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

 2 Opinion Number: ___________

 3 Filing Date: September 2, 2015

 4 NO. 33,473

 5 STATE OF NEW MEXICO,

 6         Plaintiff-Appellant,

 7 v.

 8 JUAN CARLOS ACOSTA,

 9         Defendant-Appellee.

10 APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY
11 Charles W. Brown, District Judge

12   Hector H. Balderas, Attorney General
13   Santa Fe, NM
14   Jacqueline R. Medina, Assistant Attorney General
15   Albuquerque, NM

16 for Appellant

17 Jorge A. Alvarado, Chief Public Defender
18 B. Douglas Wood III, Assistant Appellate Defender
19 Santa Fe, NM

20 for Appellee
 1                                        OPINION

 2 GARCIA, Judge.

 3   {1}   The State appeals the district court’s order granting Defendant’s motion for a

 4 new trial. This case presents the following issues: (1) the State’s ability to appeal the

 5 grant of a new trial based upon an evidentiary ruling, (2) the district court’s

 6 jurisdiction to grant a motion for a new trial on grounds that were raised sua sponte

 7 more than ten days after the verdict, and (3) whether the grant of a new trial was an

 8 abuse of discretion under the circumstances of this case. We affirm.

 9 BACKGROUND

10   {2}   Defendant was indicted by a grand jury on June 2, 2011, for trafficking a

11 controlled substance (cocaine) by possession with intent to distribute, child abuse,

12 conspiracy to commit trafficking a controlled substance by possession with intent to

13 distribute, and possession of drug paraphernalia. The indictment stated that the crimes

14 occurred on or about October 19, 2010, the date that the search warrant was executed.

15 As part of the State’s investigation, three uncharged controlled buys were executed

16 by officers, with the assistance of a confidential informant (CI), in the weeks prior to

17 the execution of the search warrant.

18   {3}   On August 19, 2013, the day before trial commenced, Defendant filed a motion

19 in limine to exclude “[a]ny information provided by the [CI] to the police officers
 1 regarding . . . Defendant” on the grounds that it would be “inadmissible hearsay.” A

 2 hearing was held on the same day, during which defense counsel argued that if the

 3 officers testified at trial that a CI told them that Defendant was selling drugs, and the

 4 CI was not going to testify at trial, that testimony would present confrontation clause

 5 and hearsay problems. Defense counsel noted that he was not concerned with the

 6 officers “mentioning that based on their investigation they decided to get a search

 7 warrant[.]” The State argued that “the officer has a right to testify that [he] gave a [CI]

 8 money,[the CI] met with . . . Defendant[,] [m]oney that was provided to the [CI] was

 9 gone, and there were drugs in [the CI’s] possession, which he observed [as having

10 occurred] hand-to-hand.” The district court replied that if the officers personally

11 observed the hand-to-hand exchange during the controlled buys, they could testify as

12 to those observations; however, because the CI was unavailable, the officers could

13 not testify as to what the CI told them. Ultimately, the district court agreed to reserve

14 ruling on the matter.

15   {4}   During the same motion hearing, defense counsel moved to exclude as

16 inadmissible character evidence “any testimony from any detective that [he or she]

17 had previous knowledge of my client[, such as] saying we knew [Defendant], we

18 knew him well and he was up to no good[.]” See Rule 11-404(A) NMRA (providing

19 that evidence of a person’s character or character trait is inadmissible to prove


                                                2
 1 conformity therewith on a particular occasion). In response, the prosecutor indicated

 2 that “[he did not] anticipate the officers testifying to anything outside of this current

 3 investigation[,]” specifically stating that the officers would not testify about

 4 Defendant’s 1997 arrest for trafficking. The morning of trial, the State again asked

 5 the district court whether the officers could testify as to their observations of the CI,

 6 and the district court agreed.

 7   {5}   Jury trial began on August 20, 2013. The State argued in its opening statement

 8 that Sergeant Carpenter of the Albuquerque Police Department would testify that with

 9 the assistance of a CI, he observed Defendant take part in three controlled buys. The

10 State explained that after the three controlled buys, a search warrant was obtained for

11 an apartment thought to be Defendant’s residence. Sergeant Carpenter subsequently

12 testified about the controlled buys and the events that transpired the day that the

13 search warrant was executed, and the defense did not object to the testimony about

14 the controlled buys. The theory of the defense was that Defendant was not a resident

15 of the apartment, that he happened to be in the area “by chance,” and that there was

16 no evidence against him at all.

