OPINION
{1} In a single trial, a jury convicted Defendant, Justo Ruiz, of criminal offenses committed separately against three minor girls. One girl testified to criminal sexual penetration and criminal sexual contact, another to indecent exposure, and a third to battery. On appeal, Defendant claims the trial court committed reversible error in four ways: (1) by not severing the counts against him so that the charges pertaining to one child, S.G., would be tried separately; (2) by allowing one girl to testify by videotape, thereby circumventing his constitutional right to confront witnesses; (3) by not allowing Defendant to rebut the prosecutor’s innuendo that he had not taken a penile plethysmograph test when, in fact, he had; and (4) by not allowing the jury to visit his home to experience how compact the living conditions were and whether the events could have occurred as alleged. Applying established New Mexico law, we hold it was reversible error not to sever the charges, and therefore, we reverse Defendant’s convictions and remand. Because the testimony of the girls, if believed by a jury, would support separate convictions, the State is entitled to retry Defendant on all charges in separate trials. We discuss the remaining issues that are likely to reoccur on retrial.
BACKGROUND
{2} Defendant and his wife, Cindy Ruiz, had three children. During the night of July 8, 1998, their oldest daughter, L.R., who was then twelve-years-old, awoke to find her father pushing her underwear aside and staring at her vagina with a flashlight. When she told her mother about the incident, the next day Cindy took the children and moved out. Cindy reported the incident to the New Mexico Children, Youth and Families Department which, in turn, reported the allegation to the police. The officer in charge of the police investigation arranged a safe-house interview with L.R. During that interview L.R. recalled the incident, and also reported that a year before she had seen Defendant doing a similar thing to her friend S.G.L.R. also recounted what she had been told by still another girl, L. J., that Defendant had exposed himself to L.J. approximately a year before.
{3} After being alerted to the possibility that Defendant may have accosted other girls, a police officer- called the parents of the other girls to arrange for safe-house interviews. When the police officer spoke to the parents about the safe-house interviews, he admonished them “not to attempt in any way to assist the child in recalling memories,” so as to avoid contaminating each child’s testimony.
{4} A few days later S.G., also age 12, went to her safe-house interview. Contrary to the police officer’s admonition, S.G.’s mother on several occasions had assisted her daughter “in recalling memories,” raising the possibility of undue influence on S.G.’s testimony. At the interview, S.G. described a series of encounters with Defendant which began with Defendant pulling down her pants and fondling her, and ultimately engaging in sexual intercourse.
{5} L.J. also participated in a safe-house interview. L.J. disclosed to her interviewers that on two separate occasions she had glanced through a doorway in the Ruiz home and saw Defendant standing on the other side of the threshold, holding his penis in both hands and smiling. L.J. was six or seven years old at the time these acts occurred.
{6} Defendant denied all allegations. He contended that the charges were based on either outright fabrications or misperceptions of benign behavior on his part. Defendant claimed that he was looking for the family cat on his daughter’s bed with a flashlight, not staring at her vagina, and that being awakened from a deep sleep had distorted his daughter’s perception of events. With re-, gard to L.J., Defendant testified that she may have seen him putting on his coveralls in the garage, but that he had never exposed himself in the manner alleged. As for S.G., Defendant maintained that her story was a total fabrication and the result of her mother’s suggestive influence.
{7} A grand jury indicted Defendant on ten counts arising from the three girls’ allegations. After a jury trial on all ten charges, Defendant was convicted of eight of the ten counts against him; three counts of criminal sexual penetration of a minor, two counts of criminal sexual contact of a minor, two counts of indecent exposure, and one count of battery. Defendant was sentenced to 6156 years in prison.
DISCUSSION
Defendant’s Motion to Sever
Preservation
{8} Before trial, Defendant twice moved to sever the charges pertaining to S.G. from the rest of the case. Both motions were denied. Although Defendant renews his severance argument before this Court, the State counters that the argument was not preserved for appellate review because Defendant failed to reassert his severance motion during the trial. The State relies on State v. Jones,
{9} At times, as the State points out, we have faulted defendants for not renewing severance motions after the trial began. For example, we observed in Jones that a severance motion during trial was appropriate because, in that case, it was unclear before trial which defenses the accused would raise. See id. Therefore, before trial began, the court could only speculate about whether the prosecution would actually need the challenged evidence to rebut those defenses. See id. But neither Jones, nor any other opinion of this Court, has ever made renewal of a motion for severance either during or after trial a prerequisite to preserving an issue for appellate review. See State v. Peters,
{10} Here, the State uses Jones to argue that Defendant had to renew his severance motion during trial so that the court could rule with “knowledge of the defenses asserted.” However, when Defendant renewed his motion on the first morning of trial, all parties, including the court, were aware that the defense was a simple denial of the charges. Defendant took the position that the girls had either fabricated the allegations or misapprehended otherwise innocent behavior on his part. There was no need to provide the trial court with more information during trial; the court had all the information it needed before trial to assess the State’s position in light of the defenses asserted. The State’s preservation argument is without merit.
