{ "id": 2549719, "name": "STATE of New Mexico, Plaintiff-Appellee, v. Leonardo GALLEGOS, Defendant-Appellant", "name_abbreviation": "State v. Gallegos", "decision_date": "2005-10-28", "docket_number": "No. 24,480", "first_page": "673", "last_page": "685", "citations": [ { "type": "official", "cite": "138 N.M. 673" }, { "type": "parallel", "cite": "125 P.3d 652" }, { "type": "parallel", "cite": "2005-NMCA-142" } ], "court": { "name_abbreviation": "N.M. Ct. App.", "id": 9025, "name": "Court of Appeals of New Mexico" }, "jurisdiction": { "id": 52, "name_long": "New Mexico", "name": "N.M." }, "cites_to": [ { "cite": "2003-NMCA-107", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 77192 ], "weight": 3, "pin_cites": [ { "page": "\u00b6\u00b633, 38" } ], "opinion_index": 0, "case_paths": [ "/nm/134/0294-01" ] }, { "cite": "110 N.M. 254", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 717011 ], "weight": 2, "year": 1990, "pin_cites": [ { "page": "256" }, { "page": "730" } ], "opinion_index": 0, "case_paths": [ "/nm/110/0254-01" ] }, { "cite": "2005-NMSC-004", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 929169 ], "weight": 4, "pin_cites": [ { "page": "\u00b6 6" }, { "parenthetical": "internal quotation marks and citation omitted" } ], "opinion_index": 0, "case_paths": [ "/nm/137/0197-01" ] }, { "cite": "2004-NMSC-029", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 1224656 ], "weight": 6, "pin_cites": [ { "page": "\u00b6 54" }, { "page": "\u00b654" } ], "opinion_index": 0, "case_paths": [ "/nm/136/0348-01" ] }, { "cite": "2001-NMCA-086", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 183124 ], "weight": 3, "pin_cites": [ { "page": "\u00b6 22" } ], "opinion_index": 0, "case_paths": [ "/nm/131/0281-01" ] }, { "cite": "2004-NMSC-008", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 1428000 ], "weight": 3, "pin_cites": [ { "page": "\u00b6 41" } ], "opinion_index": 0, "case_paths": [ "/nm/135/0329-01" ] }, { "cite": "112 N.M. 485", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 720248 ], "weight": 4, "year": 1991, "pin_cites": [ { "page": "487" }, { "page": "1109" }, { "page": "487" }, { "page": "1109" } ], "opinion_index": 0, "case_paths": [ "/nm/112/0485-01" ] }, { "cite": "109 N.M. 55", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1590273 ], "weight": 2, "pin_cites": [ { "page": "64" }, { "page": "792" } ], "opinion_index": 0, "case_paths": [ "/nm/109/0055-01" ] }, { "cite": "91 N.M. 366", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1571106 ], "weight": 2, "pin_cites": [ { "page": "368" }, { "page": "292" } ], "opinion_index": 0, "case_paths": [ "/nm/91/0366-01" ] }, { "cite": "526 F.2d 185", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 1089473 ], "weight": 3, "pin_cites": [ { "page": "188" }, { "page": "189" } ], "opinion_index": 0, "case_paths": [ "/f2d/526/0185-01" ] }, { "cite": "907 F.2d 216", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 10536017 ], "pin_cites": [ { "page": "222" } ], "opinion_index": 0, "case_paths": [ "/f2d/907/0216-01" ] }, { "cite": "332 S.C. 214", "category": "reporters:state", "reporter": "S.C.", "case_ids": [ 529264 ], "weight": 2, "pin_cites": [ { "page": "772" } ], "opinion_index": 0, "case_paths": [ "/sc/332/0214-01" ] }, { "cite": "120 N.M. 185", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1558909 ], "weight": 6, "pin_cites": [ { "page": "186, 189" }, { "page": "1140, 1143" }, { "page": "190" }, { "page": "1144" }, { "page": "190" }, { "page": "1144" } ], "opinion_index": 0, "case_paths": [ "/nm/120/0185-01" ] }, { "cite": "476 S.E.2d 297", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1996, "pin_cites": [ { "page": "300", "parenthetical": "affirming the admission of evidence of prior sexual misconduct to show the defendant's plan or scheme in part because the evidence \"tended to prove that defendant's prior acts of sexual abuse occurred ... in a strikingly similar pattern\"" } ], "opinion_index": 0 }, { "cite": "344 N.C. 611", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 867709 ], "year": 1996, "pin_cites": [ { "parenthetical": "affirming the admission of evidence of prior sexual misconduct to show the defendant's plan or scheme in part because the evidence \"tended to prove that defendant's prior acts of sexual abuse occurred ... in a strikingly similar pattern\"" } ], "opinion_index": 0, "case_paths": [ "/nc/344/0611-01" ] }, { "cite": "32 Kan. App.2d 927", "category": "reporters:state", "reporter": "Kan. App. 2d", "case_ids": [ 624059 ], "weight": 2, "year": 2004, "pin_cites": [ { "parenthetical": "noting that \"[a] number of decisions have upheld the admission of [evidence of prior bad acts] in sex crime cases where the details of the plan for the prior crimes and the crime for which the defendant was on trial were 'strikingly similar' \"" }, { "page": "1133", "parenthetical": "noting that \"[a] number of decisions have upheld the admission of [evidence of prior bad acts] in sex crime cases where the details of the plan for the prior crimes and the crime for which the defendant was on trial were 'strikingly similar' \"" } ], "opinion_index": 0, "case_paths": [ "/kan-app-2d/32/0927-01" ] }, { "cite": "247 Cal.Rptr. 226", "category": "reporters:state", "reporter": "Cal. Rptr.", "weight": 2, "year": 1988, "pin_cites": [ { "page": "231-32", "parenthetical": "affirming the admission of evidence of prior sexual assaults because \"the three instances were strikingly similar and consequently did tend to show defendant had a common plan for picking up and raping young women at a certain place and in a certain way\"" }, { "page": "231-32" } ], "opinion_index": 0 }, { "cite": "201 Cal.App.3d 385", "category": "reporters:state", "reporter": "Cal. App. 3d", "case_ids": [ 4649862 ], "year": 1988, "pin_cites": [ { "parenthetical": "affirming the admission of evidence of prior sexual assaults because \"the three instances were strikingly similar and consequently did tend to show defendant had a common plan for picking up and raping young women at a certain place and in a certain way\"" } ], "opinion_index": 0, "case_paths": [ "/cal-app-3d/201/0385-01" ] }, { "cite": "67 N.M. 224", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2716914 ], "weight": 2, "year": 1960, "pin_cites": [ { "page": "227" }, { "page": "524" } ], "opinion_index": 0, "case_paths": [ "/nm/67/0224-01" ] }, { "cite": "74 P.3d 119", "category": "reporters:state_regional", "reporter": "P.3d", "weight": 2, "year": 2003, "pin_cites": [ { "page": "124", "parenthetical": "en banc" }, { "page": "124-26", "parenthetical": "discussing this type of \"plan\" in detail" } ], "opinion_index": 0 }, { "cite": "150 Wash.2d 11", "category": "reporters:state", "reporter": "Wash. 2d", "case_ids": [ 9193568 ], "year": 2003, "pin_cites": [ { "parenthetical": "en banc" } ], "opinion_index": 0, "case_paths": [ "/wash-2d/150/0011-01" ] }, { "cite": "116 N.M. 689", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 727711 ], "weight": 3, "year": 1993, "pin_cites": [ { "page": "691-92", "parenthetical": "noting that robber