State v. Marquez ( 2023 )

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1 IN THE SUPREME COURT OF THE STATE OF NEW MEXICO
2 Opinion Number:
3 Filing Date: October 12, 2023
4 NO. S-1-SC-38502
5 STATE OF NEW MEXICO,
6 Plaintiff-Petitioner,
7 v.
8 ISAAC MARQUEZ,
9 Defendant-Respondent.
10 ORIGINAL PROCEEDING ON CERTIORARI
11 Alisa Hart, District Judge
12 Hector H. Balderas, Attorney General
13 M. Victoria Wilson, Assistant Attorney General
14 Santa Fe, NM
15 for Petitioner
16 Freedman Boyd Hollander Goldberg Urias & Ward, P.A.
17 Christopher A. Dodd
18 Albuquerque, NM
19 for Respondent
1 OPINION
2 BACON, Chief Justice.
3 {1} The admission of evidence of a separate crime, wrong, or other bad act is
4 broadly prohibited as proof of a person’s propensity to commit a charged offense. 1
5 Kenneth S. Broun et al., McCormick on Evidence § 190 (Robert P. Mosteller ed., 8th
6 ed. 2020); see also Rule 11-404(B)(1) NMRA (2012).1 Nonetheless, at common law,
7 many jurisdictions⸺including New Mexico⸺observed the lewd and lascivious
8 disposition exception to this rule. See State v. Minns, 1969-NMCA-035, ¶¶ 12-13,
9 80 N.M. 269, 454 P.2d 355. This common-law exception allowed the state to
10 demonstrate a defendant’s “lewd and lascivious disposition” toward the witness by
11 introducing evidence of other acts of sexual misconduct against the complaining
12 witness where the defendant was charged with a sexual offense. Id. ¶ 13. In this
13 opinion, we clarify that the common-law lewd and lascivious disposition exception
14 to Rule 11-404(B)(1)’s prohibition on the admission of other bad acts evidence is
15 abrogated in New Mexico. Evidence offered to show a particular disposition toward
16 an alleged victim is propensity evidence that may not be introduced against a
1
This prior (2012) amendment applies to the district court proceedings in this
case, all of which predate the rule’s current amendment (in effect as of December
31, 2022). We omit inclusion of the otherwise-prescribed date parenthetical in this
opinion’s numerous subsequent references to the 2012 amendment of Rule 11-404.
1 defendant unless it is admissible pursuant to Rule 11-404(B)(2). Rule 11-404(B)(2)
2 authorizes admission of evidence of “a crime, wrong, or other act” (prior, uncharged
3 acts) to prove a nonpropensity fact, such as “motive, opportunity, intent, preparation,
4 plan, knowledge, identity, absence of mistake, or lack of accident.” Rule 11-
5 404(B)(1)-(2) (emphasis added). We conclude that the district court in this case
6 admitted evidence of prior, uncharged acts against Defendant to demonstrate his
7 lewd and lascivious propensity to commit the charged offenses. We therefore vacate
8 Defendant’s conviction and remand to the district court for a new trial. On retrial,
9 evidence of any prior, uncharged acts of misconduct may not be admitted against
10 Defendant unless the district court first determines it is admissible for one of the
11 nonpropensity purposes prescribed by Rule 11-404(B)(2).
12 I. BACKGROUND
13 {2} Defendant Isaac Marquez lived with his wife, Judy, in a trailer home in
14 Albuquerque. Judy’s granddaughter, J.K., 2 lived with Defendant and Judy in their
15 home sporadically when J.K. was between the ages of six and eight years old. Years
16 later, J.K. disclosed to her adoptive mother, Brenda, and later to Judy that when she
17 was living with Defendant and Judy, Defendant touched her and would make her
18 touch him inappropriately. Judy reported the conduct to the police, and Defendant
2
J.K. is not related by birth to Defendant.
2
1 was subsequently indicted by a grand jury on four counts of Criminal Sexual
2 Penetration of a Minor (CSPM) in the first degree, contrary to NMSA 1978, Section
3 30-9-11(C) (1995, amended 2009).
4 {3} The CSPM charges arose out of one specific pattern of misconduct Defendant
5 allegedly committed against J.K. J.K. testified that Defendant would often wake up
6 during the night and walk over to the couch where J.K. was sleeping, kneel, insert
7 his hand in J.K.’s underwear, and digitally penetrate her labia, touching her clitoris.
8 J.K. could not recall how many times this occurred, describing it as “just a blur,” but
9 testified that it happened “more times than I can count on my hands.” At around the
10 same time that these acts allegedly occurred, Defendant also allegedly engaged in
11 other sexual misconduct against J.K., including exposing himself to her and causing
12 her to touch his penis. The State never charged these other acts because the relevant
13 statute of limitations had run.
