                             The district court conducted a Petrocellii hearing in July 2013.
                At the hearing, only the three witnesses to the 2007 uncharged
                misconduct testified. The court agreed with the State that their testimony
                about the uncharged misconduct was relevant to prove identity and
                absence of mistake. It specifically concluded that the testimony was
                relevant to prove identity for two reasons. First, the three witnesses
                testified that the man they saw in 2007 "was a black male who was of the
                same general build" and had the "same general hairstyle," and was the
                "same general age as the defendant." This, of course, was not unexpected
                considering that each of those witnesses made an in-court identification of
                Lawson during the Petrocelli hearing. Second, the district court concluded
                that the 2007 incident was relevant because it occurred in the "northwest
                area" of Las Vegas, in "public," during "daylight hours," and the man did
                not stop masturbating when he was seen by other people during both
                incidents.
                             On appeal, the State withdraws its absence-of-mistake
                justification by admitting that the uncharged misconduct evidence "was
                only actually used at trial to show identity," because Lawson "never put
                forward a mistake defense." 2 It suggests that the 2007 uncharged

                      1Petrocelli   v. State, 101 Nev. 46, 692 P.2d 503 (1985).

                      2 Even if the State had not withdrawn its absence-of-mistake
                justification and Lawson had argued that the victim was mistaken about
                what he was doing in the alley, the fact that Lawson had masturbated in
                public in a different location under different circumstances four years
                earlier would not have tended to show the victim's absence of mistake. See
                also David P. Leonard, The New Wigmore: A Treatise on Evidence:
                Evidence of Other Misconduct and Similar Events § 7.2.2 (2009 & Supp.
                2014) ("Absence of mistake or accident' is generally synonymous with
                intent.").

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                misconduct evidence was relevant to prove identity through modus
                operandi reasoning or some other unspecified theory of identification. We
                conclude that the district court clearly abused its discretion because the
                witnesses' testimony was not relevant for a nonpropensity purpose and the
                probative value of the evidence was substantially outweighed by the
                danger of unfair prejudice.
                            We recently "reemphasize [d] that `[a] presumption of
                inadmissibility attaches to all prior bad act evidence." Bigpond v. State,
                128 Nev. , , 270 P.3d 1244, 1249 (2012) (second alteration in
                original) (quoting Rosky v. State,   121 Nev. 184, 195, 111 P.3d 690, 697
                (2005)). "In order to overcome the presumption of inadmissibility, the
                prosecutor must request a hearing and establish that: (1) the prior bad act
                is relevant to the crime charged and for a purpose other than proving the
                defendant's propensity, (2) the act is proven by clear and convincing
                evidence, and (3) the probative value of the evidence is not substantially
                outweighed by the danger of unfair prejudice."     Id. at , 270 P.3d at
                1250. Evidence is relevant if it has "any tendency to make the existence of
                any fact that is of consequence to the determination of the action more or
                less probable than it would be without the evidence." NRS 48.015. Within
                the context of a Petrocelli determination, this fact of consequence must be
                related to a nonpropensity purpose. Bigpond, 128 Nev. at 270 P.3d at
                1249-50.
                            The State claims that the testimony of the three witnesses
                was relevant to prove Lawson's identity as the person masturbating in an
                alley near Cheyenne Avenue and Rainbow Road in June 2011 and not
                simply to prove that Lawson acted in conformity with his character as a
                person who has previously masturbated in public. As is the case here, the

