September 1, 2020- State of New Mexico v. Isaac Marquez, No. A-1-CA-37055

Corrections to this opinion/decision not affecting the outcome, at the Court's discretion, can occur up to the time of publication
with NM Compilation Commission. The Court will ensure that the electronic version of this opinion/decision is updated accordingly
in Odyssey.
IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO	1
Opinion Number: _______________	2
Filing Date: September 1, 2020	3
No. A-1-CA-37055	4
STATE OF NEW MEXICO,	5
Plaintiff-Appellee,	6
v.	7
ISAAC MARQUEZ,	8
Defendant-Appellant.	9
APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY	10
Alisa A. Hart, District Judge	11
Hector H. Balderas, Attorney General	12
Santa Fe, NM	13
M. Victoria Wilson, Assistant Attorney General	14
Albuquerque, NM	15
for Appellee	16
Freedman Boyd Hollander Goldberg Urias & Ward, P.A.	17
Karen Grohman	18
Shammara H. Henderson	19
Christopher A. Dodd	20
Albuquerque, NM	21
for Appellant	22
Court of Appeals of New Mexico
Filed 9/1/2020 11:11 AM

OPINION	1
ATTREP, Judge.	2
{1} 	Defendant Isaac Marquez appeals his conviction for one count of criminal	3
sexual penetration in the first degree (child under thirteen), contrary to NMSA 1978,	4
Section 30-9-11(C) (1995, amended 2009). Defendant was charged with acts of	5
digital penetration against his ex-wife’s granddaughter. He advances several claims	6
of error, one of which—the admission of evidence of uncharged sexual misconduct	7
with the victim—we deem the basis for reversal. In reaching this conclusion, we	8
reaffirm that the so-called “lewd and lascivious disposition” exception to the	9
prohibition against propensity evidence is abolished in New Mexico. Further	10
concluding the State has advanced no viable non-propensity reason for the admission	11
of the uncharged sexual misconduct evidence and that its admission was not	12
harmless, we reverse Defendant’s conviction and remand for a new trial. Because	13
we reverse on this basis we do not consider Defendant’s remaining claims of error.	14
BACKGROUND	15
{2} 	The 	charges 	in 	this 	case 	stem 	from 	allegations 	made 	by 	J.K., 	the	16
granddaughter 	of 	Defendant’s 	ex-wife 	Judy, 	years 	after 	the 	abuse 	occurred.	17
Defendant and Judy had a contentious breakup in November 2009. Around that time,	18
J.K. (by then an adult) disclosed to Judy that Defendant sexually abused J.K. when	19
she was between six and eight years old. A grand jury eventually indicted Defendant	20

2
in June 2015, charging him with four counts of criminal sexual penetration. Trial	1
commenced later that year.	2
{3} 	Of relevance to this appeal, defense counsel moved the district court, prior to	3
the taking of any testimony, to prohibit the State from introducing evidence of	4
certain uncharged conduct as impermissible propensity evidence. Specifically, J.K.	5
disclosed in pretrial interviews that, during the same timeframe of the charged	6
conduct, Defendant also made J.K. touch his penis on several occasions. In addition,	7
Judy was prepared to testify that she witnessed Defendant walking around with an	8
open robe in J.K.’s presence. When asked by the district court to proffer an allowable	9
purpose for this evidence under Rule 11-404(B) NMRA, the State asserted: “[L]ewd	10
and lascivious conduct with the same victim is admissible under [Rule 11-]404(B),	11
if it shows a pattern of conduct with that victim and it shows an ongoing pattern of	12
behavior with that victim.” After reviewing case law cited by the State, and taking	13
into consideration Rule 11-403 NMRA, the district court ruled the evidence	14
admissible, reasoning: “It involves the same victim. It’s during the same time frame.	15
There is relevance with regard to the lewd and lascivious disposition towards the	16
particular victim. It also corroborates the victim’s testimony and gives some context	17
to this behavior.”	18
{4} 	J.K. was twenty-five years old at the time of trial. J.K. testified that, sometime	19
between the ages of six and eight, she lived on and off with Judy and Defendant for	20

3
a couple of months where she slept on a couch in the living room. J.K. testified that	1
Defendant, on numerous occasions, would get up in the middle of the night to get	2
cookies from the kitchen. On his way, Defendant would stop and fondle J.K.	3
underneath her underwear and would “play with [her] clitoris” with the tips of his	4
fingers. J.K. did not remember these incidents with any specificity, testifying that	5
they were “[j]ust a blur.” After this testimony, the State elicited from J.K. that	6
Defendant also did other inappropriate things to her. When asked what those	7
incidents were, J.K. testified: “In his bedroom, during the day, if I had asked to go	8
play with kids across the street or I had asked for a candy, he would be sitting in his	9
bed in his robe, and he would have me come over, and he would use my hand to	10
stroke his penis.” J.K. specifically remembered that, on one occasion when	11
Defendant did this to her, Judy was in her bathroom taking a bath. The State also	12
asked Judy at trial whether there had been any incidents between Defendant and J.K.	13
that caused her concern. Judy responded that she once witnessed Defendant standing	14
in front of J.K. with an open robe wearing only his underwear. Defendant took the	15
stand in his defense and testified that he never touched J.K. sexually.	16
{5} 	At the conclusion of the State’s case, the district court, on concession of the	17
State, entered a directed verdict on three of the four counts because J.K. described a	18
course of conduct and could not distinguish separate acts. The jury found Defendant	19

