State v. Bailey, 357 P.3d 423

Defendant Jason Bailey was retried on sexual-offense charges based on two incidents in Bernalillo County alleged by his daughter (Child); one involved ointment applied to Child’s vagina after a shower, the other involved rubbing in a shared shower.
Between those Bernalillo periods the family lived in Sandoval County; Child reported an additional uncharged Sandoval County incident in which Defendant allegedly applied ointment while Child wore pajamas.
The State moved pretrial to admit the Sandoval County incident under Rule 11-404(B)(2) to prove intent; the district court initially denied the motion as overly prejudicial under Rule 11-403.
On retrial, a cross-examination exchange conflated details from the excluded Sandoval incident with the charged Bernalillo incident; after voir dire the court reversed and admitted limited testimony about the Sandoval incident for intent, with a limiting instruction.
The jury convicted Bailey of one count of criminal sexual contact of a minor (based on the shower incident); Bailey appealed, arguing improper admission of uncharged-act evidence (Rules 11-404(B) and 11-403) and that an expert (Dr. Ornelas) testified beyond her expertise, warranting mistrial.

Issue	State's Argument	Bailey's Argument	Held
Admission of Sandoval (uncharged) act under Rule 11-404(B)	Evidence was admissible to prove Defendant’s intent (a material element) and rebut defense that contacts were nonsexual/parental.	Admission was improper propensity evidence; prior New Mexico cases disallow similar "bad acts" evidence when purpose is propensity.	Affirmed: court did not abuse discretion—Sandoval incident was relevant to intent and admissible under Rule 11-404(B)(2).
Exclusion under Rule 11-403 (prejudice vs. probative)	Probative value of showing non-parental sexual intent outweighed prejudicial effect; limiting instruction would mitigate risk.	Prior-abuse/child-molestation evidence is highly prejudicial and midtrial reversal unfairly surprised and prejudiced defense.	Affirmed: court balanced factors and did not abuse discretion; probative value not substantially outweighed by unfair prejudice.
Expert testimony (Dr. Ornelas) and mistrial motion	Testimony was within scope of child-sexual-abuse expertise and consistent with questioning; any error was harmless.	Expert improperly opined about what a parent would do for a nine-year-old (beyond expertise); comment required mistrial or curative instruction.	Affirmed: even if testimony erred, conviction (for a different incident not involving ointment) was unaffected; any error was harmless.

State v. Otto, 141 N.M. 443, 157 P.3d 8 (N.M. 2007) (other-acts evidence admissible to show intent vs. accident when intent is at issue)
State v. Lovett, 286 P.3d 265 (N.M. 2012) (limits on admitting other acts via joinder when evidence is solely propensity-based)
State v. Gallegos, 141 N.M. 185, 152 P.3d 828 (N.M. 2007) (other-acts evidence inadmissible when only probative of propensity)
State v. Ruiz, 131 N.M. 241, 34 P.3d 630 (N.M. Ct. App. 2001) (joinder issues and inadmissibility of other-acts when intent not at issue)
Old Chief v. United States, 519 U.S. 172 (U.S. 1997) (when evidence has dual nature, admissibility depends on permissible purpose and Rule 403 balancing)
State v. Sena, 144 N.M. 821, 192 P.3d 1198 (N.M. 2008) (other-acts admissible to counter defense that defendant lacked sexual intent)
State v. Kerby, 141 N.M. 413, 156 P.3d 704 (N.M. 2007) (other-acts evidence admissible where defendant injects intent issue in testimony)