17   {6}   The jury found Defendant guilty of trafficking a controlled substance by

18 possession with intent to distribute, conspiracy to commit trafficking a controlled

19 substance by possession with intent to distribute, abuse of a child, and possession of


                                               3
 1 drug paraphernalia. Defendant filed a timely motion for a new trial, see Rule 5-

 2 614(C) NMRA (providing that a motion for a new trial based upon any grounds other

 3 than newly discovered evidence must be made within ten days of the verdict or within

 4 the grant of a motion for extension of time by the court within that ten-day period),

 5 citing inconsistent witness testimony and improper prosecutorial comment during

 6 closing argument.

 7   {7}   At the motion hearing, the district court granted Defendant’s motion for a new

 8 trial, but it did so on new grounds that the court raised sua sponte. First, the

 9 indictment stated that the charges stemmed from the execution of a search warrant on

10 October 19, 2010, but the State introduced evidence of previous controlled buys

11 involving Defendant that were conducted in the weeks prior. Second, the defense did

12 not have reasonable notice of the State’s intent to introduce this prior bad acts

13 evidence, as required by Rule 11-404(B). Third, this failure to give notice prejudiced

14 Defendant because it was the only evidence tying Defendant to the apartment, to the

15 co-defendant, and to the drugs found on the co-defendant. The instant appeal ensued,

16 with the State challenging the district court’s grant of a new trial.

17 DISCUSSION

18 A.      The State’s Ability to Appeal the Order Granting a New Trial

19   {8}   Because it implicates our authority to hear this appeal, we turn first to


                                              4
 1 Defendant’s contention that the State may not appeal the district court’s order

 2 granting a new trial. In support of his contention, Defendant relies upon State v.

 3 Griffin, 1994-NMSC-061, ¶ 11, 117 N.M. 745, 877 P.2d 551, for the proposition that

 4 the grant of a new trial is appealable by the State only when the district court’s ruling

 5 is based on a determination of prejudicial legal error. Defendant asserts that the

 6 district court’s grant of a new trial was premised on the fact-based admission of

 7 evidence under Rule 11-404(B)(2), and because an evidentiary ruling is discretionary,

 8 the ruling does not present a legal question. We disagree.

 9   {9}    In State v. Chavez, our Supreme Court explained that Article VI, Section 2 of

10 the New Mexico Constitution permits the State to appeal an order granting a new trial

11 because the State has a “strong interest in enforcing a lawful jury verdict.” 1982-

12 NMSC-108, ¶ 6, 98 N.M. 682, 652 P.2d 232. This holding was later limited by

13 Griffin, which provided that in a criminal case, the State may only appeal “an order

14 in which it is claimed the grant of a new trial was based on an erroneous conclusion

15 that prejudicial legal error occurred during the trial or that newly-discovered evidence

16 warrants a new trial.” 1994-NMSC-061, ¶ 11.

17   {10}   At the hearing on Defendant’s motion for a new trial, the district court noted

18 that even though the indictment charged only conduct that was discovered during the

19 execution of the search warrant, the State introduced evidence at trial of prior


                                               5
 1 uncharged controlled buys involving Defendant that were made in the weeks leading

 2 up to the execution of the search warrant. Because uncharged misconduct falls within

 3 the ambit of Rule 11-404(B), which requires reasonable notice prior to introduction

 4 at trial, the district court found that the State did not provide reasonable notice to

 5 Defendant of its intent to use these prior controlled buys. See Rule 11-404(B)(2)(a),

 6 (b) (providing that, in a criminal case, evidence of other crimes may be admissible for

 7 certain purposes, but the prosecution must give reasonable notice of the general

 8 nature of any such evidence before trial, or during trial if the district court excuses the

 9 lack of pretrial notice for good cause). The district court further suggested that in any

10 second trial, the State could either amend the indictment to include the prior

11 controlled buys, or file a notice of intent to use Rule 11-404(B) evidence.

12   {11}   Importantly, the district court’s ruling was not that the evidence of uncharged

13 controlled buys would or would not have been admissible under Rule 11-404(B). If

14 the prosecution had provided reasonable notice, and if the defense had then objected

15 to the evidence, the district court would have been presented with an opportunity to

16 rule on the admissibility of this evidence. Instead, the district court concluded that

17 under the facts of this case, because the prior controlled buys were uncharged

18 misconduct, the prosecution failed to reasonably notify the defense of its intent to

19 introduce such evidence, which was contrary to Rule 11-404(B) and prejudicial to the


                                                6
 1 defense. Because the district court’s ruling hinged upon the interpretation and

 2 application of the notice requirement of Rule 11-404(B)(2) to the facts of this case,

 3 we hold that the district court’s grant of a new trial was based on the conclusion that

 4 prejudicial legal error occurred, which the State was permitted to immediately appeal.