4
guilty of the remaining charge, and the district court sentenced Defendant to a term	1
of imprisonment of twelve years.	2
DISCUSSION	3
{6} 	Defendant argues on appeal that the uncharged sexual misconduct evidence—	4
i.e., Defendant making J.K. touch his penis and walking around with an open robe	5
in front of J.K.—was improper propensity evidence admitted in violation of Rule	6
11-404(B). Defendant also argues that, even if this evidence was admissible for a	7
purpose other than propensity, its admission was prohibited by Rule 11-403 because	8
the prejudicial effect of the evidence substantially outweighed its probative value.	9
Finally, Defendant argues that the erroneous admission of the evidence was not	10
harmless. We first examine whether the district court’s stated rationale—i.e., the	11
lewd and lascivious disposition exception—was a valid basis for admitting the	12
uncharged sexual misconduct evidence. Reaffirming once again that this exception	13
has been abolished and thus provides no basis for the admission of such evidence,	14
we turn next to whether the other grounds advanced by the State on appeal justify	15
the district court’s ruling. Because they do not and because the admission of the	16
evidence was not harmless, we reverse Defendant’s conviction and remand for a new	17
trial.	18

5
I. 	The 	District 	Court 	Erred 	in 	Admitting 	Evidence 	of 	Defendant’s	1
Uncharged Conduct	2
{7} 	Rule 11-404 prohibits the introduction of “[e]vidence of a crime, wrong, or	3
other act . . . to prove a person’s character in order to show that on a particular	4
occasion the person acted in accordance with the character.” Rule 11-404(B)(1).	5
Such propensity evidence, “although logically relevant to show that the defendant	6
committed the crime by acting consistently with his or her past conduct,” is	7
inadmissible due to the likelihood the jury will convict for crimes other than those	8
charged, or because it simply believes the defendant to be a bad person deserving of	9
punishment. State v. Gallegos, 2007-NMSC-007, ¶ 21, 141 N.M. 185, 152 P.3d 828.	10
A trial court may nonetheless admit such evidence for a purpose other than to show	11
propensity, 	“such 	as 	proving 	motive, 	opportunity, 	intent, 	preparation, 	plan,	12
knowledge, identity, absence of mistake, or lack of accident.” Rule 11-404(B)(2).	13
“This list is not exhaustive and evidence of other wrongs may be admissible on	14
alternative relevant bases so long as it is not admitted to prove conformity with	15
character.” State v. Otto, 2007-NMSC-012, ¶ 10, 141 N.M. 443, 157 P.3d 8 (internal	16
quotation marks and citation omitted). Critically, though, “it is incumbent upon the	17
proponent of Rule 11-404(B) evidence to identify and articulate the consequential	18
fact to which the evidence is directed” and to state with precision “the rationale for	19
admitting the evidence to prove something other than propensity.” Gallegos, 2007-	20
NMSC-007, ¶ 25. Assuming the district court determines the evidence admissible	21

6
under Rule 11-404(B), it next is required to determine whether “the probative value	1
related to its permissible purpose is substantially outweighed by the factors	2
enumerated in Rule 11-403.” Gallegos, 2007-NMSC-007, ¶ 22.	3
{8} 	“We review a trial court’s decision to admit evidence under Rule 11-404(B)	4
for abuse of discretion.” State v. Romero, 2006-NMCA-045, ¶ 73, 139 N.M. 386,	5
133 P.3d 842. “An abuse of discretion occurs when the district court’s decision can	6
be characterized as clearly untenable or not justified by reason.” State v. Ervin, 2008-	7
NMCA-016, ¶ 9, 143 N.M. 493, 177 P.3d 1067 (internal quotation marks and	8
citation omitted). A district court also abuses its discretion when its “discretionary	9
decision is premised on a misapprehension of the law.” Aragon v. Brown, 2003-	10
NMCA-126, ¶ 9, 134 N.M. 459, 78 P.3d 913.	11
A. 	The Lewd and Lascivious Disposition Exception Is Not Good Law	12
{9} 	At trial, the State primarily relied on this Court’s decision in State v. Casaus,	13
1996-NMCA-031, 121 N.M. 481, 913 P.2d 669, to argue for the admission of the	14
uncharged sexual misconduct evidence. In particular, the State argued that the	15
evidence was admissible as “prior lewd and lascivious conduct with the same victim	16
. . . [in order to] place[] the criminal charge in context.” In permitting the admission	17
of the evidence, the district court accepted this rationale.	18

7
{10} 	On appeal, Defendant asserts the district court abused its discretion by relying	1
on this exception to Rule 11-404(B) that is no longer good law. 1 Defendant	2
maintains that this Court abrogated the lewd and lascivious disposition exception to	3
Rule 11-404(B) in Kerby I and that our Supreme Court did not alter this holding	4
when it subsequently affirmed this Court’s decision on other grounds. See State v.	5
Kerby (Kerby II), 2007-NMSC-014, 141 N.M. 413, 156 P.3d 704. Although the State	6
acknowledges this Court abrogated the lewd and lascivious disposition exception in	7
Kerby I, it asserts, without developing an argument as to why we ought to depart	8
from settled law, that Kerby I has been placed in doubt. We take this opportunity to	9
reaffirm that the lewd and lascivious disposition exception in New Mexico is	10
abolished.2
11
1Defendant on appeal parses out the district court’s ruling as providing four
separate reasons for admitting the evidence—i.e., because it: (1) involved the same
victim; (2) demonstrated a lewd and lascivious disposition to the victim; (3)
corroborated the victim’s testimony; and (4) provided context to the charged
behavior. Defendant proceeds to address why each reason is not a proper purpose.
The individual reasons Defendant addresses, however, are all part and parcel of the
lewd and lascivious disposition exception and we resolve Defendant’s argument
accordingly. See State v. Landers, 1992-NMCA-131, ¶¶ 23-25, 115 N.M. 514, 853
P.2d 1270 (permitting evidence of a defendant’s lewd and lascivious disposition
toward the victim where the evidence corroborates the victim’s testimony and places
the charged acts in context), overruled by State v. Kerby (Kerby I), 2005-NMCA-
106, ¶ 29, 138 N.M. 232, 118 P.3d 740.
2To our knowledge, our New Mexico Supreme Court has never ruled on the
validity of the lewd and lascivious disposition exception. See Gallegos, 2007-
NMSC-007, ¶ 26 (concluding that the lewd and lascivious disposition exception was
inapplicable under the facts of that case and observing that that “the lewd and