drove away in a car that matched description of a recently stolen car in four bank robberies" }, { "page": "1158-59", "parenthetical": "noting that robber drove away in a car that matched description of a recently stolen car in four bank robberies" }, { "page": "1158-59", "parenthetical": "describing a strikingly similar, signature-type of method of committing bank robberies, involving the robber's wearing an all-black costume, utilizing ear phones and devices attached to a belt, using a gym bag for carrying the proceeds, and jumping athletically onto and over counters" } ], "opinion_index": 0, "case_paths": [ "/nm/116/0689-01" ] }, { "cite": "47 A.L.R. Fed. 781", "category": "reporters:federal", "reporter": "A.L.R. Fed.", "year": 1980, "pin_cites": [ { "page": "784", "parenthetical": "same" } ], "opinion_index": 0 }, { "cite": "2 A.L.R.4th 330", "category": "reporters:specialty", "reporter": "A.L.R. 4th", "year": 1980, "pin_cites": [ { "page": "338", "parenthetical": "same" } ], "opinion_index": 0 }, { "cite": "88 A.L.R.5th 429", "category": "reporters:specialty", "reporter": "A.L.R. 5th", "year": 2001, "pin_cites": [ { "page": "440", "parenthetical": "same" } ], "opinion_index": 0 }, { "cite": "86 A.L.R.5th 59", "category": "reporters:specialty", "reporter": "A.L.R. 5th", "year": 2001, "pin_cites": [ { "page": "81-82", "parenthetical": "noting that \"common plan or scheme\" exception is used in two ways: where the common scheme or plan embraces the commission of two or more crimes; and when there are sufficient similarities between the charged crime and other offense" } ], "opinion_index": 0 }, { "cite": "34 S.D. L.Rev. 604", "category": "journals:journal", "reporter": "S.D. L. Rev.", "year": 1989, "pin_cites": [ { "page": "625-26" } ], "opinion_index": 0 }, { "cite": "114 N.M. 489", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 731672 ], "weight": 2, "pin_cites": [ { "page": "494" }, { "page": "1260" } ], "opinion_index": 0, "case_paths": [ "/nm/114/0489-01" ] }, { "cite": "114 N.M. 124", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 731591 ], "weight": 2, "pin_cites": [ { "page": "131" }, { "page": "847" } ], "opinion_index": 0, "case_paths": [ "/nm/114/0124-01" ] }, { "cite": "116 N.M. 72", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 727622 ], "weight": 11, "pin_cites": [ { "page": "75" }, { "page": "205" }, { "page": "203" }, { "page": "74" }, { "page": "204" }, { "page": "74" }, { "page": "204", "parenthetical": "second alteration in original" }, { "page": "203-04", "parenthetical": "described above, the court holding the evidence inadmissible" }, { "page": "75" }, { "page": "205" } ], "opinion_index": 0, "case_paths": [ "/nm/116/0072-01" ] }, { "cite": "79 N.M. 663", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2745745 ], "weight": 10, "pin_cites": [ { "page": "664" }, { "page": "176" }, { "page": "664-65" }, { "page": "176-77" }, { "page": "668" }, { "page": "180" }, { "page": "665" }, { "page": "177" }, { "page": "667" }, { "page": "179" } ], "opinion_index": 0, "case_paths": [ "/nm/79/0663-01" ] }, { "cite": "96 N.M. 566", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1577348 ], "weight": 4, "pin_cites": [ { "page": "569" }, { "page": "1207" }, { "page": "569" }, { "page": "1207" } ], "opinion_index": 0, "case_paths": [ "/nm/96/0566-01" ] }, { "cite": "115 N.M. 61", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 725390 ], "weight": 6, "pin_cites": [ { "page": "69" }, { "page": "1078" }, { "page": "70" }, { "page": "1079", "parenthetical": "Hartz, J., specially concurring" }, { "page": "68" }, { "page": "1077", "parenthetical": "noting that New Mexico's Rule 11--404 is \"virtually identical to Federal Rule[ ] of Evidence 404\"" } ], "opinion_index": 0, "case_paths": [ "/nm/115/0061-01" ] }, { "cite": "93 L.Ed. 168", "category": "reporters:federal", "reporter": "L. Ed.", "year": 1948, "opinion_index": 0 }, { "cite": "335 U.S. 469", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6159942 ], "weight": 2, "year": 1948, "pin_cites": [ { "page": "475-76" } ], "opinion_index": 0, "case_paths": [ "/us/335/0469-01" ] }, { "cite": "41 Iowa L.Rev. 325", "category": "journals:journal", "reporter": "Iowa L. Rev.", "year": 1956, "pin_cites": [ { "page": "325" } ], "opinion_index": 0 }, { "cite": "2005-NMCA-106", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 2548738 ], "weight": 9, "year": 2005, "pin_cites": [ { "page": "\u00b6 24" }, { "page": "\u00b6 33" }, { "page": "\u00b633" } ], "opinion_index": 0, "case_paths": [ "/nm/138/0232-01" ] }, { "cite": "112 P.3d 1112", "category": "reporters:state_regional", "reporter": "P.3d", "year": 2005, "opinion_index": 0 }, { "cite": "137 N.M. 455", "category": "reporters:state", "reporter": "N.M.", "year": 2005, "opinion_index": 0 }, { "cite": "2005-NMCERT-004", "category": "reporters:neutral", "reporter": "NMCERT", "year": 2005, "opinion_index": 0 }, { "cite": "2005-NMCA-047", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 929263 ], "weight": 3, "year": 2005, "pin_cites": [ { "page": "\u00b6 13" } ], "opinion_index": 0, "case_paths": [ "/nm/137/0371-01" ] }, { "cite": "117 N.M. 551", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1552585 ], "weight": 2, "year": 1994, "pin_cites": [ { "page": "557", "parenthetical": "stating that \"[tjhe purpose of Rule 404(B) is to exclude the admission of character traits to prove that a defendant acted in accordance with those traits\"" }, { "page": "18", "parenthetical": "stating that \"[tjhe purpose of Rule 404(B) is to exclude the admission of character traits to prove that a defendant acted in accordance with those traits\"" } ], "opinion_index": 0, "case_paths": [ "/nm/117/0551-01" ] }, { "cite": "1997-NMCA-117", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 17828 ], "weight": 3, "pin_cites": [ { "page": "\u00b68" } ], "opinion_index": 0, "case_paths": [ "/nm/124/0261-01" ] }, { "cite": "2003-NMCA-024", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 15566 ], "weight": 3, "pin_cites": [ { "page": "\u00b6 50" } ], "opinion_index": 0, "case_paths": [ "/nm/133/0263-01" ] }, { "cite": "1997-NMCA-084", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 142217 ], "weight": 3, "pin_cites": [ { "page": "\u00b6 12" } ], "opinion_index": 0, "case_paths": [ "/nm/123/0667-01" ] }, { "cite": "1998-NMSC-014", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 827365 ], "weight": 4, "pin_cites": [ { "page": "\u00b6 42" } ], "opinion_index": 0, "case_paths": [ "/nm/126/0132-01" ] }, { "cite": "2001-NMCA-097", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 183084 ], "weight": 19, "pin_cites": [ { "page": "\u00b6 11" }, { "page": "\u00b6 14" }, { "page": "\u00b6 15" }, { "page": "\u00b6 15" }, { "page": "\u00b6 15" } ], "opinion_index": 0, "case_paths": [ "/nm/131/0241-01" ] } ], "analysis": { "cardinality": 1525, "char_count": 40780, "ocr_confidence": 0.688, "pagerank": { "raw": 5.11396766150373e-08, "percentile": 0.3209264323904598 }, "sha256": "4b0ca2516b1b5f84de56b3c0ebecfff0a0be3d4e4aef04a2b13aa5b556a60d73", "simhash": "1:97a8e528775bd169", "word_count": 6688 }, "last_updated": "2023-07-14T22:16:47.861903+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "WE CONCUR: LYNN PICKARD and JAMES J. WECHSLER, Judges." ], "parties": [ "STATE of New Mexico, Plaintiff-Appellee, v. Leonardo GALLEGOS, Defendant-Appellant." ], "opinions": [ { "text": "OPINION\nVIGIL, Judge.