child has a tendency to misinterpret

 3 what’s going on, and I think that goes to the heart of our defense.” As well, two days

 4 into trial, during Defendant’s cross-examination of Victim, Victim gave testimony

 5 suggesting that she was confused and had an intermingled recollection of the

 6 Sandoval and Bernalillo County incidents. In essence, defense counsel told Victim

 7 that she had said in her S.A.F.E. House interview that Defendant, during the

 8 masturbation incident, “had taken [her] pants off,” and “had actually pulled [her]

 9 pants down and then applied the ointment,” to which Victim replied, “I think that was

10 a different incident. . . . I don’t think that happened.”

11   {10}   In response to this line of questioning, the State understandably raised

12 concerns. Ultimately, by eliciting testimony wherein Victim confused the two

13 scenarios—the Sandoval County incident, where she was dressed, and the

14 masturbation incident, where she had just exited the shower unclothed—the narrative

15 presented to the jury contained an unexplained inconsistency. Without knowing that

16 there was a similar incident where Victim had been wearing pants, the jury could

17 have been confused. As a result of those concerns, the State renewed its motion to

18 present evidence of the uncharged Sandoval County incident; and, following Victim’s


                                               6
 1 voir dire testimony about the incident, the district court granted the motion.

 2 Reasoning that the two incidents were “similar in kind and not overly remote in time

 3 and the potential prejudice does not substantially outweigh the [probative] effect,” the

 4 district court admitted the evidence under Rule 11-404(B)(2) for the purpose of

 5 establishing Defendant’s sexual intent during commission of the charged incidents.

 6   {11}   Defendant was found guilty of criminal sexual contact of a minor in the second

 7 degree, as a lesser included offense of the original charge of criminal sexual

 8 penetration, contrary to Section 30-9-13(B), as charged in Count Two, but not guilty

 9 on Counts One, Three, and Four. The Court of Appeals affirmed Defendant’s

10 conviction in a split opinion. See Bailey, 2015-NMCA-102. We granted certiorari to

11 the Court of Appeals pursuant to Rule 12-502 to review whether the admission of

12 evidence of an uncharged incident was correct and in accordance with Rule 11-403

13 and Rule 11-404(B)(2). In doing so, we endeavor to provide guidance in striking the

14 right balance under Rule 11-404(B) between the proper use of such evidence to prove

15 intent and the prohibited use to show one’s propensity to commit a crime—a realm

16 that courts have struggled with for decades.

17 III.     STANDARD OF REVIEW

18   {12}   This Court reviews a district court’s decision to admit evidence under Rule 11-


                                               7
 1 404(B) and Rule 11-403 for an abuse of discretion. State v. Otto, 2007-NMSC-012,

 2 ¶¶ 9, 14, 141 N.M. 443, 157 P.3d 8. “An abuse of discretion occurs when the ruling

 3 is clearly against the logic and effect of the facts and circumstances of the case. We

 4 cannot say the trial court abused its discretion by its ruling unless we can characterize

 5 it as clearly untenable or not justified by reason.” State v. Apodaca, 1994-NMSC-121,

 6 ¶ 23, 118 N.M. 762, 887 P.2d 756 (citations omitted).

 7 IV.      DISCUSSION

 8 A.       Applicable Law

 9   {13}   “Evidence of a crime, wrong, or other act is not admissible to prove a person’s

10 character in order to show that on a particular occasion the person acted in accordance

11 with the character.” Rule 11-404(B)(1). The other-act evidence may, however, be

12 admissible for other purposes, such as “proving motive, opportunity, intent,

13 preparation, plan, knowledge, identity, absence of mistake, or lack of accident.” Rule

14 11-404(B)(2).