8
{11} 	A review and reiteration of this Court’s prior decisions—in which we already	1
have laid out the shortcomings of the lewd and lascivious disposition exception—is	2
instructive. This Court first explicitly named the lewd and lascivious disposition	3
exception, which is rooted in the common law, in State v. Minns, 1969-NMCA-035,	4
80 N.M. 269, 454 P.2d 355, prior to the Rules of Evidence being adopted in 1973.	5
Although Minns recognized the general rule against the admissibility of propensity	6
evidence, id. ¶ 12, it concluded nonetheless that this rule was “inapplicable to other	7
or 	similar 	sex 	offenses 	committed 	by 	[the] 	defendant 	with 	the 	prosecuting	8
witness[,]” id. ¶ 13. “Such evidence, if not too remote,” Minns held, “is admissible	9
as showing a lewd and lascivious disposition of [the] defendant toward the	10
prosecuting witness and as corroborating evidence.” Id.	11
{12} 	Nearly twenty years after the adoption of the Rules of Evidence, this Court in	12
a pair of cases addressed the lewd and lascivious disposition exception in light of	13
Rule 11-404(B). First, in State v. Lucero, 1992-NMCA-107, 114 N.M. 489, 840 P.2d	14
1255, this Court noted that some jurisdictions had held that “any evidence of a	15
defendant’s sexual desires or practices may be relevant to prove a ‘licentious’ or	16
‘lewd’ disposition.” Id. ¶ 11. Such a rule, Lucero discussed, had been rationalized in	17
child sex abuse cases on two grounds: (1) “the need to bolster the victim’s	18
lascivious doctrine is simply a euphemism for character evidence and should be
rejected” (internal quotation marks and citation omitted)).

9
credibility”; and (2) “the belief that sex crimes alone are more likely to follow a	1
pattern based on the unique psychological profile of a likely perpetrator.” Id. ¶ 15;	2
see also 1 Edward J. Imwinkelried, Uncharged Misconduct Evidence § 4:16 (rev.	3
ed. 2020) (restating these rationales for a special exception in sex crime cases as: (1)	4
the purported difficulty of proof due to the secretive nature of sex crimes, and (2)	5
the suspected “high rate of recidivism among sex offenders”).	6
{13} 	Lucero noted, however, that these rationales and the special exception itself	7
have regularly been condemned by scholars and courts. See Lucero, 1992-NMCA-	8
107, ¶ 11 (“Some courts have likewise criticized the ‘lewd disposition’ exception	9
and expressly refused to adopt it.”); cf. State v. Aguayo, 1992-NMCA-044, ¶ 28, 114	10
N.M. 124, 835 P.2d 840 (rejecting, in similar context involving the physical abuse	11
of an infant, the “siren song” of interpreting the Rules of Evidence “more loosely in	12
child abuse cases because of the difficulty of proving a crime against a mute victim	13
and because other witnesses are usually unavailable”). Indeed, a prominent federal	14
practice treatise, quoted in Lucero, provided: “ ‘The need for the evidence has led	15
some courts to rely on debatable assumptions about recidivism and problematic	16
psychiatric theories as support for the proposition that propensity evidence is more	17
reliable in the case of sex offenders.’ ” Lucero, 1992-NMCA-107, ¶ 11 (quoting 22	18
Charles A. Wright & Kenneth W. Graham, Federal Practice and Procedure § 5239,	19
at 462 (1978)); see also 1 Imwinkelried, supra, § 4:16 (rebutting the two common	20

10
rationales for a special exception in sex crime cases on the grounds that: (1) “critics	1
[have] argued that the secretive nature of sex crimes does not justify a special	2
exception” as “[m]any crimes are usually committed in a clandestine fashion,” and	3
(2) “the most recent research largely discredits the old medical literature sanctioning	4
the lay belief” that “recidivism among sex offenders is extraordinarily high”	5
(footnotes 	omitted)). 	This 	Court 	agreed 	with 	the 	criticisms 	“that 	the 	‘lewd	6
disposition’ exception is nothing more than a euphemism for the character evidence	7
which Federal Rule of Evidence 404(b) and its state counterparts are designed to	8
exclude.” Lucero, 1992-NMCA-107, ¶ 11. In line with this, Lucero refused to create	9
“a special, unrecognized exception under Rule 404(B)” and declined to extend the	10
lewd and lascivious disposition exception to include a defendant’s sexual acts with	11
a person other than the victim. Id. ¶ 15.	12
{14} 	In the second case, Landers, this Court again recognized criticisms that “the	13
‘lewd and lascivious’ exception . . . simply allow[s] otherwise inadmissible	14
propensity evidence.” 1992-NMCA-131, ¶ 23. Nonetheless, Landers declined to	15
deviate from cases upholding the exception for uncharged sexual misconduct	16
involving the complaining witness, following the promulgation of Rule 11-404(B).	17
See Landers, 1992-NMCA-131, ¶ 23 (“[W]e believe the ‘lewd and lascivious	18
disposition’ exception . . . is justified in determining whether evidence of prior acts	19
with the complaining witness is admissible, even though use of the exception may	20

