N.M. R. Evid. 11-404
N.M. R. Evid. 11-404
Committee commentary. - Rule 11-404 NMRA was amended in 2012 to be consistent with the restyling of the Federal Rules of Evidence to make them more easily understood and to make style and terminology consistent throughout the rules. These changes were intended to be stylistic only. There was no intent to change any result in any ruling on admissibility.
Paragraph B(3) of this rule, unlike the federal rule, does not require the defendant to request the prosecution to provide notice of intent to introduce evidence under this paragraph. Instead, it requires the prosecution in a criminal case to provide notice of evidence the prosecution intends to offer under this paragraph regardless of any request.
[As amended by Supreme Court Order No. 12-8300-015, effective for all cases pending or filed on or after June 16, 2012; as amended by Supreme Court Order No. 22-8300-027, effective for all cases pending or filed on or after December 31, 2022.]
ANNOTATIONS The 2012 amendment, approved by Supreme Court Order No. 12-8300-015, effective for all cases pending or filed on or after June 16, 2012, rewrote the title of the rule and the rule to make stylistic changes. The 2007 amendment, approved by Supreme Court Order No. 07-8300-035, effective February 1, 2008, amended Paragraph A to add at the beginning of Subparagraph (1) "In a criminal case" and to add at the beginning of Subparagraph (2) "In a criminal case, subject to limitations imposed by Rule 11-413 NMRA". The 2006 amendment, approved by Supreme Court Order No. 06-8300-025, effective December 18, 2006, added the last sentence of Paragraph B relating to notice of other crimes, wrongs or acts. The 1993 amendment, effective December 1, 1993, substituted "proving action" for "proving that he acted" in paragraph A, substituted "show action" for "show that he acted" in Paragraph B, and substituted "trait of character" for "trait of his character" in Paragraph A and Subparagraph A(1). Compiler's notes. - This rule is similar to Rule 404 of the Federal Rules of Evidence.
For exclusion of relevant evidence on grounds of prejudice, confusion or waste of time, see Rule 11-403 NMRA. For types of evidence admissible to prove character, see Rule 11-405 NMRA. I. GENERAL CONSIDERATION. In most cases, "grooming" for sexual exploitation should be established by expert testimony. State v. Sena, 2007-NMCA-115, 142 N.M. 677, 168 P.3d 1101, cert. granted, 2007-NMCERT-008. Insufficient evidence of "grooming". - Evidence that defendant possessed a nude photograph of this ex-wife and owned pornographic videos, that defendant showered with the victim, that defendant walked about the house naked in front of the victim, and that defendant showed the victim a pornographic movie and his ex-wife's thong underwear did not satisfy the requirements of "grooming" behavior. State v. Sena, 2007-NMCA-115, 142 N.M. 677, 168 P.3d 1101, cert. granted, 2007-NMCERT-008. Evidence in probable cause hearing. - Evidence inadmissible at trial as unfairly prejudicial or as evidence of other crimes may be considered in a hearing to determine probable cause to proceed with death-penalty proceedings. State v. Smith, 1997-NMSC-017, 123 N.M. 52, 933 P.2d 851. When character admissible. - Where character is an element of the crime, claim or defense, there is no question as to its relevancy and its admission is governed by Rule 11-402 NMRA, but in all other cases where character evidence is collateral, its admissibility is limited to the exceptions outlined in this rule. State v. Smith, 1979-NMSC-020, 92 N.M. 533, 591 P.2d 664. Character and prior act evidence admissible to rebut inference of witness bias. - Evidence of the defendant's character and prior acts was admissible to rebut the inference of bias raised by the defendant's questioning of a prosecution witness about her negative feelings toward the defendant, even though this evidence may have been inadmissible for other purposes under this rule. State v. Abril, 2003-NMCA-111, 134 N.M. 326, 76 P.3d 644, cert. denied, 134 N.M. 320, 76 P.3d 638. Trait to be proven must be directly in issue. - Character evidence is admissible in a civil case where character is in issue, but the trait of character, desired to be proved by testimony in the form of opinion or evidence of reputation, must be directly in issue. Baum v. Orosco, 1987-NMCA-102, 106 N.M. 265, 742 P.2d 1. Specific instances of character evidence are not admissible under Paragraph A of this rule to prove that defendant acted in conformity with any particular trait. State v. Schoonmaker, 2005-NMCA-012, 136 N.M. 749, 105 P.3d 302, cert. granted, 2005-NMCERT-001. Mistrial not required. - The trial court did not err in denying a mistrial based on the prosecutor's questions that introduced irrelevant evidence of other crimes or bad acts into the defendant's trial. State v. Lucero, 1999-NMCA-102, 127 N.M. 672, 986 P.2d 468, cert. denied, 128 N.M. 149, 990 P.2d 823. Rule does not cover character evidence where character element of crime. - This rule does not bar character evidence when character is an element of the crime. In re Will of Ferrill, 1981-NMCA-074, 97 N.M. 383, 640 P.2d 489. Where character is an element of the crime, claim or defense, there is no question as to relevancy; character evidence of this type is not covered by this rule and is admissible under Rule 11-402 NMRA, which relates to admission of relevant evidence. Such character evidence may be proved by evidence of reputation, by opinion evidence or by specific instances of conduct. State v. Bazan, 1977-NMCA-011, 90 N.M. 209, 561 P.2d 482, cert. denied, 90 N.M. 254, 561 P.2d 1347. Where character is an element of the crime or defense, this rule does not apply, and evidence of specific conduct may be admitted to prove the character. State v. Reneau, 1990-NMCA-119, 111 N.M. 217, 804 P.2d 408. Common-law exception. - The lewd and lascivious common-law exception to the general proscription of admitting evidence of uncharged conduct is not perpetuated by Rule 11-404 NMRA. State v. Kerby, 2005-NMCA-106, 138 N.M. 232, 118 P.3d 740, cert. granted, 2005-NMCERT-008. Circumstantial use of character evidence restricted. - Where character evidence is used to suggest that a person acted consistently with his character, the evidence is circumstantial and problems of relevancy exist. This rule authorizes the admission of circumstantial character evidence in specified situations, and circumstantial character may be proved only by evidence of reputation or opinion evidence, not by specific instances of conduct. State v. Bazan, 1977-NMCA-011, 90 N.M. 209, 561 P.2d 482, cert. denied, 90 N.M. 254, 561 P.2d 1347. Defendant's character is not element of self-defense. - The character of the defendant is not an element of self-defense; therefore, the defendant's character, whether peaceful or violent, has nothing to do with whether he feared the victim and acted reasonably in accordance with that fear. State v. Reneau, 1990-NMCA-119, 111 N.M. 217, 804 P.2d 408. Character of coercer as element of defense of duress. - Although the character of a coercer is not an element of the defense of duress, a psychologist's opinion of the alleged coercer's character is admissible as relevant to prove defendant's reasonable apprehension that the coercer would carry out his threats. State v. Duncan, 1991-NMSC-010, 111 N.M. 354, 805 P.2d 621. Substance and purpose of evidence must be made clear. - Where no questions were asked and the substance of the evidence was not made known to the court, defendant merely informing the court that it desired to present this type of evidence, tender was insufficient. De La O v. Bimbo's Restaurant, Inc., 1976-NMCA-115, 89 N.M. 800, 558 P.2d 69, cert. denied, 90 N.M. 7, 558 P.2d 619. Admission of evidence under rule is within discretion of trial court, and its determination will not be disturbed on appeal in the absence of an abuse of discretion. State v. Allen, 1978-NMCA-054, 91 N.M. 759, 581 P.2d 22; State v. Smith, 1979-NMSC-020, 92 N.M. 533, 591 P.2d 664. Absent an abuse of discretion, the district court's decision to admit evidence under Paragraph B will not be disturbed on appeal. State v. Altgilbers, 1989-NMCA-106, 109 N.M. 453, 786 P.2d 680. Inadmissible evidence not reversible error if it does not induce verdict. - Where the district court erred when it admitted defendant's prior robbery conviction as propensity evidence; the testimony of eye witnesses provided substantial evidence to support defendant's convictions; the convictions did not rely on the inadmissible robbery conviction; there was such a disproportionate volume of admissible evidence that, in comparison, the single item of inadmissible evidence was minuscule; and there was no substantial conflicting evidence that discredited the state's case, there was no probability that the admission of the robbery conviction affected the verdict and the error was harmless. State v. Branch, 2010-NMSC-042, 148 N.M. 601, 241 P.3d 602. Receipt of inadmissible evidence is not a reversible error when other evidence of the defendant's guilt is so persuasive that under no reasonable probability could the improper evidence have induced the jury's verdict. State v. Vialpando, 1979-NMCA-083, 93 N.M. 289, 599 P.2d 1086, cert. denied, 93 N.M. 172, 598 P.2d 215. Evidence in will contest of character of beneficiary. - Evidence of the character of the beneficiary may be admitted when a will is contested on the grounds of undue influence even when the disposition to exert undue influence is not considered an element of the claim. Such evidence may concern actions occurring, or reputation formed, after the will was executed. In re Will of Ferrill, 1981-NMCA-074, 97 N.M. 383, 640 P.2d 489. Evidence held relevant to show motive. State v. Garcia, 1983-NMSC-008, 99 N.M. 771, 664 P.2d 969. Evidence of identity. - Where defendant raised the issue of mistaken identity, the district court properly allowed the state's witnesses to verify their identity of defendant by defendant's prison mug shot and by reference to defendant's pen packet during the trial. State v. Contreras, 2007-NMCA-045, 141 N.M. 434, 156 P.3d 725, cert. granted, 2007-NMCERT-004. II. CHARACTER OF ACCUSED. Evidence of prior arrest. - Where defendant was asked to perform field sobriety tests and was subsequently arrested for DWI; at trial, defendant testified that defendant did not understand what the field sobriety tests were looking for; defendant also raised a question about whether defendant understood the arresting officer when the officer explained what defendant was required to do on the tests; defendant acknowledged that defendant had performed field sobriety tests before, but that defendant did not remember what the tests required defendant to do; the prosecution asked defendant when defendant had previously performed the field sobriety tests; the prosecution was trying to establish how long ago the prior arrest had occurred; and defendant's trial was a bench trial and the trial court was careful to make clear that the evidence regarding defendant's prior arrests was relevant only to whether or not defendant understood what defendant was required to do for the field sobriety test, it was not reversible error to allow the prosecution to question defendant about prior DWI arrests in connection with defendant's performance of field sobriety tests where the trial court did not rely on that evidence to support defendant's convection of DWI. State v. Mitchell, 2010-NMCA-059, 148 N.M. 842,242 P.3d 409, cert. denied, 2010-NMCERT-006, 148 N.M. 582, 241 P.3d 180. Evidence of reputation for truth. - Defendant's truthfulness is not a pertinent trait of character in a prosecution for criminal sexual penetration of a minor or criminal sexual contact with a minor and the district court did not abuse its discretion in excluding testimony about defendant's reputation for truth in the community where defendant had not testified. State v. Ruiz, 2007-NMCA-014, 141 N.M. 53, 150 P.3d 1003, cert. denied, 2007-NMCERT-001. Solicitation of aggravated burglary. - Defendant's character for honesty and truthfulness is pertinent to the charge of solicitation of aggravated burglary where the underlying felony of the burglary was a theft. State v. Martinez, 2006-NMCA-148, 140 N.M. 792, 149 P.3d 108. Accused's concession of unlawful conduct.