14 A. District Court Proceedings
15 {4} Prior to trial, Defendant filed a motion to preclude the admission of any
16 evidence of prior, uncharged acts pursuant to Rule 11-404. Following a hearing, the
17 district court entered an order noting the State’s stipulation to Defendant’s motion
18 to exclude such evidence of prior, uncharged acts and stating that the State “agrees
19 [that] if [a Rule 11-]404(B) notice is filed, it will be addressed prior to trial.” Four
3
1 days before trial, the State filed an unrelated notice of intent to introduce evidence
2 of prior, uncharged acts pursuant to Rule 11-404(B). The notice referred solely to
3 acts allegedly committed by Defendant against a child other than J.K. and indicated
4 that the State only intended to introduce the evidence if Defendant claimed at trial
5 that Judy filed a false report concerning the other child with authorities in a different
6 county. The notice failed to mention anything regarding Defendant exposing himself
7 to J.K. or causing her to touch his penis.
8 {5} The Court addressed the State’s notice with the parties on the third day of trial,
9 following voir dire and prior to opening statements. Following a discussion of the
10 State’s notice, the State disclosed for the first time that it intended to introduce
11 evidence of the prior, uncharged acts of exposure and coerced sexual touching
12 allegedly committed by Defendant against J.K. The State argued that the two sets of
13 allegations of sexual misconduct against Defendant, including the charged and
14 uncharged acts, were part of “an ongoing situation of abuse.” The district court took
15 the matter under advisement, admonishing the State not to mention the conduct at
16 issue during opening argument. The State complied.
17 {6} Following opening arguments and outside the presence of the jury, the district
18 court asked the State to identify the nonpropensity purpose for which the evidence
19 of prior, uncharged acts was being offered. The State argued that “lewd and
4
1 lascivious conduct with the same victim is admissible under 404(B), if . . . it shows
2 an ongoing pattern of behavior with that victim.” Defendant responded that the
3 evidence at issue was “pure and simple propensity evidence.”
4 {7} The district court admitted the evidence of prior, uncharged acts under the
5 lewd and lascivious exception, explaining as follows:
6 It appears from the case law that the evidence that the State is
7 attempting to elicit can be admissible in this circumstance. It involves
8 the same victim. It’s during this same time frame. There is relevance
9 with regard to the lewd and lascivious disposition towards the particular
10 victim. It also corroborates the victim’s testimony and gives some
11 context to this behavior.
12 The court also found that Defendant had actual notice of the State’s intention to
13 introduce the evidence.
14 {8} At trial, in addition to providing testimony about the charged acts of CSPM,
15 J.K. testified that, during daylight hours, Defendant would on occasion expose
16 himself to her through an open robe and direct her hand to stroke his penis. These
17 acts were separate and distinct from the charged conduct in this matter. Judy also
18 testified that she once witnessed Defendant standing in a bedroom doorway, wearing
19 only a robe and underwear and facing toward J.K. Finally, J.K.’s adoptive mother,
20 Brenda, testified that J.K. had described to her incidents in which Defendant would
21 have J.K. retrieve candy that he had placed “by his private” while wearing only a
22 robe.
5
1 {9} The jury convicted Defendant of one count of CSPM.3 He timely appealed his
2 conviction to the Court of Appeals on numerous grounds, including that the district
3 court erred by permitting the State to introduce propensity evidence in contravention
4 of Rule 11-404(B).
5 B. The Court of Appeals’ Opinion
6 {10} The Court of Appeals reversed the district court. State v. Marquez, 2021-
7 NMCA-046, ¶ 1, 495 P.3d 1150. First, the Court “reaffirm[ed] that the so-called
8 ‘lewd and lascivious disposition’ exception to the prohibition against propensity
9 evidence is abolished in New Mexico.” Id. The Court observed that criticism of the
10 rationale for the exception was well established in New Mexico law, even in
11 decisions affirming its continued viability. Id. ¶¶ 13-14. The Court reiterated its
12 conclusion from prior caselaw that the continued recognition of the lewd and
13 lascivious exception was “indefensible.” Id. ¶ 15 (internal quotation marks and
14 citation omitted). It rejected the State’s contention that this Court expressed doubt
15 about the rejection of the exception. Id. ¶ 18.
After the State’s case in chief, Defendant moved for a directed verdict on all
3
counts. The State did not object to a directed verdict on counts two, three, and four
because J.K. could not distinguish individual acts. Therefore, only one count of
CSPM was submitted to the jury. In its closing argument the State informed the jury
that Defendant was “charged for the entire course of conduct, not for each individual
time he touched her, because [J.K.] couldn’t distinguish” among them.
6
1 {11} The Court of Appeals then considered, pursuant to the right for any reason
2 doctrine, whether the evidence of prior, uncharged acts was admissible for a purpose
3 other than to prove Defendant’s propensity to commit CSPM. Id. ¶¶ 22-30. Because
4 it determined that intent was immaterial in that Defendant had altogether denied
5 penetrating J.K., the Court concluded that the evidence was not admissible to prove
6 intent. Id. ¶ 25. The Court also rejected the State’s argument that the evidence of
7 prior, uncharged acts was admissible to rebut Defendant’s claim that Judy influenced
8 J.K. to fabricate the accusation against Defendant. Id. ¶ 28. It concluded that the
9 evidence of prior, uncharged acts is not admissible simply because it may, as would
10 be the tendency of any uncharged evidence, corroborate the victim’s testimony. Id.
11 ¶¶ 19, 28.