\n{1} Defendant was convicted of one count of criminal sexual contact of a minor in the third degree by a person in a position of authority against Jamie S., and two counts of aggravated indecent exposure against Ursula C. NMSA 1978, \u00a7 30-9-13(A) (1990); NMSA 1978, \u00a7 30-6-3 (1990). The dispositive issue on appeal is whether Defendant was entitled to a separate trial involving each victim. Concluding that the counts regarding Jamie should have been severed from the counts regarding Ursula, we reverse and remand for two new trials.\nBACKGROUND\n{2} Defendant was a juvenile correction officer (guard) at the Youth Diagnostic and Detention Center (YDDC) in Albuquerque, New Mexico, in which minors were incarcerated, and the victims were residents of YDDC under Defendant\u2019s control and supervision. Counts 1-7 of the indictment alleged offenses against Jamie. The indictment charged that between September 1, 1998, and January 19, 1999, Defendant engaged in criminal sexual contact of a minor in the third degree by a person in a position of authority by touching Jamie\u2019s breasts on three occasions (Counts 1-3), touching her buttocks on three occasions (Counts 4-6), and having her touch his penis on one occasion (Count 7). The remaining counts alleged offenses against Ursula, charging that in a similar time frame, Defendant committed aggravated indecent exposure against Ursula on three occasions (Counts 8-10), and on two occasions asked Ursula to disrobe for him, thereby contributing to - the delinquency of a minor (Counts 11-12).\n{3} In a separate, earlier-filed indictment, it was alleged that in the same time frame Defendant sexually penetrated M.G., a minor, who was incarcerated at YDDC while under Defendant\u2019s control and supervision as a juvenile correctional officer. The State filed a motion to consolidate both indictments in a single trial. The judge who was presiding over the separate indictment (Judge Allen) denied the State\u2019s motion on the basis that the evidence pertaining to each victim would not be cross-admissible in separate trials and unfair prejudice would result in a joint trial involving all three victims. He expressly relied on State v. Ruiz, 2001-NMCA-097, 131 N.M. 241, 34 P.3d 630, in his ruling.\n{4} In this case, Defendant then filed a motion for separate trials on Counts 1-7 involving Jamie and Counts 8-12 involving Ursula. Defendant alleged that he would be unduly prejudiced in a joint trial, that evidence of the counts involving Jamie would not be admissible in a separate trial on the counts involving Ursula, that evidence as to one victim would allow the jury to unfairly infer criminal disposition as to the other alleged victim, and that the prejudice in a joint trial outweighed any consideration of judicial economy. The motion was denied, notwithstanding Judge Allen\u2019s earlier ruling refusing to consolidate both indictments into a single trial. The basis expressed by the trial court was that \u201cit appeared] that the central thrust of the evidence would be to show that both are part of a continuing scheme or plan which by its nature was ongoing throughout this period of time that involved both girls and the Defendant\u2019s employment.\u201d The court also noted that \u201cone of the areas that evidence from both cases could be used in the other [would be] to show there was opportunity.\u201d The specific type of opportunity to which the court referred was that Defendant used his position of authority as a guard \u201cto create and further opportunities for access to the girls who were housed at that facility for sexual reasons.\u201d In particular, Defendant, by virtue of his position, was able to utilize acts of favor to gain access to the girls, as well as put the girls in a position where the alleged offenses could take place.\n{5} Jamie testified that she first met Defendant while she was a resident of YDDC during the fall of 1998. For the first month of their relationship, Jamie and Defendant would talk occasionally but generally behaved like any other resident and any other guard. However, their relationship changed when they began talking during a dinner held in the facility\u2019s chapel. Following that conversation, Defendant attempted to kiss Jamie in the hallway of the chapel. Several days later, Defendant entered the facility\u2019s cafeteria while Jamie was cleaning up after dinner. The couple ended up in a nearby restroom where they began kissing. Jamie testified that, while they were in the restroom kissing, Defendant \u201cput his hand on [her] butt and breast.\u201d She was not scared and she enjoyed it. Further, Jamie thought Defendant was \u201cextremely handsome\u201d and she \u201cfelt lucky\u201d when he showed interest in her. Jamie and Defendant continued to have three to four such encounters per week. During one such encounter, Defendant got Jamie\u2019s hand and he put her hand on his penis when they were kissing. On this single occasion, Jamie \u201cgot scared and ... pulled away\u201d from Defendant. During cross-examination, Jamie testified that her relationship with Defendant could be properly characterized as girlfriend and boyfriend. In addition to her physical contact with Defendant, Jamie would write him letters and call him at home. Finally, she said that Defendant did not coerce or force her at any time, nor did he threaten her by virtue of his position as a guard if she rebuffed his advances.\n{6} Ursula testified that she was also a resident at YDDC in 1998. When she first met Defendant, she would occasionally have casual, friendly conversations with him. However, shortly after they met, Defendant\u2019s attitude toward her began to change. When Defendant was alone with Ursula, he was friendly toward her and frequently complimented her. He would also occasionally bring her snacks. However, when other people were around, he would curse at her and call her foul names.\n{7} Ursula had difficulty following the rules at YDDC. As a result, the YDDC staff placed her into a special unit known as the Adjustment Unit. The YDDC staff also frequently moved her to an observation room where she could be constantly watched. The observation room was a single small room equipped with a mattress, a toilet, and a sink. It contained a large window of one-way glass that separated the adjacent control unit from the observation room. The glass allowed staff in the control unit to see into the observation room while preventing the resident in the observation room to see into the control unit. From the control unit, YDDC staff controlled the lights in both the control unit and the observation room. While she was in the observation room, Ursula was able to communicate with the staff in the control unit by way of a speaker system.