- Nothing in this rule expressly conditions the exclusion of propensity evidence upon an accused's concession that his conduct was unlawful. State v. Kerby, 2005-NMCA-106, 138 N.M. 232, 118 P.3d 740, cert. granted, 2005-NMCERT-008. Drafters of rule carefully prescribed circumstances under which evidence of an accused's character is admissible in rebuttal. State v. Kerby, 2005-NMCA-106, 138 N.M. 232, 118 P.3d 740, cert. granted, 2005-NMCERT-008. Evidence of third party's experience with defendant. - Where evidence of third party's experience with defendant tends to make it appear more likely that plaintiff's roughly contemporaneous experience with defendant was intentional, rather than mistaken or accidental, this evidence is persuasive precisely because it tends to establish defendant's character for reneging on its promises to small, unsophisticated businesses; therefore evidence of third party's experience with defendant constituted improper evidence. Santa Fe Custom Shutters & Doors, Inc. v. Home Depot USA, Inc., 2005-NMCA-051, 137 N.M. 524, 113 P.3d 347, cert. denied, 2005-NMCERT-005. Evidence of prior lawful business dealings. - This rule does not bar a defendant from offering evidence of prior lawful business dealings to attempt to rebut the state's evidence of fraudulent intent. State v. Mercer, 2005-NMCA-023, 137 N.M. 36, 106 P.3d 1283, cert. denied, 2005-NMCERT-002. Testimony about gang activities. - Testimony was admissible evidence of character where the defendant had introduced the topic of the reputation and activities of gangs in order to portray the incident as self-defense. State v. Coffin, 1999-NMSC-038, 128 N.M. 192, 991 P.2d 477. In a murder prosecution, a detective's testimony, both as to defendant's affiliation with a particular gang and the specific rituals and procedures of that gang, was admissible to show defendant's alleged motive (to rise up in the ranks of the gang by performing a hit on its behalf) and intent to murder the victims. State v. Nieto, 2000-NMSC-031, 129 N.M. 688, 12 P.3d 442. Evidence of trait irrelevant where trait not in issue. - Where defendant's veracity was not an element of the claim in a civil case, evidence of defendant's reputation for truthfulness was irrelevant and properly excluded. Baum v. Orosco, 1987-NMCA-102, 106 N.M. 265, 742 P.2d 1. Rebuttal benefits strictly construed. - Rule allows admission of evidence of accused's character by the prosecution for the purpose of proving that she acted in conformity therewith on a particular occasion only to rebut character evidence offered by the accused; where record shows that accused offered no such character evidence, the state may not avail itself of rebuttal benefits of this rule. State v. Ross, 1975-NMCA-056, 88 N.M. 1, 536 P.2d 265. Evidence of defendant's peaceful character subject to rebuttal by the State. - Where defense counsel elicited evidence from a State's witness that defendant had a nice, quiet, and non-aggressive nature, the district court did not abuse its discretion in allowing the State to rebut this evidence with evidence that defendant had been accused of aggravated assault with a deadly weapon for going to the property of an individual and shooting a gun five to six times. State v. Sanchez, 2015-NMCA-077, cert. denied, 2015-NMCERT-006. Refusal of testimony asserting defendant's honesty held harmless error. - Trial court erred in excluding testimony of two defense witnesses (employers of defendant) as to the defendant's honesty, but the error was harmless because the evidence of guilt was overwhelming. State v. Williams, 1978-NMCA-065, 91 N.M. 795, 581 P.2d 1290. Preservation of objection for appeal. - Defendant's general relevancy objection based solely upon Rule 11-401 NMRA did not preserve for appeal the issue of character evidence under Paragraph B of this rule. State v. Phillips, 2000-NMCA-028, 128 N.M. 777, 999 P.2d 421, cert. denied, 128 N.M. 689, 997 P.2d 821. When rule is authority for admission of character evidence, the method of proof must be in conformity with Rule 11-405 NMRA. State v. Montoya, 1981-NMCA-021, 95 N.M. 433, 622 P.2d 1053, writ quashed, 95 N.M. 426, 622 P.2d 1046. Character evidence tendered in form required by Rule 11-405 NMRA. - Where this rule is authority for admission of tendered character evidence, the evidence is not to be admitted unless tendered in the form required by Rule 11-405 NMRA. State v. Montoya, 1981-NMCA-021, 95 N.M. 433, 622 P.2d 1053, writ quashed, 95 N.M. 426, 622 P.2d 1046. Testimony as evidence of character.---The court abused its discretion in excluding the testimony of a satisfied customer as extrinsic evidence of character under this rule because its exclusion precluded defendant from an opportunity to fully develop a major element of her defense. State v. Mercer, 2005-NMCA-023, 137 N.M. 36, 106 P.3d 1283, cert. denied, 2005-NMCERT-002. Specific conduct evidence is not admissible to prove pertinent trait of character under this rule. State v. Montoya, 1981-NMCA-021, 95 N.M. 433, 622 P.2d 1053, writ quashed, 95 N.M. 426, 622 P.2d 1046. Hearsay evidence admissible under Subparagraph A(2) as to collateral matters is within the trial court's discretionary control. State v. Montoya, 1981-NMCA-021, 95 N.M. 433, 622 P.2d 1053, writ quashed, 95 N.M. 426, 622 P.2d 1046. When cross-examination of character witnesses concerning defendant's convictions not allowed. - Cross-examination of character witnesses concerning defendant's convictions 23 years prior to the trial will not be allowed when: (1) the trial judge conducted no in camera inquiry to determine whether the prior alleged events had occurred; (2) none of the witnesses had known the accused for more than six years; (3) the trial court did not instruct the jury at all concerning the limited purpose of the prosecutor's inquiry on the subject; (4) the defendant offered no evidence of specific prior acts, either good or bad, to the jury; and (5) the defense attorney did specifically object to the inquiry made by the prosecutor. State v. Christopher, 1980-NMSC-085, 94 N.M. 648, 615 P.2d 263. Evidence of peaceful, law-abiding nature. - Where aggression or self-defense is in issue, evidence of a defendant's peaceful, law-abiding nature is admissible to show that he was not the aggressor, but where, immediately prior to the incident in question, defendant admits to being in the midst of a violent affray, evidence of his peaceful nature in the past ceases to be relevant and is no longer admissible. Baum v. Orosco, 1987-NMCA-102, 106 N.M. 265, 742 P.2d 1. Handgun not used in offense admissible. - Although handgun was not used in robbery, it was admissible as relevant to prove the intent and severity of his plan, as well as his possible plan to flee. State v. Duffy, 1998-NMSC-014, 126 N.M. 132, 967 P.2d 807. Evidence of consciousness of guilt. - A handwriting expert's testimony as to defendant's attempt to disguise his handwriting in exemplars, at a time when he was charged with multiple forgeries, was relevant evidence showing a consciousness of guilt and was not inadmissible character evidence. State v. Deutsch, 1985-NMCA-123, 103 N.M. 752, 713 P.2d 1008, cert. denied, 476 U.S. 1183 , 106 S. Ct. 2918, 91 L. Ed. 2d 547 (1986). Admission of drug paraphernalia. - Drug scale was admissible at trial to show that defendant had the means and intent to commit the crime charged, the sale of marijuana, even though he was not charged with possession of drug paraphernalia. State v. Vallejos, 1998-NMCA-151, 126 N.M. 161, 967 P.2d 836. Unsubstantiated reference to defendant as drug dealer inappropriate. - Repeated references to defendant as a known drug dealer when the state lacked sufficient evidence to convict defendant of possession or distribution of illegal drugs, and instead relied on unsubstantiated hearsay to convince the jury defendant was a "known drug dealer" so, ipso facto, the shotgun must belong to him, is prohibited and should be excluded. State v. Rael, 1994-NMCA-043, 117 N.M. 539, 873 P.2d 285. Error to admit unrelated threatening letters in murder prosecution. - In a prosecution for second-degree murder, it was reversible error to admit threatening letters written by the defendant to a third party on an unrelated matter one month before the shooting. State v. Elinski, 1997-NMCA-117, 124 N.M. 261, 948 P.2d 1209. Evidence concerning family member. - Officer's testimony as to a prior traffic stop of defendant's brother in which a box of bullets was found was too attenuated to have caused sufficient prejudice to defendant so as to have denied him a fair trial. State v. Foster, 1998-NMCA-163, 126 N.M. 177, 967 P.2d 852, cert. denied, 126 N.M. 533, 972 P.2d 352. Erroneous admission of evidence in child pornography case was harmless. - In defendant's trial for possession of child pornography, where the district court admitted evidence of sex toys and male enhancement products found in defendant's home on the basis that they were relevant to showing a prurient interest, motive, and intent and that the evidence was relevant to proof of a sexually explicit exhibition for the purpose of sexual stimulation, the district court abused its discretion in admitting the evidence, because the evidence had no particular relevance to any issue in the case and served no other purpose than to portray defendant's character as a sexual deviant. The inadmissible evidence, however, was harmless where other evidence established that there were more than nine hundred downloads in a year to defendant's IP address, most of which were known images of child pornography, where child pornography was retrieved from a shared folder of a computer at that same IP address, and that when the search warrant was executed on defendant's home, massive amounts of pornography were found on defendant's computer, including child pornography. State v. Adamo, 2018-NMCA-013, cert. denied. Judgment reversed where prosecutor's suggestion of availability of inadmissible evidence leads to conviction. - Where a prosecutor improperly instructs the jury on an evidentiary rule so as to suggest the availability of inadmissible evidence relating to the accused's character and there is a reasonable probability that the misconduct contributed to the conviction, the judgment and sentence must be reversed and the defendant accorded a new trial. State v. Payne, 1981-NMCA-067, 96 N.M. 347, 630 P.2d 299. III. CHARACTER OF VICTIM. Exclusion of evidence of specific acts of violence during cross-examination of prosecution witnesses. - Where the state called witnesses who testified about the victim's peaceable character before the defendant had raised