OPINION
{1} Having granted the parties’ motions for rehearing, we withdraw our opinion filed on February 1, 2007 and substitute the following in its place.
{2} Arguing that the trial court abused its discretion when it denied his motion to sever charges related to two victims, Defendant Leonardo Gallegos appeals his convictions of one count of criminal sexual contact of a minor (“CSCM”) and two counts of aggravated indecent exposure. The Court of Appeals reversed Gallegos’s convictions after determining that Gallegos was prejudiced by the trial court’s denial of his motion to sever. State v. Gallegos,
{3} We conclude that, because the evidence would not have been cross-admissible at separate trials, the trial court abused its discretion in failing to sever the charges. Nonetheless, we reverse the Court of Appeals’s reversal of Gallegos’s two convictions of aggravated indecent exposure. We do so because we do not believe that, under the circumstances, the jury misused the CSCM evidence to convict Gallegos of indecent exposure. At the same time, however, we affirm the Court of Appeals’s reversal of Gallegos’s conviction of CSCM. Under the circumstances of this case, we are not confident the jury did not misuse the evidence pertaining to another victim to convict Gallegos of CSCM.
I. BACKGROUND
{4} Gallegos went to trial on a single indictment charging twelve counts stemming from incidents that occurred while he was a guard at the Youth Diagnostic and Detention Center (‘YDDC”). In seven of those counts, the State alleged that Gallegos used his position of authority to commit CSCM against a female YDDC resident, Jamie S. At trial, Jamie S. testified that her encounters with Gallegos were consensual, that Gallegos did not use his authority to coerce her, and that out of the seven alleged incidents she only objected once-when Gallegos placed her hand on his penis. Because of this, the trial court granted Gallegos’s motion for a directed verdict on six of the seven counts pertaining to Jamie S. Gallegos was convicted of the remaining count of CSCM.
{5} The other five counts pertained to incidents involving Ursula C., another female YDDC resident. Gallegos was charged with three counts of aggravated indecent exposure for allegedly exposing himself and masturbating in front of Ursula C. while she was housed in a solitary observation room. At the time of the incidents, Gallegos was in a control room separated from Ursula C. by a glass window. Gallegos was also charged with two counts of contributing to the delinquency of a minor for allegedly asking Ursula C. to disrobe on two different occasions.
{6} The trial court dismissed one of the contributing to the delinquency counts because only one was supported by the evidence adduced at trial. Gallegos was ultimately convicted of two of the three indecent exposure counts submitted to the jury, but acquitted of the remaining contributing to the delinquency count. The trial court consecutively sentenced Gallegos for a total of six years of incarceration — three years for CSCM and eighteen months each for the two indecent exposure convictions — conditionally suspended on five years of supervised probation.
{7} Before trial, Gallegos filed a motion to sever the counts pertaining to Jamie S. and Ursula C. Gallegos’s main argument to the trial court was that prejudice would result from a joint trial of the offenses because evidence pertaining to each victim would not be cross-admissible as “other crimes” if the trials were held separately. The State responded that no prejudice would result because evidence pertaining to each victim would be cross-admissible at separate trials to help the jury in each trial “understand the defendant’s motive, intent, preparation, plan, and identity.” Concluding that the evidence pertaining to both victims would be cross-admissible at separate trials, the trial court denied the motion. The trial court based its ruling on its belief that Gallegos used his position as a guard at YDDC as an opportunity to prey on girls for sexual purposes. Thus, according to the trial court, evidence pertaining to each victim would be cross-admissible at separate trials to show Gallegos’s “continuing scheme or plan” under Rule 11-404(B) NMRA.
{8} The Court of Appeals reversed Gallegos’s convictions and remanded for two new trials. Gallegos,
II. DISCUSSION
A. Even Though Offenses Are Properly Joined, A Trial Court Abuses Its Discretion in Failing to Sever When the Defendant Is Prejudiced at the Time the Motion Is Made
{9} In its brief-in-chief, the State appears to argue that the trial court did not abuse its discretion in rejecting Gallegos’s motion to sever because joinder of the offenses was proper. We agree that joinder was proper as an initial matter. However, this does not alter the fact that a trial court may abuse its discretion in failing to sever charges. The issue of joinder is not so inextricably linked with the issue of severance such that a prosecutor’s proper exercise of the former means that a court never abuses its discretion when it refuses to exercise the latter.