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                admission of uncharged misconduct evidence to prove identity without
                first proving such a fact. as motive, opportunity, preparation, or plan, "has
                a particularly great tendency to implicate the person's character and
                conduct." Leonard, supra § 12.1. The three witnesses' descriptions of
                Lawson's physical characteristics in 2007 during the Petrocelli hearing,
                which included his race, gender, and height, did not have any tendency to
                make it more likely that he was the person identified by the victim in
                2011. For instance, there was no allegation that Lawson's physical
                characteristics had changed between the time of the alleged act in 2011
                and Lawson's trial in 2013, when he was physically present in court, or
                that they more closely resembled his appearance in 2007. In fact, the
                witnesses' in-court identification of Lawson during the Petrocelli hearing
                in 2013 suggests that Lawson looked exactly the same as he did in 2007.
                The jurors, therefore, could have simply compared the victim's physical
                description of the man she saw in the alley to Lawson himself without
                relying on the three witnesses' memory of a different unrelated incident
                that occurred six years earlier.
                              It is not surprising that the 2007 uncharged misconduct
                testimony was not directly relevant to prove identity. Although identity
                "is indisputably one of the ultimate purposes for which evidence of other
                criminal conduct will be received . . . it is rarely a distinct ground for
                admission." Kenneth S. Broun, 1 McCormick On Evidence § 190 (7th ed.
                2013). "Almost always, identity is the inference that flows from one or
                more of the [other nonpropensity purposes]." Id. Here, the district court
                concluded that the testimony about the 2007 uncharged misconduct was
                not relevant to show a common scheme or plan but nonetheless admitted
                the evidence to prove identity because it believed the 2007 incident was

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                 "strikingly similar" to the charged offense. Thus, it appears that the
                 district court concluded that Lawson's uncharged misconduct in 2007
                 established a modus operandi that would allow the jury to infer that he
                 was the person who was masturbating in the alley in 2011. In order to
                 draw this conclusion the State was required to demonstrate that the
                 methods used in both incidents were so similar or distinct that it was
                 reasonable to infer that they were both committed by the same person.
                 "For the common features to be distinctive, they must not be shared by
                 most offenses of that type." People v. Thigpen, 713 N.E.2d 633, 639 (Ill.
                 App. Ct. 1999). Where a party is pursuing a modus-operandi theory
                 rather than a common scheme or plan theory, "proper application of
                 modus operandi reasoning requires greater similarity between the charged
                 and uncharged conduct." Leonard, supra § 13.5 (emphasis omitted). The
                 common features cited by the district court in this case—daylight,
                 northwest Las Vegas, and the failure of the offender to stop committing
                 the offense when observed by a passerby—fell far short of the
                 distinctiveness required for admissibility under a modus-operandi theory.
                 Therefore, the district court abused its discretion.
                             Moreover, even if the 2007 incident had been marginally
                 probative for some nonpropensity purpose, the district court should have
                 concluded that the probative value of testimony about another incident of
                 open or gross lewdness by three different witnesses was substantially
                 outweighed by the danger of unfair prejudice and involved the needless
                 presentation of cumulative evidence. See NRS 48.035. In this case, that
                 danger of unfair prejudice was not unfounded and did, in fact, deny
                 Lawson the right to a fair trial. Any doubt about whether the State
                 intended the jury to use the uncharged misconduct testimony for a

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                propensity purpose was removed when the State instructed the jury
                during opening statements that it could use the 2007 incident to "assume"
                that the victim's identification of Lawson in 2011 "as the person
                masturbating in front of her was correct." We conclude that the district
                court's error substantially affected the jury's verdict and we 3, 4
                              ORDER the judgment of conviction REVERSED AND
                REMAND this matter to the district court for proceedings consistent with
                this order.



                                         Hardesty


                  '
                Douglas
                        &4    79A           ,J.
                                                             Cherry


                cc: Hon. Stefany Miley, District Judge
                     Joshua R. Lucherini
                     Attorney General/Carson City
                     Clark County District Attorney
                     Eighth District Court Clerk


                      3 Because we are reversing based on the district court's improper
                admission of Lawson's uncharged misconduct, we need not address
                Lawson's other claim of prosecutorial misconduct based on the State's
                comments during opening statements and its misstatement of the
                evidence during rebuttal closing arguments.

                      4The fast track statement and reply fail to comply with NRAP
                3C(h)(1) and NRAP 32(a)(4) because they do not contain 1-inch margins on
                all four sides. Counsel is cautioned that the failure to comply with the
                briefing requirements in the future may result in the imposition of
                sanctions. See NRAP 3C(n).

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