15   {14}   In Otto, this Court held that the list of permissible reasons to admit other-act

16 evidence is not exhaustive, providing “evidence of other wrongs may be admissible

17 on alternative relevant bases so long as it is not admitted to prove conformity with

18 character.” 2007-NMSC-012, ¶ 10; see also State v. Jones, 1995-NMCA-073, ¶ 8,


                                                8
 1 120 N.M. 185, 899 P.2d 1139 (“New Mexico allows use of other bad acts for many

 2 reasons, including those not specifically listed in [Rule] 11-404(B).”). Importantly,

 3 then, “Rule 11-404(B) is a rule of inclusion, not exclusion, providing for the

 4 admission of all evidence of other acts that [are] relevant to an issue in trial, other

 5 than the general propensity to commit the crime charged.” State v. Phillips, 2000-

 6 NMCA-028, ¶ 21, 128 N.M. 777, 999 P.2d 421, cert. denied, 128 N.M. 689, 997 P.2d

 7 821 (internal quotation marks and citation omitted).

 8   {15}   Nevertheless, the district court must still consider whether “the probative value

 9 of the evidence outweighs the risk of unfair prejudice, pursuant to Rule 11-403.”

10 Otto, 2007-NMSC-012, ¶ 10 (discussing State v. Gaitan, 2002-NMSC-007, ¶ 26, 131

11 N.M. 758, 42 P.3d 1207). See State v. Gallegos, 2007-NMSC-007, ¶ 22, 141 N.M.

12 185, 152 P.3d 828 (“[E]ven if other-acts evidence is relevant to something besides

13 propensity, such evidence will not be admitted if the probative value related to its

14 permissible purpose is substantially outweighed by the factors enumerated in Rule

15 11-403.” (citations omitted)).

16   {16}   Rule 11-403 provides that “[t]he court may exclude relevant evidence if its

17 probative value is substantially outweighed by a danger of one or more of the

18 following: unfair prejudice, confusing the issues, misleading the jury, undue delay,


                                                9
 1 wasting time, or needlessly presenting cumulative evidence.” Unfair prejudice, in the

 2 context of Rule 11-403, “means an undue tendency to suggest decision on an

 3 improper basis, commonly, though not necessarily, an emotional one.” State v.

 4 Stanley, 2001-NMSC-037, ¶ 17, 131 N.M. 368, 37 P.3d 85 (internal quotation marks

 5 and citation omitted). Evidence is unfairly prejudicial “if it is best characterized as

 6 sensational or shocking, provoking anger, inflaming passions, or arousing

 7 overwhelmingly sympathetic reactions, or provoking hostility or revulsion or punitive

 8 impulses, or appealing entirely to emotion against reason.” Id. (internal quotation

 9 marks and citation omitted). The determination of unfair prejudice is “fact sensitive,”

10 and, accordingly, “much leeway is given trial judges who must fairly weigh probative

11 value against probable dangers.” Otto, 2007-NMSC-012, ¶ 14 (internal quotation

12 marks and citation omitted). Rule 11-403 does not guard against any prejudice

13 whatsoever, but only against unfair prejudice. Id. However, we will “not . . . simply

14 rubber stamp the trial court’s determination.” State v. Torrez, 2009-NMSC-029, ¶ 9,

15 146 N.M. 331, 210 P.3d 228 (internal quotation marks and citation omitted).

16 B.       Admission of the Uncharged Sandoval County Incident Evidence Under
17          Rule 11-404(B)(2)

18   {17}   Section 30-9-13(A), under which Defendant was convicted, makes criminal

19 “the unlawful and intentional touching of or applying force to the intimate parts of

                                             10
 1 a minor or the unlawful and intentional causing of a minor to touch one’s intimate

 2 parts.” The jury was appropriately instructed that the State needed to prove that

 3 Defendant touched Victim in an unlawful manner—that is, “with [an] intent to arouse

 4 or gratify sexual desire or to intrude upon the bodily integrity or personal safety of

 5 [Victim].”