{10} Regarding joinder of offenses, our rules provide:
Two or more offenses shall be joined in one complaint, indictment or information with each offense stated in a separate count, if the offenses, whether felonies or misdemeanors or both:
(1) are of the same or similar character, even if not part of a single scheme or plan; or
(2) are based on the same conduct or on a series of acts either connected together or constituting parts of a single scheme or plan.
Rule 5-203(A) NMRA (emphasis added). It is important to recognize that Rule 5-203(A) is not a discretionary or permissive rule; it demands that the State join certain charges. At common law, whether charges should be joined in the same indictment “was a matter of prudence and discretion which ... rest[ed] with the judges to exercise.” State v. Compton,
{11} We recognized over thirty years ago, however, that requiring prosecutors to “get[ ] their facts straight, their theories clearly in mind and trying all charges together” has the salutary effect of avoiding prejudice to the defendant. State v. Tijerina,
{12} For instance, in 1975 the Supreme Court of New Jersey became “satisfied that the time for the adoption of [compulsory joinder was] well due.” Gregory,
{13} The Model Penal Code requires joinder of “offenses based on the same conduct or arising from the same criminal episode” when the prosecutor knows of such offenses and when a court has jurisdiction over them. Model Penal Code § 1.07(2); see also id. § 1.07 explanatory note for sections 1.07-1.11 (“In prohibiting multiple trials in many situations where multiple convictions are permissible, the section thus imposes compulsory joinder.”). The court in Gregory was also persuaded by Justice Brennan’s concurrence in Ashe v. Swenson,
{14} As New Jersey did in Gregory, we exercised our supervisory powers in 1979 to change the rule regarding joinder of offenses from permissive to mandatory. Our 1979 order states: “When a person is charged with more than one crime and the crimes can be incorporated in one information or indictment in separate counts, this practice shall be followed.” Rule 5-203 NMRA committee commentary (emphasis added). Our order in 1979 may have resulted from our decision in State v. Tanton,
{15} In this case, pursuant to the requirements of Rule 5-203(A), the State appropriately and necessarily charged the offenses related to Jamie S. and those related to Ursula C. in the same indictment. In both cases, Gallegos engaged in inappropriate sexual activities with minors in his care as a guard at YDDC. At the very least, Gallegos’s acts towards Jamie S. and Ursula C. were “of the same or similar character” regardless of whether they were “part of a single scheme or plan.” See Rule 5-203(A)(l) NMRA.
{16} However, even though offenses are properly joined, a trial court abuses its discretion in failing to sever when there is prejudice to the accused. We emphasize that our rules provide for severance when it appears that there “is prejudice}] by a joinder.” Rule 5-203(C) NMRA. Thus, by its very nature, Rule 5-203(C) does not come into play unless and until there is a proper joinder pursuant to Rule 5-203(A). See 1A Wright, supra, § 221, at 465 (stating that the federal rule for severance is applicable “only if the original joinder was proper”); see also, e.g., State v. Griffin,
{17} Admittedly, we have not always made this distinction clear. For example, in a ease where the defendant argued that he was prejudiced when the trial court refused to sever his possession of drug paraphernalia charge from his murder trial, we stated that our review of whether charges are “properly joined” is narrow. State v. Duffy,
{18} Even when the trial court abuses its discretion in failing to sever charges, appellate courts will not reverse unless the error actually prejudiced the defendant. In State v. Gunthorpe,
B. The Trial Court Abuses Its Discretion in Not Severing Offenses When Evidence Pertaining To Each Charge Would Not Be Cross-Admissible at Separate Trials
{19} As noted above, in ruling on a motion to sever the trial court’s job is to determine if, at the time of the motion, the defendant “is prejudiced.” Rule 5-203(C) NMRA. If such prejudice exists at the time of the motion, the trial court abuses its discretion in neglecting to sever. A defendant “is prejudiced” in this context if there is an appreciable risk that reversal will be warranted because of a later determination of actual prejudice. “A defendant might [actually] be prejudiced if the joinder of offenses permitfs] the jury to hear testimony that would have been otherwise inadmissible in separate trials.” State v. Jacobs,
{20} Our first task, then, is to determine whether evidence separately pertaining to Jamie S. and Ursula C. would have been admissible had Gallegos gone to trial only on the charges pertaining to one of them. If the evidence would have been cross-admissible, then any inference of prejudice is dispelled and our inquiry is over. If the evidence pertaining to each victim would not have been cross-admissible, then the trial court abused its discretion in failing to sever the charges. However, even if the trial court abused its discretion we must consider whether that error actually prejudiced Gallegos at his trial; that is, whether the error was harmless. See State v. Williams,
{21} Rule 11-404(B) provides:
Evidence of other crimes, wrongs or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity or absence of mistake or accident.