any issue of the victim's aggressiveness; the trial court precluded the defendant from cross-examining the witnesses about specific instances of the victim's violent tendencies; and the trial court allowed the defendant to call witnesses who testified that the victim had a reputation for violent behavior, to cross-examine the state's rebuttal witnesses about their knowledge of the victim's reputation and prior instances of violent conduct, and to raise the victim's criminal record to the jury in closing argument, the defendant was not deprived of the right to present the defendant's self-defense claim to the jury. State v. Balenquah, 2009-NMCA-055, 146 N.M. 267, 208 P.3d 192. Evidence of pertinent trait of character of murder victim is admissible to prove that the victim acted in conformity with that character trait in the incident where the killing occurred. State v. Montoya, 1981-NMCA-021, 95 N.M. 433, 622 P.2d 1053, writ quashed, 95 N.M. 426, 622 P.2d 1046. Admission of violent acts of decedent discretionary. - Determination of the admission of violent acts of decedent, a collateral issue, rests in the discretion of the trial court. State v. Marquez, 1974-NMCA-129, 87 N.M. 57, 529 P.2d 283, cert. denied, 87 N.M. 47, 529 P.2d 273. And there is no abuse of discretion in excluding 32- and 33-year-old convictions. State v. Ewing, 1982-NMSC-003, 97 N.M. 235, 638 P.2d 1080. Evidence may require severance of trials. - Trial court abused its discretion in not severing trials where the evidence pertaining to each minor sexual assault victim would not have been cross-admissible in separate trials. State v. Ruiz, 2001-NMCA-097, 131 N.M. 241, 34 P.3d 630, cert. denied, 131 N.M. 363, 36 P.3d 953. Hearsay statement in business record not admissible. - Statement in a report by the youth diagnostic development center from the commitment of a minor to the New Mexico boys school offered to prove character of the victim through opinion evidence was not admissible since it lacked trustworthiness because of the unreliability of the source of information contained therein. State v. Coffin, 1999-NMSC-038, 128 N.M. 192, 991 P.2d 477. Specific violent act not inadmissible. - Evidence of a specific violent act is evidence concerning a trait of violence which may throw light on the question of aggression. A specific violent act is not to be excluded solely because it is not shown that defendant knew of that act. However, such evidence is directed to a collateral issue, and the extent to which that evidence on a collateral issue is to be permitted is within trial court's discretion. State v. Alderette, 1974-NMCA-066, 86 N.M. 600, 526 P.2d 194, cert. denied, 86 N.M. 593, 526 P.2d 187. Prior convictions excluded as evidence of victim's aggression. - Trial court did not err in holding that prejudicial effect of victim's 32- and 33-year-old convictions offered to prove the victim was the aggressor outweighed their probative effect where there was no evidence that defendant knew of victim's prior convictions. Ewing v. Winans, 749 F.2d 607 (10th Cir. 1984). In a murder trial where the defendant alleged self-defense in shooting at an occupied vehicle but conceded that he did not know of his assailant's juvenile conviction for armed robbery, the trial court did not abuse its discretion in disallowing introduction of the evidence, especially when it is considered that the defendant fired at the vehicle while it was moving away. State v. Gonzales, 1990-NMSC-051, 110 N.M. 166, 793 P.2d 848. Victim's aggravated battery conviction inadmissible where defendant had no direct knowledge of it. - Where defendant in a murder trial testified that he heard of instances where the victim had stabbed several persons, but there was no evidence that defendant knew that the victim had been convicted of aggravated battery, the aggravated battery conviction was not admissible. State v. McCarter, 1980-NMSC-003, 93 N.M. 708, 604 P.2d 1242. Proper to exclude additional evidence of deceased's aggression. - Where two eyewitnesses called by the state, along with testimony of defendant, established that the deceased and his friend were the aggressors, there was no other purpose for which additional evidence of decedent's misconduct could be introduced. Additional evidence would be circumstantial, collateral and merely cumulative, and as such its admission rested within the sound discretion of the trial court; exclusion would not have affected a substantial right of the defendant. State v. Marquez, 1974-NMCA-129, 87 N.M. 57, 529 P.2d 283, cert. denied, 87 N.M. 47, 529 P.2d 273. Trial court in second-degree murder prosecution properly excluded proffered testimony which defense wanted to use to corroborate the testimony of other witnesses which showed deceased's reputation and disposition for fighting, his violent temper and his conduct as a bully. State v. Snow, 1972-NMCA-138, 84 N.M. 399, 503 P.2d 1177, cert. denied, 84 N.M. 390, 503 P.2d 1168. In prosecution for first-degree murder, defendant's tendered evidence that victim had pulled a gun on someone in another bar was evidence of specific conduct not admissible to prove character of victim and did not fit the "other purposes" exception to Paragraph B, since there was no question as to victim's identity and victim's prior act was also not probative of identity of his assailant. State v. Blea, 1984-NMSC-055, 101 N.M. 323, 681 P.2d 1100. Self-defense in homicide case. - When self-defense is an issue in a homicide case, the victim's character constitutes an element of the defense which properly can be proven by specific instances of conduct, and if the trial court precludes defendant from proving an element of that defense, the court abuses its discretion. State v. Gallegos, 1986-NMCA-004, 104 N.M. 247, 719 P.2d 1268. Types of evidence admissible to prove victim's character. - Absent any claim of self-defense, victim's asserted character traits were not essential elements of the defense in prosecution for assault with intent to commit a violent felony, and said traits were not provable by specific acts of conduct but only by reputation or opinion evidence. State v. Bazan, 1977-NMCA-011, 90 N.M. 209, 561 P.2d 482, cert. denied, 90 N.M. 254, 561 P.2d 1347. Absence of mistake exception. - The absence of mistake exception is limited to situations when a defendant claims to have made a mistake; therefore, it does not apply to show absence of mistake on the part of a witness or the victim. State v. Ruiz, 2001-NMCA-097, 131 N.M. 241, 34 P.3d 630, cert. denied, 131 N.M. 363, 36 P.3d 953 (2002). Evidence of specific instances of a victims' prior violent conduct may not be admitted to show that the victim was the first aggressor when the defendant is claiming self-defense. A victim's violent character is not an essential element of self-defense. State v. Armendariz, 2006-NMSC-036, 140 N.M. 182, 141 P.3d 526. Evidence of victim's drug use and sales. - Where defendant and another assailant broke into the home of the victim armed with metal bars or bats and defendant struck victim with a metal bar; defendant's aggravated burglary conviction was supported by the testimony of the victim, the victim's spouse and the victim's child; and defendant proffered testimony to show that the victim and the victim's spouse used methamphetamine and that defendant had seen numerous cars making short stops at the victim's house to show that the victim was using or selling drugs and that, therefore, the victim was untruthful and likely to initiate fraudulent civil lawsuits, the trial court properly exclude the testimony because the probative value of the evidence was far outweighed by the prejudice to the victim of being portrayed as a drug user or drug dealer. State v. Trujillo, 2012-NMCA-112, 289 P.3d 238, cert. granted, 2012-NMCERT-011. IV. OTHER CRIMES, WRONGS OR ACTS. Admissibility of prior convictions under Section 31-31A-2(D)(5) NMSA 1978. - Any evidence of a prior conviction referred to in Section 31-31A-2(D)(5) NMSA 1978 must also be admissible under Rules 11-403 and 11-404(B) NMRA. State v. Serna, 2013-NMSC-033. Admission of prior convictions under Section 31-31A-2(D)(5) NMSA 1978 was error. - Where defendant was charged with trafficking imitation controlled substances for selling baking soda as cocaine; pursuant to Section 31-31A-2(D)(5) NMSA 1978; the district court allowed testimony about defendant's prior criminal convictions for possession of a controlled substance and credit card fraud; and the evidence of defendant's prior convictions went solely to propensity, painting defendant as a bad character from the drug world, the convictions were inadmissible. State v. Serna, 2013-NMSC-033. Admission of prior convictions under Section 31-31A-2(D)(5) NMSA 1978 was harmless error. - Where defendant was charged with trafficking imitation controlled substances for selling baking soda as cocaine and first degree murder; pursuant to Section 31-31A-2(D)(5) NMSA 1978, the district court erroneously allowed testimony about defendant's prior criminal convictions for possession of a controlled substance and credit card fraud; the evidence was admitted through the testimony of a police officer; neither side placed much emphasis on the convictions; the jury was given a limiting instruction that the jury could consider the convictions only to determine whether defendant committed the offense of distribution of an imitation controlled substance; defendant did not inquire into the convictions on cross-examination; the State briefly mentioned the convictions in closing arguments; the evidence of defendant's guilt was substantial; and the convictions were cumulative and not necessary to the State's case, the admission of the evidence about defendant's prior convictions was harmless error. State v. Serna, 2013-NMSC-033. Defendant's accusations against the victim. - Where defendant was charged with the first degree murder of the victim; defendant was embittered by the victim's rejection of defendant and the breakup of the relationship between defendant and the victim; defendant made accusations to the ex-wife of the victim and police that the victim intended to sodomize the victim's son, tie the victim's son up, kill the victim's son, and drop the victim's son by a river; and the state informed the court that the rationale for admitting the evidence was to demonstrate attempts by defendant to hurt and isolate the victim from others after the relationship between defendant and the victim broke up, evidencing defendant's motive and intent, evidence of defendant's accusations against the victim was admissible. State v. Flores, 2010-NMSC-002, 147 N.M. 542, 226 P.3d 641. Nude photographs of victims of sexual exploitation. - Where victims of sexual exploitation identified nude photographs of themselves and testified that the defendant took the photographs when the victims were minors and where the photographs corroborated the victims' testimony and provided context for the events that occurred between the victims and the defendant, the photographs were properly admitted into evidence. State v. Dietrich, 2009-NMCA-031, 145 N.M. 733, 204 P.3d 748. Grooming evidence admissible. - Where the defendant alleged that he touched the child's vagina while applying medicine to a rash, but had not done so with sexual intent, grooming evidence was admissible to refute the defendant's assertion that he touched the child strictly for medical reasons. State v. Sena, 2008-NMSC-053, 144 N.M. 821, 191 P.3d 1198. Proof of