{ "id": 3669243, "name": "STATE of New Mexico, Plaintiff-Petitioner, v. Jesse OTTO, Defendant-Respondent", "name_abbreviation": "State v. Otto", "decision_date": "2007-02-23", "docket_number": "No. 29,158", "first_page": "443", "last_page": "451", "citations": [ { "type": "official", "cite": "141 N.M. 443" }, { "type": "parallel", "cite": "157 P.3d 8" }, { "type": "parallel", "cite": "2007-NMSC-012" } ], "court": { "name_abbreviation": "N.M.", "id": 8835, "name": "Supreme Court of New Mexico" }, "jurisdiction": { "id": 52, "name_long": "New Mexico", "name": "N.M." }, "cites_to": [ { "cite": "2005-NMSC-036", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 2548768 ], "weight": 3, "opinion_index": 0, "case_paths": [ "/nm/138/0521-01" ] }, { "cite": "1999-NMSC-027", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 257755 ], "weight": 3, "pin_cites": [ { "page": "\u00b6\u00b6 38-39" } ], "opinion_index": 0, "case_paths": [ "/nm/127/0426-01" ] }, { "cite": "80 N.M. 472", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5364335 ], "weight": 13, "pin_cites": [ { "page": "473" }, { "page": "992" }, { "page": "474" }, { "page": "993" }, { "page": "475" }, { "page": "994" } ], "opinion_index": 0, "case_paths": [ "/nm/80/0472-01" ] }, { "cite": "2004-NMSC-022", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 1224636 ], "weight": 3, "pin_cites": [ { "page": "\u00b6 16" } ], "opinion_index": 0, "case_paths": [ "/nm/136/0025-01" ] }, { "cite": "116 N.M. 76", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 727648 ], "weight": 2, "pin_cites": [ { "page": "80" }, { "page": "210" } ], "opinion_index": 0, "case_paths": [ "/nm/116/0076-01" ] }, { "cite": "119 N.M. 515", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1561214 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/119/0515-01" ] }, { "cite": "120 N.M. 361", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1558867 ], "weight": 2, "pin_cites": [ { "page": "365" }, { "page": "783" } ], "opinion_index": 0, "case_paths": [ "/nm/120/0361-01" ] }, { "cite": "1999-NMSC-010", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 257742 ], "weight": 4, "pin_cites": [ { "page": "\u00b6 22" } ], "opinion_index": 0, "case_paths": [ "/nm/127/0020-01" ] }, { "cite": "2002-NMSC-007", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 183156 ], "weight": 3, "pin_cites": [ { "page": "\u00b6 26" } ], "opinion_index": 0, "case_paths": [ "/nm/131/0758-01" ] }, { "cite": "120 N.M. 185", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1558909 ], "weight": 4, "pin_cites": [ { "page": "188" }, { "page": "1142" }, { "page": "188" }, { "page": "1142", "parenthetical": "stating that the Court of Appeals has \"approved the admission of-other-bad-acts evidence to show the context of other admissible evidence\"" } ], "opinion_index": 0, "case_paths": [ "/nm/120/0185-01" ] }, { "cite": "1999-NMSC-018", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 257627 ], "weight": 6, "pin_cites": [ { "page": "\u00b6 27" }, { "page": "\u00b6 31" } ], "opinion_index": 0, "case_paths": [ "/nm/127/0207-01" ] }, { "cite": "118 N.M. 762", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1563621 ], "weight": 2, "year": 1994, "pin_cites": [ { "page": "770" }, { "page": "764" } ], "opinion_index": 0, "case_paths": [ "/nm/118/0762-01" ] }, { "cite": "121 N.M. 1", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1566519 ], "weight": 11, "year": 1995, "pin_cites": [ { "page": "4", "parenthetical": "citing State v. Apodaca, 118 N.M. 762, 770, 887 P.2d 756, 764 (1994)" }, { "page": "234", "parenthetical": "citing State v. Apodaca, 118 N.M. 762, 770, 887 P.2d 756, 764 (1994)" }, { "page": "6", "parenthetical": "citing 1 Kenneth S. Broun et al., McCormick on Evidence \u00a7 185, at 780 (John W. Strong ed., 4th ed.1992)" }, { "page": "236", "parenthetical": "citing 1 Kenneth S. Broun et al., McCormick on Evidence \u00a7 185, at 780 (John W. Strong ed., 4th ed.1992)" }, { "page": "4" }, { "page": "234" }, { "page": "6" }, { "page": "236" }, { "page": "4" }, { "page": "234", "parenthetical": "discussing standard or review for trial court's admission or exclusion of evidence" } ], "opinion_index": 0, "case_paths": [ "/nm/121/0001-01" ] }, { "cite": "117 N.M. 551", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1552585 ], "weight": 2, "year": 1994, "pin_cites": [ { "page": "557" }, { "page": "18" } ], "opinion_index": 0, "case_paths": [ "/nm/117/0551-01" ] }, { "cite": "2001-NMCA-097", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 183084 ], "weight": 3, "opinion_index": 0, "case_paths": [ "/nm/131/0241-01" ] }, { "cite": "2005-NMCA-047", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 929263 ], "weight": 17, "pin_cites": [ { "page": "\u00b6 2" }, { "page": "\u00b6 16" }, { "page": "\u00b6 3" }, { "page": "\u00b6 28" }, { "page": "\u00b6 16" } ], "opinion_index": 0, "case_paths": [ "/nm/137/0371-01" ] }, { "cite": "2005-NMCA-017", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 929197 ], "weight": 9, "opinion_index": 0, "case_paths": [ "/nm/137/0018-01" ] }, { "cite": "55 N.M. 312", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1582987 ], "weight": 2, "year": 1951, "pin_cites": [ { "page": "317" }, { "page": "984" } ], "opinion_index": 1, "case_paths": [ "/nm/55/0312-01" ] }, { "cite": "945 P.2d 996", "category": "reporters:state_regional", "reporter": "P.2d", "year": 1951, "opinion_index": 1 }, { "cite": "123 N.M. 778", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 142224 ], "year": 1951, "opinion_index": 1, "case_paths": [ "/nm/123/0778-01" ] }, { "cite": "1997-NMSC-044", "category": "reporters:neutral", "reporter": "NMSC", "year": 1951, "pin_cites": [ { "page": "\u00b6 66" } ], "opinion_index": 1 }, { "cite": "531 Pa. 373", "category": "reporters:state", "reporter": "Pa.", "case_ids": [ 1834395 ], "weight": 2, "year": 1992, "pin_cites": [ { "page": "543-44" } ], "opinion_index": 1, "case_paths": [ "/pa/531/0373-01" ] }, { "cite": "767 F.2d 1078", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 349201 ], "pin_cites": [ { "page": "1083-84" } ], "opinion_index": 1, "case_paths": [ "/f2d/767/1078-01" ] }, { "cite": "133 F.3d 1048", "category": "reporters:federal", "reporter": "F.3d", "case_ids": [ 22308 ], "pin_cites": [ { "page": "1050-51" } ], "opinion_index": 1, "case_paths": [ "/f3d/133/1048-01" ] }, { "cite": "80 N.M. 472", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5364335 ], "weight": 6, "pin_cites": [ { "page": "474-75" }, { "page": "993-94" }, { "page": "473" }, { "page": "475" } ], "opinion_index": 1, "case_paths": [ "/nm/80/0472-01" ] }, { "cite": "2004-NMSC-022", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 1224636 ], "weight": 3, "pin_cites": [ { "page": "\u00b6 16" } ], "opinion_index": 1, "case_paths": [ "/nm/136/0025-01" ] } ], "analysis": { "cardinality": 1045, "char_count": 30529, "ocr_confidence": 0.687, "pagerank": { "raw": 1.577023558154138e-07, "percentile": 0.6796967699661255 }, "sha256": "75a004aa390f152c4fcf8b2e3db5f2105bcf9fabdebc3d46c6b291526a02bc40", "simhash": "1:9d76ed086acf91f1", "word_count": 4987 }, "last_updated": "2023-07-14T21:58:03.770248+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "WE CONCUR: PAMELA B. MINZNER, PATRICIO M. SERNA, and RICHARD C. BOSSON, Justices.", "EDWARD L. CH\u00c1VEZ, Chief Justice (concurring in part and dissenting in part)." ], "parties": [ "STATE of New Mexico, Plaintiff-Petitioner, v. Jesse OTTO, Defendant-Respondent." ], "opinions": [ { "text": "OPINION\nMAES, Justice.\n{1} Following a jury trial, Defendant, Jesse Otto, was convicted of criminal sexual penetration of a minor (CSPM), contrary to NMSA 1978, \u00a7 30-9-11(0(1) (1993, prior to 2003 amendment). He appealed. The Court of Appeals reversed and remanded for a new trial, holding that the trial court improperly permitted evidence of uncharged acts and of statements made by the victim to the victim\u2019s mother. The Court also found that the admission of the evidence was more prejudicial than probative. The State appeals to this Court arguing that the Court of Appeals erred when it: (1) held that evidence of uncharged acts by Defendant was not admissible under Rule 11-404(B) NMRA and Rule 11 \u2014 403 NMRA; (2) held that the trial court abused its discretion in admitting the victim\u2019s statements to her mother; and (3) instructed the trial court to follow State v. Frawley, 2005-NMCA-017, 137 N.M. 18, 106 P.3d 580, regarding sentencing. We reverse and remand to the Court of Appeals to address Defendant\u2019s argument regarding the enhancement of his sentence.\nI. FACTUAL AND PROCEDURAL BACKGROUND\n{2} On August 30, 2001, Defendant was indicted on one count of criminal sexual penetration on a child under 13 years of age, contrary to \u00a7 30-9-ll(C)(l). The victim, Defendant\u2019s step-daughter, testified by video deposition. The victim\u2019s deposition was recorded on two video tapes. The first video related to the charged act, which occurred in Alamogordo, New Mexico, between September 1 and October 31, 2000, when the victim was six years old. The second video related to subsequent uncharged acts, which occurred in Colorado.\n{3} The day before trial, the court held a hearing to determine the admissibility of certain evidence. Defendant\u2019s attorney argued that statements made by the victim to her mother and evidence of the uncharged acts in Colorado should not be admitted. He explained that the defense theory was that Defendant touched but did not penetrate the victim, and stated, \u201cI will be submitting a lesser included offense jury instruction for criminal sexual contact of a minor, and that being so, well, we\u2019re not really arguing mistake, what we are arguing [is] what exactly happened. I don\u2019t really think that it\u2019s necessary for the Colorado stuff to come in and it\u2019s highly prejudicial.