\n{8} While it was not generally possible to see from the observation room into the control room, Ursula testified that, if the lights in the observation room and the control unit were turned off, it was possible to see into the control unit from the observation room. Ursula recalled that while she was in the observation room there were a few times when the lights were adjusted such that she could see into the control unit. On these occasions, Defendant was usually in the control unit. The first time that she was able to see into the control room, Ursula \u201cdidn\u2019t really know what was going on.\u201d Defendant was speaking to her and \u201cdoing something\u201d but she \u201cdidn\u2019t know what it was.\u201d Thinking about it, she \u201ckind of figured out, like, he was like touching himself and asking [her] if [she] liked it or if it was cool.\u201d Ursula testified that on two subsequent occasions, the lights were turned off so that she could see into the control unit and she observed \u201c[Defendant] jacking off in front of [her].\u201d On yet a separate occasion when she was in the observation room, Defendant \u201ctold [her] to take [her] shirt off or just flash him.\u201d She refused.\n{9} In voir dire the prospective jurors were advised by the trial court that Defendant was charged with seven counts of criminal sexual contact of a minor in the third degree by a person in a position of authority, three counts of aggravated indecent exposure, and two counts of contributing to the delinquency of a minor.\n{10} After the State rested, Defendant\u2019s motion for a directed verdict on Counts 1-6 was granted on grounds that there was an absence of evidence that Defendant used his position to coerce Jamie to submit to criminal sexual contact. The State stipulated to a directed verdict on one count of contributing to the delinquency of a minor (Count 12), and it was also removed from the jury\u2019s consideration. Counts 7-11 of the indictment were then renumbered as Counts 1-5. The jury was never advised that Counts 1-6 and 12 of the indictment were dismissed or given any instructions on how to treat the evidence that was admitted as to these dismissed charges.\n{11} The jury was instructed on a single count of criminal sexual contact of a minor by use of coercion by a person in a position of authority as to Jamie and three counts of indecent exposure and one count of contributing to the delinquency of a minor involving Ursula. Defendant did not testify. His attorney relied on inconsistencies in Jamie\u2019s and Ursula\u2019s testimony and the duty of the State to prove the crimes beyond a reasonable doubt in his closing statement to argue for an acquittal.\n{12} The jury found Defendant guilty of criminal sexual contact of a minor in the third degree by a person in a position of authority on the charge involving Jamie. It then found Defendant guilty of two counts of indecent exposure, not guilty of one count of indecent exposure, and not guilty of eontrib-' uting to the delinquency of a minor on the charges involving Ursula.\n{13} Defendant again argued in a motion for a new trial that the trial court erred in denying his motion to sever counts. The motion was denied.\n{14} Defendant appeals. Because we hold that the trial court improperly denied Defendant\u2019s motion to sever, we reverse and remand.\nSTANDARD OF REVIEW\n{15} Rule 5-203(C) NMRA provides in pertinent part: \u201cIf it appears that a defendant ... is prejudiced by a joinder of offenses ... the court may order separate trials of offenses}.]\u201d Since the resolution of a motion to sever charges \u201cdepends in a large measure upon the special circumstances of each case,\u201d the trial court has \u201cbroad discretion\u201d in ruling on such a motion. State v. Duffy, 1998-NMSC-014, \u00b6 42, 126 N.M. 132, 967 P.2d 807 (internal quotation marks and citation omitted). Therefore, a ruling on a motion to sever charges is ordinarily reviewed by the deferential abuse of discretion standard of review. Id. However, it is well settled that a trial court abuses its discretion in denying severance when \u201cprejudicial testimony, inadmissible in a separate trial, is admitted in a joint trial.\u201d Ruiz, 2001-NMCA-097, \u00b6 11, 131 N.M. 241, 34 P.3d 630 (internal quotation marks and citation omitted). This is because prejudice results as a matter of law. However, \u201c[i]f evidence of one offense would be admissible in the trial of the other, a trial court does not abuse its discretion in denying a motion to sever.\u201d State v. Peters, 1997-NMCA-084, \u00b6 12, 123 N.M. 667, 944 P.2d 896. We therefore proceed to determine whether evidence of the offenses involving Jamie would be admissible in a separate trial involving the offenses against Ursula, and vice versa. See State v. Massengill, 2003-NMCA-024, \u00b6 50, 133 N.M. 263, 62 P.3d 354 (noting we review a trial court decision to admit or exclude evidence under an abuse of discretion standard, unless application of the law to the facts is necessary, which requires de novo review); State v. Elinski, 1997-NMCA-117, \u00b68, 124 N.M. 261, 948 P.2d 1209 (applying de novo review to evidence admitted over objection based on a \u201cmisapprehension of the law\u201d).\nDISCUSSION\n{16} The parties do not dispute that whether evidence of the offenses as to each victim would be cross admissible in a separate trial is governed by Rule 11-404(B) NMRA. This rule of evidence provides:\nEvidence of other crimes, wrongs or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity or absence of mistake or accident.\n{17} On its face, Rule 11-404(B) prohibits the introduction of certain evidence. When the evidence consists of \u201cother crimes, wrongs or acts\u201d and its admission will \u201cprove the character of a person in order to show action in conformity therewith[,]\u201d the Rule flatly states such evidence is \u201cnot admissible.\u201d See State v. Williams, 117 N.M. 551, 557, 874 P.2d 12, 18 (1994) (stating that \u201c[tjhe purpose of Rule 404(B) is to exclude the admission of character traits to prove that a defendant acted in accordance with those traits\u201d). As a result, we have noted that \u201cRule 11-404(B) is fundamentally a rule of exclusion.\u201d State v. Otto, 2005-NMCA-047, \u00b6 13, 137 N.M. 371, 111 P.3d 229, cert. granted, 2005-NMCERT-004, 137 N.M. 455, 112 P.3d 1112; see also State v. Kerby, 2005-NMCA-106, \u00b6 24, 138 N.M. 232, 118 P.3d 740, cert. granted, Sup.Ct. No. 29,336 (August 12, 2005). (\u201c[I]t is essential to recognize that the prohibition against propensity evidence set out in Rule 11-404(A) and in the first sentence of Rule 11-404(B) remains operative even when evidence of other acts is being admitted\u201d for a purpose allowed by Rule 11-404(B)). As such, the rule reflects a well-settled principle of American jurisprudence that a \u201cman should not be judged strenuously by reference to the awesome spectre of his past life.