Rule 11-404(B) NMRA 2001
{11} We now address the merits of Defendant’s severance argument. Separate charges against a defendant are ordinarily joined when the offenses “are of the same or similar character, even if not part of a single scheme or plan.” Rule 5-203(A)(l) NMRA 2001. However, even when Rule 5-203(A) is satisfied, charges should be joined only if joinder does not unfairly prejudice either party. See Rule 5-203(C). A defendant is unfairly prejudiced when joinder allows the jury to consider evidence that would not otherwise be admissible under Rule 11-404(B) NMRA 2001, if the trials were severed. State v. Gallegos,
{12} Defendant claims to have suffered this very prejudice when the charges relating to all three girls were joined in one trial. He argues that joinder permitted the jury to consider evidence that would not have been cross-admissible under Rule 11-404(B), if the charges pertaining to each girl had been tried separately. We begin our analysis with Rule 1H04(B):
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.
{13} Rule 11-404(B) is a specialized rule of relevancy that, like its federal counterpart, limits the admissibility of evidence that, although relevant, is unfairly prejudicial to the accused. State v. Phillips,
{14} When reviewing a motion to sever through the lens of Rule 11-404(B), “a more detailed analysis needs to be done than simply comparing superficial similarity” of the crimes. Jones,
{15} Approaching the evidence in such a fashion, we follow a two-step test to determine if the evidence would have been cross-admissible in separate trials with respect to each girl. We first ask if there is “an articulation or identification of the consequential fact to which the proffered evidence of other acts is directed” that satisfies a valid exception to the general prohibition on propensity evidence. Jones,
{16} We ask what is this “consequential fact” to which the evidence of other bad acts is directed, and is it valid under Rule 11-404(B)? At trial, the State asserted, rather indiscriminately, that the evidence supporting each of the ten counts would have been cross-admissible in separate trials to prove “defendant’s motive, intent, knowledge, absence of mistake or accident under Rule 11-404(B).” On appeal, the State discards its scatter shot approach and concentrates on only one of the Rule 11 — 404(B) exceptions. It now asserts the evidence was admissible to demonstrate “absence of mistake.”
{17} In refining its focus on “absence of mistake,” the State argues that the evidence pertaining to each girl was necessary to rebut Defendant’s position that the events never happened or were due to mistaken perceptions on the part of three young girls. By putting all the bad-acts evidence before the jury, the State hoped to create an aura of credibility; that it was less likely that any of the girls were “mistaken” in what they saw, because each girl testified to deviant conduct on the part of Defendant. However, the State misapprehends what “absence of mistake” permits under Rule 11 — 404(B).
{18} Analyzing the State’s argument in context, we see no difference between what the State argues and the use of that same evidence to show propensity: that Defendant did bad things with one girl and it was therefore more likely that he did bad things with the others. But this is the same as “prov[ing] the character of [Defendant] in order to show action in conformity therewith,” which is prohibited by Rule 11 — 404(B). Grouping the testimony of all of the girls together in the same trial may well have persuaded the jury that each girl’s account of what transpired should be believed, and that there was no “absence of mistake” on their part. But it did so only demonstrating propensity: that Defendant had a tendency to abuse children sexually, and if he abused one girl, then he likely abused the others. This is exactly what Rule 11 — 404(B) does not allow. See Aguayo,
{19} What the State really wanted was an opportunity to bolster the testimony of these three girls. While we may sympathize with the State’s desire to improve its position, and while “we recognize the potential difficulty in prosecuting such cases” involving sex crimes against children, it is equally true that “the appropriate solution is [not] to wink at the dictates of Rule [11-]404(B).” Lucero,
{20} Defendant’s mistake-of-fact rationale is also controlled by our prior analysis in Jones,
{21} We read Jones to limit the “absence of mistake” exception under Rule 11-404(B) to situations when a defendant claims to have made a mistake, such as when the accused admits to touching the victim but says it was accidental or by mistake. See Jones,
{22} Focusing “absence of mistake” on the defendant is in line with other jurisdictions and commentators. See, e.g., State v. Fitzgerald,
{23} We hold that it was error not to sever the charges pertaining to S.G. as Defendant requested. We also note that Defendant suffered grave prejudice when he had to defend against charges pertaining to all three girls. See Jones,
Yes, this was a close case. But I think it was not just Mr. Ruiz’ word against the girl. We can’t forget that Mr. Ruiz’ own daughter testified to the incidents of abuse, as did another child, so it wasn’t just one-on-one. It was three victims, [and] I never could determine why they would conspire together to get Mr. Ruiz. And I think the jury resolved it in that manner.