 6   {18}   The State points to the uncharged Sandoval County incident—where Victim

 7 alleged that Defendant sat her on his lap, reached down her pants, and applied

 8 ointment to her genitals while digitally penetrating her—as proof that Defendant was

 9 less likely to have lawfully touched Victim during the charged masturbation incident

10 because what unfolded in Sandoval County could not reasonably be interpreted as

11 normal parenting. Defendant responds that the Sandoval County incident is probative

12 of Defendant’s unlawful intent in the masturbation incident only by way of an

13 improper inference premised on propensity. Defendant argues that the evidence

14 relating to the Sandoval County incident is only probative because it demonstrates a

15 propensity to behave with the intent of a child molester.

16   {19}   The circumstances of the Sandoval County incident alter the probability that

17 Defendant acted with lawful intent during commission of the masturbation incident

18 involving this same victim. As our case law has recognized, however, Rule 404


                                             11
 1 imposes restrictions on the use of a particular kind of relevant evidence, criminal

 2 character or propensity, “not because the evidence lack[s] logical relevance, but

 3 because of its substantial prejudicial effect.” State v. Martinez, 2008-NMSC-060, ¶

 4 23, 145 N.M. 220, 195 P.3d 1232 (explaining the policy considerations for Rule 404

 5 character rules excluding otherwise probative evidence to protect against substantial

 6 prejudice). As a result, evidence of a person’s propensity to commit a particular kind

 7 of intentional criminal conduct is not admissible merely to show that he intended to

 8 commit the charged conduct, even though it would satisfy Rule 404’s definition of

 9 logical relevance. But while a propensity inference can arguably be drawn in this case

10 from the uncharged Sandoval County incident, the law does not ban admission of

11 potential propensity evidence that also goes to proving something other than

12 Defendant’s propensity to act in a certain way. See Old Chief v. United States, 519

13 U.S. 172, 184 (1997) (stating that when certain evidence “has the dual nature of

14 legitimate evidence of an element [of a charge] and illegitimate evidence of

15 character” the evidence satisfies federal Rule 404(b) and admissibility is determined

16 under federal Rule 403); Gallegos, 2007-NMSC-007, ¶ 22 (stating that evidence is

17 inadmissible under Rule 11-404(B) only if “its sole purpose or effect is to prove

18 criminal propensity”). That something was Defendant’s unlawful intent in his


                                             12
 1 behavior toward this particular victim.

 2   {20}   In applying Rule 11-404(B)(2)’s propensity evidence bar, this Court has taken

 3 care to distinguish between a defendant’s propensity to engage in particular kinds of

 4 unlawful conduct and the defendant’s intent directed toward the victim in the charged

 5 offense. Two cases provide especially useful guidance. First, Sena involved other-act

 6 evidence of the defendant’s “grooming” of a child victim to support the state’s theory

 7 that the defendant had not applied ointment to the child victim’s genitals with a

 8 strictly medical intent. 2008-NMSC-053, ¶ 14. In reversing the Court of Appeals and

 9 holding that the evidence was properly admitted as proof of the defendant’s intent,

10 we stated that “[a]s evidence of [d]efendant’s sexually fraught conduct with the

11 [c]hild, the grooming evidence was properly admitted to refute[ ] the evidence that

12 [d]efendant touched the [c]hild strictly for medical reasons.” Id. (alteration in

13 original) (internal quotation marks and citation omitted). Accordingly, admission of

14 the other-act evidence relating to the same victim was proper for demonstrating the

15 defendant’s specific, unlawful intent during commission of the charged conduct. Id.

16 ¶¶14-15.

17   {21}   Then, in Otto we analyzed whether evidence of a defendant’s uncharged sexual

18 acts with a child victim in Colorado could be properly admitted under Rule 11-


                                              13
 1 404(B)(2) in a trial for charges relating to sexual abuse against the same child victim

 2 in Alamogordo. 2007-NMSC-012, ¶ 7. The defendant in Otto claimed that he was

 3 asleep and unconsciously molested the child victim—i.e., he lacked an unlawful

 4 intent and had merely committed an innocent mistake. Id. ¶ 11. We concluded that the

 5 other-act evidence of similar sexual acts perpetrated upon the child victim by that

 6 defendant was “properly admitted to show intent and absence of mistake or accident”

 7 during defendant’s commission of the charged crimes. Id. ¶ 12 (footnote omitted).