Rule 11-404(B) NMRA. The nearly universal view is that other-acts evidence, although logically relevant to show that the defendant committed the crime by acting consistently with his or her past conduct, is inadmissible because “the risk that a jury will convict for crimes other than those charged — or that, uncertain of guilt, it will convict anyway because a bad person deserves punishment— creates a prejudicial effect.” Old Chief v. United States,
{22} Regardless of whether the second sentence of Rule 11-404(B) is read as an exception to a general rule stated in the first sentence, see State v. Blea,
{23} Thus, if the evidence relating to Jamie S. and Ursula C. would not have been cross-admissible at separate trials — either because it would not have been relevant to anything other than propensity or because its probative value of a purpose other than propensity would have been substantially outweighed by the factors listed in Rule 11-403 — then Gallegos might have been actually prejudiced by going to trial on the joined offenses. See Jacobs,
{24} The Court of Appeals focused its analysis on the “plan” and “opportunity” exceptions found in Rule 11-404(B). Gallegos,
{25} We reaffirm that it is incumbent upon the proponent of Rule 11-404(B) evidence to identify and articulate the consequential fact to which the evidence is directed. Part of the proponent’s responsibility is also to cogently inform the court — whether the trial court or a court on appeal — the rationale for admitting the evidence to prove something other than propensity. In other words, “more is required to sustain a ruling admitting [other-acts] evidence than the incantation of the illustrative exceptions contained in the Rule.” State v. Stevens,
1. Lewd and Lascivious Disposition
{26} The State relies upon State v. Casaus,
2. Common Scheme or Plan
{27} The Court of Appeals correctly held that the evidence pertaining to Jamie S. and Ursula C. would not be cross-admissible at separate trials as probative of Gallegos’s “common scheme or plan.” Gallegos,
{28} Under this theory of admissibility, evidence of Gallegos’s acts against Ursula C. would not be admissible under Rule 11-404(B) at a separate trial on the charges related to Jamie S. The extrinsic acts of indecent exposure and contributing to the delinquency of a minor were not committed “as preparation for” Gallegos’s criminal sexual contact with Jamie S. 1 Nor were the acts committed against both Jamie S. and Ursula C. done “as preparation for yet another act.” See 3 Fishman, supra, § 17:44, at 425. Such evidence would only be logically relevant because, in the State’s own words, it would tend to show that Gallegos “had a penchant for young girls and for engaging in sexual behavior with or in front of them.” In other words, the only logical relevance the extrinsic evidence would have would be to show that Gallegos acted in conformity with his inclination to use his authority to engage in inappropriate sexual behavior with young girls. See XI The Oxford English Dictionary 463 (2d ed.1991 reprint) (defining “penchant” as “[a] (strong or habitual) inclination; a favourable bias, bent, liking”). This is pure propensity evidence and is exactly the type of evidence Rule 11-404(B) excludes. Although the State contends that evidence of Gallegos’s penchant for engaging in sexual acts with young girls is the “essence” of why the evidence would be cross-admissible at separate trials, it is, in fact, the essence of why it would not be admissible.