{24} The State has not persuaded us to depart from our reading of Jones and the test for admissibility of evidence of other bad acts set out therein. If we were to allow evidence of bad acts every time an accused protests that a prosecution witness is mistaken, one small exception would swallow the entire rule. We conclude that the evidence pertaining to each girl would not have been cross-admissible in separate trials, and therefore the trial court abused its discretion in not severing the trials upon request.
S.G.’s Trial Testimony By Pre-recorded Videotape
{25} S.G. was allowed to testify by videotape instead of appearing in court. Defense counsel participated in the videotaped testimony under protest. Defendant argues the trial court failed to follow the applicable rules when it allowed S.G. to testify in this manner instead of appearing in court.
{26} The statutory law of New Mexico allows a trial court, upon a showing of good cause, to “order the taking of a videotaped deposition of any alleged victim under the age of sixteen years.” NMSA 1978, § 30-9-17(A) (1978). The videotape “shall be viewed and heard at the trial and entered into the record in lieu of the direct testimony of the alleged victim.” Id. Under our rules of criminal procedure, good cause is demonstrated when “the child may be unable to testify without suffering unreasonable and unnecessary mental or emotional harm.” Rule 5-504(A) NMRA 2001.
{27} Defendant offers two reasons why the trial court erred in allowing S.G. to testify by videotape. First, the trial court did not afford Defendant the discovery necessary to contest the prosecution’s assertion that S.G. would suffer “unreasonable and unnecessary mental or emotional harm” by testifying at trial. Second, the trial court failed to make any findings of fact directed specifically at S.G.’s mental or emotional harm.
{28} We find each of Defendant’s arguments persuasive. Defendant was denied two requests for discovery: (1) production of S.G.’s mental health records, and (2) an independent examination of S.G. by a court-appointed psychiatrist. The trial court entered a protective order preventing Defendant from discovering S.G.’s mental health records in the possession of both her therapist and the Santa Fe Family Center, and denied the request for an independent psychological evaluation. We analyze each request separately.
Medical Records
{29} The State contends that S.G.’s mental health records were subject to the psychotherapist-patient privilege. See Rule 11-504 NMRA 2001. Defendant argues that S.G. waived any such privilege when she allowed her therapist to discuss her mental condition with the prosecutor’s office to show the State she needed to testify by videotape. Defendant cites to an exception to the privilege, Rule 11-504(D)(3), which states: “There is no privilege under this rule as to communications relevant to an issue of the physical, mental or emotional condition of the patient in any proceeding in which the patient relies upon the condition as an element of the patient’s claim or defense____”
{30} The State counters that the mental health records were not germane to the charges against Defendant regarding S.G., and therefore, S.G. did not rely upon her mental condition “as an element of [her] claim or defense” within the meaning of Rule 11-504(D)(3). Furthermore, even if S.G. did waive the privileged nature of her records, the State faults Defendant for failing to make a threshold showing that the records were material to his defense.
{31} The trial court conducted a hearing on whether to grant the prosecution’s motion for videotaped deposition in lieu of live testimony. The hearing was a “proceeding” within the meaning of the Rule. Further, S.G.’s mental or emotional condition was the sole issue at that proceeding. To rule on the motion, the trial court had to determine whether S.G. “may be unable to testify without suffering unreasonable and unnecessary mental or emotional harm.” Rule 5-504(A). Thus, S.G. was relying upon the condition of her mental health “as an element” of her request for a videotaped deposition within the meaning of Rule 11-504(D)(3). In such proceedings, “[t]here is no privilege ... as to communications relevant to an issue of [S.G.’s] physical, mental or emotional condition.” Rule 11-504(D)(3).