11
not be justified in other situations.”); see also id. ¶ 16 (“This rule has been affirmed	1
since the Rules of Evidence were adopted in cases involving sex offenses committed	2
upon children.” (citing State v. Scott, 1991-NMCA-081, 113 N.M. 425, 828 P.2d	3
958; State v. Delgado, 1991-NMCA-064, 112 N.M. 335, 815 P.2d 631; State v.	4
Mankiller, 1986-NMCA-053, 104 N.M. 461, 722 P.2d 1183)). Landers premised its	5
holding on the fact that “the evidence corroborated the victim’s testimony and placed	6
the charged acts in context.”3 1992-NMCA-131, ¶ 25; see also id. ¶ 23 (justifying	7
the exception because “without such evidence, the otherwise seemingly isolated	8
incident would seem incredible” (alterations, omission, internal quotation marks,	9
and citation omitted)).	10
{15} 	Over a decade later, this Court in Kerby I explicitly disavowed the lewd and	11
lascivious disposition exception in all contexts, deeming it “indefensible.” 2005-	12
NMCA-106, ¶ 29 (internal quotation marks and citation omitted). The defendant in	13
Kerby I had been charged with numerous counts of criminal sexual contact with a	14
minor for touching the victim’s vulva and buttocks. Id. ¶¶ 2-6. In rebuttal, the state	15
presented evidence establishing that the defendant had used a peephole to spy on the	16
victim when she was in the bathroom. Id. ¶¶ 10-15. The district court ruled the	17
3Relying on Landers, Casaus—upon which the State and the district court
relied in this case—offered the same rationale. See Casaus, 1996-NMCA-031, ¶ 27
(“The prior bad acts thus indicated [the d]efendant’s lewd and lascivious disposition
toward the victim and placed the criminal charge in context.”).

12
peephole evidence admissible because it involved the same victim and because the	1
defendant had elicited testimony suggesting that his touching of the victim was	2
innocent and not unlawful. See id. ¶¶ 21-22. This Court reversed. Id. ¶¶ 1, 34.	3
{16} 	In addressing the continued viability of the lewd and lascivious disposition	4
exception in the context of uncharged sexual misconduct involving the prosecuting	5
witness, Kerby I examined more recent commentary criticizing special exceptions in	6
sex crime cases. 	See id. 	¶ 27 (citing 1 Edward J. Imwinkelried, 	Uncharged	7
Misconduct Evidence § 4:18 (rev. ed. 2005)). Relying on that commentary, this	8
Court made plain that such an exception is flatly contrary to Rule 11-404(B) and that	9
it was highly doubtful the exception survived the adoption of the Rules of Evidence.	10
See Kerby I, 2005-NMCA-106, ¶ 28 (“Nothing in the express language of Rule 11-	11
404 	mandates 	the 	perpetuation 	of 	a 	common-law 	exception 	to 	the 	general	12
proscription of propensity evidence; to the contrary, the lewd and lascivious	13
disposition exception appears to flatly contradict the general proscription of	14
propensity evidence found in Rule 11-404(A) and repeated in the first sentence of	15
Rule 11-404(B).”); id. ¶ 27 (“To say that the exceptions’ survival [after the adoption	16
of the Federal Rules of Evidence] is questionable is probably an understatement. It	17
is exceedingly difficult to reconcile the exceptions for evidence of uncharged sexual	18
misconduct with the clear language of [Federal Rule of Evidence] 404(b). The	19
exception seems at odds with the prohibition in the first sentence of [that rule].”	20

13
(alteration, internal quotation marks, and citation omitted)). Kerby I also thought it	1
significant that, unlike in New Mexico, Congress added special rules to the Federal	2
Rules of Evidence in 1994 to allow for the admission of uncharged sexual	3
misconduct in criminal cases. See id. ¶ 27; see also Fed. R. Evid. 413, 414.	4
{17} 	This Court then addressed Landers, remarking “it exceedingly difficult to	5
reconcile the Landers exception for evidence of a lewd and lascivious disposition	6
toward the prosecuting witness with Rule 11-404.” Kerby I, 2005-NMCA-106, ¶ 28.	7
Significantly, Kerby I noted that, in the context of considering whether to allow the	8
admission of evidence of uncharged sexual misconduct involving those other than	9
the complaining witness, we already had determined that the lewd and lascivious	10
disposition 	exception 	was 	nothing 	more 	than 	a 	euphemism 	for 	propensity	11
evidence—evidence that Rule 11-404(B) was designed to exclude. Id. (discussing	12
Lucero, 1992-NMCA-107, ¶ 11). Kerby I thought it unfortunate that, in Landers,	13
“we did not critically examine how the evidence of uncharged acts would have	14
tended to corroborate the victim’s testimony or place the charged acts in context	15
other than through an inference of the defendant’s propensity for improper sexual	16
conduct towards the victim.” Kerby I, 2005-NMCA-106, ¶ 26 (emphasis added).	17
Kerby I thus held: “Logical consistency requires that we extend Lucero to the	18
admission of uncharged misconduct with the prosecuting witness.” Id. ¶ 29; see also	19
State v. Williams, 1994-NMSC-050, ¶ 37 & n.1, 117 N.M. 551, 874 P.2d 12	20

14
(Montgomery, C.J., specially concurring) (believing that the distinction created by	1
Lucero and Landers is “indefensible” and noting that “[t]he anomaly of the Landers	2
approach . . . has been recognized, at least implicitly, in a number of cases that adhere	3
to strict application of Rule 11-404(B)”), overruled on other grounds by State v.	4
Tollardo, 2012-NMSC-008, 275 P.3d 110; State v. Sandate, 1994-NMCA-138, ¶ 34,	5
119 N.M. 235, 889 P.2d 843 (observing that “[t]he rationale underlying Landers may	6
very well require reconsideration”).	7
{18} 	The State makes no developed argument as to why this Court ought to depart	8
from our holding in Kerby I, contending instead that Kerby I’s abrogation of the lewd	9
and lascivious disposition exception has “been placed in doubt” by Kerby II. See	10
Trujillo v. City of Albuquerque, 1998-NMSC-031, ¶¶ 33-34, 125 N.M. 721, 965 P.2d	11
305 (discussing the importance of stare decisis and the special justification required	12
to depart from prior precedent). Kerby II, however, did no such thing. Beyond	13
abolishing the lewd and lascivious disposition exception, Kerby I also rejected the	14
State’s argument that the peephole evidence was nonetheless admissible because the	15
defendant had opened the door to this evidence by contesting whether his touching	16
of the victim was unlawful. 2005-NMCA-106, ¶¶ 31-32. In Kerby II, our Supreme	17
Court disagreed only with the holding that the peephole evidence was inadmissible	18
to prove unlawful intent. 2007-NMSC-014, ¶¶ 25-26. Kerby II said nothing about	19
this Court’s conclusion that the use of the lewd and lascivious disposition exception	20