crime. - Where defendant was charged with aggravated stalking of the victim; in a prior case involving the victim in which defendant had been convicted of false imprisonment and battery, the judgment and sentence prohibited defendant from having contact with the victim; and a stipulated restraining order had been agreed upon by defendant and the victim, the court did not abuse its discretion in admitting the judgment and sentence and the stipulated restraining order, because they served the purpose of proving the elements of aggravated stalking. State v. Gutierrez, 2011-NMCA-088, 150 N.M. 505, 263 P.3d 282, cert. denied, 2011-NMCERT-008. Where defendant's daughter described an incident wherein she witnessed defendant touching the minor victim's genital area, the daughter's testimony provided evidentiary support for one incident of sexual abuse of the victim and was not evidence of uncharged misconduct. State v. Ruiz, 2007-NMCA-014, 141 N.M. 53, 150 P.3d 1003, cert. denied, 2007-NMCERT-001. Proof of intent. - Where defendant's ex-wife testified about a specific incident that occurred when the minor victim of sexual abuse was spending the night as a guest wherein the ex-wife observed defendant crouching beside the victim's bed, stroking her forehead and speaking softly to her, the testimony tended to establish that defendant behaved in an unusual manner, displaying a peculiar form and degree of attention toward the victim and was relevant and admissible. State v. Ruiz, 2007-NMCA-014, 141 N.M. 53, 150 P.3d 1003, cert. denied, 2007-NMCERT-001. Admission of evidence of robberies established motive and identity in murder trial. - In defendant's trial for first-degree murder for the killing of a police officer, where the trial court allowed defendant's accomplice to testify that defendant had committed several robberies prior to the murder, the trial court did not abuse its discretion in admitting the testimony, because testimony about the earlier robberies provided evidence of identity and motive for the murder, gave context to the accomplice's plea deal, and was offered to rebut impeachment by defendant. The state's inquiry presented evidence proving identity by showing that defendant committed the robberies by wearing the same clothes that he was wearing at the time the murder occurred and that defendant used the same pistol in the robberies that he used to murder the officer, and the evidence established defendant's motive to kill the officer to avoid apprehension for the robberies. State v. Romero, 2019-NMSC-007. Evidence of other acts established intent and rebutted claim of accident. - In defendant's trial for the second-degree murder of his girlfriend, where defendant claimed that the shooting was an accident, and where the State presented evidence of defendant's arrests in Texas and New Mexico, both of which showed that defendant had physically abused the victim, including evidence of a previous domestic dispute between defendant and his girlfriend where the arresting officer heard defendant shout "I'm not going to jail over this shit," and saw defendant standing over the girlfriend in an aggressive manner, and where defendant claimed that evidence of his arrest in Artesia was improper character evidence which should have been excluded, particularly because it did not result in criminal charges, and that the evidence was more prejudicial than it was probative, the evidence of defendant's prior arrests for violence against the victim was admissible to rebut his claim of accident and to establish that he intended to shoot the victim to avoid going to jail, to prevent her from testifying against him, due to anger at her plan to break up with him, or simply during the course of one of their many arguments, and the probative value of the evidence was not outweighed by any unfair prejudice because there was other admissible evidence where defendant admitted that he and the victim argued frequently and that he was physically abusive to the victim. State v. Hnulik, 2018-NMCA-026, cert. denied. Proof of plan. - Paragraph B of this rule permits evidence of other crimes, wrongs or acts to be admitted to prove a "plan". State v. Gallegos, 2005-NMCA-142, 138 N.M. 673, 125 P.3d 652, cert. granted, 2005-NMCERT-012. Proof of lack of accident. - Evidence of incident where defendant purposefully ran her vehicle into victim after finding victim in the company of another woman was admissible to show that defendant purposefully collided with victim's vehicle when she once again found victim in the company of other women. State v. Flores, 2015-NMCA-002, cert. granted, 2014-NMCERT-012. Limited probative value of cross-admitting evidence of offenses against each of two victims to show an "opportunity" to commit the offenses is overwhelmed by its substantial prejudicial effect. State v. Gallegos, 2005-NMCA-142, 138 N.M. 673, 125 P.3d 652, cert. granted, 2005-NMCERT-012. Evidence of prior altercation was not admissible to show that victim was the first aggressor. State v. Garcia, 2005-NMCA-042, 137 N.M. 315, 110 P.3d 531, cert. denied, 2005-NMCERT-004. Where evidence of prior bad acts is subject to exclusion under Paragraph B of this rule, the district court did not abuse its discretion in excluding the evidence. State v. Garcia, 2005-NMCA-042, 137 N.M. 315, 110 P.3d 531, cert. denied, 2005-NMCERT-004. Paragraph B is fundamentally a rule of exclusion. State v. Otto, 2005-NMCA-047, 137 N.M. 371, 111 P.3d 229, cert. granted, 2005-NMCERT-004. Rule 11-403 NMRA reinforces the very purpose of Paragraph B of this rule. State v. Otto, 2005-NMCA-047, 137 N.M. 371, 111 P.3d 229, cert. granted, 2005-NMCERT-004. Purpose of Paragraph B of this rule is to protect a defendant from the circumstantial use of other bad acts to establish a character trait or propensity that might be given more weight by the jury than it deserves, and might lead a fact finder to punish the defendant because he is a bad person. State v. Otto, 2005-NMCA-047, 137 N.M. 371, 111 P.3d 229, cert. granted, 2005-NMCERT-004. Admissible exceptions to bad acts evidence in Paragraph B of this rule are subject to a general qualifier: prejudice to defendant. State v. Otto, 2005-NMCA-047, 137 N.M. 371, 111 P.3d 229, cert. granted, 2005-NMCERT-004. The exceptions to Paragraph B of this rule exist to reel the defendant back into the case. State v. Otto, 2005-NMCA-047, 137 N.M. 371, 111 P.3d 229, cert. granted, 2005-NMCERT-004. Generally as to admissibility of other acts. - Whenever the proof of another act or crime tends to prove the guilt of the person on trial, it is admissible notwithstanding the consequences to the defendant since the state has the right to show the guilt of the defendant by any relevant fact. State v. Allen, 1978-NMCA-054, 91 N.M. 759, 581 P.2d 22. Proof of another act or crime may properly be received if it is relevant to and its probative force is sufficiently great upon, some material element of the crime charged which is in issue and upon which there is doubt (such as identity). State v. Allen, 1978-NMCA-054, 91 N.M. 759, 581 P.2d 22. Under former law, admission of evidence of other acts with prosecutrix similar in nature to those charged but occurring at times not covered in the indictment was not error, as whenever proof of another act or crime tends to prove the guilt of the person on trial it is admissible, notwithstanding consequences to defendant. State v. Dodson, 1960-NMSC-051, 67 N.M. 146, 353 P.2d 364. Testimony which amounted to evidence of defendant's bad character or reputation or of her disposition to commit the crime with which she was charged, was clearly inadmissible as a part of state's case in chief, and was prejudicial. State v. Alberts, 1969-NMCA-064, 80 N.M. 472, 457 P.2d 991. It is generally held that proof of convictions of other and separate criminal offenses by defendant is not admissible and that it is prejudicial error to admit such proof. State v. Paul, 1969-NMCA-074, 80 N.M. 521, 458 P.2d 596, cert. denied, 80 N.M. 746, 461 P.2d 228, 397 U.S. 1044 , 90 S. Ct. 1354, 25 L. Ed. 2d 654 (1970). Evidence of offenses other than and independent of the offense with which accused is charged and for which he is being tried was not admissible. State v. Lindsey, 1969-NMCA-121, 81 N.M. 173, 464 P.2d 903, cert. denied, 398 U.S. 904 , 90 S. Ct. 1692, 26 L. Ed. 2d 62 (1970). Under this rule, evidence of other acts may be admissible to prove motive, intent, and absence of mistake. State v. Mercer, 2005-NMCA-023, 137 N.M. 36, 106 P.3d 1283, cert. denied, 2005-NMCERT-002. Prejudice established by erroneous admission. - Since it was error to admit evidence of other crimes under Paragraph B, prejudice was established. State v. Jones, 1995-NMCA-073, 120 N.M. 185, 899 P.2d 1139. Inadverdent introduction of prior bad acts. - Denial of defendant's motion for a mistrial after a witness inadvertently testified that defendant told him he was incarcerated on another charge was not an abuse of discretion where the trial court sustained defendant's objection and instructed the jury not to consider the testimony. State v. Gonzales, 2000-NMSC-028, 129 N.M. 556, 11 P.3d 131. Court to examine other means of proving disputed issue. - In determining the probative value of proffered evidence of other crimes, wrongs or acts, the court should look to the availability of other means of proving the disputed issue and the remoteness in time of the other crime, wrong or act. State v. Taylor, 1986-NMCA-011, 104 N.M. 88, 717 P.2d 64. Evidence admissible to prove material element in issue. - Evidence is not admissible under this rule to prove a material element of the crime charged unless that element is in issue. State v. Beachum, 1981-NMCA-089, 96 N.M. 566, 632 P.2d 1204. Evidence bearing on intent. - Evidence showing that defendant committed other bad acts is admissible if it bears upon other issues, such as intent, in a way that does not merely show propensity. State v. Sarracino, 1998-NMSC-022, 125 N.M. 511, 964 P.2d 72. Uncharged act admissible to establish defendant's specific, unlawful intent. - Where defendant was charged with criminal sexual contact of a minor and where defendant disputed the intent element of the charge, claiming that he lacked an unlawful intent because the contact in the charged incident was merely parental conduct that the child was misinterpreting, the trial court did not abuse its discretion in admitting evidence of an uncharged act where the child victim, defendant's nine-year-old daughter, reported that defendant sat the child on his lap, reached down her pants, and applied ointment to her genitals while digitally penetrating her, because evidence of other acts directed to that victim that bear on a defendant's specific, unlawful intent to commit the charged offense are admissible under 11-404(B)(2) NMRA. State v. Bailey, 2017-NMSC-001, aff'g 2015-NMCA-102. Evidence of sexual misconduct relevant to prove unlawful intent. - Where defendant was convicted of criminal sexual contact of a minor, the trial court did not abuse its discretion in admitting evidence of an uncharged act where child, defendant's nine-year-old daughter, reported that while the family was living in Sandoval County, defendant roused child from sleep at night to watch her favorite movie, laid the child on top of him, placed ointment on his hand, placed his hand in child's pajamas, and touched and penetrated child's vagina; the evidence of the uncharged act was relevant to prove the sexual intent of defendant during the charged