{32} Nevertheless, waiver of the psychotherapist-patient privilege as set forth in Rule 11 — 504(D)(3) does not automatically make all the records discoverable. Privacy concerns are still fundamental. To protect a child’s privacy, we require that there “be a threshold showing by defendant that the records may reasonably be expected to provide information material to the defense.” State v. Gonzales,
{33} Defendant’s suspicion of fabrication is not without substance. The record supports an inference that S.G. initially denied that anything had happened with Defendant, and she only changed her recollection after repeated questioning and blandishments on the part of her mother. Despite the police officer’s request not to assist S.G. in recalling the events, S.G.’s mother did exactly the opposite, including what could be called exerting suggestive influence on her daughter’s memory.
{34} The possibility of undue influence on S.G.’s testimony is troubling in this case. Consistent with the police officer’s admonition, “the importance of proper interview techniques as a predicate for eliciting accurate and consistent recollection” from children cannot be denied. State v. Michaels,
{35} S.G.’s therapist, who testified on behalf of the State, conceded that the depression, fear, and anxiety that S.G. felt about testifying in open court were consistent with those of a child being untruthful about her allegations. One purpose of confrontation is so “the moral suasion of facing the accused might influence the child to tell the truth.” State v. Tafoya,
{36} However, Defendant was not necessarily entitled to all such records. The trial court still had an important role to play in balancing the best interests of the child with the fundamental rights of the defense. At trial, Defendant pressed for the release of all records in the possession of S.G.’s therapist and the Santa Fe Family Center, including as an alternative, a request that the trial judge inspect the records in camera. Appropriately, Defendant scales back his request on appeal. Defendant now asserts that the correct course of action is for the trial judge to perform an in camera review of the records to determine what is discoverable. We agree. See Gonzales,
Independent Psychological Evaluation
{37} The trial court also denied a request for an independent psychological evaluation, finding that Defendant had “failed to demonstrate any issue regarding the competency of [S.G.] to be a witness.” However, S.G.’s competency to be a witness was never at issue. The issues presented to the trial court were whether S.G. would suffer unreasonable and unnecessary mental or emotional harm if she were to testify in open court, and whether the defense of fabrication warranted an independent evaluation. In eases such as this, deciding whether to grant an independent psychological exam does not turn on the general competency of a witness. Cf. State v. Garcia,
{38} We have held that a trial court abuses its discretion by refusing a defendant’s request for a psychological evaluation of the victim when the evaluation is necessary to rebut a claim of mental anguish that the State is required to prove. Id. The State attempts to limit Garda by pointing out that the mental anguish of the victim in that case was an essential element of the crime, whereas here, S.G.’s mental anguish is only relevant to “whether she would testify in person at trial or by videotape.” We are unpersuaded by the distinction. The State placed S.G.’s mental state at issue, and whether that occurs in a pretrial motion or the trial itself is of little consequence to our analysis. Under Garda, reasonable discovery not precluded by law must be granted. See id.
{39} Parenthetically, we acknowledge an ambiguity in the law with respect to the standard a movant must meet to persuade the court to order a psychological examination. Under Garda, the movant need not prove a “compelling reason” for the examina-. tion, “where there was a specific basis for the examination (to discover information concerning the mental anguish which the State was required to prove).” Id. That “specific basis” is present here. Yet the committee commentary to Rule 5-504 characterizes psychological evaluations as appropriate only “in the rare case” to show good cause for a videotaped deposition under the rule. The committee commentary properly points to the potential for emotional harm if psychological evaluations of juveniles are abused.
{40} We need not resolve the issue here because Defendant argues that he has, in fact, demonstrated a compelling need for the evaluation. See Garcia,
An Order For Videotaped Trial Testimony Must Be Supported By Findings of Fact
{41} When a trial court concludes that the potential harm to a child outweighs a defendant’s constitutional right to confront that child at trial, the court must make individualized findings as to why the child needs special protection. Tafoya,
Admissibility of Defendant’s Penile Plethysmograph Test Results
{42} The defense included the testimony of Dr. Ned Siegel, who testified that Defendant’s psychological profile was not consistent with that of a pedophile. On cross-examination, the prosecutor questioned whether Dr. Siegel had performed a penile plethysmograph test, 1 which the prosecutor described as a test “customarily used to identify pedophiles.” Dr. Siegel responded, “No, I did not. I do not do that.”