12 {12} Finally, the Court of Appeals held that the error in admitting the evidence of
13 prior, uncharged acts was not harmless because credibility was a central issue in the
14 case and because of the emphasis that was placed on the “erroneously admitted
15 evidence.” Id. ¶ 34. The Court reversed Defendant’s conviction and remanded to the
16 district court for a new trial. Id. ¶ 36.
17 {13} We granted the State’s petition for writ of certiorari to address two questions:
18 (1) whether the Court of Appeals erred in holding that the evidence of prior,
19 uncharged acts was inadmissible under the lewd and lascivious disposition exception
7
1 to provide context to the victim’s allegations or to rebut Defendant’s claim of
2 fabrication; and (2) whether the Court of Appeals erred in holding that the evidence
3 was inadmissible to prove unlawfulness or intent.4
4 II. DISCUSSION
5 A. Standard of Review
6 {14} We review a district court’s decision to admit evidence of other crimes,
7 wrongs, or bad acts for an abuse of discretion. See State v. Romero, 2019-NMSC-
8 007, ¶ 26, 435 P.3d 1231. “An abuse of discretion occurs when the ruling is clearly
9 against the logic and effect of the facts and circumstances of the case.” State v. Rojo,
10 1999-NMSC-001, ¶ 41, 126 N.M. 438, 971 P.2d 829 (internal quotation marks and
11 citation omitted). “Additionally, a court abuses its discretion if it applies an incorrect
12 standard, incorrect substantive law, or its discretionary decision is premised on a
13 misapprehension of the law.” State v. Sena, 2020-NMSC-011, ¶ 15, 470 P.3d 22714 (internal quotation marks and citation omitted).
The State does not challenge the Court of Appeals’ determination that the
4
error was not harmless.
8
1 B. The Lewd and Lascivious Exception to Rule 11-404(B)(1) Is Abrogated
2 in New Mexico
3 1. Common-law creation of the lewd and lascivious exception
4 {15} At common law, New Mexico courts barred the admission of evidence of
5 prior, uncharged acts to prove a defendant acted in conformity with a propensity to
6 commit a criminal offense. See State v. Nelson, 1959-NMSC-023, ¶ 35, 65 N.M.
7 403, 338 P.2d 301; State v. Velarde, 1960-NMSC-077, ¶¶ 5-6, 67 N.M. 224, 354
8 P.2d 522; State v. Mason, 1968-NMCA-072, ¶¶ 14, 20, 79 N.M. 663, 448 P.2d 175.
9 “[P]ropensity evidence is excluded precisely because its relevance fosters over-
10 reliance upon it; it injects a prejudicial effect into the proceeding that substantially
11 outweighs the benefits of whatever slight, probative value it may have.” State v.
12 Phillips, 2000-NMCA-028, ¶ 21, 128 N.M. 777, 999 P.2d 421. Further, it “creates
13 the unnecessary risk that a jury will convict a defendant on the basis of former
14 behavior and not the conduct charged.” Id. A corollary of this common-law rule was
15 that evidence of prior, uncharged acts offered for a nonpropensity purpose, such as
16 proving the defendant’s intent, motive, absence of mistake or accident, common
17 scheme or plan, or identity, did not violate this prohibition. State v. Bassett, 1921-
18 NMSC-016, ¶ 7, 26 N.M. 476, 194 P. 867; see also State v. Lord, 1938-NMSC-059,
19 ¶ 32, 42 N.M. 638, 84 P.2d 80. In Bassett, this Court observed that, although the
20 admissibility of evidence of prior, uncharged acts for nonpropensity purposes was
9
1 frequently referred to as an “exception” to the rule barring such evidence, it was
2 better characterized as “part of the rule itself” because a defendant should be
3 “convicted, if at all, by evidence which shows that he is guilty of that offense alone.”
4 1921-NMSC-016, ¶ 7.
5 {16} Simultaneously, a true exception to the bar on propensity evidence did arise
6 under common law in cases alleging sexual offenses. In State v. Whitener, this Court
7 held that evidence of prior, uncharged acts of alleged statutory rape against the
8 complaining witness were admissible in the defendant’s trial on a charge of statutory
9 rape. 1918-NMSC-111, ¶ 4, 25 N.M. 20, 175 P. 870. The Whitener Court noted that
10 the rule prohibiting the admission of evidence of an uncharged crime was
11 “unquestioned” but held that the evidence in the case before it was admissible, “not
12 for the purpose of proving a different offense, but to show the relation and familiarity
13 of the parties, and as corroborative of the prosecutrix’s testimony concerning the
14 particular act relied upon for a conviction.” Id. (internal quotation marks and citation
15 omitted).
16 {17} Later, in Minns, our Court of Appeals held broadly that New Mexico’s
17 common-law rule barring evidence of prior, uncharged acts “is inapplicable” in cases
18 alleging sexual misconduct where the uncharged acts constitute “similar sex offenses
19 committed by [the] defendant with the prosecuting witness.” 1969-NMCA-035, ¶
10
1 13. “Such evidence,” the Court concluded, “is admissible as showing a lewd and
2 lascivious disposition of [the] defendant toward the prosecuting witness and as
3 corroborating evidence.” Id. Thus, at common law, evidence of prior, uncharged
4 sexual misconduct was generally admissible against a defendant charged with a
5 sexual offense, subject to relevance and prejudice determinations, as long as the
6 evidence of these acts concerned the same victim as alleged in the charged offense.