incidents where, in one instance, child claimed that defendant placed ointment on his finger and touched and rubbed child's vagina after she got out of the shower, and where defendant did not dispute that he touched child in a manner consistent with child's allegations, but instead argued that his actions toward child were normal parental care and that he touched child without sexual intent. Evidence of unlawful intent was a required element of the charges against defendant, and evidence that defendant touched child in a sexual manner that was not amenable to an interpretation as normal parental care was relevant to whether defendant touched child with unlawful intent. State v. Bailey, 2015-NMCA-102, cert. granted, 2015-NMCERT-009. Purposes listed in Paragraph B not exclusive. - The specific purposes listed in Paragraph B are not the exclusive purposes for which other-crime evidence is admissible. State v. Lara, 1989-NMCA-098, 109 N.M. 294, 784 P.2d 1037, cert. denied, 109 N.M. 262, 784 P.2d 1005. In order to admit evidence under Paragraph B, the court must find that the evidence is relevant to a disputed issue other than the defendant's character, and it must determine that the prejudicial effect of the evidence does not outweigh its probative value, as set out by Rule 11-403 NMRA. State v. Beachum, 1981-NMCA-089, 96 N.M. 566, 632 P.2d 1204. The court did not abuse its discretion in refusing to admit evidence of a witness' prior convictions, where the convictions were 25 and 29 years old and were not relevant to behavior at the time of the defendant's crime. State v. Litteral, 1990-NMSC-059, 110 N.M. 138, 793 P.2d 268, appeal dismissed, 203 F.3d 835 (10th Cir. 2000). Record insufficient to support admission of prior conduct evidence. - Where the reviewing court was not able to determine whether the trial court properly balanced admission of the testimony regarding prior bad acts with its prejudicial effects due to the state's failure to articulate what the evidence was probative of, or why a cognizable exception to the rationale underlying Paragraph B of this rule applied, it was prejudicial error to admit evidence of such prior uncharged conduct. State v. Aguayo, 1992-NMCA-044, 114 N.M. 124, 835 P.2d 840. When improperly admitted evidence requires new trial. - Where the evidence, while being sufficient to sustain a conviction of a heinous crime, is marginal, the admission of unexplained dissimilar prior bad acts may make a new trial appropriate. However, a new trial may not be necessary, despite such improperly admitted evidence, where the evidence of guilt is overwhelming. State v. Aguayo, 1992-NMCA-044, 114 N.M. 124, 835 P.2d 840. Admission of evidence of prior sexual encounter harmless error in sexual exploitation of child case. - Where defendant was charged with two counts of manufacturing child pornography and one count of possession of child pornography, the district court erred in admitting testimony from defendant's step-daughter that she witnessed a prior sexual encounter between defendant and the sixteen-year-old girl depicted in a cellphone video found on defendant's cellphone, because although identity and opportunity are proper purposes for which otherwise inadmissible Rule 11-404(B) NMRA evidence may be admitted, the State failed to point to anything in the stepdaughter's testimony that related to identity and failed to establish that opportunity was even a fact in issue; the error, however, was harmless, because the primary evidence supporting defendant's convictions for manufacturing of child pornography came from the sixteen-year-old girl depicted in the video who testified that defendant was the male participant in the video that showed defendant and the girl engaging in sexual intercourse and that defendant was the person recording the videos, and the primary evidence supporting defendant's conviction for possession of child pornography came from the officer's testimony regarding seizing defendant's cellphone which contained child pornography. State v. Gwynne, 2018-NMCA-033, cert. denied. Prior criminal record admissible only for rebuttal. - Generally, evidence of a defendant's prior criminal record, and thus his character, is not permitted to prove conduct or that he acted in conformity with such character unless presented to rebut character evidence offered by the accused. State v. Gutierrez, 1979-NMCA-016, 93 N.M. 232, 599 P.2d 385; State v. Vialpando, 1979-NMCA-083, 93 N.M. 289, 599 P.2d 1086, cert. denied, 93 N.M. 172, 598 P.2d 215. Cross-examination regarding prior complaints properly refused. - There was no abuse of discretion in refusing to allow the defense to cross-examine the complainant regarding prior complaints in order to impeach her credibility where the defendant offered no proof that the accusations were false, since the probative value of the fact that the victim made prior complaints is nonexistent, while its prejudicial effect is great. State v. Johnson, 1984-NMCA-094, 102 N.M. 110, 692 P.2d 35. Evidence of other acts admissible for specified purposes. - Reference to other offenses during course of trial is error unless such evidence is received for one of the purposes recognized as exceptions to the general rule. State v. Gutierrez, 1968-NMCA-090, 79 N.M. 732, 449 P.2d 334, cert. denied, 80 N.M. 33, 450 P.2d 633. There are several exceptions to the general rule that evidence of offenses and crimes, other than that for which defendant is on trial, cannot be introduced; among these are other offenses showing motive, intent, absence of a mistake or accident, common scheme or plan or identity of the person charged with commission of the crime. State v. Lopez, 1973-NMCA-148, 85 N.M. 742, 516 P.2d 1125. This rule allows, under certain circumstances, evidence of other crimes, wrongs or acts, not to prove that the person had a character trait with which she acted in conformity but to prove motive, opportunity, intent, preparation, plan, knowledge, identity or absence of mistake or accident. State v. Ross, 1975-NMCA-056, 88 N.M. 1, 536 P.2d 265. In a prosecution for first degree child abuse, evidence that the defendant battered his wife after the death of the child to dissuade her from testifying, and evidence of his abuse of the wife's child, was admissible as relevant to the defendant's consciousness of guilt and lack of mistake or accident; however, the relevance of evidence concerning batteries of the wife prior to the child's death was outweighed by the possibility of improper prejudice. State v. Ruiz, 1995-NMCA-007, 119 N.M. 515, 892 P.2d 962. Evidence of defendant's prior crime, introduced at the penalty phase of his trial by calling the victim of the crime, was relevant to prove defendant's motive for murder in the context of the aggravating circumstance of murdering a witness. State v. Allen, 2000-NMSC-002, 128 N.M. 482, 994 P.2d 728, cert. denied, 530 U.S. 1218 , 120 S. Ct. 2225, 147 L. Ed. 2d 256 (2000). Admission of defendant's post-arrest statement of his intent to "shoot it out" with officers prior to his arrest was permissible under Paragraph B for the purpose of showing his consciousness of guilt. State v. Allen, 2000-NMSC-002, 128 N.M. 482, 994 P.2d 728, cert. denied, 530 U.S. 1218 , 120 S. Ct. 2225, 147 L. Ed. 2d 256 (2000). Under Paragraph B of this rule, the proponent of evidence of other acts must identify the particular consequential fact upon which the proffered evidence bears. State v. Kerby, 2005-NMCA-106, 138 N.M. 232, 118 P.3d 740, cert. granted, 2005-NMCERT-008. Inapplicability of 11-404(B) NMRA to charges of racketeering and conspiracy to commit racketeering. - In defendant's trial for racketeering and conspiracy to commit racketeering, where defendant claimed that the district court improperly admitted evidence of uncharged crimes, wrongs, or other acts in violation of 11-404 NMRA, the district court did not abuse its discretion in admitting the evidence because New Mexico's racketeering statute defines violations by reference to predicate offenses which are essential components of a racketeering offense and 11-404(B) NMRA is inapplicable to evidence admitted to demonstrate predicate offenses. State v. Loza, 2016-NMCA-088, cert. denied. Evidence not offered to prove criminal propensity is admissible. - Where defendant, in his trial for criminal sexual penetration perpetrated in the commission of a felony, claimed that evidence that he was on GPS monitoring and that his name and address were listed on a website inexorably led to the conclusion that he was a convicted sex offender and was therefore improper evidence of prior bad acts, the district court did not abuse its discretion by admitting the evidence, because 11-404(B) NMRA only prohibits the use of otherwise relevant evidence when its sole purpose or effect is to prove criminal propensity, and the limited information regarding the victim's identification of defendant through online information did not constitute evidence of a crime, a wrong, or another act under 11-404(B) NMRA, and the evidence of defendant's GPS coordinates on the date of the alleged crime and the fact that he was wearing a GPS tracking device were admissible because they showed identity, opportunity and lack of mistake. State v. Samora, 2016-NMSC-031. Uncharged bad acts. - In the case of evidence of other uncharged bad acts, unfair prejudice refers to the risk that the jury, notwithstanding limiting instructions, nevertheless will draw unfavorable inferences about the defendant's propensity for criminal conduct from evidence of non-charged bad acts. State v. Kerby, 2005-NMCA-106, 138 N.M. 232, 118 P.3d 740, cert. granted, 2005-NMCERT-008. Curative instruction following the admission of evidence of prior bad acts. - An error committed by admitting inadmissible evidence is generally cured by a ruling of the court striking the evidence and admonishing the jury to disregard such evidence; in a murder trial, where the detective testified that defendant's mother stated that there was a prior "incident" between defendant and the victim, defense counsel's decision not to request a curative instruction indicated that defense counsel believed that the jury's potential extrapolation from the detective's testimony to an inference of guilt by propensity was harmless. Thus, any potential error was harmless, and the trial court did not abuse its discretion in choosing to deny defendant's motion for a mistrial based on the detective's testimony. State v. Smith, 2016-NMSC-007. Past offense admissible as relating to retaliation charge. - In a prosecution for retaliation against a witness, it was not error to admit evidence regarding the name and nature of the prior felony offense which formed the basis for the charge that defendant retaliated against a person who witnessed that offense. State v. Warsop, 1998-NMCA-033, 124 N.M. 683, 954 P.2d 748, cert. denied, 124 N.M. 589, 953 P.2d 1087. Evidence of other acts to show motive. - Written documents found in defendant's trunk which tended to show a wicked and depraved mind and were directed toward son of prosecuting witness, if not the whole family, were admissible to show motive in prosecution for poisoning with intent to kill or injure. State v. Holden, 1941-NMSC-017, 45 N.M. 147, 113 P.2d 171. In a prosecution of the defendant for the murder of his wife, testimony of a witness that, before the murder, defendant had solicited his assistance in planning the murder of the victim's female best friend, who defendant believed was responsible