15
to admit otherwise inadmissible propensity evidence could no longer logically be	1
sustained. See generally id. Given this, the State’s assertion on appeal that Kerby II	2
“placed in doubt” our rejection of the exception is misplaced. See Sangre de Cristo	3
Dev. Corp. v. City of Santa Fe, 1972-NMSC-076, ¶ 23, 84 N.M. 343, 503 P.2d 323	4
(noting that “[t]he general rule is that cases are not authority for propositions not	5
considered”). Indeed, our Supreme Court recognized Kerby I “continue[d] as good	6
law” on matters not modified by that Court. See Kerby II, 2007-NMSC-014, ¶ 26.	7
Further, our Supreme Court has subsequently recognized that Kerby I overruled	8
Landers. See, e.g., State v. Sosa, 2009-NMSC-056, ¶ 31, 147 N.M. 351, 223 P.3d	9
348 (citing Landers for a proposition pertaining to a prosecutor’s statement in	10
closing and providing that Landers was “overruled on other grounds by [Kerby I]”).	11
{19} 	In sum, this Court’s criticisms of the lewd and lascivious disposition	12
exception in both Lucero and Kerby I are well founded and reasoned, and we	13
reaffirm them. Today we again disavow the logical inconsistency between Lucero	14
and Landers. We see no principled reason to recognize that evidence of a person’s	15
lewd and lascivious disposition is inadmissible as propensity evidence when the	16
prior acts involved a person other than the complaining witness, but then hold the	17
same type of evidence admissible when the defendant’s acts involved the same	18
victim at trial. Further, maintaining, as the State and the district court did below, that	19
the evidence is nonetheless admissible under Rule 11-404(B) simply because it	20

16
“corroborate[s] the victim’s testimony and place[s] the charge in context[,]” Casaus,	1
1996-NMCA-031, ¶ 26, does nothing to ameliorate this contradiction. 	Cf. 	1	2
Imwinkelried, supra, § 6:6 (“Any similar uncharged act generally corroborates in	3
the sense that the act shows the defendant’s propensity toward that type of crime and	4
thereby increases the likelihood that the defendant committed the charged act. But	5
that is precisely the theory of logical relevance forbidden by [Federal Rule of	6
Evidence] 404(b).”); Basyle J. Tchividjian, Predators and Propensity: The Proper	7
Approach for Determining the Admissibility of Prior Bad Acts Evidence in Child	8
Sexual Abuse Prosecutions, 39 Am. J. Crim. L. 327, 339 (2012) (“[C]ollateral fact	9
evidence admitted for the stated purpose of corroboration can ultimately be	10
categorized as propensity evidence.”); State v. Nelson, 501 S.E.2d 716, 722-23 (S.C.	11
1998) (“[T]he evidence is only relevant to show the ‘context’ of the crime when the	12
assumption is made that [the defendant] was acting in conformity with the character	13
trait of being a pedophile. . . . [T]his argument is but [a] cleverly disguised way of	14
getting impermissible character evidence before the jury.”).	15
{20} 	While we recognize the potential difficulties of prosecuting sex crimes against	16
children, we do not “support continued application of an exception which allows the	17
prosecution to accomplish what the general propensity rule is intended to prevent.”	18
Lannan v. State, 600 N.E.2d 1334, 1338 (Ind. 1992). Whether there are policy	19
reasons to admit uncharged misconduct evidence more freely in sex crime cases,	20

17
particularly those involving child victims, than in other criminal cases is a question	1
we decline to address. We think it more proper for this inquiry to be undertaken in	2
the rule-making process.4 Accord Kerby I, 2005-NMCA-106, ¶ 30 (“Adoption of a	3
sex-crimes-against-children exception to Rule 11-404 is best carried out in the	4
process of rule-making.”).	5
{21} 	We reaffirm our conclusion in Kerby I disavowing Landers and related cases	6
and reiterate our view that the lewd and lascivious disposition “exception is nothing	7
more than a euphemism for the propensity evidence that Rule 11-404 was designed	8
to exclude.” 5 Kerby I, 2005-NMCA-106, ¶ 29. Consequently, the district court	9
abused its discretion when relying on the lewd and lascivious disposition exception	10
to admit evidence of Defendant’s uncharged sexual misconduct with J.K.	11
4 Some states have adopted rules analogous to Rules 413 and 414 of the
Federal Rules of Evidence. See Tchividjian, 39 Am. J. Crim. L. at 342 (“Though no
state has adopted them in their entirety, approximately eleven states have codified
rules which are similar in substance and application to [Federal Rules of Evidence]
413 and . . . 414.”).
5After Kerby I, this Court in State v. Dietrich, 2009-NMCA-031, 145 N.M.
733, 204 P.3d 748, relied on Landers to uphold the admission of extrinsic evidence
of 	the 	defendant’s 	sexual 	misconduct 	because 	it 	“directly 	bolster[ed] 	the
complaining witness’s testimony by providing significant corroboration.” Id. ¶¶ 42-
44 (internal quotation marks and citation omitted). To the extent Dietrich relied on
the lewd and lascivious disposition exception for this holding, it is overruled.