\u201d The State argued that when Defendant was interviewed after his arrest, his statements to the detective raised doubt as to whether Defendant knowingly engaged in the conduct, and that the second video containing victim\u2019s testimony regarding the acts in Colorado should be admitted under Rule 11-404(B) NMRA to show intent and lack of mistake or accident.\n{4} After reviewing the arrest warrant affidavit, the police report containing Defendant\u2019s statements to the police, and the tape-recorded interview of the victim\u2019s mother, the court ruled that the statements by the victim to her mother would be allowed to show what the victim\u2019s mother did in response to the statements and \u201cso that the jury can have the complete picture as to how this all unfolded____\u201d The court stated that a limiting instruction would be given, upon request. The court then ruled that the evidence of the uncharged acts in Colorado would also be admitted, stating that the \u201ctestimony as to what went on in Colorado is part of this whole picture, that cannot be presented properly without all the pieces of the puzzle and all pieces of the picture____\u201d The court also found that the probative value of the evidence was not outweighed by unfair prejudice.\n{5} At trial, the jury viewed both video tapes containing the victim\u2019s testimony. The other witnesses were the victim\u2019s mother, the police officer who conducted the initial investigation, and the detective who interviewed Defendant after his arrest. The victim\u2019s mother testified that one evening after they moved to Colorado she saw Defendant in bed with the victim and later questioned the victim. The victim\u2019s mother testified that her daughter told her that \u201che comes in there just about every night mom,\u201d and \u201che sticks his finger inside me and wiggles it around and it hurts mom and I don\u2019t like it.\u201d The court instructed the jury not to consider the victim\u2019s statements to her mother for the truth of the statements, but for the limited purpose of explaining what the mother did in response to the statements. The victim\u2019s mother then testified that she confronted Defendant about what the victim had told her. Defendant started crying and said he was sorry.\n{6} The detective who interviewed Defendant after his arrest testified that when he confronted Defendant about the allegation that Defendant had penetrated the victim\u2019s vagina with one finger and then four fingers, Defendant stated he didn\u2019t remember, but that he came \u201cpretty damn close.\u201d The prosecutor then asked the detective if Defendant explained how he got into that situation, and the detective replied, \u201c[Defendant] stated that he was ready to finger her but he woke up but he didn\u2019t think that he did.\u201d The detective also testified that he questioned Defendant about telling the victim not to tell her mother about the incident. Defendant admitted taking the victim into another room and talking about it. The detective testified that \u201c[Defendant] stated that he did take her into the toy room and stated that he figured it wasn\u2019t serious enough to make a big deal about it....\u201d Additionally, the detective testified that when he asked Defendant why the victim would he, referring to the allegations of penetration in the affidavit, Defendant stated that he did not believe that the victim would he, and that he knew that she had told the truth. The defense called no witnesses. Defendant was convicted of criminal sexual penetration. He appealed.\n{7} The Court of Appeals held that the \u201cuse of the uncharged Colorado acts as evidence of the charged Alamogordo acts in this context [was] contrary to Rule 11-404(B) NMRA.\u201d State v. Otto, 2005-NMCA-047, \u00b6 2, 137 N.M. 371, 111 P.3d 229. The Court held that the statements that the victim made to her mother regarding the uncharged acts were similarly inadmissible. Id. According to the Court, the State misinterpreted Defendant\u2019s statement to the detective, and that what Defendant meant by this statement was that he did not commit the act of penetration, not that he was mistaken as to what acts he had committed. Id. \u00b6 11. The Court stated that the State incorrectly sought the admission of the evidence of the uncharged acts in Colorado to show intent and absence of mistake or accident based upon this misinterpretation, and that whether Defendant did what he did accidentally or by mistake was \u201c[n]ot in issue.\u201d Id. \u00b6\u00b6 11, 16. Comparing Defendant\u2019s case to State v. Ruiz, 2001-NMCA-097, 131 N.M. 241, 34 P.3d 630, the Court determined that the use of evidence of the uncharged acts amounted to \u201cno more\u201d than evidence of Defendant \u201cacting in conformity with his propensity.