Hubbard v. State, 422 P.3d 1260

Background

Appellant Cory Hubbard was tried for burglary with a firearm, conspiracy, seven robberies with a deadly weapon, assault, and discharge of a firearm; the State sought to admit Hubbard's 2012 Washington residential burglary conviction under NRS 48.045(2).
The district court allowed the prior-bad-act testimony (victim Kimberly Davis) for intent and absence of mistake, and gave a limiting instruction that it could not be used to show propensity.
Hubbard's defense was that he was not present at the robbery and was shot in an unrelated incident; only one witness (KJ) tentatively identified Hubbard as an assailant and no DNA or fingerprints tied him to the scene.
The jury convicted Hubbard; he received habitual-offender life terms; the court of appeals reversed the convictions based on improper admission of the prior-bad-act evidence.
The Nevada Supreme Court granted review to decide whether the defense must first place intent or absence of mistake at issue before the State may admit prior-act evidence to prove those matters.

Issues

Issue	Plaintiff's Argument (State)	Defendant's Argument (Hubbard)	Held
Whether intent is "at issue" for specific-intent crimes so that other-act evidence may be admitted without the defense first raising intent	Intent is an element of specific-intent crimes and is therefore automatically at issue; prior acts may be used to prove intent	Every crime has intent but the prosecution cannot admit prior acts to prove intent unless the defense actually places intent/mistake in issue; Hubbard denied presence so intent wasn't contested	Court: For specific-intent crimes intent is an element and may be probative without the defense first placing it at issue, but evidence must still be relevant and not unduly prejudicial
Whether Hubbard's 2012 burglary was relevant to his intent for the 2013 burglary/robbery	The prior burglary shows similar criminal intent and rebuts Hubbard's claim he was an unrelated shooting victim	The prior burglary differed materially and was irrelevant because Hubbard denied being present; admission was propensity-based	Court: The prior act had little relevance to intent here because the perpetrators’ conduct at the scene already made intent obvious; probative value was minimal and outweighed by unfair prejudice
Whether the prior act was admissible to prove absence of mistake/accident	The State: prior burglary shows absence of mistake and rebuts claim Hubbard was an innocent victim of an unrelated shooting	Hubbard: mistake/accident was not raised; he denied presence, so absence of mistake was not a material contested issue	Court: Absence-of-mistake exception did not legitimately apply where defendant denied involvement; prior act was effectively used for propensity and was inadmissible
Harmless-error: even if admission was erroneous, was error harmless?	State: error harmless because prior conviction could be used for impeachment and evidence of guilt was overwhelming	Hubbard: admission was highly prejudicial; impeachment use is different and less prejudicial; error likely affected the verdict	Court: Error was not harmless—impeachment is distinct from substantive use, evidence was not overwhelming, reversal and remand required

Key Cases Cited

Ledbetter v. State, 122 Nev. 252 (presumption of inadmissibility for prior-bad-act evidence)
Newman v. State, 129 Nev. 222 (identifying a nonpropensity purpose is a necessary first step under NRS 48.045)
Ford v. State, 122 Nev. 796 (upholding admission of multiple prior burglaries to prove intent/absence of mistake in certain circumstances)
Rosky v. State, 121 Nev. 184 (discussing prior-bad-act evidence standards)
Estelle v. McGuire, 502 U.S. 62 (prosecution must prove every element; prior acts may be probative of essential elements)
Old Chief v. United States, 519 U.S. 172 (propensity evidence of prior convictions carries a strong risk of unfair prejudice)
United States v. Gomez, 763 F.3d 845 (for specific-intent crimes intent is an element and other-act evidence may be offered to prove it, but not automatically admissible)
Kotteakos v. United States, 328 U.S. 750 (standard for nonconstitutional harmless-error review)