{29} The second definition of “common plan or scheme” evidence that the Court of Appeals described is “where the same ‘plan’ is used repeatedly to commit separate crimes that are markedly similar to the way in which the crime charged was committed.” Gallegos,
{30} It appears that jurisdictions that incorporate such a reading of “plan” into their rules prohibiting propensity evidence do so for one of two reasons. First, this view of “plan” “is a variation on the ‘signature crime’ theme: extrinsic acts which have several characteristics in common with the charged crime may be admissible to prove identity, even if the similarities do not add up to a unique ‘signature.’ ” 3 Fishman, supra, § 17:44, at 425. In New Mexico, however, “character evidence is admitted under Rule [11 — ]404(B) as evidence of identity only when the strict test for relevance is met. This test requires that the ‘pattern and characteristics’ of the prior acts must be so distinctive ... to constitute the defendant’s signature.” Williams,
{31} Second, when the issue is whether the crime in fact occurred, and not the identity of the perpetrator (as is the situation in the present case), some jurisdictions allow evidence that the defendant committed acts similar to the crime charged simply because “the existence of a design ... evidenced by a pattern of past behavior is probative.” State v. DeVincentis,
{32} The Court of Appeals held in State v. Montoya,
3. Opportunity
{33} We turn now to the issue of opportunity. On Gallegos’s direct appeal, the State did not argue that evidence pertaining to Jamie S. and Ursula C. would be cross-admissible at separate trials to show that Gallegos had the opportunity to commit the crimes. Gallegos,
{34} On certiorari to this Court, the State again does not specifically argue that the extrinsic evidence would be admissible as probative of Gallegos’s opportunity to commit the crimes. Normally, we would consider this issue abandoned. See State v. Hernandez,
{35} “The initial threshold for admissibility of prior uncharged conduct is whether it is probative on any essential element of the charged crime.” State v. Aguayo,
{36} Thus, because the evidence pertaining to each victim would not have been cross-admissible at separate trials, the trial court abused its discretion when it failed to sever the charges. We must now consider whether that error caused actual prejudice to Gallegos at his trial. In other words, we consider whether that error was harmless.
C. A Defendant Was Actually Prejudiced by a Denial of a Motion to Sever Charges If There Was a Risk That the Jury Was Confused or That It Misused the Evidence
{37} Relying on Jones, the Court of Appeals held that when evidence is not cross-admissible because of Rule 11-404(B), a conviction at a trial of joined offenses establishes prejudice. Gallegos,
{38} Although the Court of Appeals’s rule is enticing because of its bright-line nature, we reverse the Court of Appeals on this point since its holding is in conflict with our precedent. As noted above, we stated in Jacobs that “[a] defendant might be prejudiced if the joinder of offenses permitted the jury to hear testimony that would have been otherwise inadmissible in separate trials.”
{39} In the context of an erroneous admission of evidence under Rule 11-404(B), we held in Williams that there were three factors appellate courts should consider in determining whether the error was harmless: (1) substantial evidence without reference to the improper evidence, (2) a greater proportion of admissible evidence in relation to inadmissible evidence such that it would not appear the wrongly admitted evidence contributed to the conviction, and (3) a lack of substantial conflicting evidence such that the State’s testimony was discredited.
{40} Cases from other jurisdictions which do not make the distinction we have just made between potential and actual prejudice, and which, as a result, necessarily conflate the roles of trial and appellate courts, have typically adopted some form of the “simple and distinct” test found in Drew v. United States,
{41} Under this test, factors weighing in favor of prejudice include: (1) the prosecution intertwining the offenses in opening statement, during its case-in-chief, see State v. Echols,
{42} However, Drew “has been criticized on the ground that it puts too much faith in limiting instructions to the jury and ignores the rationale of the rule against proof of other crimes.” 1A Wright, supra, § 222, at 482; see also Note, Joint and Single Trials Under Rules 8 and H of the Federal Rules of Criminal Procedure, 74 Yale. L.J. 553, 556-60 (1965). Thus, while other jurisdictions suggest that the trial court is to weigh the Drew factors, we believe they are more appropriate for an appellate court’s use, particularly in light of the fact that most involve situations which the trial court simply cannot anticipate.
{43} We now apply and balance these various factors to the instant case. Particularly in its closing argument, the State urged the jury to consider together the evidence pertaining to Jamie S. and Ursula C. For example, at the very beginning of her closing, one of the prosecutors stated: “This case was about control and the defendant being in control of two young girls, two young inmates housed at YDDC. He was in control. They had no choice. They had no choice to be there; they had no choice as to what he did to them.” Later, in the State’s closing rebuttal, another prosecutor said the following:
[H]e got to use [taxpayer] money that he received in that job to use YDDC as his own personal dating service. He had his own girls gone wild there. He could ask the girls to flash him. He could feel them up, kiss them. He could do those things, and why could he do those things? Because he was a guard and he had control.