 8   {22}   Here, as in Otto and Sena, Defendant specifically disputed the intent element

 9 of the crime for which he was standing trial. In fact, it was the only element of the

10 crime that Defendant disputed. Given New Mexico’s inclusionary view of Rule 11-

11 404(B)(2), and particularly where a defendant refutes allegations of sexual contact

12 with a minor victim by claiming that the sexual contact was parental or medical, we

13 conclude that evidence of other acts directed to that victim that bear on a defendant’s

14 specific, unlawful intent to commit the charged offense are admissible under Rule 11-

15 404(B)(2). See Sena, 2008-NMSC-053, ¶ 14; Otto, 2007-NMSC-012 ¶¶ 11-12; see

16 also Kerby, 2007-NMSC-014, ¶ 26. Accordingly, we hold that the uncharged

17 Sandoval County incident was properly admitted.

18 C.       There Was No Undue Prejudice Requiring Exclusion of Evidence of the
19          Sandoval County Incident Under Rule 11-403

                                              14
 1   {23}   The next step in the analysis is to ensure that a defendant is not unduly

 2 prejudiced by admission of other-act evidence. See Rule 11-403. Here, there are two

 3 sources of potential prejudice to be weighed against the evidence’s probative effect:

 4 1) the inherently prejudicial nature of the evidence of the uncharged Sandoval County

 5 incident and 2) the alleged “surprise” Defendant faced by the evidence’s mid-trial

 6 admission. We turn first to the inherently prejudicial nature of other-act evidence

 7 involving child molestation, and conclude that under Rule 11-403, the district court

 8 did not abuse its discretion by deciding that admission of the evidence of the

 9 uncharged Sandoval County incident was not unduly prejudicial.

10 1.       Inherently Prejudicial Nature of the Evidence

11   {24}   Defendant’s intent was the only contested issue at trial, and the only evidence

12 available to the State for proving intent came by Victim’s testimony regarding her

13 perception of the charged incidents. And, Defendant’s case relied on convincing the

14 jury that Victim’s account was misguided because the perceived molestation was

15 actually harmless parenting. Thus, admission of evidence of the uncharged Sandoval

16 County incident—an occasion where Defendant’s conduct could not be viewed as

17 harmless parenting—was highly probative of the State’s argument that Defendant was

18 less likely to have been acting lawfully when committing the charged incidents. See


                                              15
 1 Otto, 2007-NMSC-012, ¶ 15 (“Without the evidence of the uncharged acts, the jury

 2 was much more likely to believe that what happened in Alamogordo was a mistake

 3 or accident . . . There was no other evidence available to rebut this potential

 4 inference.”).

 5   {25}   The uncharged Sandoval County incident is also uniquely similar to one of the

 6 charged incidents in that on two occasions some type of ointment was used when

 7 Defendant made contact with Victim’s genitals. Whereas the circumstances of the

 8 charged masturbation incident could reasonably be viewed as parental care in the

 9 abstract, the uncharged Sandoval County incident could not. The uncharged other-act

10 evidence is highly probative of Defendant’s intent during the charged masturbation

11 incident. Cf. Beecheum, 582 F.2d at 915 (“In measuring the probative value of the

12 evidence, the judge should consider the overall similarity of the extrinsic and charged

13 offenses.”).

14   {26}   Despite the other-act evidence’s probative value, the prejudicial nature of the

15 uncharged Sandoval County incident was not diminutive. Evidence of sexual contact

16 with a minor is uniquely and inherently prejudicial. Admission of such evidence must

17 be treated with caution in order to not unduly influence a jury’s verdict. Yet, the task

18 under Rule 11-403 is not to exclude all uniquely prejudicial evidence—just that


                                              16
 1 evidence having an unduly prejudicial impact on a defendant that far outweighs the

 2 evidence’s probative effect in proving an element of the State’s case. In this case,

 3 where the sole defense presented by Defendant to the charged crimes was a lack of

 4 specific, unlawful intent, we conclude that the inherently prejudicial nature of the

 5 uncharged Sandoval County incident was not enough to outweigh its probative value.