7 See State v. Dodson, 1960-NMSC-051, ¶ 12, 67 N.M. 146, 353 P.2d 364 (citing
8 Whitener, 1918-NMSC-111, ¶ 4); cf. Velarde, 1960-NMSC-077, ¶¶ 3-6 (holding that
9 evidence of sexual assault against a separate victim was inadmissible under the rule
10 barring evidence of prior, uncharged acts); Mason, 1968-NMCA-072, ¶¶ 20-25,
11 (same).
12 {18} There can be little doubt that, unlike the “so-called exceptions” for admitting
13 other acts evidence for nonpropensity purposes, Bassett, 1921-NMSC-016, ¶ 7, the
14 lewd and lascivious disposition exception has operated as a bona fide exception to
15 the rule barring propensity evidence. This exception authorizes admissibility of such
16 evidence on the grounds that “[e]vidence of [a] defendant’s past sexual misconduct,
17 similar in nature to the crime of which [the] defendant was indicted, is illustrative of
18 a lewd and lascivious disposition of [the] defendant toward the victim.” State v.
19 Scott, 1991-NMCA-081, ¶ 8, 113 N.M. 525, 828 P.2d 958; see generally Basyle J.
11
1 Tchividjian, Predators & Propensity: The Proper Approach for Determining the
2 Admissibility of Prior Bad Acts Evidence in Child Sexual Abuse Prosecutions, 39
3 Am. J. Crim. L. 327, 337-38 (2012) (stating that, in jurisdictions adopting a lustful
4 disposition exception, “[t]he jury is free to infer from the evidence of the collateral
5 crime evidence that the defendant committed the charged sexual offense”). Were
6 this principle not conceived as an exception to the rule against propensity evidence,
7 it would surely violate the rule. “The purpose of [the rule excluding evidence of
8 prior, uncharged acts] is to exclude the admission of character traits to prove that a
9 defendant acted in accordance with those traits.” State v. Williams, 1994-NMSC-
10 050, ¶ 18, 117 N.M. 551, 874 P.2d 12, overruled on other grounds by State v.
11 Tollardo, 2012-NMSC-008, ¶ 37 & n.6, 275 P.3d 110. Indeed, the word disposition
12 is synonymous with “character.” See id.; disposition, Black’s Law Dictionary (11th
13 ed. 2019).
14 {19} In 1973, New Mexico adopted the Rules of Evidence, NMSA 1953, §§ 20-4-
15 101 to -1102 (1975) (Vol. 4, Repl., 1975 Pocket Supp.), incorporating the prohibition
16 on propensity evidence, § 20-4-404(a) (1975), and its corollary provision, § 20-4-
17 404(b) (1975), that bad acts evidence offered for a nonpropensity purpose is
18 generally admissible. The 2012 amendment of Rule 11-404(B), applicable in this
19 case, provides:
12
1 (1) Prohibited Uses. Evidence of a crime, wrong, or other act is not
2 admissible to prove a person’s character in order to show that on a
3 particular occasion the person acted in accordance with the character.
4 (2) Permitted Uses; notice in a criminal case. This evidence may be
5 admissible for another purpose, such as proving motive, opportunity,
6 intent, preparation, plan, knowledge, identity, absence of mistake, or
7 lack of accident. In a criminal case, the prosecution must
8 (a) provide reasonable notice of the general nature of any such
9 evidence that the prosecutor intends to offer at trial, and
10 (b) do so before trial⸺or during trial if the court, for good cause,
11 excuses lack of pretrial notice.
12 Id. (emphasis added).5 However, the Rules of Evidence contained no mention of the
13 lewd and lascivious disposition exception.6 As a result, whether the exception
14 survived adoption of the Rules of Evidence was left to the consideration of our
15 appellate courts.
5
Reinforcing the 2012 amendment is its immediate successor, the 2022
(current) amendment of Rule 11-404(B), which additionally requires the prosecution
intending to offer permitted-use evidence to “articulate . . . the reasoning that
supports” the permitted use.
6
By contrast, the Federal Rules of Evidence, upon which our Rules of
Evidence were modeled, were amended in 1994 to expressly provide for the
admissibility of evidence of other similar offenses in a sexual offense prosecution.
See Fed. R. Evid. 413; State ex rel. Torrez v. Whitaker, 2018-NMSC-005, ¶ 92, 410
P.3d 201 (noting that the New Mexico Rules of Evidence promulgated in 1973 were
“based almost wholly on the then-proposed Federal Rules of Evidence”).
13
1 {20} In a series of opinions, New Mexico appellate courts repeatedly affirmed the
2 continued viability of the lewd and lascivious disposition exception, relying upon
3 the authority of Minns. See State v. Mankiller, 1986-NMCA-053, ¶ 33, 104 N.M.