\u201d Otto, 2005-NMCA-047, \u00b6 16, 137 N.M. 371, 111 P.3d 229. The Court also determined that the admission of the evidence was more prejudicial than probative. Id. Upon remand for a new trial, the Court instructed the trial court to follow Frawley, 2005-NMCA-017, 137 N.M. 18, 106 P.3d 580, in terms of sentencing if Defendant was convicted again. Otto, 2005-NMCA-047, \u00b6 3, 137 N.M. 371, 111 P.3d 229.\n{8} Judge Pickard dissented, finding that the evidence of the uncharged acts was admissible to show \u201cintent, lack of accident, mistake, and knowledge of what Defendant was doing.\u201d Id. \u00b6\u00b6 31-32. She stated that the majority violated the \u201ccardinal rule of appellate procedure\u201d that an appellate court \u201cwill affirm a trial court\u2019s decision reaching a correct result, even though the reason offered to support the result is wrong,\u201d and that the majority violated the \u201cbasic rule of criminal law\u201d that courts \u201cdo not limit the State\u2019s presentation of evidence to the narrow question of what a defendant has expressly put in issue.\u201d Id. \u00b6\u00b6 29-30. The State appealed to this Court, and we granted certiorari.\nII. DISCUSSION\nA. The trial court did not abuse its discretion in admitting evidence of the uncharged acts under Rule 11-404(B)\n{9} We review the trial court\u2019s decision to admit evidence under Rule 11-404(B) for abuse of discretion. State v. Williams, 117 N.M. 551, 557, 874 P.2d 12, 18 (1994). \u201cAn abuse of discretion occurs when the ruling is clearly against the logic and effect of the facts and circumstances of the case. We cannot say the trial court abused its discretion by its ruling unless we can characterize it as clearly untenable or not justified by reason.\u201d State v. Woodward, 121 N.M. 1, 4, 908 P.2d 231, 234 (1995) (citing State v. Apodaca, 118 N.M. 762, 770, 887 P.2d 756, 764 (1994)).\n{10} \u201cEvidence 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.\u201d Rule 11~404(B). This list is not exhaustive and \u201cevidence of other wrongs may be admissible on alternative relevant bases so long 'as it is not admitted to prove conformity with character.\u201d State v. Martinez, 1999-NMSC-018, \u00b6 27, 127 N.M. 207, 979 P.2d 718; see also State v. Jones, 120 N.M. 185, 188, 899 P.2d 1139, 1142 (Ct.App.1995) (\u201cNew Mexico allows use of other bad acts for many reasons, including those not specifically listed in [Rule] 11-404(B).\u201d). Before admitting evidence of \u201cother crimes, wrongs or acts,\u201d the trial court must find that the evidence is relevant to a material issue other than the defendant\u2019s character or propensity to commit a crime, and must determine that the probative value of the evidence outweighs the risk of unfair prejudice, pursuant to Rule 11-403. See State v. Gai tan, 2002-NMSC-007, \u00b6 26, 131 N.M. 758, 42 P.3d 1207.\n{11} A potential inference of mistake or accident was created by Defendant\u2019s statement to the detective that he \u201cwas ready to finger her but he woke up but he didn\u2019t think he had.\u201d Defendant also told the detective that the victim would not lie and that she had told the truth about what happened. We agree with the view expressed in the dissent to the Court of Appeals\u2019 opinion that \u201c[i]t appeared that Defendant was telling the police that what he did might have been done in his sleep without his conscious intent and whatever he did, he stopped it as soon as he awoke and realized what he was doing.\u201d Otto, 2005-NMCA-047, \u00b6 28, 137 N.M. 371, 111 P.3d 229 (Pickard, J., dissenting). Because this statement could have been interpreted by the jury as admitting to penetration, but doing so unconsciously, the prosecution had the right to introduce evidence to show that Defendant\u2019s actions were intentional and not committed accidentally or by mistake. Defendant argues that because his defense theory at trial was that he committed sexual contact without penetration, not that he \u201cmistakenly or without knowledge committed sexual acts,\u201d the State\u2019s purposes for presenting evidence of the uncharged Colorado acts to show intent and absence of mistake or accident were eliminated. He argues that he \u201cput on no evidence that he was half-asleep and did not know what he was doing.\u201d The Court of Appeals agreed and stated that \u201cdespite the prosecution\u2019s assertions, Defendant did not allege a mistake as to the character of his actions. At no point in the trial did Defendant deny having had contact with the child\u2019s genitals.\u201d Otto, 2005-NMCA-047, \u00b6 16, 137 N.M. 371, 111 P.3d 229. However, it does not matter that Defendant\u2019s statement was introduced into evidence by the State rather than Defendant. There is nothing in Rule 11-404(B) that requires evidence admitted under this rule be offered only to rebut evidence presented by the defense.