18
B. 	The Uncharged Sexual Misconduct Evidence Was Not Admissible on	1
Other Grounds	2
{22} 	Because the lewd and lascivious disposition exception is not good law and as	3
such cannot provide a basis for the admission of the uncharged sexual misconduct	4
evidence against Defendant, we next examine whether any allowable purpose for the	5
evidence advanced by the State on appeal authorizes its admission. See Gallegos,	6
2007-NMSC-007, ¶ 26 (holding that the appellate court “will affirm the [district]	7
court’s decision if it [is] right for any reason so long as it is not unfair to the	8
appellant”). The State advances two arguments why this evidence was admissible	9
under Rule 11-404(B) as something other than pure propensity evidence: (1) the	10
evidence was relevant to the issue of unlawfulness, and (2) the evidence rebutted	11
Defendant’s theory of fabrication. See Kerby I, 2005-NMCA-106, ¶ 25 (“Under Rule	12
11-404(B), the proponent of evidence of other acts must identify the particular	13
consequential fact upon which the proffered evidence bears and must explain how	14
the proffered evidence makes the 	consequential fact ‘more probable or less	15
probable,’ Rule 11-401 NMRA, in a way that does not depend upon an inference of	16
a propensity for criminal behavior.”). We conclude that these alternative bases for	17
admission are without merit.	18
{23} 	First, relying on 	Kerby II, the State 	posits that the uncharged sexual	19
misconduct evidence was admissible because it tended to prove the element of	20
unlawfulness. See § 30-9-11(A) (“Criminal sexual penetration is the unlawful and	21

19
intentional . . . causing of penetration[.]”). Unlike here—where Defendant never	1
admitted to touching J.K.—the defendant in Kerby II admitted to touching the	2
victim’s intimate parts but insisted he did so innocently. See 2007-NMSC-014, ¶ 26.	3
Consequently, whether the defendant had sexual intent when he touched the victim	4
was squarely before the jury in Kerby II. See id. (“[The d]efendant’s state of mind	5
was the crucial issue in the case.” (internal quotation marks and citation omitted)).	6
Although the State acknowledges Kerby II is different from this case, it contends the	7
Rule 11-404(B) evidence was admissible to prove unlawfulness because “in meeting	8
its burden of proving all essential elements beyond a reasonable doubt, the State is	9
not limited to presenting evidence only on those issues expressly put in issue by	10
[D]efendant.”	11
{24} 	Case law on this point, however, cuts strongly against the State’s position. We	12
have long understood that “[t]he rule in New Mexico and many other jurisdictions	13
is that evidence is not admissible under Rule 404(b) to prove a material element of	14
the crime charged unless that element is in issue.” State v. Beachum, 1981-NMCA-	15
089, ¶ 7, 96 N.M. 566, 632 P.2d 1204 (emphasis added). “[I]f a fact is wholly	16
undisputed, the only additional probative value extrinsic-act evidence would have	17
on that issue would be to show a person’s propensity. Evidence solely having value	18
as propensity evidence is inadmissible under Rule 11-404(B) and is to be excluded	19
under that rule automatically.” Gallegos, 2007-NMSC-007, ¶ 35; see also, e.g., State	20

20
v. Gwynne, 2018-NMCA-033, ¶ 21, 417 P.3d 1157 (“[T]he [s]tate fails to establish	1
that ‘opportunity’ was even a fact in issue, meaning that it could not have served as	2
the basis for the admission of the [Rule 11-404(B)] testimony.”); State v. Ruiz, 2001-	3
NMCA-097, ¶ 21, 131 N.M. 241, 34 P.3d 630 (reading prior case law as limiting	4
“the ‘absence of mistake’ exception under Rule 11-404(B) to situations when a	5
defendant claims to have made a mistake, such as when the accused admits to	6
touching the victim but says it was accidental or by mistake”).	7
{25} 	In this case, unlike the situation in Kerby II—in which our Supreme Court	8
determined the defendant had “injected the issue” of unlawfulness by presenting	9
evidence that he innocently touched the victim’s buttocks, 2007-NMSC-014, ¶ 26—	10
the defense was simply that Defendant did not touch J.K.’s intimate parts. Where, as	11
here, a defendant denies the touching entirely, the defendant’s state of mind is not a	12
material issue. See People v. Bagarozy, 522 N.Y.S.2d 848, 854 (N.Y. App. Div.	13
1987) (“In the trial of sex offenses, extrinsic evidence of intent is admissible only in	14
those cases where there is no challenge to the occurrence of the physical contact	15
itself, but the intent of the actor is at issue because the nature of the contact is subject	16
to varying interpretations.”); State v. Fonseca, 681 S.E.2d 1, 5 (S.C. Ct. App. 2009)	17
(“[B]ecause [the a]ppellant denies that the contact ever occurred, intent was not	18
made a material issue. . . . [I]f we hold this evidence admissible, prior sexual acts	19
would be admissible to prove the required intent in all prosecutions of subsequent	20

21
sex crimes.”); cf. State v. Bailey, 2017-NMSC-001, ¶ 22, 386 P.3d 1007 (“[W]here	1
a defendant refutes allegations of sexual contact with a minor victim by claiming	2
that the sexual contact was parental or medical, we conclude that evidence of other	3
acts directed to that victim that bear on a defendant’s specific, unlawful intent to	4
commit the charged offense are admissible under Rule 11-404(B)(2).”). Because of	5
this, the uncharged sexual misconduct evidence was not admissible as tending to	6
prove the unlawfulness of the touching denied by Defendant. See Nelson, 501 S.E.2d	7
at 722 (“[The p]etitioner denied any sexual contact with the victim, making it highly	8
questionable whether the element of intent was a material issue in the case. We find	9
the [s]tate’s argument this evidence was relevant to show motive or intent is merely	10
a cleverly disguised way of asserting [the p]etitioner committed the crimes because	11
he has a propensity to commit sexual offenses.”).	12
{26} 	Relatedly, we dispose of the State’s argument that Defendant did in fact	13
dispute the element of unlawfulness at trial. Quoting Otto, 2007-NMSC-012, ¶ 11,	14
the State asserts Defendant created a “potential inference” that he “did not penetrate	15
[J.K.] and that, if he touched her, he did not and would not, do so in a sexual manner.”	16
The portions of the transcript cited by the State, however, do not support this	17
contention. 	For 	instance, 	the 	State 	notes 	that 	Judy 	and 	the 	lead 	detective	18
investigating this case testified at trial that Defendant, when denying J.K.’s	19
allegations to them, stated “I didn’t do anything to her, why would I?” It is not at all	20