4 461, 722 P.2d 1183; Scott, 1991-NMCA-081, ¶ 8; State v. Delgado, 1991-NMCA-
5 064, ¶ 23, 112 N.M. 335, 815 P.2d 631. In line with the limitation observed in the
6 common-law exception, the Court in State v. Lucero declined to apply the lewd and
7 lascivious disposition exception to cases involving victims other than the
8 complaining witness. See 1992-NMCA-107, ¶ 13, 114 N.M. 489, 840 P.2d 1255.
9 2. Movement away from the lewd and lascivious exception
10 {21} Over time, however, many courts and legal scholars began to call into question
11 the empirical bases purporting to justify the lewd and lascivious disposition
12 exception. Edward J. Imwinkelried, Uncharged Misconduct Evidence, § 4:16
13 (1984).7 Additionally, our appellate courts began to express a growing skepticism
The rationale for making an exception to the propensity evidence rule in the
7
case of sexual misconduct rested on two assumptions: (1) that sexual offenses are
especially difficult to detect and (2) that sexual offenders are especially likely to
reoffend. See Imwinkelried, supra § 4:16. Out of concern about detection, courts
authorized the evidence to provide corroboration for the testimony of the
complaining witness and to provide “context” for the alleged offense. See Whitener,
1918-NMSC-111, ¶ 4 (corroboration); State v. Landers, 1992-NMCA-131, ¶ 23, 115
N.M. 514, 853 P.2d 1270 (endorsing the view that, where a sexual offense is alleged
against a member of a defendant’s household, evidence of prior, uncharged sexual
offenses against the victim may be necessary to explain “a seemingly isolated
incident” that would otherwise seem “incredible” (internal quotation marks and
14
1 about its continued viability. Lucero, 1992-NMCA-107, ¶ 15; Williams, 1994-
2 NMSC-050, ¶ 36 (Montgomery, J., concurring) (agreeing with the Lucero Court’s
3 characterization of “evidence of a lewd and lascivious disposition as nothing more
4 than a euphemism for character evidence” (internal quotation marks and citation
5 omitted)).
6 {22} In Lucero, the Court of Appeals considered the continued viability of the
7 exception in light of this emergent trend. 1992-NMCA-107, ¶¶ 11-15. The defendant
8 in Lucero challenged the district court’s admission of evidence that his girlfriend
9 had refused to engage in oral and anal sex with him in a case alleging that he had
10 committed sexual offenses against a minor child. Id. ¶¶ 1, 6-7. The Court recognized
11 that “[s]ince the adoption of the Rules of Evidence in 1973, New Mexico courts have
12 continued to recognize that proof of sexual conduct involving the same victim may
citation omitted)). But see, State v. Kerby (Kerby I), 2005-NMCA-106, ¶ 29, 138
N.M. 232, 118 P.3d 740 (disavowing the “distinction between evidence of a lewd
and lascivious disposition toward the prosecuting witness . . . and . . . toward other
victims”). The belief that recidivism among sexual offenders is especially high acted
as a counterweight to the common-law principle that character evidence should be
excluded because it is not particularly probative of whether a defendant committed
the charged offense. Lucero, 1992-NMCA-107, ¶¶ 9, 11, 15. Both assumptions have
been questioned by courts and legal scholars. Imwinkelried, supra, § 4:16 (noting
that critics of the exception have observed that “many crimes are usually committed
in a clandestine fashion” and that “most recent research largely discredits the old
medical literature sanctioning the lay belief” that the rate of recidivism among sex
offenders is especially high).
15
1 be admitted.” Id. ¶ 13. Citing scholarship criticizing courts’ reliance upon “debatable
2 assumptions about recidivism and problematic psychiatric theories,” id. ¶ 11
3 (internal quotation marks and citation omitted), the Court then expressed skepticism
4 about the exception’s viability in light of New Mexico’s enactment of Rule 11-
5 404(B):
6 Legal scholars have criticized this trend [of admitting such evidence]
7 and have, we believe correctly, pointed out that the “lewd disposition”
8 exception is nothing more than a euphemism for the character evidence
9 which Federal Rule of Evidence 404(b) and its state counterparts are
10 designed to exclude.
11 Lucero, 1992-NMCA-107, ¶ 11 (citation omitted). However, the Lucero Court was
12 ultimately not tasked with determining whether the exception survived adoption of
13 the Rules of Evidence because the evidence at issue concerned the behavior of the
14 defendant toward someone other than the alleged victim. Id. ¶¶ 12-13.
15 {23} In State v. Landers, the Court of Appeals directly addressed whether the lewd
16 and lascivious disposition exception conflicted with Rule 11-404(B)’s bar on
17 propensity evidence. 1992-NMCA-131, ¶¶ 22-25, 115 N.M. 514, 853 P.2d 1270.
18 Although the Court recognized that the exception was not codified in New Mexico’s
19 Rules of Evidence, it determined that its purpose was not “inconsistent with the
20 intent of the express exceptions contained in Rule 11-404(B).” Id. ¶¶ 22, 24. The
21 Court reaffirmed that, while the exception might “be understood to describe
16
1 ‘propensity,’” it was nonetheless justified under the rule because evidence of prior,
2 uncharged sexual offenses “can directly bolster the complaining witness’s testimony
3 by providing significant corroboration” and “plac[ing] the charged acts in context.”