\n{12} The fact that the trial judge stated in his ruling on Defendant\u2019s motion to exclude the evidence that he was admitting it as \u201cpart of [the] whole picture;\u201d in other words, to provide context, does not alter our view. Although context may be a proper purpose under Rule 11-404(B), see Jones, 120 N.M. at 188, 899 P.2d at 1142 (stating that the Court of Appeals has \u201capproved the admission of-other-bad-acts evidence to show the context of other admissible evidence\u201d), we do not address the issue of whether context was a proper purpose in this case, because we find that the evidence was properly admitted to show intent and absence of mistake or accident. See State v. Torres, 1999-NMSC-010, \u00b6 22, 127 N.M. 20, 976 P.2d 20 (appellate court may affirm trial court\u2019s admission of evidence on grounds not relied upon by trial court unless those grounds are based upon facts that defendant did not have a fair opportunity to address in the proceedings below).\n{13} The evidence was properly admitted to refute the inference of mistake or accident created by Defendant\u2019s statement to the detective. Therefore, we find that the trial court did not abuse its discretion in admitting evidence of the uncharged acts in Colorado. Because we find that the evidence was properly admitted under Rule 11-404(B), we do not address the other arguments made by the State in support of reversal on this issue.\nB. The trial court did not abuse its discretion in admitting evidence of the uncharged acts under Rule 11-403\n{14} The State also argues that the Court of Appeals erred in its determination that the evidence of the uncharged acts was not admissible under Rule 11-403. This rule states that \u201cevidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues or misleading the jury, or by considerations of undue delay, waste of time or needless presentation of cumulative evidence.\u201d Rule 11-403. \u201cBecause a determination of unfair prejudice is fact sensitive, \u2018much leeway is given trial judges who must fairly weigh probative value against probable dangers.\u2019 \u201d Id. We review for abuse of discretion. See State v. Martinez, 1999-NMSC-018, \u00b6 31, 127 N.M. 207, 979 P.2d 718 (\u201cThe trial court is vested with great discretion in applying Rule [11-403], and it will not be reversed absent an abuse of that discretion.\u201d) (internal quotation marks and citation omitted).\n{15} The trial court found that the probative value of this evidence was not outweighed by any unfair prejudice to Defendant. We agree. The evidence was highly probative to show lack of mistake or accident. Without the evidence of the uncharged acts, the jury was much more likely to believe that what happened in Alamogordo was a mistake or accident that only occurred because Defendant was asleep. There was no other evidence available to rebut this potential inference. See State v. Niewiadowski, 120 N.M. 361, 365, 901 P.2d 779, 783 (Ct.App.1995) (availability of other means of proof is factor to consider in determining probative value).\n{16} \u201cThe purpose of [Rule] 11-403 is not to guard against any prejudice whatsoever, but only against the danger of unfair prejudice.\u201d State v. Woodward, 121 N.M. 1, 6, 908 P.2d 231, 236 (1995) (citing 1 Kenneth S. Broun et al., McCormick on Evidence \u00a7 185, at 780 (John W. Strong ed., 4th ed.1992)). Evidence is not unfairly prejudicial \u201csimply because it inculpates the defendant.\u201d Id. Rather, prejudice is considered unfair when it \u201cgoes only to character or propensity.\u201d State v. Ruiz, 119 N.M. 515, 892 P.2d 962 (Ct.App.1995) (emphasis added). In the present case, the evidence was properly admitted to show absence of mistake or accident \u2014 a \u201clegitimate non-character use of the evidence.\u201d State v. Jordan, 116 N.M. 76, 80, 860 P.2d 206, 210 (Ct.App.1993). Given the probative value of the evidence for this purpose, we cannot say that the admission of the evidence was against the logic and effect of the facts and circumstances of the case, untenable, or not justified by reason. See Woodward, 121 N.M. at 4, 908 P.2d at 234. Therefore, the trial court did not abuse its discretion in admitting evidence of the uncharged acts under Rule 11-403.\nC. The trial court did not abuse its discretion in admitting the victim\u2019s statements to her mother\n{17} The State urges this Court to reverse the Court of Appeals in its determination that the trial court abused its discretion by admitting the victim\u2019s statements to her mother. Defendant argued at the hearing for the motion in limine that the victim\u2019s statements to her mother in Colorado describing what Defendant had done to her were hearsay and should not be admitted. The trial court denied the motion, ruling that the statements were admissible to show why the victim\u2019s mother confronted Defendant in Colorado. At trial, the court instructed the jury to consider the statements \u201cfor the limited purpose only of explaining or supporting what the mother did in response or reaction to [the statements] and not for the truth of the child\u2019s statements to the mother.