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 1        IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

 2 STATE OF NEW MEXICO,

 3          Plaintiff-Appellee,

 4 v.                                                                                   NO. 32,937

 5 RICARDO HEREDIA,

 6          Defendant-Appellant.


 7 APPEAL FROM THE DISTRICT COURT OF DOÑA ANA COUNTY
 8 Douglas R. Driggers, District Judge

 9 Hector H. Balderas, Attorney General
10 Santa Fe, NM

11 M. Anne Kelly, Assistant Attorney General
12 Santa Fe, NM

13 for Appellee

14 Jose R. Coronado
15 Las Cruces, NM

16 for Appellant


17                                 MEMORANDUM OPINION

18 BUSTAMANTE, Judge.
 1   {1}   Defendant Ricardo Heredia appeals his conviction by a jury of five counts of

 2 aggravated indecent exposure, three counts of aggravated stalking, one count of

 3 enticement of a child, and one count of attempted aggravated indecent exposure.

 4 Defendant argues that the district court erred in denying his motion to sever the counts

 5 alleging different victims. We affirm. Because this is a memorandum opinion and

 6 because the parties are familiar with the case, we reserve further discussion of the

 7 facts for our analysis of Defendant’s arguments on appeal.

 8 DISCUSSION

 9   {2}   Rule 5-203(A) NMRA requires two or more offenses to be joined when they

10 “are of the same or similar character, even if not part of a single scheme or plan; or .

11 . . are based on the same conduct or on a series of acts either connected together or

12 constituting parts of a single scheme or plan.” Here, the State joined all ten counts in

13 a single indictment. Defendant does not challenge the propriety of joining the offenses

14 in the indictment. Rather, he argues that the district court erred in denying his motion

15 to sever the charges under Rule 5-203(C). Rule 5-203(C) permits a party to move for

16 severance of offenses or defendants “[i]f it appears that a defendant or the state is

17 prejudiced by a joinder” of those offenses or defendants. “A defendant might . . . be

18 prejudiced if the joinder of offenses permit[s] the jury to hear testimony that would

19 have been otherwise inadmissible in separate trials.” State v. Gallegos, 2007-NMSC-


                                              2
 1 007, ¶ 19, 141 N.M. 185, 152 P.3d 828 (alteration in original) (internal quotation

 2 marks and citation omitted). Here, the question is whether evidence related to different

 3 victims would have been admissible in separate trials under Rule 11-404(B)(1)

 4 NMRA, which provides that “[e]vidence of a crime, wrong, or other act is not

 5 admissible to prove a person’s character in order to show that on a particular occasion

 6 the person acted in accordance with the character.” However, such “other-acts

 7 evidence may be admissible if it is relevant to an issue besides the inference that the

 8 defendant acted in conformity with his or her character[,]” Gallegos, 2007-NMSC-

 9 007, ¶ 22, such as “motive, opportunity, intent, preparation, plan, knowledge, identity,

10 absence of mistake, or lack of accident.” Rule 11-404(B)(2). When the State opposes

11 severance, it must “identify and articulate the consequential fact to which the evidence

12 is directed before it is admitted.” Gallegos, 2007-NMSC-007, ¶ 22. As with all

13 evidence, evidence admissible under an exception to Rule 11-404(B)(1) must also be

14 admissible under Rule 11-403 NMRA.

15   {3}   Consistent with these principles, Defendant argued in his motion to sever that

16 “[u]nless the [S]tate can articulate a valid purpose for a joint trial . . . , taking into

17 consideration the dictates of Rule 11-404[(B)], this court should sever each of the

18 counts which allege separate victims, and require the [S]tate to proceed to separate

19 jury trials.” The State argued at the hearing on the motion that “join[t trials were]

20 appropriate because the evidence was cross-admissible to show [the] identity [of the

                                               3
 1 perpetrator.]” It referred to an earlier nine-hour evidentiary hearing on Defendant’s

 2 motion to suppress photographic evidence and argued that the hearing demonstrated

 3 that the identity of the perpetrator was hotly disputed and that the evidence as to each

 4 victim showed a “distinctive pattern of conduct” and related to identity, not

 5 propensity.

 6   {4}   At the hearing, Defendant continued to argue that the State must articulate the

 7 consequential facts to which the evidence of other acts pertained, that the identity

 8 exception to Rule 11-404(B) did not apply to permit admission of the victims’

 9 testimony, and that admission of other-acts evidence here would confuse or enflame

10 the jury. The district court denied Defendant’s motion, stating that “[t]he evidence

11 contested under Rule 11-404(B) does not fall within the parameters of propensity

12 evidence, but to prove identity with a distinctive pattern of conduct. A further analysis

13 under Rule 11-403 shows that the evidence is more probative than substantially

14 prejudicial and is cross[-]admissible as to each victim.”