 5 See Griffin, 1994-NMSC-061, ¶ 14 (holding, in a case where the only basis for the

 6 grant of a new trial was newly-discovered evidence, that such an order was

 7 appealable “because it presents a question of law easily reviewed by an appellate

 8 court and not a question of fact as to the correctness of a discretionary ruling”); see

 9 also Fed. R. Evid. 404 advisory committee’s note (1991 amendments) (“Because the

10 notice requirement serves as condition precedent to admissibility of [Rule 11-404(B)]

11 evidence, the offered evidence is inadmissible if the court decides that the notice

12 requirement has not been met.”).

13 B.       The District Court’s Jurisdiction to Grant a New Trial

14   {12}   We turn next to the State’s contention that the district court lacked jurisdiction

15 to grant Defendant’s motion for a new trial on other grounds that were raised sua

16 sponte by the court more than ten days after the entry of the jury’s verdict. The State

17 argues that the district court effectively raised and granted a new trial on its own

18 motion outside of the ten-day window set forth in Rule 5-614(C). The State also

19 argues that the district court needed to have enlarged the time for the filing of a


                                                7
 1 motion for new trial within the ten-day window before it could consider other

 2 additional grounds to grant a new trial. We disagree.

 3   {13}   On appeal, we address whether the district court had jurisdiction to grant a

 4 motion for a new trial de novo. State v. Moreland, 2007-NMCA-047, ¶ 9, 141 N.M.

 5 549, 157 P.3d 728, aff’d on other grounds, 2008-NMSC-031, 144 N.M. 192, 185

 6 P.3d 363. It is undisputed that Defendant invoked the district court’s jurisdiction by

 7 timely filing a motion for a new trial. See State v. Lucero, 2001-NMSC-024, ¶ 9, 130

 8 N.M. 676, 30 P.3d 365 (holding that the ten-day filing requirement in Rule 5-614(C)

 9 is jurisdictional). The district court then exercised its independent discretion when

10 ruling upon Defendant’s timely-filed motion. The fact that the district court based its

11 ruling on different grounds does not alter the jurisdictional analysis. Insofar as the

12 State argues that the district court is prohibited from relying on different grounds

13 from those raised by the moving party when it does go beyond ten days of the entry

14 of the verdict, the State points us to no authority in support of this contention, and we

15 are unaware of any. See generally In re Adoption of Doe, 1984-NMSC-024, ¶ 2, 100

16 N.M. 764, 676 P.2d 1329 (“We assume where arguments in briefs are unsupported

17 by cited authority, counsel after diligent search, was unable to find any supporting

18 authority.”). To the extent that the State invites us to adopt such a position, we

19 believe it would be contrary to the wording and intent of Rule 5-614, and therefore


                                               8
 1 decline. Cf. Moreland, 2007-NMCA-047, ¶ 22, (“Rule 5-614(A) could also be

 2 construed as reserving to the district court a ‘reservoir of equitable power’ to assure

 3 that justice is done, and order a new trial sua sponte beyond the thirty days specified

 4 in Rule 5-614(C).” (citation omitted)). Accordingly, we conclude that the district

 5 court had jurisdiction to grant Defendant’s motion for a new trial and proceed to

 6 address the merits of the district court’s ruling.

 7 C.       The District Court’s Discretion to Grant a New Trial

 8   {14}   The State raises two general arguments challenging the district court’s grant

 9 of a new trial: (1) the district court erred by finding that the State failed to provide

10 notice of its intent to use the prior controlled buys as evidence of prior bad acts and

11 surprised Defendant as a result; and (2) the evidence of the prior controlled buys was

12 admissible under Rule 11-404(B) because defense counsel’s opening statement

13 placed Defendant’s intent, knowledge, and possession of the drugs inside of the

14 apartment at issue. In response, Defendant argues that the State did not specifically

15 designate its intent to introduce the controlled buys as prior bad acts evidence with

16 a permitted purpose, as required by Rule 11-404(B)(2). Apart from lack of proper

17 notice, Defendant further argues that the evidence of controlled buys nonetheless was

18 not admissible Rule 11-404(B) evidence because it had no purpose other than to

19 prove a prior propensity to act in a particular manner. For the reasons discussed


                                              9
 1 below, we affirm the district court’s finding that the State failed to provide adequate

 2 notice of its intent to use the evidence of prior controlled buys under Rule 11-404(B)

 3 and conclude that there was no abuse of discretion when the district court determined

 4 that this error was sufficiently prejudicial to warrant a new trial.