\u201d M.C. Slough & J. William Knightly, Other Vices, Other Crimes, 41 Iowa L.Rev. 325, 325 (1956). Therefore, in a criminal prosecution \u201c \u2018[t]he State may not show defendant\u2019s prior trouble with the law, specific criminal acts, or ill name among his neighbors, even though such facts might logically be persuasive that he is by propensity a probable perpetrator of the crime.\u2019 \u201d 22 Charles A. Wright & Kenneth W. Graham, Jr., Federal Practice and Procedure \u00a7 5232, at 343 (1978) (quoting Michelson v. United States, 335 U.S. 469, 475-76, 69 S.Ct. 213, 93 L.Ed. 168 (1948)). The underlying concern is that if evidence of a defendant\u2019s character is improperly presented to the jury it \u201cis likely to be given more probative value than it deserves and may lead the fact-finder to punish a bad person regardless of the evidence of what happened in the specific case.\u201d State v. Lamure, 115 N.M. 61, 69, 846 P.2d 1070, 1078 (Ct.App.1992) (Hartz, J., specially concurring); see Slough & Knightly, supra, at 325 (noting that \u201c[ejvidenee of other crimes and misdeeds is not excluded because of an inherent lack of probative value, but is withheld as a precaution against inciting prejudice\u201d). Therefore, we must take care to ensure that a defendant is not convicted of an offense \u201cbecause, generally, he is a bad man, or has committed other crimes\u201d but rather is convicted based solely \u201con evidence showing he is guilty of [the charged] offense.\u201d State v. Beachum, 96 N.M. 566, 569, 632 P.2d 1204, 1207 (Ct.App.1981) (internal quotation marks and citation omitted).\n{18} This task is particularly critical when sex offenses involving children are charged, as in this case. In State v. Mason, 79 N.M. 663, 664, 448 P.2d 175, 176 (Ct.App.1968), the defendant was charged with committing sexual assault upon an eleven-year-old girl and attempted rape of a twelve-year-old girl. Two fifteen-year-old girls testified over objection about sexual relations they had with the defendant, and he was convicted of the offenses involving the eleven- and twelve-year-old girls. Id. at 664-65, 448 P.2d at 176-77. The convictions were reversed because the evidence involving the fifteen-year-old girls was improperly admitted as character and disposition evidence and it was unduly prejudicial. Id. at 668, 448 P.2d at 180. This Court first observed that, \u201c[o]rdinarily proof of a distinct offense independent of the offense with which the accused is charged and for which he is being tried is not admissible.\u201d Id. at 665, 448 P.2d at 177. It is particularly pertinent to this case that the court then said:\nBecause of the emotional persuasiveness of evidence involving sex offenses with or upon children, the evidence of similar but distinct offenses with or upon other children should ordinarily be excluded. The danger or prejudice so often outweighs the permissible probative value of such evidence. This does not mean such evidence may not 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, intent, knowledge, etc.\nId. at 667, 448 P.2d at 179.\n{19} This admonition as it relates to sex offenses involving children has been repeated and applied several times. See Ruiz, 2001-NMCA-097, \u00b6 14, 131 N.M. 241, 34 P.3d 630 (stating that \u201cprior-bad-acts evidence is especially damaging when the case involves a particularly reprehensible crime against a child\u201d) (internal quotation marks and citation omitted); State v. Montoya, 116 N.M. 72, 75, 860 P.2d 202, 205 (Ct.App.1993) (\u201cEvidence that a defendant committed a prior illegal sex act against a child is extremely prejudicial.\u201d); State v. Aguayo, 114 N.M. 124, 131, 835 P.2d 840, 847 (Ct.App.1992) (stating that evidence of uncharged conduct \u201ccan be incendiary in child abuse cases\u201d and that \u201cin these volatile cases the courts must be especially careful in applying the rules of evidence\u201d); State v. Lucero, 114 N.M. 489, 494, 840 P.2d 1255, 1260 (Ct.App.1992) (\u201cTrior bad acts evidence is so powerful that it is outcome-determinative in most cases of sexual contact with a child.\u2019 \u201d (quoting Chris Hutton, Commentary: Prior Bad Acts Evidence in Cases of Sexual Contact with a Child, 34 S.D. L.Rev. 604, 625-26 (1989))).\n{20} To determine whether \u201cthe evidence would have been cross-admissible in separate trials with respect to each [victim]\u201d under Rule 11-404(B), we use a two-step process. Ruiz, 2001-NMCA-097, \u00b6 15, 131 N.M. 241, 34 P.3d 630. Our first inquiry is whether the evidence is being offered for a purpose that \u201cSatisfies a valid exception to the general prohibition on propensity evidence.\u201d Id. If the evidence satisfies this requirement, our second inquiry is under Rule 11-403 NMRA in which we \u201cbalance the prejudicial effect of the evidence against its probative value to determine if \u2018[the] probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues or misleading the jury.\u2019 \u201d Ruiz, 2001-NMCA-097, \u00b6 15, 131 N.M. 241, 34 P.3d 630 (quoting Rule 11\u2014403) (alteration in original).\n{21} Defendant argues that under this formula, evidence of the charges relating to Jamie would not be admissible in a separate trial on the charges relating to Ursula, and vice-versa. The State counters that the evidence would be cross-admissible to show Defendant\u2019s common scheme or plan.\nA. Evidence of Defendant\u2019s Prior Bad Acts to Show Scheme or Plan\n{22} Rule 11-404(B) permits evidence of \u201cother crimes, wrongs or acts\u201d to be admitted to prove a \u201cplan.\u201d The authorities recognize a \u201cplan\u201d under this exception in two separate, distinct ways. See generally George L. Blum, Annotation, Admissibility, In Rape Case, of Evidence That Accused Raped or Attempted to Rape Person Other Than Prosecutrix\u2014Prior Offenses, 86 A.L.R.5th 59, 81-82 (2001) (noting that \u201ccommon plan or scheme\u201d exception is used in two ways: where the common scheme or plan embraces the commission of two or more crimes; and when there are sufficient similarities between the charged crime and other offense); George L. Blum, Annotation, Admissibility, In Rape Case, of Evidence That Accused Raped, or Attempted to Rape, Person Other Than Prosecutrix\u2014Offenses Unspecified As to Time, 88 A.L.R.5th 429, 440 (2001) (same); Timothy E. Travers, Annotation, Admissibility, In Rape Case, of Evidence That Accused Raped or Attempted to Rape Person Other Than Prosecutrix, 2 A.L.R.4th 330, 338 (1980) (same); Russell J. Davis, Annotation, Admissibility, Under Rule 101(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, 784 (1980) (same).