15   {5}   Defendant moved for reconsideration of the district court’s order. Referring to

16 Gallegos, Defendant argued that the district court erred in finding that the evidence

17 was relevant to identity because the “pattern” on which it relied was not “so

18 distinctive [as] . . . to constitute the defendant’s signature.” Gallegos, 2007-NMSC-

19 007, ¶ 30 (omission in original) (internal quotation marks and citation omitted). He

20 also stated that “the identity of the perpetrator is not at issue, as the young victims

                                               4
 1 have clearly identified [Defendant] as the perpetrator” and that “[t]he identity

 2 exception is not applicable to this case.” The State opposed the motion to reconsider,

 3 arguing that “the [c]ourt considered approximately one and a half days of testimony

 4 on identity, which very much remains at issue in this case unless or until Defendant

 5 stipulates to identity.” The district court denied Defendant’s motion to reconsider, and

 6 the case proceeded to trial.

 7   {6}   We review the grant or denial of a motion to sever under the abuse of discretion

 8 standard. State v. Garcia, 2011-NMSC-003, ¶ 16, 149 N.M. 185, 246 P.3d 1057. “The

 9 essence of a discretionary ruling is that it be not illogical, not unreasonable, and not

10 contrary to facts and circumstances before the trial court.” State v. Montoya, 2005-

11 NMCA-078, ¶ 22, 137 N.M. 713, 114 P.3d 393. “An appellate court cannot say the

12 trial court abused its discretion by its ruling unless it can characterize it as clearly

13 untenable or not justified by reason.” State v. Kent, 2006-NMCA-134, ¶ 18, 140 N.M.

14 606, 145 P.3d 86 (alteration, internal quotation marks, and citation omitted).

15   {7}   Our review proceeds in a two-step process. First we determine if the district

16 court erred in concluding that the objectionable evidence would have been admissible

17 against Defendant in a separate trial under Rule 11-404(B)(2). “If the evidence would

18 have been cross-admissible, then any inference of prejudice is dispelled and our

19 inquiry is over. If the evidence pertaining to each victim would not have been cross-

20 admissible, then the trial court abused its discretion in failing to sever the charges.”

                                               5
 1 Gallegos, 2007-NMSC-007, ¶ 20. In other words, “[i]f evidence of one offense would

 2 be admissible in the trial of the other, a trial court does not abuse its discretion in

 3 denying a motion to sever.” State v. Peters, 1997-NMCA-084, ¶ 12, 123 N.M. 667,

 4 944 P.2d 896. Second, “if the trial court abused its discretion [the appellate court]

 5 must consider whether that error actually prejudiced [the defendant] at his trial; that

 6 is, whether the error was harmless.” Gallegos, 2007-NMSC-007, ¶ 20. We start by

 7 assessing the district court’s ruling as to admissibility under Rule 11-404(B).

 8   {8}   Although Defendant stated in his pleadings to the district court that identity was

 9 not at issue, he appears to have abandoned this argument on appeal. Also, he contested

10 the identity of the perpetrator at trial by cross-examining the witnesses about their

11 memory of the perpetrator and their prior statements about the car and driver. He also

12 raised questions about the perpetrator’s identity in his closing argument. We therefore

13 consider identity to have been a contested issue at trial.

14   {9}   “[T]he use of modus-operandi evidence to prove identity has frequently been

15 recognized” in New Mexico. Peters, 1997-NMCA-084, ¶ 13. This exception to Rule

16 11-404(B) “may be invoked when identity is at issue and when the similarity of the

17 other crime demonstrate[s] a unique or distinct pattern easily attributable to one

18 person.” Peters, 1997-NMCA-084, ¶ 14 (alteration in original) (internal quotation

19 marks and citation omitted); see Gallegos, 2007-NMSC-007, ¶ 30 (“In New Mexico,

20 . . . character evidence is admitted under Rule 11-404(B) as evidence of identity only

                                               6
 1 when . . . the pattern and characteristics of the prior acts [are] so distinctive [as] to

 2 constitute the defendant’s signature.” (alteration, internal quotation marks, and citation

 3 omitted)). We therefore consider the similarities between the charges in this case.