\u201d We presume that the jury followed the court\u2019s limiting instruction. See Woodward, 121 N.M. at 6, 908 P.2d at 236.\n{18} Although the court referred to the statements as hearsay and allowed them under a \u201chearsay exception,\u201d we conclude that the statements were not hearsay. Statements offered for a purpose other than their truth are not hearsay. Rule 11-801(0 NMRA; see also State v. Rosales, 2004-NMSC-022, \u00b6 16, 136 N.M. 25, 94 P.3d 768 (\u201cExtrajudicial statements or writings may properly be received into evidence, not for the truth of the assertions therein contained, or the veracity of the out-of-court declarant, but for such legitimate purposes as that of establishing knowledge, belief, good faith, reasonableness, motive, effect on the hearer or reader, and many others.\u201d (emphasis added) (internal quotation marks and citation omitted)). The statements were offered for the legitimate purpose of explaining why the victim\u2019s mother confronted Defendant in Colorado. The trial court\u2019s admission of these statements was not \u201cagainst the logic and effect of the facts and circumstances of the case,\u201d or \u201cclearly untenable or not justified by reason.\u201d See Woodward, 121 N.M. at 4, 908 P.2d at 234 (discussing standard or review for trial court\u2019s admission or exclusion of evidence). Therefore, we hold that the trial court did not abuse its discretion in admitting these statements.\n{19} Quoting State v. Alberts, 80 N.M. 472, 457 P.2d 991 (Ct.App.1969), that \u201cevidence must be consistent with a legitimate purpose and have some probative effect upon an issue in the case,\u201d the dissent argues that the reason the victim\u2019s mother confronted Defendant in Colorado has no probative effect upon the material issue in the case \u2014 whether Defendant committed CSPM in Alamogordo. In Alberts, a narcotics officer testified that during a briefing with local law enforcement officers, the officers named the defendant as a person engaged in illegal marijuana traffic. Id., 80 N.M. at 473, 457 P.2d at 992. The defendant objected on the grounds that the testimony was hearsay and prejudicial. Id. The trial court found that the statement was not offered for the truth of the matter asserted, but to establish the cause of the investigation and to show probable cause. Id. The Court of Appeals reversed, finding that the evidence \u201cwas clearly hearsay and clearly prejudicial.\u201d Id., 80 N.M. at 474, 457 P.2d at 993. The Court stated that the testimony \u201cwas not consistent with any legitimate purpose,\u201d and \u201c[t]he naming of [the] defendants as persons engaged in \u2018illegal marijuana traffic,\u2019 for the purpose of showing why [the officer] conducted an investigation, is not a legitimate reason for admitting this extremely prejudicial testimony.\u201d Id.\n{20} In the present case, the dissent makes the argument that, similar to Alberts, there was no legitimate reason for admitting the victim\u2019s statements to her mother. However, Alberts is not dispositive for several reasons. First of all, this Court distinguished Alberts in State v. Stampley, 1999-NMSC-027, \u00b6\u00b6 38-39, 127 N.M. 426, 982 P.2d 477, by finding that although non-hearsay statements for the purpose of establishing the reason for a police investigation can be highly prejudicial, statements offered for other purposes, such as to explain police conduct, can be admissible \u201cif relevant to a fact of consequence and not offered to prove the truth of the matter asserted.\u201d In the present ease, the trial court admitted the statements to show why the victim\u2019s mother confronted Defendant, a legitimate non-hearsay purpose. Second, the dissent relies on Alberts to assert that the trial court\u2019s purpose for admitting the evidence in the present ease was \u201conly legitimate if the purpose has any bearing on whether Defendant committed CSPM in Alamogordo.\u201d However, the Alberts Court found that the reason for the investigation had no relevance to any issue in the case, Alberts, 80 N.M. at 475, 457 P.2d at 994, not that it had no relevance to the material issue in the case. In the present case, the reason that the victim\u2019s mother confronted Defendant in Colorado was relevant as to why Defendant cried and apologized for an hour and a half when faced with the allegations that he had penetrated the victim almost every night. Although the confrontation itself may not have been probative as to whether Defendant committed the Alamogordo acts, the confrontation was probative as to whether Defendant penetrated the victim in Colorado because Defendant did not deny the allegations in the victim\u2019s statements, but instead he responded by crying and apologizing. Finally, the Court in Alberts determined that the testimony was hearsay, and in this case we find that the testimony was not hearsay.