State v. Bailey, 386 P.3d 1007

Victim (a child) lived with her father, Jason Bailey, and alleged three separate incidents of sexual contact while in his custody; charges arose from two Albuquerque incidents (charged) and one Rio Rancho incident (Sandoval County, uncharged).
The charged acts involved touching/applying ointment to Victim’s genitals (masturbation incident and shower incident); the Sandoval incident involved digital penetration and application of ointment while Victim was clothed.
Bailey was indicted on multiple felony counts; after a first trial (directed verdict on some counts; hung jury on others), he was retried and convicted of second-degree criminal sexual contact (a lesser-included offense of penetration).
Before trial the State sought to admit evidence of the uncharged Sandoval County incident under Rule 11-404(B)(2); the district court initially excluded it but reserved reconsideration if the defense “opened the door.”
During the second trial the defense focused solely on lack of unlawful sexual intent (arguing parental/medical explanations and presenting a psychologist). Cross-examination produced testimony where Victim conflated incidents, and the court then admitted the Sandoval incident under Rule 11-404(B)(2) to prove intent.
The New Mexico Supreme Court affirmed, holding the other-act evidence was admissible to prove specific unlawful intent and not unduly prejudicial under Rule 11-403.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Admissibility of other-act (Sandoval) evidence under Rule 11-404(B)(2)	Evidence shows intent (rebuts claim that contact was parental/medical); relevant to charged incidents involving same victim	Admission impermissibly relies on propensity inference (character evidence) and should be excluded under Rule 11-404(B)(1)	Admissible: other-act evidence directed to the same victim and bearing on the defendant’s specific unlawful intent is allowed under Rule 11-404(B)(2)
Whether Rule 11-403 required exclusion for unfair prejudice	Probative value of showing intent outweighs prejudicial effect; necessary to address inconsistent testimony and rebut defense theory	Evidence of child molestation is inherently prejudicial and mid-trial admission caused unfair surprise and prejudice	No abuse of discretion: probative value was high given intent was sole issue; prejudice did not substantially outweigh probative value; defendant was not unfairly surprised

State v. Otto, 141 N.M. 443, 157 P.3d 8 (N.M. 2007) (discusses inclusionary view of Rule 11-404(B) and balancing under Rule 11-403)
Old Chief v. United States, 519 U.S. 172 (U.S. 1997) (evidence with dual legitimate and illegitimate uses must be evaluated for admissibility under balancing principles)
State v. Sena, 144 N.M. 179, 185 P.3d 636 (N.M. 2008) (other-act/grooming evidence admissible to show specific unlawful intent, not propensity)
State v. Gallegos, 141 N.M. 185, 152 P.3d 828 (N.M. 2007) (even relevant other-act evidence will be excluded if probative value is substantially outweighed by Rule 11-403 factors)
State v. Martinez, 145 N.M. 220, 195 P.3d 1232 (N.M. 2008) (explains policy reasons for Rule 404 restrictions on propensity evidence)
State v. Torrez, 146 N.M. 331, 210 P.3d 228 (N.M. 2009) (appellate review of trial court’s Rule 11-403 determinations is deferential but not automatic)
State v. Apodaca, 118 N.M. 762, 887 P.2d 756 (N.M. 1994) (defines abuse-of-discretion standard for evidentiary rulings)