\n{23} First, where other crimes are committed to accomplish a larger \u201cplan\u201d (the crime charged), evidence of the other crimes is admissible under Rule 11-404(B) to prove the crime charged. An example is stealing a ear that is later used in a bank robbery. See State v. Griffin, 116 N.M. 689, 691-92, 866 P.2d 1156, 1158-59 (1993) (noting that robber drove away in a car that matched description of a recently stolen car in four bank robberies); State v. DeVincentis, 150 Wash.2d 11, 74 P.3d 119, 124 (2003) (en banc) (citing as an example, \u201ca prior theft of a tool or weapon, which is used to perpetrate the subsequent charged crime, such as a burglary\u201d). Such evidence \u201c\u2018involves no inference as to the defendant\u2019s character; instead his conduct is said to be caused by his conscious commitment to a course of conduct of which the charged crime is only a part.\u2019 \u201d Lamure, 115 N.M. at 70, 846 P.2d at 1079 (Hartz, J., specially concurring) (quoting Wright & Graham, supra, \u00a7 5244, at 499-500).\n{24} Evidence concerning the offenses against Jamie would not be admissible as such a \u201cplan\u201d in a separate trial concerning the offenses against Ursula under Montoya. The defendant in Montoya was convicted of two counts of criminal sexual penetration for molesting a girl while she was sleeping in his daughter\u2019s bed. 116 N.M. at 73, 860 P.2d at 203. At trial, the State introduced evidence that seven years earlier the defendant had molested a nine-year-old girl who was sleeping in his daughter\u2019s bed. Id. On appeal, this Court held that for evidence of the defendant\u2019s prior bad act to be admissible as evidence of the defendant\u2019s plan \u201c[t]here must be some overall scheme of which each of the crimes is but a part\u201d; it was not enough simply to show that the defendant \u201ctook advantage of similar situations in a similar manner.\u201d Id. at 74, 860 P.2d at 204. Further, in the absence of such an overall scheme \u201c[t]o say that the defendant had a \u2018plan\u2019 to seduce every [girl who slept over at his house] he could may not do violence to the language but it does undermine the policy of Rule 404(b) by permitting the use of propensity to prove conduct.\u201d Id. at 74, 860 P.2d at 204 (second alteration in original) (internal quotation marks and citation omitted). As a result, we reversed the trial court\u2019s admission of the evidence of the prior bad act because \u201cwithout some other proof that such a plan actually existed, evidence that the charged conduct is part of a bigger plan because Defendant did the same thing once before is nothing more than irrelevant propensity evidence.\u201d Id.; see also State v. Velarde, 67 N.M. 224, 227, 354 P.2d 522, 524 (1960) (holding it was reversible error to allow cross examination about the defendants\u2019 sexual assault of a Navajo woman in a prosecution for rape of an Apache woman one month later because, \u201c[i]t was wholly irrelevant and could serve no purpose other than to show a disposition on the part of the [defendants] to commit the crime with which they were charged\u201d).\n{25} Second, other jurisdictions have held that evidence is also admissible to show a \u201cplan\u201d under Rule 11-404(B) where the same \u201cplan\u201d is used repeatedly to commit separate crimes that are markedly similar to the way in which the crime charged was committed. See DeVincentis, 74 P.3d at 124-26 (discussing this type of \u201cplan\u201d in detail). In order to constitute an admissible \u201cplan\u201d under this exception, the similarities between the charged bad act and the charged offense must be substantial. See Matthews v. Super. Ct., 201 Cal.App.3d 385, 247 Cal.Rptr. 226, 231-32 (1988) (affirming the admission of evidence of prior sexual assaults because \u201cthe three instances were strikingly similar and consequently did tend to show defendant had a common plan for picking up and raping young women at a certain place and in a certain way\u201d); State v. Kackley, 32 Kan. App.2d 927, 92 P.3d 1128, 1133 (2004) (noting that \u201c[a] number of decisions have upheld the admission of [evidence of prior bad acts] in sex crime cases where the details of the plan for the prior crimes and the crime for which the defendant was on trial were \u2018strikingly similar\u2019 \u201d); State v. Frazier, 344 N.C. 611, 476 S.E.2d 297, 300 (1996) (affirming the admission of evidence of prior sexual misconduct to show the defendant\u2019s plan or scheme in part because the evidence \u201ctended to prove that defendant\u2019s prior acts of sexual abuse occurred ... in a strikingly similar pattern\u201d). Our own eases, however, do not appear to utilize such a broad reading of \u201cplan\u201d under Rule 11-04(B). Compare Griffin, 116 N.M. at 691-92, 866 P.2d at 1158-59 (describing a strikingly similar, signature-type of method of committing bank robberies, involving the robber\u2019s wearing an all-black costume, utilizing ear phones and devices attached to a belt, using a gym bag for carrying the proceeds, and jumping athletically onto and over counters), with Montoya, 116 N.M. at 73-74, 860 P.2d at 203-04 (described above, the court holding the evidence inadmissible), and State v. Jones, 120 N.M. 185, 186, 189, 899 P.2d 1139, 1140, 1143 (Ct.App.1995) (involving the very similar behavior of the defendant accosting two victims while they waited in drive-up lines late at night and getting into their cars, going to another location, forcing himself upon them, and releasing them the next morning, the court holding the evidence inadmissible).\n{26} With respect to the allegations against Defendant, we conclude that evidence of the crimes would not be cross-admissible to show such a plan. Even if we were to broaden the \u201cplan\u201d exception beyond that which has been adopted in our past cases, with respect to each victim, Defendant\u2019s crimes against Jamie and Ursula are not \u201cstrikingly similar.\u201d Defendant used his position as a guard to cultivate a romantic relationship with Jamie and used his authority within that relationship to force unlawful sexual contact with her. His contact with Jamie frequently occurred in a cafeteria restroom while she was working. The offenses against Ursula were committed in an entirely different manner. Defendant did not use his position as a guard to convince Ursula to do anything. The offenses all occurred while Ursula was confined in the observation room, and none of the offenses involved physical contact with Defendant. Defendant\u2019s offenses against Jamie and Ursula do not reflect a plan to repeatedly commit separate offenses in a markedly similar way because they do not reflect a plan to commit the offenses \u201cat a certain place and in a certain way.\u201d Matthews, 247 Cal.Rptr. at 231-32. To the extent that he used his position as a guard, he used it in a very different way to commit offenses against Jamie than he did to commit offenses against Ursula. In the end, there is simply not \u201ca close degree of similarity or connection between\u201d the offenses against the two victims. State v. Berry, 332 S.C. 214, 503 S.E.2d 770, 772 (Ct.App.1998) (internal quotation marks and citation omitted).\n{27} Therefore, we conclude that the evidence relating to each of the victims would not be admissible in a separate trial of the other as a \u201cplan\u201d under Rule 11-404(B).