 6 Thus, the district court’s decision to admit the evidence was not an abuse of its

 7 discretion.

 8 2.       Mid-trial Surprise

 9   {27}   Defendant further argues that he suffered prejudice because he was surprised

10 by the district court’s mid-trial admission of the evidence of the uncharged Sandoval

11 County incident. But, this is not a case where Defendant did not have knowledge of

12 the incident, rather, Defendant merely thought the incident would not make its way

13 into the trial. To claim surprise at its admission, particularly in light of the theory

14 under which Defendant chose to proceed, being that he lacked an unlawful

15 intent—ignores the district court’s decision before the trial to exclude the other-act

16 evidence because it believed “[t]his evidence is only being offered to prove the

17 witness’ understanding,” as opposed to one of the Rule 11-404(B) permissible

18 reasons. The district court read into the record the language of Rule 11-404(B), and


                                             17
 1 told the parties that it would be open to reconsideration of the issue as the trial

 2 progressed. As such, Defendant was well aware that the Sandoval County incident

 3 loomed large, and was not in any way misled by the district court or opposing

 4 counsel. Cf. Lewis ex rel. Lewis v. Samson, 2001-NMSC-035, ¶ 15, 131 N.M. 317,

 5 35 P.3d 972 (discussing discovery rules, but considering the similar context of unfair

 6 surprise by unanticipated testimony and rebuttal witnesses, and confining the concept

 7 of surprise to an instance where the identity of a witness was not disclosed at all).

 8   {28}   Plus, Defendant alluded to the uncharged Sandoval County incident at trial by

 9 confusing Victim and inadvertently eliciting cross-examination testimony about the

10 incident. This fact discounts both Defendant’s claim that he was unprepared and

11 surprised by the admission of the other-act evidence, since his counsel referenced it.

12 Moreover, cross-examination resulted in a potentially inconsistent statement by

13 Victim, which the State could not rebut without reference to the uncharged Sandoval

14 County incident. Defendant, having referred to the uncharged incident, greatly

15 increased the evidence’s probative nature. And, without deciding whether by this

16 reference Defendant opened the door to admission of the other-act evidence, we

17 conclude that the nature of the exchange at least indicates Defendant’s knowledge

18 that the uncharged Sandoval County incident was probative and relevant, and thus,


                                              18
 1 might be admitted at some point during trial, despite the pretrial exclusion. As such,

 2 we conclude there was no unfair surprise influencing our prejudice analysis under

 3 Rule 11-403.

 4 V.       CONCLUSION

 5   {29}   The evidence of the uncharged Sandoval County incident is relevant to

 6 establishing Defendant’s specific, unlawful intent during his commission of the

 7 charged incidents and was correctly admitted by the district court under Rule 11-

 8 404(B)(2). Likewise, the other-act evidence was more probative than prejudicial

 9 under Rule 11-403. We conclude, therefore, that the district court did not abuse its

10 discretion by admitting the uncharged Sandoval County incident under both Rule 11-

11 404(B)(2) and Rule 11-403. Accordingly, we affirm Defendant’s conviction.

12   {30}   IT IS SO ORDERED.



13                                                ______________________________
14                                                BARBARA J. VIGIL, Justice

15 WE CONCUR:



16 __________________________________
17 CHARLES W. DANIELS, Chief Justice


                                             19
1 __________________________________
2 PETRA JIMENEZ MAES, Justice



3 __________________________________
4 EDWARD L. CHÁVEZ, Justice



5 __________________________________
6 JUDITH K. NAKAMURA, Justice




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