 5   {15}   On appeal, we review the district court’s grant of a new trial for “clear and

 6 unmistakable abuse of discretion.” Griffin, 1994-NMSC-061, ¶ 9. We apply a two-

 7 prong test to determine whether the district court abused its discretion. Id. First, we

 8 determine whether the grant of the new trial was premised upon legal error, and

 9 second, we evaluate “whether the error is substantial enough to warrant the exercise

10 of the [district] court’s discretion.” Id. (internal quotation marks and citation omitted).

11 No abuse of discretion occurs when there are reasons to both support and detract from

12 the district court’s ruling. Moreland, 2008-NMSC-031, ¶ 9. “Because the trial judge

13 has observed the demeanor of the witnesses and has heard all the evidence, the

14 function of passing on motions for new trial belongs naturally and peculiarly to the

15 trial court.” Id. (alteration, internal quotation marks, and citation omitted).

16 1.       Legal error

17   {16}   We turn first to the question of whether the district court correctly determined

18 the prosecution failed to provide adequate notice of its intent to offer Rule 11-404(B)

19 evidence. In granting a new trial, the district court orally concluded that Defendant


                                               10
 1 was surprised by the erroneous admission of the prior controlled buys. The State

 2 disputes this, arguing that because the defense moved to exclude the statements of the

 3 CI on hearsay and confrontation grounds in a pretrial motion, this indicated that the

 4 defense had sufficient actual notice of the State’s intent to introduce evidence of the

 5 controlled buys. The State further argues that during the hearing on Defendant’s

 6 motion, the prosecutor’s statement that the detective should be allowed to testify

 7 about his observations as to the controlled buys sufficiently alerted the defense to the

 8 issue.

 9   {17}   Inherent in the district court’s finding that the defense was surprised by this

10 evidence was a determination that any actual notice stemming from the discussion

11 about defense counsel’s motion in limine to exclude statements of the CI on other

12 grounds was insufficient under Rule 11-404(B)(2) to put the defense on notice of the

13 nature of the prior bad acts evidence to be presented at trial. Rule 11-404(B) states:

14          (1) Prohibited [U]ses. Evidence of a crime, wrong, or other act is not
15          admissible to prove a person’s character in order to show that on a
16          particular occasion the person acted in accordance with the character.

17          (2) Permitted [U]ses; [N]otice in a [C]riminal [C]ase. This evidence
18          may be admissible for another purpose, such as proving motive,
19          opportunity, intent, preparation, plan, knowledge, identity, absence of
20          mistake, or lack of accident. In a criminal case, the prosecution must

21                (a) provide reasonable notice of the general nature of any such
22                evidence that the prosecutor intends to offer at trial, and


                                              11
 1                (b) do so before trial—or during trial if the court, for good cause,
 2                excuses lack of pretrial notice.

 3   {18}   Our case law states that it is incumbent upon the party seeking to offer Rule

 4 11-404(B) evidence “to identify the consequential fact to which the proffered

 5 evidence of other acts is directed.” State v. Lucero, 1992-NMCA-107, ¶ 10, 114 N.M.

 6 489, 840 P.2d 1255. “The proponent of the evidence must demonstrate its relevancy

 7 to the consequential facts, and the material issue, such as intent, must in fact be in

 8 dispute.” State v. Elinski, 1997-NMCA-117, ¶ 13, 124 N.M. 261, 948 P.2d 1209,

 9 overruled on other grounds by State v. Tollardo, 2012-NMSC-008, 275 P.3d 110.

10   {19}   We disagree with the State’s suggestion that the general discussion that

11 occurred in the course of the proceeding on Defendant’s hearsay objection, along

12 with materials provided in discovery, should be regarded as sufficient to provide

13 reasonable notice of the general nature of the evidence the State intended to present.

14 In doing so, we acknowledge that Rule 11-404(B)(2), while requiring a prosecutor

15 to provide reasonable notice of prior bad acts, does not provide specific guidance on

16 exactly how this notice is to be accomplished. As such, the plain language of the rule

17 accommodates a certain amount of flexibility. Nevertheless, at a minimum, the State

18 must give direct notice that it specifically intends to introduce prior bad acts evidence

19 under Rule 11-404(B)(2) pursuant to an articulated permissible use. See 3 Clifford S.