for the deterioration of his marriage, was admissible as evidence of motive. State v. Woodward, 1995-NMSC-074, 121 N.M. 1, 908 P.2d 231. Evidence of other acts to show motive. - Evidence of the deterioration of defendant's relationship with the victim, and of the specific actions that gave her cause for rejecting him, was admissible where it directly addressed motivational theories presented at trial. State v. Rojo, 1999-NMSC-001, 126 N.M. 438, 971 P.2d 829. Prior acts of spousal abuse. - In a prosecution of the defendant for the murder of his wife, hearsay testimony concerning prior incidents when the defendant struck the victim was admissible as evidence of motive, intent, plan or knowledge to establish the requisite mental state for first-degree murder. State v. Woodward, 1995-NMSC-074, 121 N.M. 1, 908 P.2d 231. Rule authorizes admission of motive testimony subject to balancing requirement of Rule 11-403. State v. Lovato, 1978-NMCA-030, 91 N.M. 712, 580 P.2d 138, cert. denied, 91 N.M. 751, 580 P.2d 972. Motive evidence relating to witness credibility governed by Rule 11-608 NMRA. - If asserted motive evidence is in fact no more than evidence of character and conduct attacking the credibility of a witness, its admissibility would be governed by Rule 11-608 NMRA. State v. Lovato, 1978-NMCA-030, 91 N.M. 712, 580 P.2d 138, cert. denied, 91 N.M. 751, 580 P.2d 972. Evidence of other acts to show intent. - In fraud cases, related incidents of accused's acts are admissible to establish motive, absence of mistake or accident, common scheme or plan or the identity of the person charged. Fact that defendant entered into many contracts which he failed to complete shows that either he was aware of the risks, that he was aware of his capabilities or that he could not have believed that he would complete the contracts; thus his proceeding to contract in spite of his awareness is evidence of fraudulent intent. State v. McCallum, 1975-NMCA-030, 87 N.M. 459, 535 P.2d 1085, cert. denied, 87 N.M. 457, 535 P.2d 1083. In a prosecution for murder in which the defendant's specific intent was at issue and evidence of his prior bad acts bore on that intent in a way that did not merely show his propensity for violence, the evidence was not barred. State v. Niewiadowski, 1995-NMCA-083, 120 N.M. 361, 901 P.2d 779. Evidence of a feud between two families. Evidence of a feud between two families was relevant in a prosecution for second degree murder and involuntary manslaughter to show that the defendant's act was intentional and not merely accidental or the result of "sufficient provocation". State v. Mireles, 1995-NMCA-026, 119 N.M. 595, 893 P.2d 491. Confession of prior criminal acts inadmissible to prove intent. - The defendant's confession of possible prior acts of rape is not admissible, in a proceeding in which the defendant was convicted of criminal sexual contact of a minor and aggravated battery, to prove intent where the defendant claimed that he did not commit the charged acts and, thus, did not put the element of intent into issue. State v. Beachum, 1981-NMCA-089, 96 N.M. 566, 632 P.2d 1204. Testimony of persons regarding dealings with defendant similar in nature to victims' dealings with him was properly admitted to show defendant's intent and a common scheme or plan. State v. Schifani, 1978-NMCA-080, 92 N.M. 127, 584 P.2d 174, cert. denied, 92 N.M. 180, 585 P.2d 324. Factually similar incidents cannot, alone, prove plan. - The state's reliance on two factually similar incidents that occurred seven years apart, without more, was not enough to prove the existence of a plan; without some other proof that such a plan actually existed, evidence that the charged conduct was part of a bigger plan because the defendant did the same thing once before was nothing more than irrelevant propensity evidence. State v. Montoya, 1993-NMCA-083, 116 N.M. 72, 860 P.2d 202. Evidence of other offenses to show knowledge. - Evidence of other "offenses" is properly admitted where they tend to show the defendant's knowledge of a crime and an absence of mistake or accident. State v. Turner, 1982-NMSC-040, 97 N.M. 575, 642 P.2d 178. Unless defendant admits knowledge of fact that goods he has received are stolen, this knowledge of necessity must be established by circumstantial evidence, and often the only way this can be accomplished is by evidence of other similar offenses. State v. Lindsey, 1969-NMCA-121, 81 N.M. 173, 464 P.2d 903, cert. denied, 398 U.S. 904 , 90 S. Ct. 1692, 26 L. Ed. 2d 62 (1970). Evidence of consciousness of guilt. - Trial court did not err in admitting defendant's contradictory statements to police regarding his involvement in a prior shooting incident as evidence of a consciousness of guilt. State v. Martinez, 1999-NMSC-018, 127 N.M. 207, 979 P.2d 718. Evidence of other offenses to show identity. - Evidence of collateral offenses is generally inadmissible to prove the guilt of defendant of a specific crime. However, one of the recognized exceptions to this general rule is that evidence of collateral offenses is admissible to prove the identity of the defendant as the person who committed the crime with which he is charged and for which he is being tried; where testimony of two witnesses did tend to prove the identity of defendant, it was admissible. State v. Aguirre, 1972-NMSC-081, 84 N.M. 376, 503 P.2d 1154; State v. Stout, 1971-NMCA-028, 82 N.M. 455, 483 P.2d 510. Flight from police. - Trial court did not abuse its discretion in admitting evidence of defendant's flight from police, where the evidence was used to prove, not defendant's character, but his identity and consciousness of guilt. State v. Kenny, 1991-NMCA-094,112 N.M. 642, 818 P.2d 420. Other acts demonstrating unique or distinct pattern admissible to prove identity. - Evidence of other acts may be admitted to prove identity if the modus operandi of those acts is sufficiently similar to the charged acts to indicate they were likely done by the same person. In order for evidence to be admissible, the similarity required must rise above the level of characteristics common to many incidents of the crime; it must demonstrate a unique or distinct pattern easily attributable to one person. State v. Beachum, 1981-NMCA-089, 96 N.M. 566, 632 P.2d 1204. Evidence of cashing of other checks in forgery case. - In a prosecution for forging a signature on a traveler's check, evidence that other traveler's checks issued to the same individual whose signature the defendant was charged with forging were cashed during a period of a few days in Albuquerque, and that the checks had all earlier been lost or stolen at the same time in California, was relevant as circumstantial evidence tending to establish that the defendant was physically present in Albuquerque, the scene of the offense charged, in contradiction of his alibi testimony, that he had been out of the county. State v. Young, 1985-NMCA-079, 103 N.M. 313, 706 P.2d 855. Evidence of similar, contemporaneous robberies by another in robbery case. - Since no prejudice would have resulted to defendant, charged with robbery, in the admission of evidence that similar, contemporaneous robberies had been committed by some other person, and since such other evidence would have been highly probative on the defendant's defense of mistaken identity, the evidence should have been admitted. State v. Saavedra, 1985-NMSC-077, 103 N.M. 282, 705 P.2d 1133. Other attacks probative of pattern and identity. - Joinder in one trial of all counts arising from separate attacks on two victims was proper where the evidence relating to the attacks displayed sufficiently distinctive similarities to permit an inference of pattern for purposes of proving identity and the evidence of both crimes did not outweigh its probative value. State v. Peters, 1997-NMCA-084, 123 N.M. 667, 944 P.2d 896. Testimony of sex offense victim B was sufficiently similar and thus admissible to prove identity of perpetrator of crime against victim A where: A was abducted at knifepoint and though a gun was initially used against B during the previous crime her abductor had put away his gun and thereafter used a knife; each victim was told the knife would be used if she tried to escape; the abductor talked to both victims about fellatio and required victim A to perform fellatio; he first told the victims that he had robbery in mind and soon thereafter told them he wanted to rape them; A was abducted at a shopping center and B had been abducted after leaving and one block away from a shopping center; each victim wore glasses and was told to remove them shortly after being abducted; and the abductor had each victim remove her brassiere while being driven by him. State v. Allen, 1978-NMCA-054, 91 N.M. 759, 581 P.2d 22. Evidence of prior legal consensual sexual conduct. - In a prosecution for murder and criminal sexual penetration, testimony by defendant's girlfriend regarding defendant's enjoyment of anal sex was inadmissible since evidence was not relevant to the defendant's identity because it was not so distinctive as to constitute a unique or distinct pattern easily attributable to one person; nor, was evidence relevant to defendant's motive because merely enjoying anal sex is not sufficient to suggest that defendant had cause to force himself on victim. State v. Williams, 1994-NMSC-050, 117 N.M. 551, 874 P.2d 12. Evidence of other sex acts held not admissible. - Evidence of occasional rejection of defendant's request for oral sex by his girlfriend was not admissible to prove the defendant coerced the child victim into various sexual activities, including oral sex. State v. Lucero, 1992-NMCA-107, 114 N.M. 489, 840 P.2d 1255. Evidence admissible to show abuse of authority. - In a prosecution for criminal sexual contact of a minor, a patient at the facility where defendant worked, defendant's son's testimony regarding his father's use of his position of domestic authority to influence him for sexual ends, was relevant as it went directly to the question of whether defendant had the plan, design, or intent to control the victim in same way for factually similar purposes. State v. Lamure, 1992-NMCA-137, 115 N.M. 61, 846 P.2d 1070. Evidence of past drug dealings in drug case. - Where a witness at a trial testified to her past drug dealings with the defendant and she also testified that the substance defendant injected into her arm, shown in a seized videotape, was methamphetamine, the testimony was admissible to establish the witness' ability to identify the drugs and to establish knowledge on behalf of the defendant. State v. Attaway, 1992-NMCA-043, 114 N.M. 83, 835 P.2d 81, aff'd, 1994-NMSC-011, 117 N.M. 141, 870 P.2d 103. Testimony regarding the defendant's prior cocaine sales to the witness was inadmissible as an attempt by the state to insinuate that the defendant sold cocaine to the witness on the day in question because he had done so in the past; the testimony was not highly probative to prove context, and the probative value, if any, was substantially outweighed by the danger of unfair prejudice. State v. Wrighter, 1996-NMCA-077, 122 N.M. 200, 922 P.2d 582. Absence of accident. - Evidence that defendant stated he could not flee New Mexico with the other two men involved in the murder because he could not go through Missouri since he was wanted in Missouri for some other murders that he had committed was admissible because testimony concerning flight was probative of absence of accident on defendant's part in his participation