 4   {10}   All seven of the named victims testified at trial. The victims were all teenage

 5 girls. All of them testified that a car drove near them or pulled up beside them while

 6 they were walking outside or waiting at a bus stop. All described the car as gray or

 7 silver. Five testified that the driver was not wearing pants and that he was touching his

 8 penis. Another testified that the driver was wearing pants but his penis was exposed

 9 and that the driver was “holding his stuff.” Two testified that the driver asked them

10 if they wanted to touch his penis. Five victims testified that the driver had black or

11 brown hair. Four testified that he was in his twenties and that he had light skin. Five

12 of the victims testified that the same car and driver drove by them multiple times

13 either on the same day or over several days.

14   {11}   This testimony reveals “a marked number of similarities which could logically

15 lead a jury to the inference that these” victims were approached by the same man.

16 Peters, 1997-NMCA-084, ¶ 15. The victims’ description of the car and the driver, the

17 way the driver approached the victims, the number of times he drove by the victims,

18 his state of undress, and the fact that he was touching himself is “evidence of a

19 common modus operandi by showing a distinct pattern attributable to the same

20 assailant.” Id. The district court did not abuse its discretion in finding that the

                                               7
 1 testimony would have been admissible in separate trials against Defendant as evidence

 2 of the identity of the perpetrator under Rule 11-404(B)(2).

 3   {12}   We next examine whether the district court abused its discretion in finding that

 4 the probative value of the cross-admissible evidence outweighed its prejudicial effect

 5 under Rule 11-403. State v. Contreras, 2007-NMCA-045, ¶ 25, 141 N.M. 434, 156

 6 P.3d 725 (“Once the proponent has made an adequate showing [under Rule 11-

 7 404(B)], the court must find that the probative value of the evidence is not

 8 substantially outweighed by the considerations set forth in Rule 11-403 NMRA.”).

 9 Rule 11-403 permits the district court to “exclude relevant evidence if its probative

10 value is substantially outweighed by a danger of . . . unfair prejudice[.]” “Because a

11 determination of unfair prejudice is fact sensitive, much leeway is given trial judges

12 who must fairly weigh probative value against probable dangers.” State v. Otto, 2007-

13 NMSC-012, ¶ 14, 141 N.M. 443, 157 P.3d 8 (internal quotation marks and citation

14 omitted). Rule 11-403 does not prohibit prejudicial evidence altogether. Rather, “[t]he

15 purpose of Rule 11-403 is not to guard against any prejudice whatsoever, but only

16 against the danger of unfair prejudice.” Otto, 2007-NMSC-012, ¶ 16 (alteration,

17 internal quotation marks, and citation omitted). Inculpatory evidence is unfairly

18 prejudicial “when it goes only to character or propensity.” Id. (internal quotation

19 marks and citation omitted).



                                                8
 1   {13}   Here, the victims’ testimony was admitted for a purpose other than character

 2 or propensity. In addition, this Court has acknowledged that “[e]vidence of other

 3 crimes with sufficient evidence of similar attributes has a strong probative value to

 4 show that the person who committed the other crime and the person who committed

 5 the charged crime are the same.” Peters, 1997-NMCA-084, ¶ 14. Since the

 6 perpetrator’s identity was in issue at trial and the victims’ testimony addressed

 7 identity, we conclude that the district court’s decision that the victims’ testimony was

 8 more probative than prejudicial was not “clearly untenable” or unjustified by reason

 9 and, therefore, not an abuse of discretion. Kent, 2006-NMCA-134, ¶ 18 (internal

10 quotation marks and citation omitted).

11   {14}   To the extent that Defendant asks that we conduct a harmless error analysis as

12 set out in Gallegos, we decline to do so. See 2007-NMSC-007, ¶ 20 (“[E]ven if the

13 trial court abused its discretion we must consider whether that error actually

14 prejudiced [the defendant] at his trial; that is, whether the error was harmless.”). The

15 harmless error analysis described in Gallegos applies only when the reviewing court

16 has determined that the district court erred in denying severance. Id. ¶¶ 19-20. Since

17 we have concluded that the district court did not abuse its discretion in denying

18 severance, our inquiry is at an end.

19 CONCLUSION

20   {15}   For the foregoing reasons, we affirm.

                                               9
1   {16}   IT IS SO ORDERED.



2
3                               MICHAEL D. BUSTAMANTE, Judge

4 WE CONCUR:


5 __________________________________
6 JONATHAN B. SUTIN, Judge


7 __________________________________
8 LINDA M. VANZI, Judge




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