20 Fishman, Jones on Evidence § 17:24, at 368 (7th ed. 1998) (“Notice should be

                                               12
 1 sufficiently detailed to permit defendant to bring a motion in limine. Disclosing the

 2 information in discovery rather than in response to the specific rule . . . ‘misses the

 3 point’ of the rule, which is to inform the defendant of crimes the [s]tate intends to

 4 introduce and to allow the defendant time to respond by motion in limine or

 5 otherwise.” (footnotes omitted) (quoting State v. Houle, 642 A.2d 1178, 1181 (Vt.

 6 1994)). Here, although it may have become reasonably apparent that the State

 7 intended to introduce evidence of the prior controlled buys, the State neither

 8 specifically invoked Rule 11-404(B) nor made any attempt to identify the

 9 consequential fact or facts to which the prior bad acts evidence in question might

10 properly have been directed. See State v. Serna, 2013-NMSC-033, ¶ 19, 305 P.3d 936

11 (holding that the State’s failure to inform the court of the relevance of prior

12 convictions beyond merely reciting the exceptions enumerated in Rule 11-404(B)

13 resulted in the erroneous admission of prior crimes evidence); State v. Gallegos,

14 2007-NMSC-007, ¶ 25, 141 N.M. 185, 152 P.3d 828 (stating that a party seeking to

15 introduce Rule 11-404(B) evidence must both “identify and articulate the

16 consequential fact to which the evidence is directed” and “cogently inform the

17 court—whether the trial court or a court on appeal—the rationale for admitting the

18 evidence to prove something other than propensity”).




                                             13
 1   {20}   We note that, had the indictment encompassed Defendant’s conduct during the

 2 controlled buys, evidence concerning the controlled buys would not have been

 3 subject to Rule 11-404(B)(2)’s notice requirement because such conduct would not

 4 have been an “other act” under the rule. The fact that the conduct charged in the

 5 indictment did not include Defendant’s conduct during the controlled buys may have

 6 been an oversight on the part of the State, the implications of which were not

 7 specifically addressed by the defense, the State, or the district court until the district

 8 court discovered the oversight. However, once the district court discovered the

 9 oversight, realized that admission of the controlled buys evidence was governed by

10 the limitations of Rule 11-404(B), and concluded that the State did not provide the

11 required Rule 11-404(B)(2) notice, the district court acted well within its discretion

12 to address whether to order a new trial. See 3 Fishman, supra, § 17:24, at 367-68

13 (“The court in its discretion may, under the facts, decide that the particular request or

14 notice was not reasonable, either because of the lack of timeliness or completeness.”

15 (footnote omitted) (internal quotation marks and citation omitted)); see also Griffin,

16 1994-NMSC-061, ¶ 9 (requiring “clear and unmistakable abuse of discretion” to

17 reverse a district court’s order for a new trial).

18   {21}   Courts have long recognized the dangers of unfair surprise associated with

19 prior bad acts evidence. See State v. Martinez, 2008-NMSC-060, ¶ 23, 145 N.M. 220,


                                               14
 1 195 P.3d 1232. Requiring prosecutors to provide advance notice of their intent to

 2 present such evidence at trial serves significant purposes. See 3 Fishman, supra, §

 3 17.19 at 360 (“Such notice permits the defendant to move to challenge such

 4 admissibility prior to trial, avoids the risk that the jury will be exposed to prejudicial

 5 material before the court can exclude it, and enables the court to conduct a hearing,

 6 require briefs, etc., without disrupting the trial itself. A pretrial ruling on admissibility

 7 also permits the parties to plan their strategy accordingly[.]”). Enabling defense

 8 counsel to anticipate the presentation of Rule 11-404(B) evidence facilitates

 9 intelligent objection and argument, provides greater opportunity for thoughtful

10 rulings that address all legitimate considerations and concerns, and tailors the

11 evidence presented to the specific circumstances. As a result, the State’s failure to

12 give Defendant articulated notice that it intended to use the prior controlled buys for

13 some purpose allowed under Rule 11-404(B)(2) resulted in legal error that the district

14 court was entitled to address.