22
clear to us why the State thinks this is anything other than a blanket denial of	1
wrongdoing by Defendant. The State also notes that Defendant responded “No”	2
when his counsel asked him on direct examination: “Did you ever touch [J.K.]	3
sexually?” Counsel followed up by asking, “In any way?” Defendant again stated	4
“No.” In context, we are convinced the defense line of questioning was designed to	5
convey to the jury that Defendant claimed never to have touched J.K.’s intimate	6
parts—not, as the State would have it, as an implicit admission that Defendant did	7
touch J.K.’s intimate parts, just not in a sexual manner.	8
{27} 	In sum, we think it clear from the record that Defendant simply denied ever	9
touching J.K.’s intimate parts. 6 This is unlike Otto where the defendant’s theory was	10
that he mistakenly touched the victim. See 2007-NMSC-012, ¶ 11 (“A potential	11
inference of mistake or accident was created by [the d]efendant’s statement to the	12
detective that he ‘was ready to finger [the victim] but he woke up but he didn’t think	13
he had.’ ”); see also Bailey, 2017-NMSC-001, ¶ 21 (explaining that “[t]he defendant	14
in Otto claimed that he was asleep and unconsciously molested the child victim”). It	15
6We note that, prior to this appeal, we heard the State’s interlocutory appeal
from the district court’s determination that Defendant received ineffective assistance
of counsel when trial counsel failed to advise Defendant about the possibility of
requesting a jury instruction on the lesser-included offense of criminal sexual contact
of a minor. See State v. Marquez, No. 35,818, mem. op. (N.M. Ct. App. Feb. 21,
2017) (non-precedential). This Court reversed the district court, concluding the
lower court’s finding of prejudice “difficult to comprehend” given the clear record
that Defendant’s trial strategy was one of “total denial.” Id. ¶ 11. We find nothing in
the record to change our assessment of the defense.

23
also is unlike Kerby II, where the defendant “injected the issue of intent by calling	1
his mother to testify that [the d]efendant told her the touch was merely a fatherly pat	2
on the bottom.” 2007-NMSC-014, ¶ 26. What differentiates this case from Otto and	3
Kerby II—and makes the admission of the uncharged sexual misconduct evidence	4
to prove unlawfulness impermissible—is that, notwithstanding the State’s parsing	5
of the testimony, Defendant here never made any acknowledgement that he did (or	6
may have) touched an intimate body part of J.K.	7
{28} 	Second, we also reject the State’s one-paragraph argument that the uncharged	8
sexual misconduct evidence was admissible because “Defendant put at issue the	9
question of [J.K.]’s credibility” by suggesting that Judy had “influenced [J.K.] to	10
fabricate the accusation against Defendant.” As already discussed, we reject the	11
notion that Rule 11-404(B) evidence involving the same victim is admissible simply	12
because it may corroborate the victim’s testimony. See Part I.A, paragraph 19, supra.	13
Further, we fail to see how—other than suggesting Defendant’s propensity to	14
sexually abuse J.K.—evidence of Defendant’s uncharged sexual misconduct would	15
have made it more or less probable that Judy did not influence J.K. to fabricate the	16
allegation. Cf. State v. Jones, 1995-NMCA-073, ¶ 15, 120 N.M. 185, 899 P.2d 1139	17
(“Although the [s]tate argues that the other crime would be admissible to show	18
‘common scheme’ and to rebut the claim of consent, the way the evidence	19
accomplishes this is through the prohibited method of proving propensity.”).	20

24
{29} 	Although the State cites State v. Jordan, 1993-NMCA-091, 116 N.M. 76, 860	1
P.2d 206, in support of its theory that this evidence was admissible to rebut a claim	2
of fabrication, that case is different. 7 In Jordan, the defendant theorized that the	3
victim’s father spoke to the victim after she spent time with the defendant to	4
encourage the victim to fabricate a story. See id. ¶¶ 4-5. Unlike here, the victim’s	5
father in Jordan knew about the prior misconduct when he spoke with the victim.	6
Id. ¶ 17. Hence, the evidence in Jordan was admissible to rebut the defendant’s	7
fabrication theory because it “explain[ed] why the victim’s father questioned [the	8
victim after the incident giving rise to the charges].” Id. ¶ 16. In this case, by contrast,	9
the Rule 11-404(B) evidence had no bearing on the genesis of the conversation in	10
which J.K. made her disclosure to Judy and did not rebut Defendant’s theory in a	11
way other than “show[ing] on a particular occasion [Defendant] acted in accordance	12
with [his] character.” Rule 11-404(B)(1).	13
{30} 	We therefore reject the State’s alternative grounds for admission of the	14
uncharged sexual misconduct evidence. There being no non-propensity basis for the	15
admission of this evidence, it was an abuse of discretion for the district court to admit	16
the same. See Gallegos, 2007-NMSC-007, ¶ 35 (“Evidence solely having value as	17
7Jordan appears to rely, at least in part, on the defendant’s lewd and lascivious
disposition toward the victim in concluding that the district court did not abuse its
discretion by admitting the defendant’s uncharged sexual misconduct with the victim
in that case. See id. ¶ 21. To the extent Jordan relied on the lewd and lascivious
disposition exception for its holding, it is overruled.