\nB. Evidence of Prior Bad Acts to Show Opportunity\n{28} The State does not argue that the evidence as to each victim was cross-admissible to show Defendant\u2019s opportunity to commit the crimes charged. However, the trial court denied Defendant\u2019s motion to sever in part because \u201cevidence from both cases could be used in the other to show there was opportunity.\u201d See Rule 11-404(B) (stating that evidence of other bad acts \u201cmay ... be admissible for other purposes, such as proof of ... opportunity\u201d).\u201d\n{29} The \u201copportunity\u201d exception to the prohibition on evidence of other bad acts \u201cis something of a mystery.\u201d Wright & Graham, supra, \u00a7 5241, at 484; see 1 Christopher B. Mueller & Laird C. Kirkpatrick, Federal Evidence \u00a7 110, at 626 (2d ed.1994) (noting that \u201cthere is little indication of [the] source or intended meaning\u201d of the \u201copportunity\u201d exception). Further, we are aware of no New Mexico cases that have examined the meaning of the \u201copportunity\u201d exception. However, federal appellate courts have. See Lamure, 115 N.M. at 68, 846 P.2d at 1077 (noting that New Mexico\u2019s Rule 11--404 is \u201cvirtually identical to Federal Rule[ ] of Evidence 404\u201d) (Hartz, J., specially concurring). For example, the First Circuit Court of Appeals has noted that \u201c[t]o show \u2018opportunity\u2019 is to show that the defendant had some special capacity, ability or knowledge that would enable him to commit the crime.\u201d United States v. Maravilla, 907 F.2d 216, 222 (1st Cir.1990). Similarly, in United States v. Fairchild, 526 F.2d 185, 188 (7th Cir.1975), the defendant argued that his conviction for distributing counterfeit Federal Reserve notes should be reversed because the trial court improperly admitted evidence that he had possessed a large number of counterfeit notes. Id. The appellate court concluded that the trial court properly admitted the evidence because it was not offered to show the defendant\u2019s propensity to commit the crime, but was instead offered because it \u201ctended to prove that [the defendant] had the ability to distribute the notes.\u201d Id. at 189.\n{30} The evidence that because Defendant was a guard at YDDC and therefore had access to the inmates and was familiar with the facility unquestionably demonstrated that he had the \u201ccapacity, ability or knowledge\u201d to commit the offenses against each victim. We therefore assume, without deciding, that evidence of the offenses against Jamie would be cross-admissible in a separate trial of the offenses involving Ursula pursuant to Rule 11-404(B) (and viceversa) to prove that Defendant had an \u201copportunity\u201d to commit the offenses because such evidence would include proof that Defendant was a guard at YDDC. Contrary to the trial court\u2019s expressed rationale, there was no specific evidence admitted that Defendant used any special knowledge or anything else related to his position as a guard to create an opportunity for sexual interaction with the victims. However, even if general opportunity evidence would be cross-admissible under Rule 11-104(B), we must still consider whether its probative value was \u201csubstantially outweighed by the danger of unfair prejudice.\u201d Ruiz, 2001-NMCA-097, \u00b6 15, 131 N.M. 241, 34 P.3d 630 (internal quotation marks and citation omitted); Rule 11-403. The probative value of the evidence depends in part on \u201cthe availability of other means of proof.\u201d State v. Fuson, 91 N.M. 366, 368, 574 P.2d 290, 292 (Ct.App.1978). In this case it was uncontested at trial that Defendant was a guard at YDDC with access to the inmates and familiarity with the facility. Further, to the extent that the State needed to show that Defendant had the \u201ccapacity, ability or knowledge\u201d necessary to commit offenses against each victim, significant \u201cother means of proof\u2019 were readily available. For example, Defendant\u2019s former colleagues testified that Defendant worked at YDDC while Ursula and Jamie were residents at the facility. Therefore, the probative value achieved by cross-admitting evidence of the offenses against each victim in a separate trial would be extremely limited. On the other hand, as we have noted above, evidence that a defendant performed an illegal sex act with another minor is especially prejudicial. See Montoya, 116 N.M. at 75, 860 P.2d at 205.\n{31} The probative value of the cross-over evidence to show \u201copportunity\u201d was extremely limited, while the resulting prejudice was overwhelming. See Beachum, 96 N.M. at 569, 632 P.2d at 1207 (reversing convictions for criminal sexual contact of a minor and aggravated battery where confession to three possible prior acts of rape was admitted over objection to prove identity, there were \u201cother means of proof\u2019 of the defendant\u2019s identity, and it was not necessary to the state\u2019s ease on identity to admit the defendant\u2019s statement). We therefore hold that evidence of Defendant\u2019s offenses against each victim was not cross-admissible to show Defendant\u2019s opportunity to commit the charged offenses.\nC. Prejudicial Effect of Joint Trial\n{32} A \u201cdefendant must prove he was prejudiced\u201d to obtain a severance. State v. Gallegos, 109 N.M. 55, 64, 781 P.2d 783, 792 (Ct.App.1989). Since Defendant was found not guilty of two of the five charges submitted to the jury, we proceed to determine whether Defendant was prejudiced. When evidence of prior bad acts evidence is admitted in violation of Rule 11-404(B), \u201cprejudice is established when there are convictions\u201d because \u201cwe will not speculate that the erroneous admission of other crimes did not cause a compromise verdict of guilty of some charges and not guilty of others.\u201d Jones, 120 N.M. at 190, 899 P.2d at 1144. The evidence in this ease was not cross-admissible under Rule 11-404(B) to show Defendant\u2019s plan. However, since we assumed the evidence was cross-admissible to show \u201copportunity,\u201d which necessitates further analysis of its admissibility under Rule 11-403, our inquiry is not over. We indicated in Jones that where evidence is admissible under Rule 11-404(B) but it should have been excluded under Rule 11-403 and the jury acquitted the defendant of some of the charges, we will not assume that the other bad-acts evidence was \u201cso overwhelmingly prejudicial as to completely contaminate the jury.\u201d Jones, 120 N.M. at 190, 899 P.2d at 1144. Instead, we undertake to determine whether the error in admitting the evidence was harmless. See Kerby, 2005-NMCA-106, \u00b6 33, 138 N.M. 232, 118 P.3d 740 (undertaking harmless error analysis after holding that evidence of other bad acts evidence concerning the victim was inadmissible).