{43} Before redirect examination began, defense counsel requested a recess to allow Dr. Siegel to examine the report of Dr. Moss Aubrey. Dr. Aubrey had performed a penile plethysmograph test on Defendant, which Defendant passed. Defendant informed the trial court that he had decided not to call Dr. Aubrey to testify about the test because the results failed to meet the standards for reliability under Daubert v. Merrell Dow Pharmaceuticals, Inc.,
{44} The trial court ruled that Dr. Siegel could not testify about the results of Dr. Aubrey’s test, but the court would permit Defendant to testify that he had passed the penile plethysmograph test if he took the stand. In reliance on this ruling, Defendant questioned Dr. Siegel on redirect about the significance of the penile plethysmograph test and how to interpret the results of that test. However, before Defendant began his testimony, the State objected to any testimony about passing the test on the ground that the test results were never disclosed to the prosecution. Although the trial court noted that Defendant was not obligated to disclose material that it did not intend to use, the court nonetheless sustained the State’s objection. Defendant then requested the trial court to instruct the jury to disregard all the testimony about the penile plethysmograph. The trial court denied the request.
{45} Defendant first argues that the prosecutor committed misconduct in questioning Dr. Siegel about the administration of a penile plethysmograph test. The misconduct is predicated on the assumption that the prosecutor knew, or should have known, that penile plethysmograph results are generally inadmissible. We assume, without deciding, that the results of the penile plethysmograph test are not reliable enough to be considered admissible. See, e.g., Doe v. Glanzer,
{46} Defendant also asserts that the trial court erred by not allowing him to rebut the inference left with the jury that he had not taken a valid testing procedure, presumably out of fear that he would fail it. Although Defendant admits that the results of the penile plethysmograph are not admissible, Defendant asserts that he was entitled to present evidence that he had taken and passed the test, once the prosecution opened the door by questioning Dr. Siegel about it. We agree.
{47} Our precedents permit otherwise inadmissible evidence to be used to rebut the same under the doctrine of curative admissibility. State v. Baca,
{48} We recently reversed a criminal conviction after a defendant had relied on a trial court’s evidentiary ruling, which the court later reversed to Defendant’s detriment. See State v. Glasgow,
{49} We need not concern ourselves with the level of prejudice Defendant may have suffered because we are reversing the convictions on other grounds. At a minimum, however, the trial court’s ruling prevented Defendant from rebutting the prosecutor’s comment with evidence of the test results, which is the express purpose of the curative admissibility doctrine. See Strong, supra, § 57, at 252-53 & n. 2 (permitting rebuttal with inadmissible evidence once the opposing party has opened the door with inadmissible evidence, a doctrine described as “[flighting fire with fire”).
Viewing the Scene
{50} Defendant’s house was small, only 820 square feet. Part of S.G.’s testimony was that she was often molested inside the house with Cindy or the children in the adjoining rooms, in some cases with children in the same room but asleep in a bed two feet away. Defendant took the position that S.G.’s testimony was incredible given the cramped living conditions. To allow the jury to experience how close the living conditions were, and properly gauge the likelihood of S.G.’s allegations, Defendant moved the trial court to allow the jury to go to view the house. The trial court denied the motion.
{51} We consider four factors when reviewing whether a jury should be allowed to view a scene, reviewing them under an abuse of discretion standard. State v. Maddox,
(1) the importance of the evidence to be obtained and the circumstances of the case on trial, (2) whether it is reasonably certain the view will substantially aid the jury in reaching a correct verdict, (3) whether the jury could visualize the scene or the object to be viewed from the testimony submitted, and (4) whether conditions of the scene since the time of the [event] are sufficiently the same at the time of the trial to make a jury view helpful.
Id. (citations omitted).
{52} Defendant does not address the factors individually. We note that at trial Defendant did illustrate how small the house was by marking out the dimensions of the house, to scale, inside the courtroom. Defendant also introduced an array of photographs designed to depict the close proximity within which the family lived. Coupled with the testimony of the witnesses, such evidence was sufficient for the jury to visualize the circumstances of Defendant’s house. The trial court had the discretion to deny Defendant’s motion and, under these circumstances, the court did not abuse its discretion.
CONCLUSION
{53} The trial court erred in denying Defendant’s motion to sever the charges against him, and therefore we reverse his convictions. Because the testimony of the girls, if believed, provides sufficient evidence to convict, we remand for new trials consistent with this opinion.
{54} IT IS SO ORDERED.
Notes
. The penile plethysmograph measures penile response to visual or auditory erotic stimuli. See 1 Meyers, supra, § 5.53, at 580-81.