4 Id. ¶¶ 23-25.
5 {24} The holding in Landers was applied in State v. Casaus, 1996-NMCA-031, ¶¶
6 26-27, 121 N.M. 481, 913 P.2d 669, the primary authority relied upon by the State
7 in arguing before the district court for the admission of the evidence of prior,
8 uncharged sexual misconduct at issue here. The Casaus Court echoed the Landers
9 Court’s conclusion that because “[t]he prior bad acts [evidence] . . . indicated
10 Defendant’s lewd and lascivious disposition toward the victim and placed the
11 criminal charge in context,” it was admissible. Casaus, 1996-NMCA-031, ¶ 27.
12 3. Rejection of the lewd and lascivious exception
13 {25} Nine years later, the Court of Appeals rejected this line of authority and
14 disavowed the lewd and lascivious disposition exception. See State v. Kerby (Kerby
15 I), 2005-NMCA-106, ¶ 29, 138 N.M. 232, 118 P.3d 740. The defendant in Kerby I
16 was charged with criminal sexual contact of a minor, based on allegations that he
17 had touched the buttocks and vulva of the six-year old child of his then-wife. Id. ¶¶
18 4, 6. Testifying for the defense, the defendant’s mother stated that when she asked
19 the defendant about the accusations by the alleged victim, the defendant denied
17
1 improperly touching her, stating that “all he had done was pat [the v]ictim
2 goodnight.” Id. ¶ 9. On rebuttal, the State elicited testimony about a peephole in a
3 small compartment in the master bedroom, through which it was possible to observe
4 the victim as she bathed. Id. ¶¶ 10-15. The defendant’s then-wife testified that she
5 had seen the defendant in the compartment while her fourteen-year-old sister was in
6 the bathroom. Id. ¶¶ 12-15.
7 {26} On appeal of his conviction, the defendant argued that the peephole evidence
8 was improperly admitted. Id. ¶ 20. The Court of Appeals agreed, concluding that
9 “the peephole was relevant to the issue of sexual gratification precisely because it
10 allowed the jury to infer that sexual attraction to young female children was a trait
11 of [the d]efendant’s character.” Id. ¶ 28. While it recognized that the Landers Court
12 had previously affirmed the admissibility of evidence of prior sexual offenses
13 against the complaining witness, the Court concluded that it had embraced an
14 “‘indefensible’ distinction” drawn by previous courts between evidence
15 demonstrating a lewd and lascivious disposition toward the complainant and
16 evidence of such a disposition toward other victims. Id. ¶ 29 (citation omitted). It
17 determined that this common-law exception, grounded in questionable assumptions,
18 id. ¶ 27, was irreconcilable with the clear language of Rule 11-404(B):
19 Nothing in the express language of Rule 11-404 mandates the
20 perpetuation of a common-law exception to the general proscription of
18
1 propensity evidence; to the contrary, the lewd and lascivious
2 disposition exception appears to flatly contradict the general
3 proscription of propensity evidence found in Rule 11-404(A) and
4 repeated in the first sentence of Rule 11-404(B).
5 Kerby I, 2005-NMCA-106, ¶ 28. The Court then “disavow[ed] Landers,” holding
6 that the lewd and lascivious disposition exception, even if restricted to other acts
7 committed against the complaining witness, “is nothing more than a euphemism for
8 the propensity evidence that Rule 11-404 was designed to exclude.” Id. ¶ 29.
9 {27} We agree. Whether applied to conduct perpetrated against the complaining
10 witness or someone else, the lewd and lascivious exception authorizes the
11 admissibility of evidence for the express purpose of demonstrating a defendant’s
12 propensity to commit the charged offense. And this is plainly prohibited under a
13 modern understanding of Rule 11-404(B)(1). Nor does the emphasis placed by prior
14 courts on “corroboration” or “context” alter this analysis. See Whitener, 1918-
15 NMSC-111, ¶¶ 4, 8 (“corroboration”); Landers, 1992-NMCA-131, ¶¶ 23, 25
16 (“corroboration” and “context”). While evidence of other bad acts, committed
17 against the complaining witness or against others, may only corroborate the
18 testimony of a complaining witness or overcome a presumption that an allegation of
19 sexual abuse is inexplicable, such evidence invites precisely the inferential leap that
20 Rule 11-404(B)(1) proscribes. See Marquez, 2021-NMCA-046, ¶ 19.
19
1 {28} The State contends that, in State v. Kerby, (Kerby II), 2007-NMSC-014, 141
2 N.M. 413, 156 P.3d 704, this Court overruled the Court of Appeals’ rejection of the
3 lewd and lascivious disposition exception. We disagree. We vacated the defendant’s
4 convictions based on the statute of limitations in Kerby II, 2007-NMSC-014, ¶ 3.
5 Although our holding was dispositive, we wrote that we additionally were
6 “compelled to address briefly the admissibility of the peephole evidence under Rule
7 11-404(B).” Id. ¶ 25. Considering the peephole evidence in light of testimony
8 provided at trial by the defendant’s mother that the defendant claimed that any
9 contact with the victim was akin to “a fatherly pat on the bottom,” we determined
10 that the peephole evidence would be probative of the defendant’s sexual intent. Id.