\n{33} Where evidence is erroneously admitted in a criminal trial, if \u201cthere is a reasonable possibility that the evidence complained of might have contributed to the conviction,\u201d it is not harmless. Clark v. State, 112 N.M. 485, 487, 816 P.2d 1107, 1109 (1991); see Kerby, 2005-NMCA-106, \u00b633, 138 N.M. 232, 118 P.3d 740; see also State v. Balderama, 2004-NMSC-008, \u00b6 41, 135 N.M. 329, 88 P.3d 845. The extremely limited probative value of cross-admitting evidence of offenses against each victim to show an \u201copportunity\u201d to commit the offenses was overwhelmed by its substantial prejudicial effect. In particular, the strength of the evidence of Defendant\u2019s using his position to coerce Jamie was not particularly strong, inasmuch as she testified that he did not use his position at all. Although there were acquittals for two of the offenses involving Ursula, since there was only one offense involving Jamie submitted to the jury and since Defendant was convicted of that offense, we cannot say that the jury did not improperly use the evidence regarding the offenses against Ursula as propensity evidence in its deliberations regarding the offense against Jamie. Regarding Ursula, the acquittals are readily explainable because of inconsistencies in Ursula\u2019s own testimony. Without the evidence regarding Jamie, the jury may well have found Ursula\u2019s testimony insufficient to warrant any convictions. In short, we cannot say that there is no reasonable possibility that the evidence complained of did not contribute to the convictions. See Clark, 112 N.M. at 487, 816 P.2d at 1109.\nD. Sufficiency of the Evidence\n{34} Defendant also argues that his convictions are not supported by substantial evidence. As discussed above, we reverse the trial court\u2019s denial of Defendant\u2019s motion to sever. However, \u201cprinciples of double jeopardy would bar retrial if Defendant\u2019s convictions are not supported by substantial evidence.\u201d State v. Barragan, 2001-NMCA-086, \u00b6 22, 131 N.M. 281, 34 P.3d 1157.\n{35} To determine whether Defendant\u2019s convictions were supported by sufficient evidence, we must consider \u201cwhether substantial evidence of either a direct or circumstantial nature exists to support a verdict of guilt beyond a reasonable doubt with respect to every element essential to a conviction.\u201d State v. Johnson, 2004-NMSC-029, \u00b6 54, 136 N.M. 348, 98 P.3d 998 (internal quotation marks and citation omitted). This determination requires a two-step inquiry. Our first step is to \u201cview the evidence in the light most favorable to the state, resolving all conflicts therein and indulging all permissible inferences therefrom in favor of the verdict.\u201d State v. Graham, 2005-NMSC-004, \u00b6 6, 137 N.M. 197, 109 P.3d 285 (internal quotation marks and citation omitted). Second, we\nmust \u201cdeterminen whether the evidence, viewed in this manner, could justify a finding by any rational trier of fact that each element of the crime charged has been established beyond a reasonable doubt.\u201d Id. (internal quotation marks and citation omitted) (emphasis omitted).\n{36} To convict Defendant of sexual contact with a minor by a person in a position of authority as alleged, the State was required to show that: (1) Defendant \u201cunlawfully] and intentionally] caus[ed]\u201d Jamie to touch his \u201cprimary genital area\u201d; (2) Jamie was \u201ca child thirteen to eighteen years of age\u201d; and (3) Defendant was \u201cin a position of authority over [Jamie] and use[d] that authority to coerce [her] to submit[J\u201d Section 30-9-13(B)(2)(a). Defendant argues that his conviction on this charge was not supported by sufficient evidence because the State failed to show that Defendant used his authority to coerce Jamie to touch his penis.\n{37} We disagree. Defendant relies on Jamie\u2019s testimony that he did not use his position to cause the contact to happen. However, our cases make it clear that appellate courts do not consider the merit of evidence that would lead to a result contrary to the jury\u2019s verdict. See State v. Vigil, 110 N.M. 254, 256, 794 P.2d 728, 730 (1990). In addition, the State need only prove that the unlawful contact was at least in part a result of Defendant\u2019s position of authority. See State v. Gardner, 2003-NMCA-107, \u00b6\u00b633, 38, 134 N.M. 294, 76 P.3d 47.\n{38} Defendant\u2019s convictions for aggravated indecent exposure are also supported by the evidence. Ursula testified that she saw Defendant masturbating on three occasions. However, she acknowledged that on the first occasion she \u201ccouldn\u2019t make out what he was doing at the time.\u201d Based on this testimony, we hold that Ursula\u2019s eyewitness testimony is sufficient evidence to support Defendant\u2019s conviction on two counts of aggravated indecent exposure.\n{39} As discussed above, we hold that the State presented \u201csubstantial evidence of either a direct or circumstantial nature ... to support a verdict of guilt beyond a reasonable doubt with respect to every element essential to\u201d Defendant\u2019s convictions on one count of criminal sexual contact with a minor and two counts of aggravated indecent exposure. Johnson, 2004-NMSC-029, \u00b654, 136 N.M. 348, 98 P.3d 998.\nE. Defendant\u2019s Other Arguments\n{40} Defendant also argues that his convictions should be overturned because: (1) the trial court improperly refused to allow him to present rebuttal witnesses; (2) the prosecutor made inappropriate remarks in her closing argument that amounted to prosecutorial misconduct; and (3) cumulative error deprived him of a fair trial. Because we conclude that the trial court improperly denied Defendant\u2019s motion to sever and remand, we need not reach these arguments.\nCONCLUSION\n{41} The trial court denied Defendant\u2019s motion to sever the counts in the indictment relating to each victim, with the result that the jury heard and was allowed to consider the evidence pertaining to both victims. The evidence relating to each victim would not have been cross-admissible in separate trials to show Defendant\u2019s plan to commit the offenses or to show that he had the opportunity to commit them. As a result, the trial court abused its discretion when it denied Defendant\u2019s severance motion. Therefore, we reverse Defendant\u2019s conviction and remand for two separate trials.\n{42} IT IS SO ORDERED\nWE CONCUR: LYNN PICKARD and JAMES J. WECHSLER, Judges.", "type": "majority", "author": "VIGIL, Judge." } ], "attorneys": [ "Patricia A. Madrid, Attorney General, Santa Fe, NM, Steven S. Suttle, Assistant Attorney General, Albuquerque, NM, for Appellee.", "John Bigelow, Chief Public Defender, Karl Erich Martell, Assistant Appellate Defender, Santa Fe, NM, for Appellant." ], "corrections": "", "head_matter": "2005-NMCA-142\n125 P.3d 652\nSTATE of New Mexico, Plaintiff-Appellee, v. Leonardo GALLEGOS, Defendant-Appellant.\nNo. 24,480.\nCourt of Appeals of New Mexico.\nOct. 28, 2005.\nCertiorari Granted, No. 29,537, Dec. 12, 2005.\nPatricia A. Madrid, Attorney General, Santa Fe, NM, Steven S. Suttle, Assistant Attorney General, Albuquerque, NM, for Appellee.\nJohn Bigelow, Chief Public Defender, Karl Erich Martell, Assistant Appellate Defender, Santa Fe, NM, for Appellant." }, "file_name": "0673-01", "first_page_order": 705, "last_page_order": 717 }