in the killing. State v. Smith, 1976-NMCA-048, 89 N.M. 777, 558 P.2d 46, rev'd on other grounds, 1976-NMSC-085, 89 N.M. 770, 558 P.2d 39; State v. Trujillo, 1979-NMCA-055, 93 N.M. 728, 605 P.2d 236, aff'd, 1980-NMSC-004, 93 N.M. 724, 605 P.2d 232. Time between incidences offered to show state of mind. - The time between incidences is an important factor to consider when determining the admissibility of a prior crime, wrong, or act under Paragraph B of Rule 11-404 NMRA to establish a defendant's state of mind. The closer a prior act is to the act at issue, the more likely the prior act can establish a defendant's state of mind at the relevant time, while the further the two incidents are apart in time, the less likely the prior act can establish a defendant's state of mind. State v. Branch, 2010-NMSC-042, 148 N.M. 601, 241 P.3d 602. Other act not admissible to show state of mind. - Where defendant was charged with first degree murder; defendant committed the alleged murder while under the influence of alcohol and drugs; the district court admitted evidence of defendant's prior robbery conviction because defendant had committed the robbery under the influence of alcohol and drugs and knew how drugs and alcohol affected defendant; and defendant's conduct that led to the robbery conviction occurred about five years prior to the incident that led to the murder, because the robbery occurred five years before the murder, the conduct that led to the robbery could not establish defendant's state of mind at the time of the murder and the prior robbery conviction was inadmissible propensity evidence. State v. Branch, 2010-NMSC-042, 148 N.M. 601, 241 P.3d 602. Other acts admissible to show state of mind. - Testimony of witness, mentioning defendant's references to prior armed robbery made in conversations shortly after the shooting, was admissible as an admission by defendant that he had just participated in an armed robbery, which offense was relevant to the murder and aggravated battery charges under the gun enhancement statute (31-18-4 NMSA 1978 (now repealed)) or as a statement of defendant's state of mind at the time of the shooting (which was a short time before the conversations). However, it would have been improper for the state to have introduced separately evidence of this prior armed robbery. State v. Ortiz, 1975-NMCA-112, 88 N.M. 370, 540 P.2d 850. Evidence of other acts to corroborate defendant's version of events. - Where the victim was smoking and injecting methamphetamine; the victim's behavior became increasingly erratic; the victim was playing with two knives; defendant wrestled with the victim, in a long and violent struggle, attempting to disarm and restrain the victim; the victim was uncontrollable, violent, and wild; defendant put the victim in a "choke hold" on three occasions, but did not choke the victim to unconsciousness; each time defendant released the victim, the victim continued to violently struggle; even though defendant eventually duct taped the victim, the victim continued to struggle; the victim eventually stopped breathing and could not be revived; and defendant proffered the testimony of three police officers, who had prior experience with the victim while the victim was under the influence of methamphetamine, regarding prior specific instances of the victim's violent behavior, unusual strength, resistance to restraint, and imperviousness to pain when the officers attempted to arrest the victim, the testimony of the officers was admissible, not as character evidence or as evidence to prove actions by the victim in conformity with a generalized disposition to violence, but as evidence to corroborate defendant's claim that the victim's behavior while on methamphetamine necessitated defendant's continued use of force throughout the encounter. State v. Maples, 2013-NMCA-052, 300 P.3d 749, cert. quashed, 2013-NMCERT-003. In a prosecution for homicide by vehicle by driving recklessly, evidence of driving conduct that occurred immediately before the mishap was admissible under this rule to show both defendant's mental state and lack of accident. State v. Sandoval, 1975-NMCA-096, 88 N.M. 267, 539 P.2d 1029. Other acts admissible to show characteristic conduct. - Carnival shooting incident two days before the crimes in question bore upon intent of defendant when he shot decedent and his friend and showed the state of mind of defendant and his characteristic conduct in the use of a gun; though not admissible under Rule 11-608 NMRA, because not probative of credibility or lack thereof, this evidence was properly admitted under Paragraph B. State v. Marquez, 1974-NMCA-129, 87 N.M. 57, 529 P.2d 283, cert. denied, 87 N.M. 47, 529 P.2d 273. Other acts admissible to show deliberation. - Where defendant's shooting of decedent's wife occurred within a second or so after the shooting of decedent and as she sought to escape, shooting her under the circumstances had real probative value upon the issues of deliberation and intent, and constituted evidence of a preconceived plan to kill her as well as her husband. State v. Lucero, 1975-NMSC-061, 88 N.M. 441, 541 P.2d 430. Other acts admissible to rebut alibi. - Generally, evidence of collateral offenses is inadmissible to prove guilt of a specific crime except where proof of collateral offenses tends to identify the person charged with commission of the crime on trial; such evidence is also admissible to rebut the defense of alibi. State v. Garcia, 1969-NMSC-017, 80 N.M. 21, 450 P.2d 621. Other acts admissible to establish fact of crime. - In prosecution for poisoning with intent to kill or injure, evidence that witness after partaking of cake baked in home of prosecuting witness, became sick and displayed symptoms similar to those of prosecuting witness and members of his family after eating food made from flour was admissible as a link in the chain of circumstances tending to establish both the crime and that it was designed, not accidental or the result of mistake. State v. Holden, 1941-NMSC-017, 45 N.M. 147, 113 P.2d 171. Evidence of prior escape from detention facility. - District court did not abuse its discretion in determining that evidence of defendant's unauthorized departure from a Colorado juvenile detention facility was admissible at his trial for murder, where the court properly could have concluded that defendant's reasons for eluding the police were circumstantial evidence relevant to the jury's determination whether his acts indicated a depraved mind regardless of human life and whether he had a subjective knowledge of the risk involved in his actions. State v. Omar-Muhammad, 1987-NMSC-043, 105 N.M. 788, 737 P.2d 1165. Evidence of prior untruthfulness held violative of Paragraph B. - Where defendant argued that evidence of a police officer's prior untruthfulness in the face of allegations of excessive force should have been admitted "for the purpose of showing his [officer's] tendency to falsify his statement . . . ," it was held that this is the very evil which Paragraph B of this rule seeks to prevent and that it was appropriate to confine the question to credibility under Rule 11-608 NMRA. Baum v. Orosco, 1987-NMCA-102, 106 N.M. 265, 742 P.2d 1. Admissibility of prior convictions not involving dishonesty for impeachment purposes. - Some of the factors which should be considered by the trial court when deciding whether to admit evidence of prior convictions not involving dishonesty, for impeachment purposes, include: (1) the nature of the crime in relation to its impeachment value as well as its inflammatory impact; (2) the date of the prior conviction and the witness' subsequent history; (3) similarities, and the effect thereof, between the past crime and the crime charged; (4) a correlation of standards expressed in Rule 11-609 NMRA with the policies reflected in this rule; (5) the importance of the defendant's testimony; and (6) the centrality of the credibility issue. State v. Lucero, 1982-NMCA-102, 98 N.M. 311, 648 P.2d 350. Specific instances of prior violence. - Since the specific instances from victim's background would have been cumulative and as such would not have affected the verdict, the trial court did not abuse its discretion in excluding the proffered specific instances of victim's prior violent conduct. State v. Baca, 1992-NMSC-055, 114 N.M. 668, 845 P.2d 762. Evidence of other acts to show propensity. - Evidence of other acts solely to show propensity is inadmissible. State v. Jones, 1995-NMCA-073, 120 N.M. 185, 899 P.2d 1139. Essential considerations for judge. - Generally, evidence of a distinct criminal offense independent of the offense with which defendant is charged and for which he is being tried is inadmissible; however, there are exceptions to this rule. The probative force of such evidence must bear directly on some material element of the crime with which defendant is charged. Evidence of this nature should not be received when the overwhelming result would be nothing more than establishing defendant's bad character or his disposition or propensity to commit crime. State v. Lopez, 1969-NMCA-057, 80 N.M. 599, 458 P.2d 851, cert. denied, 80 N.M. 607, 458 P.2d 859, 398 U.S. 942 , 90 S. Ct. 1860, 26 L. Ed. 2d 279 (1970). Prejudicial character of relevant evidence of collateral offenses does not render evidence inadmissible. State v. Garcia, 1969-NMSC-017, 80 N.M. 21, 450 P.2d 621. Evidence offered "for other purposes" such as "intent" does not fall within prohibitions of Rule 11-608 (relating to impeachment of witnesses). However, determination must be made whether danger of undue prejudice outweighs probative value of evidence in view of availability of other means of proof. State v. Marquez, 1974-NMCA-129, 87 N.M. 57, 529 P.2d 283, cert. denied, 87 N.M. 47, 529 P.2d 273. In determining whether evidence admissible under Paragraph B should be excluded under Rule 11-403 NMRA, the probative value of the evidence is to be considered. In considering the probative value, a factor is the availability of other means of proof. State v. Fuson, 1978-NMCA-002, 91 N.M. 366, 574 P.2d 290. Previous injury probative of child abuse. - In a prosecution for child abuse resulting in the death of a child, a doctor's testimony concerning his treatment of the child's fractured leg less than two months before the child's death was properly admitted under Paragraph B; the probative value of the testimony concerning the fracture is not outweighed by its prejudicial impact. State v. Robinson, 1979-NMCA-001, 93 N.M. 340, 600 P.2d 286, cert. denied, 92 N.M. 532, 591 P.2d 286, overruled on other grounds, Santillanes v. State, 1993-NMSC-012, 115 N.M. 215, 849 P.2d 358. Refusal to sever not error. - Where the strength and quality of the evidence on various counts convinces the appellate court that the defendant was not prejudiced by the failure to sever multiple counts submitted to the jury, the trial court did not err in refusing to sever. State v. Montano, 1979-NMCA-101, 93 N.M. 436, 601 P.2d 69, cert. denied, 93 N.M. 683, 604 P.2d 821. Failure to sever two counts of forgery arising from two separate incidents involving alteration of bingo cards did not prejudice defendant where evidence of the two offenses would be independently admissible in separate trials to prove the essential elements of intent and knowledge. State v. Nguyen, 1997-NMCA-037, 123 N.M. 290, 939 P.2d 1098. Defendant's prior lewd behavior toward sexual assault victim. - The general prohibition against evidence