State v. Bailey, 386 P.3d 1007

Victim, a minor, lived with her father, Jason Bailey; she later reported three incidents of sexual contact by Bailey while in his custody at different residences.
Bailey was indicted on multiple felony counts; after a first trial (directed verdicts and a hung jury) he was retried and convicted of second-degree criminal sexual contact of a minor.
One alleged incident occurred in Sandoval County (uncharged there); two charged incidents occurred in Bernalillo County (the masturbation/ointment incident and a shower incident).
Before trial the State sought to admit evidence of the uncharged Sandoval County incident under Rule 11-404(B)(2) to show intent; the district court initially denied admission but allowed reconsideration if the defense "opened the door."
During the second trial defense strategy conceded intent was at issue and emphasized that the child misinterpreted parental or hygienic conduct; cross-examination produced testimony confusing the Sandoval incident with a Bernalillo incident, and the court then admitted the Sandoval evidence as probative of Bailey’s specific unlawful intent.
The New Mexico Supreme Court affirmed, holding the other-act evidence was admissible to show intent and was not unduly prejudicial under Rule 11-403.

Issue	State's Argument	Bailey's Argument	Held
Admissibility of uncharged Sandoval incident under Rule 11-404(B)(2)	Evidence of the uncharged act is admissible to rebut Bailey’s claim that contacts were parental/medical and to prove specific unlawful intent	The Sandoval incident only shows propensity and is barred by Rule 11-404(B)(1)	Admissible: where defendant contests intent and other-act evidence against same victim bears on defendant’s specific unlawful intent, Rule 11-404(B)(2) permits admission
Whether admission was unduly prejudicial under Rule 11-403	Probative value (disambiguating victim’s confused testimony and rebutting defense theory) outweighs prejudice	Admission was inherently prejudicial and was a mid-trial surprise causing unfair prejudice	Not unduly prejudicial: court did not abuse discretion given high probative value and defendant’s prior notice/opening of the issue

State v. Otto, 141 N.M. 443, 157 P.3d 8 (N.M. 2007) (other-act evidence of similar sexual acts with same victim admissible to prove intent and absence of mistake)
State v. Martinez, 145 N.M. 220, 195 P.3d 1232 (N.M. 2008) (policy rationale for Rule 404 exclusion: probative relevance vs. substantial prejudicial effect)
State v. Gallegos, 141 N.M. 185, 152 P.3d 828 (N.M. 2007) (even relevant other-acts evidence inadmissible if probative value is substantially outweighed by Rule 11-403 factors)
State v. Stanley, 131 N.M. 368, 37 P.3d 85 (N.M. 2001) (definition and scope of "unfair prejudice" under Rule 11-403)
Old Chief v. United States, 519 U.S. 172 (U.S. 1997) (when evidence has dual nature—legitimate on an element and illegitimate as character evidence—admissibility turns on Rule 403 balancing)
United States v. Beechum, 582 F.2d 898 (5th Cir. 1978) (probative value assessment considers overall similarity of extrinsic and charged offenses)