\nD. The Court of Appeals erroneously instructed the trial court regarding the enhancement of Defendant\u2019s sentence\n{21} The trial court enhanced defendant\u2019s sentence by one-third. Defendant appealed, claiming that the trial court\u2019s decision was not supported by sufficient evidence. The Court of Appeals did not rule on the sentencing issue, but instructed the trial court that \u201csentences may not be increased on the basis of aggravating circumstances unless those circumstances are found by the jury beyond a reasonable doubt,\u201d based on State v. Frawley, 2005-NMCA-017, 137 N.M. 18, 106 P.3d 580. This Court overruled Frawley in State v. Lopez, 2005-NMSC-036, 138 N.M. 521, 123 P.3d 754. Thus, Lopez is controlling on the issue of sentence enhancement. Because we affirm Defendant\u2019s convictions, the Court of Appeals must address the issue of whether there was sufficient evidence to support the trial court\u2019s enhancement of Defendant\u2019s sentence.\nIII. CONCLUSION\n{22} We hold that the trial court did not abuse its discretion in admitting evidence of uncharged acts by Defendant and the victim\u2019s statements to her mother. We also hold that the trial court did not abuse its discretion by ruling that the evidence of the uncharged acts was not more prejudicial than probative. Accordingly, we reverse and remand to the Court of Appeals to address Defendant\u2019s argument regarding the enhancement of his sentence.\n{23} IT IS SO ORDERED.\nWE CONCUR: PAMELA B. MINZNER, PATRICIO M. SERNA, and RICHARD C. BOSSON, Justices.\nEDWARD L. CH\u00c1VEZ, Chief Justice (concurring in part and dissenting in part).", "type": "majority", "author": "MAES, Justice." }, { "text": "CH\u00c1VEZ, Chief Justice\n(concurring in part and dissenting in part).\n{24} I concur in Part II.A-B of the majority opinion because, through his equivocal statement to the police, Defendant, himself, injected the issue of mistake into the proceedings. However, I respectfully dissent from Part II.C of the majority opinion. After finding Defendant in bed with Victim in Colorado, Mother asked Victim if anything had happened. Victim told mother that Defendant had digitally penetrated her many times. Mother then confronted Defendant, and Defendant shamefully and sorrowfully admitted to these Colorado acts. This ultimately led to Mother contacting the police. The trial court concluded that Mother could testify as to what Victim told her \u201cfor the limited purpose only of explaining or supporting what the mother did in response or reaction to that and not for the truth of the child\u2019s statements to the mother.\u201d Although the trial court called this \u201can exception to the hearsay rule,\u201d the trial court essentially ruled the statement to be non-hearsay. See Rule 11-801(C) NMRA (defining hearsay as \u201ca statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted\u201d).\n{25} The majority concludes that the trial court did not abuse its discretion in admitting this testimony because it was \u201coffered for the legitimate purpose of explaining why the victim\u2019s mother confronted Defendant in Colorado\u201d and because a limiting instruction was given to the jury. Maj. Op. \u00b6\u00b6 17-18. The majority bases its conclusion on the recent statement in State v. Rosales, 2004-NMSC-022, \u00b6 16, 136 N.M. 25, 94 P.3d 768, that \u201c[ejxtrajudicial statements ... may properly be received into evidence, not for the truth of the assertions therein contained, ... but for such legitimate purposes as that of ... effect on the hearer....\u201d This statement in Rosales, however, was a direct quote from State v. Alberts, 80 N.M. 472, 474-75, 457 P.2d 991, 993-94 (Ct.App.1969), and Alberts shows why Mother\u2019s statements should not have been admitted.\n{26} In Alberts, a State Police Officer testified that local law enforcement officers told him that the defendants were involved in trafficking marijuana; the defendants objected on hearsay grounds. The trial court overruled the objection, stating that the statement was not offered for the truth of the matter, but \u201cto establish the reason for investigation and to show probable cause.\u201d Id. at 473, 457 P.2d 991. After reciting the above-stated rule the majority uses to support the admission of Mother\u2019s testimony, the court in Alberts continued:\nHowever, the evidence must be consistent with a legitimate purpose and have some proper probative effect upon an issue in the case. The objectionable testimony here was not consistent with any legitimate purpose. The naming of defendants as persons engaged in \u201cillegal marijuana traffic,\u201d for the purpose of showing why Officer Sedillo conducted an investigation, is not a legitimate reason for admitting this extremely prejudicial testimony. It could have had no probative effect upon any issue in the case, other than the improper effect of persuading the jury as to the guilt of defendant.