{49} “We review a district court's interpretation and application of Rule 5–204 de novo.” State v. Branch, 2010–NMSC–042, ¶ 19, 148 N.M. 601, 241 P.3d 602,overruled on other grounds by State v. Tollardo, 2012–NMSC–008, ¶ 37 & n. 6, 275 P.3d 110. {50} A criminal indictment or information need not contain exacting detail as long as the defendant is given sufficient notice of the charges.

{18} We review the admission of evidence under an abuse of discretion standard. State v. Branch, 2010-NMSC-042, ¶ 9, 148 N.M. 601, 241 P.3d 602. "Whether there was possible unfair prejudice in admitting evidence is a matter within the trial court's discretion."

{51} We have recognized that proving state of mind can justify the admission of evidence of crimes, wrongs, or other acts. See, e.g., State v. Branch, 2010-NMSC-042, ¶ 13, 148 N.M. 601, 241 P.3d 602 ("[W]e . . . emphasize that the time between incidents is an important factor to consider when determining the admissibility of a prior crime, wrong, or act under Rule 11-404(B) to establish a defendant's state of mind."). Given the methodical nature of Defendant's actions—his preparation and execution of a plan in anticipation of an armed police response—and their temporal proximity to the killings, we agree with the State that this evidence was highly probative of Defendant's state of mind when he shot and killed Chris and Michelle, that the killings were wilful and deliberate as a conviction for first-degree murder requires.

{22} We review improperly admitted evidence for non-constitutional harmless error. State v. Branch, 2010–NMSC–042, ¶ 15, 148 N.M. 601, 241 P.3d 602,overruled on other grounds by State v. Tollardo, 2012–NMSC–008, 275 P.3d 110. “[N]on-constitutional error is harmless when there is no reasonable probability the error affected the verdict.”

Our review has located the following cases where our appellate courts analyzed harmless error under the Moore test. Any other opinions that similarly applied the Moore test are also overruled to the extent they did the same: State v. Wilson, 2011–NMSC–001, ¶¶ 39–42, 149 N.M. 273, 248 P.3d 315; State v. Branch, 2010–NMSC–042, ¶¶ 15–17, 148 N.M. 601, 241 P.3d 602; State v. Aragon, 2010–NMSC–008, ¶¶ 35–36, 147 N.M. 474, 225 P.3d 1280; State v. Marquez, 2009–NMSC–055, ¶¶ 21–25, 147 N.M. 386, 223 P.3d 931; State v. Macias, 2009–NMSC–028, ¶¶ 39–44, 146 N.M. 378, 210 P.3d 804; State v. McClaugherty, 2003–NMSC–006, ¶¶ 32–34, 133 N.M. 459, 64 P.3d 486; State v. Gonzales, 2000–NMSC–028, ¶ 42, 129 N.M. 556, 11 P.3d 131; State v. Duffy, 1998–NMSC–014, ¶¶ 38–41, 126 N.M. 132, 967 P.2d 807; State v. Ross, 1996–NMSC–031, 122 N.M. 15, 27, 919 P.2d 1080, 1092; State v. Williams, 117 N.M. 551, 559, 874 P.2d 12, 20 (1994); State v. Compton, 104 N.M. 683, 687, 726 P.2d 837, 841 (1986); Sanchez v. State, 103 N.M. 25, 27–28, 702 P.2d 345, 347–48 (1985); State v. Skinner, 2011–NMCA–070, ¶¶ 22–26, 150 N.M. 26, 256 P.3d 969; State v. Tom, 2010–NMCA–062, ¶¶ 17–20, 148 N.M. 348, 236 P.3d 660; State v. McClennen, 2008–NMCA–130, ¶¶ 13–15, 144 N.M. 878, 192 P.3d 1255; State v. Morales, 2002–NMCA–052, ¶¶ 24–25, 132 N.M. 146, 45 P.3d 406; State v. Barragan, 2001–NMCA–086,

{¶11} Rule 5-204 NMRA permits amendment to a charging document in order to conform to the evidence presented at trial provided that the amendment (1) does not charge an entirely new offense, and (2) does not prejudice the "substantial rights of the defendant." Rule 5-204(A), (C); see State v. Branch, 2010-NMSC-042, ¶ 19, 148 N.M. 601, 241 P.3d 602 ("Rule 5-204(C) cannot be used to impose an entirely new charge against a defendant after the close of testimony." (alteration, internal quotation marks, and citation omitted)), overruled on other grounds by State v. Tollardo, 2012-NMSC-008, ¶ 37 n.6, 275 P.3d 110.

"Under Rule 5-204(C), if the substantial rights of a defendant are prejudiced by a variance, then such a variance may provide the grounds for an acquittal." State v. Branch , 2010-NMSC-042, ¶ 20, 148 N.M. 601, 241 P.3d 602, overruled on other grounds by State v. Tollardo , 2012-NMSC-008, ¶ 37 n.6, 275 P.3d 110. We review a district court's interpretation and application of Rule 5-204 de novo.

{¶3} We review de novo whether the district court-in instructing the jury on an uncharged theory of aggravated battery upon a peace officer-impermissibly allowed the indictment to be amended. See State v. Branch, 2010-NMSC-042, ¶ 19, 148 N.M. 601, 241 P.3d 602 ("We review a district court's interpretation and application of Rule 5-204 [NMRA] de novo."), overruled on other grounds by Statev. Tollardo, 2012-NMSC-008, ¶ 37 n.6, 275 P.3d 110. Rule 5-204 permits an indictment to be amended to conform to the evidence presented at trial so long as the amendment (1) does not charge an entirely new offense, and (2) does not prejudice the substantial rights of the defendant. See Rule 5-204(C) (providing that "[t]he court may at any time allow the indictment . . . to be amended in respect to any variance to conform to the evidence" and that any variance between the indictment and the evidence shall not be grounds for acquittal "unless such variance prejudices substantial rights of the defendant"); see also Branch, 2010-NMSC-042, ¶ 19 ("Rule 5-204(C) cannot be used to impose an entirely new charge against a defendant after the close of

Rule 5-204 NMRA governs amendments of indictments and we review the district court's application the rule de novo. State v. Branch, 2010-NMSC-042, ¶ 19, 148 N.M. 601, 241 P.3d 602, overruled on other grounds by State v. Tollardo, 2012-NMSC-008, ¶ 37, 275 P.3d 110. The State argues that the matter should be reviewed only for fundamental error because Defendant did not object to the district court's ruling, but after reviewing the record we agree with Defendant that he had no opportunity to do so and thus, the rules of preservation do not apply.

{23} Generally, we review the district court's "admission of evidence for an abuse of discretion." State v. Branch, 2010-NMSC-042, ¶ 9, 148 N.M. 601, 241 P.3d 602, overruled on other grounds by State v. Tollardo, 2012-NMSC-008, ¶ 37 n.6, 275 P.3d 110. An abuse of discretion occurs when the district court "exercises its discretion based on a misunderstanding of the law."