11 ¶ 26; see also Rule 11-404(B)(2) (allowing that evidence of prior, uncharged acts
12 “may be admissible for another purpose, such as proving . . . intent”). “Thus,” we
13 concluded that “evidence of the peephole is precisely the type of non-propensity
14 evidence that Rule 11-404(B) allows.” Kerby II, 2007-NMSC-014, ¶ 26 (emphasis
15 added).
16 {29} Our conclusion in Kerby II on the challenged peephole evidence was limited
17 to the Court of Appeals’ determination in Kerby I that the peephole evidence was
18 not otherwise admissible under Rule 11-404(B) to prove unlawful intent. Kerby II,
19 2007-NMSC-014, ¶ 26. Our analysis proceeded solely under the statutory provision
20
1 establishing permissible uses for evidence of prior, uncharged acts, Rule 11-
2 404(B)(2); we left undisturbed the Court of Appeals’ rejection of the lewd and
3 lascivious disposition exception to Rule 11-404(B)(1). Id. ¶¶ 25-26.
4 {30} We now address the exception directly and hold that the lewd and lascivious
5 disposition exception to the prohibition on evidence of prior, uncharged acts is
6 abrogated in New Mexico. We therefore affirm the Court of Appeals’ determination
7 that the trial court erred in admitting the uncharged misconduct evidence in this case
8 under that exception. Marquez, 2021-NMCA-046, ¶¶ 1, 21.
9 C. Whether the Evidence of Uncharged Conduct Is Admissible for a
10 Nonpropensity Purpose Is a Question for the District Court on Remand
11 {31} The State next asks us to conclude that the evidence at issue was otherwise
12 admissible under Rule 11-404(B)(2) to prove a nonpropensity purpose. Because the
13 district court admitted the evidence at issue under the lewd and lascivious disposition
14 exception and did not otherwise address admissibility under Rule 11-404(B)(2), the
15 State essentially asks us to affirm the district court pursuant to the right for any
16 reason doctrine. See State v. Ruiz, 2007-NMCA-014, ¶ 38, 141 N.M. 53, 150 P.3d
17 1003 (“acknowledg[ing] that the district court appear[ed] to have admitted the
18 statements on a different legal theory” than the Court of Appeals held to be
19 admissible but noting the general rule that the Court “will uphold the decision of a
20 district court if it is right for any reason”). Defendant argues that it would be unfair
21
1 to apply the doctrine in this case because, after the evidence was admitted under the
2 exception, “the jury was told to rely on this evidence for improper purposes in
3 closing arguments.”
4 {32} An appellate court may affirm a district court’s decision if it is right for any
5 reason. State v. Wilson, 1998-NMCA-084, ¶ 17, 125 N.M. 390, 962 P.2d 636.
6 However, we will affirm the district court as right for any reason only “so long as
7 the circumstances do not make it unfair to the appellant to affirm.” State v. Serna,
8 2018-NMCA-074, ¶ 29, 429 P.3d 1283 (internal quotation marks and citation
9 omitted). “[I]t would be unfair to an appellant to affirm on a fact-dependent ground
10 not raised below” because it is improper for an appellate court to engage in fact-
11 finding and “because the appellant [would have] lacked an opportunity to present
12 admissible evidence relating to the fact.” State v. Franks, 1994-NMCA-097, ¶ 8, 119
13 N.M. 174, 889 P.2d 209. Accordingly, “[a]ppellate courts usually apply the right for
14 any reason basis of affirmance to strictly legal questions.” Wilson, 1998-NMCA-
15 084, ¶ 17. Moreover, it is improper for an appellate court to apply the doctrine to
16 unpreserved arguments where the party opposing its application “had no opportunity
17 in the district court to respond to the unasserted argument.” Freeman v. Fairchild,
18 2015-NMCA-001, ¶ 29, 340 P.3d 610, rev’d on other grounds, 2018-NMSC-023, ¶¶
19 29, 36, 416 P.3d 264.
22
1 {33} In this case, the State filed a Rule 11-404(B) notice of its intention to introduce
2 evidence of prior, uncharged acts by Defendant, but the State’s notice was unrelated
3 to the evidence at issue in this case and instead solely concerned allegations against
4 a child other than J.K. As we have explained, evidence concerning a different victim
5 could not have been admitted pursuant to the lewd and lascivious disposition
6 exception under any interpretation of New Mexico law. As a result, the State failed
7 to apprise either the district court or Defendant that the State might seek to invoke
8 the exception at trial. Although the district court found that Defendant had actual
9 notice of the allegations of uncharged misconduct against J.K. through pretrial
10 interviews, “[d]isclosing the information in discovery rather than in response to the
11 specific rule misses the point of the rule, which is to inform the defendant of crimes
12 the state intends to introduce and to allow the defendant time to respond by motion
13 in limine or otherwise.” State v. Acosta, 2016-NMCA-003, ¶ 19, 363 P.3d 1240 (text
14 only) (citation omitted). 8
15 {34} Moreover, even if Defendant was on actual notice that there were other
16 allegations of his prior, uncharged acts directed against J.K., the State’s failure to
8
The “text only” parenthetical used herein indicates the omission of any of the
following—internal quotation marks, ellipses, and brackets—that are present in the
text of the quoted source, leaving the quoted text itself otherwise unchanged.