25
propensity evidence is inadmissible under Rule 11-404(B) and is to be excluded	1
under that rule automatically.”).	2
II. 	The Error Was Not Harmless	3
{31} 	Having determined the district court abused its discretion by admitting	4
evidence of Defendant’s uncharged conduct, we must next determine whether the	5
error was harmless. See Tollardo, 2012-NMSC-008, ¶ 25 (“Improperly admitted	6
evidence is not grounds for a new trial unless the error is determined to be harmful.”).	7
Noting the State on appeal does not address Defendant’s harmless error argument,	8
and based on our examination of the record, we agree with Defendant that the error	9
was harmful.	10
{32} 	Non-constitutional errors, such as the erroneous evidentiary ruling at issue in	11
this case, are “harmless when there is no reasonable probability the error affected	12
the verdict.” Id. ¶ 36 (emphasis, internal quotation marks, and citation omitted). In	13
holistically assessing the harmfulness of the error, we consider, among other things,	14
the circumstances of the error, the emphasis placed on the error, evidence of a	15
defendant’s guilt apart from the error, the importance of the improperly-admitted	16
evidence, and whether the erroneously admitted evidence introduced new facts or	17
was merely cumulative. Id. ¶ 43. In addition, we are mindful that “[w]here, as here,	18
the improperly admitted evidence goes to the primary issue of credibility in a sexual	19

26
abuse case, it is more likely to be prejudicial.” State v. Duran, 2015-NMCA-015,	1
¶ 26, 343 P.3d 207.	2
{33} 	In this case, the only direct evidence of the charged conduct came from J.K.	3
who testified that, approximately seventeen years earlier, Defendant fondled her at	4
night. After J.K.’s brief testimony on the charged conduct, the State then elicited	5
from J.K. that Defendant, on several occasions, would also make her stroke his penis.	6
Unlike J.K.’s recall of the charged conduct, which she repeatedly testified was	7
“[j]ust a blur,” J.K. remembered with specificity one of these uncharged incidents.	8
The erroneously admitted evidence thus introduced a new and concrete set of facts	9
into the trial—facts that were not merely cumulative of the charged conduct.	10
Moreover, the State, in closing argument, emphasized the Rule 11-404(B) evidence,	11
telling the jury that “it’s something for you to consider for its lewd nature” and	12
asserting that it served as corroboration. Importantly, at its core, this case came down	13
to the jury making a credibility determination between Defendant and J.K. See	14
Marquez, No. 35,818, mem. op. ¶ 12 (“[I]t seems abundantly clear that the verdict	15
rendered in this case is fundamentally reflective of a credibility determination.”).	16
{34} 	Given the centrality of credibility in this case and the nature and emphasis	17
placed on the erroneously admitted evidence, we conclude there is a reasonable	18
probability the error affected the jury’s verdict in this case. See State v. Garcia, 2019-	19
NMCA-056, ¶ 16, 450 P.3d 418 (“Given the importance of credibility . . . , we have	20

27
grave doubts concerning the fairness of the trial and conclude that the [erroneous]	1
admission of [evidence] amounted to plain error that was not harmless.”); Duran,	2
2015-NMCA-015, ¶ 24 (concluding the admission of improper testimony was	3
harmful because, even though the testimony was only discussed briefly, “it was	4
designed to lead the jury to . . . [make] an inference that would support [the v]ictim’s	5
credibility”); see also State v. Lucero, 1993-NMSC-064, ¶ 22, 116 N.M. 450, 863	6
P.2d 1071 (concluding the admission of improper testimony was harmful “[b]ecause	7
credibility was a pivotal issue in [the] case, it is likely that the jury was swayed by	8
[the] improper testimony”). The erroneous admission of the Rule 11-404(B)	9
evidence was harmful and we accordingly reverse and remand for a new trial.	10
III. 	Defendant’s Remaining Claims of Error	11
{35} 	Having reversed Defendant’s conviction on the Rule 11-404(B) issue, we do	12
not reach his other claims of error. Specifically, Defendant’s claims that (1) he was	13
denied the right to an impartial jury because the district court excused a juror for	14
cause after the jury was sworn; (2) the State misled the jury regarding the reasonable	15
doubt standard; and (3) he was denied the right to effective assistance of counsel are	16
rendered moot by our reversal on other grounds. See, e.g., State v. Stanley, 2001-	17
NMSC-037, ¶ 44, 131 N.M. 368, 37 P.3d 85 (“In light of the reversal of the	18
evidentiary issues, we do not review [the d]efendant’s ineffective assistance of	19
counsel claim or his issue dealing with the refusal of the trial court to hold a hearing	20

28
on his motion for a new trial.”). Defendant’s remaining claims of error pertain to	1
evidentiary and discovery matters. We decline to reach these issues because it is	2
unlikely they will arise in the same manner on remand, and we avoid issuing	3
advisory opinions. See Santa Fe S. Ry., Inc. v. Baucis Ltd. Liab. Co., 1998-NMCA-	4
002, ¶ 24, 124 N.M. 430, 952 P.2d 31 (“Our concern with issuing advisory opinions	5
stems from the waste of judicial resources used to resolve hypothetical situations	6
which may or may not arise.”).	7
CONCLUSION	8
{36} 	For the foregoing reasons, we reverse Defendant’s conviction and remand for	9
a new trial.	10
{37} 	IT IS SO ORDERED.	11
______________________________	12
JENNIFER L. ATTREP, Judge	13
WE CONCUR:	14
___________________________	15
JULIE J. VARGAS, Judge	16
____________________________	17
KRISTINA BOGARDUS, Judge	18