15 2.       Prejudice

16   {22}   We turn next to the question of prejudice and address whether the prosecution’s

17 failure to notify the defense of its intent to introduce evidence of the prior controlled

18 buys was prejudicial and, if so, whether the prejudice was substantial enough to

19 warrant an exercise of the district court’s discretion. See Griffin, 1994-NMSC-061,


                                                15
 1 ¶ 9 (stating that the second prong of the two-prong test to determine whether the

 2 district court’s grant of a new trial was an abuse of discretion involves “a

 3 determination of whether the error is substantial enough to warrant the exercise of the

 4 [district] court’s discretion” (internal quotation marks and citation omitted)). “[A]

 5 much stronger showing is required to overturn an order granting the new trial than

 6 denying a new trial.” Id. ¶ 12 (internal quotation marks and citation omitted). “A

 7 review of the action of the trial court in the exercise of its discretion does not depend

 8 upon whether the appellate court would have reached the same conclusion.” State v.

 9 Gonzales, 1986-NMCA-050, ¶ 14, 105 N.M. 238, 731 P.2d 381, overruled on other

10 grounds by State v. Tollardo, 2012-NMSC-008. We conclude that under the

11 circumstances presented in this case, the district court’s grant of a new trial was not

12 an abuse of discretion.

13   {23}   The district court determined that evidence of the prior controlled buys was

14 sufficiently prejudicial to warrant an exercise of its discretion to grant a new trial

15 because, as undisputed by the State, the prior uncharged controlled buys were: (1) the

16 only evidence linking Defendant to the apartment; (2) the only evidence linking

17 Defendant to the co-defendant; and (3) the only evidence linking Defendant to the

18 drugs found inside the apartment during the execution of the search warrant. The

19 district court, having heard all pretrial motions and the trial in its entirety, was in the


                                               16
 1 best position to evaluate the prejudicial effect of this important evidence on the trial

 2 as a whole, and our review of the record comports with the district court’s assessment

 3 of the importance of this evidence. See Moreland, 2008-NMSC-031, ¶ 9 (providing

 4 that where evidence in the record both supports and destracts from the district court’s

 5 grant of new trial, there is no abuse of discretion).

 6   {24}   Finally, the State argues that a new trial was unwarranted because the prior

 7 controlled buys were admissible Rule 11-404(B) evidence to prove Defendant’s intent

 8 to distribute and conspire to traffic cocaine, as well as to show Defendant’s

 9 knowledge, access, and control over the drugs that were kept inside the apartment. In

10 response, Defendant argues that the evidence of prior controlled buys was

11 unnecessary, overly prejudicial, and only offered for the improper purpose of proving

12 a prior propensity to act in a particular manner.

13   {25}   At this juncture, however, we decline to resolve the question of whether

14 evidence of the prior controlled buys could have been admissible evidence under Rule

15 11-404(B)(2) to show intent, knowledge, access, and control over the drugs at issue.

16 Because the district court did not rule upon the admissibility of this evidence based

17 upon a lack of reasonable notice and no prior opportunity to assess its admissibility

18 for another purpose under Rule 11-404(B)(2), that issue remains unresolved and this

19 Court would be premature in addressing such an evidentiary issue before the district


                                              17
 1 court has made an informed ruling. It is the district court’s responsibility to address

 2 the generally prejudicial nature of evidence of prior drug transactions, see State v.

 3 Wrighter, 1996-NMCA-077, ¶ 11, 122 N.M. 200, 922 P.2d 582 (holding that, in a

 4 case involving a defendant charged with selling crack cocaine to a CI, evidence of

 5 prior buys between that defendant and the same CI were not admissible to show

 6 context, and, even assuming the evidence was admissible, it was more unfairly

 7 prejudicial than probative and should have been excluded), and it is important that

 8 such evidence be determined to have “real probative value, and not just possible

 9 worth on issues of intent, motive, absence of mistake or accident, or to establish a

10 scheme or plan.” Serna, 2013-NMSC-033, ¶ 17 (internal quotation marks and citation

11 omitted) (quoting State v. Mason, 1968-NMCA-072, ¶ 23, 79 N.M. 663, 448 P.2d

12 175). We conclude that the district court did not abuse its discretion in determining

13 that the prosecution’s failure to give notice of its intent to offer evidence of

14 Defendant’s prior bad acts under Rule 11-404(B) was sufficiently prejudicial to

15 warrant a new trial.

16 CONCLUSION

17   {26}   For the foregoing reasons, we affirm the district court’s grant of a new trial.




                                               18
1   {27}   IT IS SO ORDERED.



2                               __________________________________
3                               TIMOTHY L. GARCIA, Judge

4 WE CONCUR:


5 ___________________________________
6 JAMES J. WECHSLER, Judge



7 ___________________________________
8 J. MILES HANISEE, Judge




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