of other misconduct does not bar testimony concerning the relationship between the accused and a victim of sexual misconduct if the testimony is offered to show a lewd and lascivious disposition of the defendant toward the victim. State v. Delgado, 1991-NMCA-064, 112 N.M. 335, 815 P.2d 631; State v. Trujillo, 1995-NMCA-008, 119 N.M. 772, 895 P.2d 672. Past sexual conduct of rape victim in itself indicates nothing concerning consent in particular case. State v. Herrera, 1978-NMCA-048, 92 N.M. 7, 582 P.2d 384, cert. denied, 91 N.M. 751, 580 P.2d 972. Defendant must make preliminary showing of relevancy as to rape victim's past sexual conduct. - A defendant claiming that a rape victim's past sexual conduct is relevant to the issue of consent must make a preliminary showing which indicates relevancy, and the question of relevancy is not raised by mere assertion; there must be a showing of a reasonable basis for believing that past sexual conduct is pertinent to the consent issue. State v. Herrera, 1978-NMCA-048, 92 N.M. 7, 582 P.2d 384, cert. denied, 91 N.M. 751, 580 P.2d 972. Prior bad acts against sexual assault victim admissible. - In a prosecution for criminal sexual contact with a minor, the admission of evidence of prior "bad" acts, including uncharged sexual battery dating back to the victim's early childhood, was not error. The evidence corroborated the victim's testimony and placed the charged acts in context. The evidence of defendant's treatment of the victim was relevant to the issue of credibility and not merely offered to show defendant's character and propensity to commit the crime. State v. Landers, 1992-NMCA-131, 115 N.M. 514, 853 P.2d 1270. False accusations during cross-examination of violent criminal charges cannot bear upon defendant's character. State v. Bartlett, 1981-NMCA-019, 96 N.M. 415, 631 P.2d 321. Prior statement's probative value diminished by remoteness. - A factor which diminishes the probative value of a statement made seven years earlier confessing to possible acts of rape is its remoteness. State v. Beachum, 1981-NMCA-089, 96 N.M. 566, 632 P.2d 1204. Error violates substantial right to fair trial. - Evidence of a collateral offense is generally inadmissible in a criminal prosecution to establish a specific crime unless case falls within an applicable exception under these rules, and trial court's admission of evidence of a past offense not allowed by these rules was prejudicial error which violated defendant's substantial right to a fair trial. State v. Ross, 1975-NMCA-056, 88 N.M. 1, 536 P.2d 265. Evidence of uncharged acts. - Where defendant's statement to the police could have been interpreted by the jury as admitting to sexual penetration, but doing so unconsciously, evidence of subsequent uncharged sexual acts by defendant with respect to the victim to show lack of accident or mistake was properly admitted because without evidence of the uncharged acts, the jury was likely to believe that the charged act was a mistake or accident and there was no other evidence available to rebut this potential inference. State v. Otto, 2007-NMSC-012, 141 N.M. 443, 157 P.3d 8. Where defendant's statement to the police could have been interpreted by the jury as admitting to sexual penetration, but doing so unconsciously, evidence of subsequent uncharged sexual acts by defendant with respect to the victim was admissible to show that the defendant's actions were intentional and not committed accidentally or by mistake. State v. Otto, 2007-NMSC-012, 141 N.M. 443, 157 P.3d 8. Evidence of sexual intent. - Evidence that defendant constructed a peephole which allowed him to peer into the victim's bathroom while defendant hid in a cubbyhole adjacent to the master bedroom was admissible to show that defendant touched the victim's buttocks with a sexual intent to rebut evidence that defendant innocently touched the victim's buttocks. State v. Kerby, 2007-NMSC-014, 141 N.M. 413, 156 P.3d 704. Law reviews. - For article, "Rape Law: The Need For Reform," see 5 N.M.L. Rev. 279 (1975). For article, "The Admissibility of Scientific Evidence Under the New Mexico and Federal Rules of Evidence," see 6 N.M.L. Rev. 187 (1976). For survey, "Evidence: Prior Crimes and Prior Bad Acts Evidence," see 6 N.M.L. Rev. 405 (1976). For article, "Evidence," see 12 N.M.L. Rev. 379 (1982). For article, "Evidence I," see 13 N.M.L. Rev. 407 (1983). For article, "Evidence II: Evidence of Other Crimes as Proof of Intent," see 13 N.M.L. Rev. 423 (1983). For note, "New Mexico Rejects the 'Lewd and Lascivious' Exception to Rule 404(B) : State v. Lucero," see 24 N.M.L. Rev. 427 (1994). Am. Jur. 2d, A.L.R. and C.J.S. references. - 5 Am. Jur. 2d Appellate Review § 752 et seq.; 29 Am. Jur. 2d Evidence §§ 363 et seq., 404 et seq. Admissibility and effect of evidence or comment on party's military service or lack thereof, 9 A.L.R.2d 606. Admissibility, in prosecution based on abortion, of evidence of commission of similar crimes by accused, 15 A.L.R.2d 1080. Admissibility, in prosecution for bribery or accepting bribes, of evidence tending to show the commission of other bribery or acceptance of bribe, 20 A.L.R.2d 1012. Admissibility, in civil motor vehicle accident case, of evidence that driver was or was not involved in previous accidents, 20 A.L.R.2d 1210. Cross-examination of automobile driver in civil action with respect to arrest or conviction for previous traffic offenses, 20 A.L.R.2d 1217, 88 A.L.R.3d 74. Prejudicial effect of admission of evidence as to Communist or other subversive affiliation or association of accused, 30 A.L.R.2d 589. Right of prosecution, in homicide case, to introduce evidence in rebuttal to show good, quiet, and peaceable character of deceased, 34 A.L.R.2d 451. Admissibility, in forgery prosecution, of other acts of forgery, 34 A.L.R.2d 777. Admissibility, in prosecution for illegal sale of intoxicating liquor, of other sales, 40 A.L.R.2d 817. Admissibility, in robbery prosecution, of evidence of other robberies, 42 A.L.R.2d 854. Admissibility, in subornation of perjury prosecution, of evidence of alleged perjurer's plea of guilty to charge of perjury, 63 A.L.R.2d 825. Admissibility, in prosecution for gambling or gaming offense, of evidence of other acts of gambling, 64 A.L.R.2d 823. Admissibility, in civil assault and battery action, of similar acts or assaults against other persons, 66 A.L.R.2d 806. Admissibility, in civil case involving usury issue, of evidence of other assertedly usurious transactions, 67 A.L.R.2d 232. Admissibility, in prosecution for sexual offense, of evidence of other similar offenses, 77 A.L.R.2d 841, 2 A.L.R.4th 330. Admissibility to establish fraudulent purpose or intent, in prosecution for obtaining or attempting to obtain money or property by false pretenses, of evidence of similar attempts on other occasions, 78 A.L.R.2d 1359. Admissibility, in prosecution for criminal burning of property, or for maintaining fire hazard, of evidence of other fires, 87 A.L.R.2d 891. Admissibility of evidence of accused's good reputation as affected by remoteness of time to which it relates, 87 A.L.R.2d 968. Admissibility on behalf of accused of evidence of similar acts or transactions tending to rebut fraudulent intent, 90 A.L.R.2d 903. Admissibility, in prosecution for illegal sale of narcotics, of evidence of other sales, 93 A.L.R.2d 1097. Admissibility of evidence of uncommunicated threats on issue of self-defense in prosecution for homicide, 98 A.L.R.2d 6. Admissibility of evidence of uncommunicated threats on issue of self-defense in prosecution for assault, 98 A.L.R.2d 195. Admissibility of evidence of other offenses in rebuttal of defense of entrapment, 61 A.L.R.3d 293. Remoteness in time of other similar offenses committed by accused as affecting admissibility of evidence thereof in prosecution for sex offense, 88 A.L.R.3d 8. Admissibility of evidence of character or reputation of party in civil action for assault on issues other than impeachment, 91 A.L.R.3d 718. Admissibility of evidence of subsequent criminal offenses as affected by proximity as to time and place, 92 A.L.R.3d 545. Admissibility, in incest prosecution, of evidence of alleged victim's prior sexual acts with persons other than accused, 97 A.L.R.3d 967. Admissibility of evidence of character or reputation of party in civil action for sexual assault on issues other than impeachment, 100 A.L.R.3d 569. Admissibility of evidence of accused's drug addiction or use to show motive for theft of property other than drugs, 2 A.L.R.4th 1298. Right to impeach witness in criminal case by inquiry or evidence as to witness' criminal activity not having resulted in arrest or charge - modern state cases, 24 A.L.R.4th 333. Admissibility of evidence as to other offense as affected by defendant's acquittal of that offense, 25 A.L.R.4th 934. Admissibility and weight of evidence of prior misidentification of accused in connection with commission of crime similar to that presently charged, 50 A.L.R.4th 1049. Products liability: admissibility of evidence of absence of other accidents, 51 A.L.R.4th 1186. Admissibility of evidence of pertinent trait under Rule 404(a) of the uniform rules of evidence, 56 A.L.R.4th 402. Admissibility of traffic conviction in later state civil trial, 73 A.L.R.4th 691. Admissibility of evidence of other offense where record has been expunged or erased, 82 A.L.R.4th 913. Admissibility of evidence of commission of similar crime by one other than accused, 22 A.L.R.5th 1. Propriety of using prior conviction for drug dealing to impeach witness in criminal trial, 37 A.L.R.5th 319. Admissibility of expert or opinion evidence of battered-woman syndrome on issue of self-defense, 58 A.L.R.5th 749. Admissibility, in rape case, of evidence that accused raped, or attempted to rape person other than prosecutrix - prior offenses, 86 A.L.R.5th 59. Admissibility, in rape case, of evidence that accused raped or attempted to rape person other then prosecutrix - subsequent acts, 87 A.L.R.5th 181. Admissibility, in rape case, of evidence that accused raped, or attempted to rape, person other than prosecutrix - offenses unspecified as to time, 88 A.L.R.5th 429. Admissibility, under Rule 404(b) of Federal Rules of Evidence, of evidence of other crimes, wrongs, or acts not similar to offense charged, 41 A.L.R. Fed. 497. Construction and application of Rule 609(c) of the Federal Rules of Evidence, providing that evidence of conviction is not admissible to attack credibility of witness if conviction has been subject to pardon, annulment, or other procedure based on finding of rehabilitation or innocence, 42 A.L.R. Fed. 942. Admissibility, under Rule 404(b) of the Federal Rules of Evidence, of evidence of other crimes, wrongs, or acts similar to offense charged to show preparation or plan, 47 A.L.R. Fed. 781. When is evidence of trait of accused's character "pertinent" for purposes of admissibility under Rule 404(a)(1) of the Federal Rules of Evidence, 49 A.L.R. Fed. 478. Admissibility of evidence of other crimes, wrongs, or acts under Rule 404(b) of Federal Rules of Evidence, in civil cases, 64 A.L.R. Fed. 648, 171 A.L.R. Fed. 483. Admissibility, under Rule 404(b) of Federal Rules of Evidence (28 USCS Appx, Federal Rules of Evidence, Rule 404(b)), of evidence of accused's prior use of illegal drugs in prosecution for conspiracy to distribute such drugs, 114 A.L.R. Fed. 511. 23 C.J.S. Criminal Law §§ 816 to 832; 32 C.J.S. Evidence § 495 et seq.; 98 C.J.S. Witnesses §§ 489, 491 to 537.