23
1 provide notice pursuant to Rule 11-404(B)(2) would have suggested to Defendant
2 that the State would not seek to introduce that evidence at trial. See State v. Gomez,
3 2003-NMSC-012, ¶ 7, 133 N.M. 763, 70 P.3d 753 (declining to apply the right for
4 any reason doctrine where failure of appellant to raise the issue at trial was the result
5 of its introduction on a dispositive motion). The lack of pretrial notice also meant
6 that the State failed to offer any authority for its position that the evidence was
7 admissible until the second day of trial, essentially ambushing Defendant and the
8 district court. “Courts have long recognized the dangers of unfair surprise associated
9 with prior bad acts evidence” because the provision of notice under Rule 11-404(B)
10 “facilitates intelligent objection and argument, provides greater opportunity for
11 thoughtful rulings that address all legitimate considerations and concerns, and tailors
12 the evidence presented to the specific circumstances.” Acosta, 2016-NMCA-003, ¶
13 21.
14 {35} In addition to the State’s failure to provide notice, the posture of the issue as
15 it was developed in the district court counsels against application of the right for any
16 reason doctrine in this case. At trial, when the State first indicated that it intended to
17 introduce evidence of Defendant’s prior, uncharged acts directed against J.K., the
18 State described the uncharged acts as “all part of the same course of conduct, the
19 same series of bad acts, and the same time frame with the same victim.” The State’s
24
1 argument before the district court was that “lewd and lascivious conduct with the
2 same victim is admissible under 404(B), if . . . it shows an ongoing pattern of
3 behavior with that victim.” The State also contended (apparently arguing in the
4 alternative) that the evidence did not constitute “other acts” evidence under Rule 11-
5 404(B) and was instead generally admissible as “relevant evidence” under Rule 11-
6 401 NMRA and Rule 11-402 NMRA. At no time in its argument before the district
7 court did the State allege that the uncharged acts were being introduced to prove a
8 nonpropensity purpose, such as intent or absence of mistake. See Rule 11-404(B)(2).
9 Consequently, neither the State nor Defendant had occasion to develop a factual or
10 legal argument concerning Defendant’s intent, and the district court was not tasked
11 with adjudicating the facts or law bearing on this issue. Where, as here, critical facts
12 that bear on admissibility (such as whether Defendant had ever touched the victim’s
13 vulva) are contested on appeal despite the district court having had no occasion to
14 adjudicate those facts, and where an evidentiary ruling on such facts may have
15 shaped arguments and evidence at trial, it is improper for an appellate court to affirm
16 the district court on unpreserved grounds. See State v. Sanchez, 2001-NMCA-060, ¶
17 12, 130 N.M. 602, 28 P.3d 1143 (declining to apply the right for any reason doctrine
18 where the trial court’s ruling required a determination on a disputed factual issue);
19 see also Franks, 1994-NMCA-097, ¶ 8 (declining to affirm a suppression order on
25
1 fact-dependent grounds); Freeman, 2015-NMCA-001, ¶ 29 (declining to affirm
2 under the right for any reason doctrine where the facts extend beyond those raised
3 in the district court).
4 {36} We conclude that it would be unfair to Defendant to apply the right for any
5 reason doctrine in this case. We remand to the district court for a determination of
6 whether the evidence of uncharged misconduct by Defendant is admissible at trial
7 pursuant to the current Rule 11-404(B)9 and subject to the relevancy and prejudice
8 considerations of Rule 11-403 NMRA.
9 III. CONCLUSION
10 {37} We hold that the lewd and lascivious disposition exception to Rule 11-
11 404(B)(1) has been abrogated in New Mexico. Because the district court relied upon
12 this exception in admitting evidence of other bad acts against Defendant and the
13 error was not harmless, we vacate Defendant’s convictions and remand the matter
14 to the district court. Should the State elect to retry Defendant on these charges, the
15 evidence at issue may not be admitted against him unless the district court first
While Article IV, Section 34 of the New Mexico Constitution provides that
9
“[n]o act of the legislature shall affect the right or remedy of either party, or change
the rules of evidence or procedure, in any pending case,” we have clarified that
“Article IV, Section 34 of the New Mexico State Constitution does not apply to rule
changes implemented by this Court.” State v. Martinez, ¶ 11, 2011-NMSC-010, 149
N.M. 370, 249 P.3d 82.
26
1 determines that it is admissible under the 2022 amendment of Rule 11-404(B) for a
2 nonpropensity purpose and otherwise meets the requirements of Rule 11-403.
3 {38} IT IS SO ORDERED.
4
5 C. SHANNON BACON, Chief Justice
6 WE CONCUR:
7
8 MICHAEL E. VIGIL, Justice
9
10 DAVID K. THOMSON, Justice
11
12 EMILIO J. CHAVEZ, Judge
27