Moreover, in presenting its case, the State intertwined the evidence relating to the separate offenses by presenting the testimony of Jamie S. and Ursula C. back-to-back at the very beginning of trial. The facts linking the charges were similar in that the charges stemmed from Gallegos’s actions toward girls in his care as a guard at YDDC. Although the charges pertaining to each victim were distinct, all of them, as a general matter, were highly inflammatory in that they were offenses of a sexual nature involving children. See, e.g., Montoya,
{44} The balance thus far is in favor of finding actual prejudice. After considering the evidence and verdicts related to each victim, we conclude that Gallegos was actually prejudiced by the admission of evidence pertaining to Ursula C., but not by the admission of evidence pertaining to Jamie S. As just noted, the evidence relating to Jamie S. was not strong; nonetheless, Gallegos was convicted of the sole charge submitted to the jury in which Jamie S. was the victim. As such, we cannot be confident that the jury did not misuse the evidence that Gallegos masturbated in front of Ursula C. and asked her to disrobe when it found Gallegos guilty of using his position of authority to commit CSCM against Jamie S. Thus, we affirm the Court of Appeals’s reversal of Gallegos’s conviction of CSCM.
{45} The evidence pertaining to Ursula C., on the other hand, was somewhat stronger. Ursula C. testified that she saw Gallegos masturbating in front of her three times but that the first time it happened, she did not really know what Gallegos was doing. Ursula C. also testified that Gallegos asked her either to take her shirt off or to “flash” him. However, at times Ursula C.’s testimony was vague and confusing. Moreover, there was no other evidence linking Gallegos to these crimes. Nonetheless, we believe the fact that Gallegos was acquitted of one of the three indecent exposure charges and of the contributing to the delinquency of a minor charge shows that the jury was not confused or improperly influenced by the admission of evidence pertaining to Jamie S. when it considered the four charges pertaining to Ursula C. Thus, notwithstanding the trial court’s error in failing to sever the charges, we hold that Gallegos suffered no actual prejudice on the charges related to Ursula C. We reverse the Court of Appeals on this point and affirm Gallegos’s two convictions of aggravated indecent exposure.
{46} By this conclusion, however, we do not mean to imply that acquittals of some charges will always mean that a defendant was not actually prejudiced when he or she went to trial on joined offenses where the evidence pertaining to each would not have been cross-admissible at separate trials. See, e.g., Woodard,
III. CONCLUSION
{47} The State is obligated to join offenses pursuant to Rule 5-203(A). However, even though offenses are properly joined, a trial court may abuse its discretion when it denies a motion to sever. If evidence pertaining to each charge would not be cross-admissible at separate trials, the trial court abuses its discretion when it decides not to sever joined offenses. Before reversal is warranted on appeal, however, a defendant must show that he or she was actually prejudiced by the trial court’s error. In this ease, the trial court abused its discretion in failing to sever because the evidence pertaining to each charge would not have been cross-admissible at separate trials as evidence of Gallegos’s “plan” or “opportunity.” We conclude that Gallegos was actually prejudiced by the admission of evidence pertaining to Ursula C. but not by the admission of evidence pertaining to Jamie S. Affirming Gallegos’s two convictions of aggravated indecent exposure, we reverse the Court of Appeals on this point and remand this portion of the case to the Court of Appeals so that it may address Gallegos’s remaining claims. See Gallegos,
{48} IT IS SO ORDERED.
Notes
. Of course the same is true if Gallegos was on trial solely for the crimes relating to Ursula C. and the State was attempting to introduce evidence of Gallegos's actions toward Jamie S.
. For purposes of this discussion, we assume that these facts were "consequential” within the meaning of Rule 11-401 NMRA. See generally 22 Wright & Graham, supra, § 5164 (1978 & Supp. 2005) (discussing differing views as to whether an undisputed fact is a fact of consequence and, thus, relevant).
. See also State v. Gallegos,