\nId. at 475, 457 P.2d 991.\n{27} Here, the same result is demanded. WTiy Mother confronted Defendant in Colorado about the Colorado acts has absolutely no probative value relating to the material issue in this case \u2014 i.e., whether Defendant committed CSPM in Alamogordo. The majority deems the use of the Victim\u2019s statement to Mother to be for a \u201clegitimate purpose.\u201d Although using Victim\u2019s statement to Mother about the Colorado acts to show why Mother confronted Defendant may have, as the trial court put it, been for a limited purpose, this purpose is only legitimate if the purpose has any bearing on whether Defendant committed CSPM in Alamogordo. Because I fail to see how the answer to the question of why Mother confronted Defendant about the Colorado acts has any relevancy as to whether Defendant committed the Alamogordo act, I would hold the admission of Victim\u2019s statement to Mother to be error.\n{28} Numerous cases in other jurisdictions have held such non-hearsay statements inadmissible on grounds of irrelevancy or because they were unfairly prejudicial in light of their limited probative value. See, e.g., United States v. Williams, 133 F.3d 1048, 1050-51 (7th Cir.1998); United States v. Brown, 767 F.2d 1078, 1083-84 (4th Cir.1985); Commonwealth v. Yates, 531 Pa. 373, 613 A.2d 542, 543-44 (1992). Various treatises also recognize the fallacy of admitting a statement as non-hearsay under the guise of providing \u201cbackground\u201d or \u201ccontext\u201d to the proceedings. See, e.g., David F. Binder, Hearsay Handbook, \u00a7 2:10, at 2-40 (4th ed. 2001) (\u201cIn criminal cases the prosecution is fond of offering evidence of inculpatory out-of-court assertions as \u2018background\u2019 to explain why law enforcement agents decided to investigate a defendant. Such evidence is seldom relevant.\u201d).\n{29} Moreover, not only was it irrelevant why Mother confronted Defendant about Defendant\u2019s acts in Colorado, the admission of Victim\u2019s statement to Mother as non-hearsay was unfairly prejudicial to Defendant. Having found the Colorado acts admissible as Rule 11^404(B) evidence, the jury watched Victim testify on videotape that such acts occurred. Given the fact that Victim\u2019s Rule 11-404(B) testimony about what happened in Colorado was only admitted because it was probative on the issue of mistake, any further evidence admitted on this issue greatly risked tipping the Rule 11-403 balance in favor of excluding the evidence. I believe that allowing Mother to testify that Victim told her about the Colorado acts tipped the scales because its true effect was to buttress Victim\u2019s credibility by using a prior consistent statement. It is a cardinal rule that a witness\u2019s credibility cannot be buttressed by admitting a prior consistent statement unless, among other things, the credibility of the witness has first been attacked. See Rule 11-801(D)(1)(b) NMRA; State v. Salazar, 1997-NMSC-044, \u00b6 66, 123 N.M. 778, 945 P.2d 996; State v. Alaniz, 55 N.M. 312, 317, 232 P.2d 982, 984 (1951). I believe this rule holds particular force when dealing not with the substance of the charged crime, but with testimony regarding extrinsic acts admitted under Rule 11-404(B). Regardless of any limiting instruction, evidence offered in support of the veracity of the Rule 11-404(B) evidence should never have come in front of the jury in the first place. See Rule 11-105 NMRA (providing for a limiting instruction when evidence is admissible \u201cfor one purpose but not admissible ... for another purpose\u201d).\n{30} For the foregoing reasons, I respectfully concur in part and dissent in part.", "type": "concurring-in-part-and-dissenting-in-part", "author": "CH\u00c1VEZ, Chief Justice" } ], "attorneys": [ "Gary K. King, Attorney General, M. Victoria Wilson, Assistant Attorney General, Santa Fe, NM, for Petitioner.", "John Bigelow, Chief Public Defender, Susan Roth, Assistant Appellate Defender, Santa Fe, NM, for Respondent." ], "corrections": "", "head_matter": "2007-NMSC-012\n157 P.3d 8\nSTATE of New Mexico, Plaintiff-Petitioner, v. Jesse OTTO, Defendant-Respondent.\nNo. 29,158.\nSupreme Court of New Mexico.\nFeb. 23, 2007.\nRehearing Denied April 11, 2007.\nGary K. King, Attorney General, M. Victoria Wilson, Assistant Attorney General, Santa Fe, NM, for Petitioner.\nJohn Bigelow, Chief Public Defender, Susan Roth, Assistant Appellate Defender, Santa Fe, NM, for Respondent." }, "file_name": "0443-01", "first_page_order": 493, "last_page_order": 501 }