(dissenting).
{34} I respectfully dissent. In my view, a rational trier of fact could have found that two incidents of CSCM occurred, and, therefore, denial of Defendant’s motion for directed verdict was proper. In addition, I think the evidence that Defendant showed the Child a sexually explicit video and his wife’s thong underwear, and that Defendant had showered with the Child and walked around naked in front of her was admissible on two grounds: (1) to refute evidence that Defendant touched the Child by accident or mistake, and (2) to establish the CSCM element of unlawfulness. I would affirm the trial court’s judgment.
Directed Verdict Motion
{35} The Child’s testimony about the number of incidents of inappropriate touching during the relevant time period was ambiguous. The time period in question was after the trip to Colorado and before the Child’s eighth birthday. When the prosecutor asked the Child if the touching ever happened “after Colorado” the Child responded, “Yes.” The prosecutor then asked, “How many times did it happen?” and the Child responded, “I think it was about five[,] I am not sure.” A reasonable juror could infer from this testimony that there were five incidents of inappropriate touching that occurred after the Colorado trip. The Child then testified that “[m]ost happened before Colorado and once after.” This testimony was inconsistent with the prior testimony about five incidents occurring after the Colorado trip. It is improper for us to attempt to sort out what actually happened. Rather, “[i]t is the exclusive province of the jury to resolve factual inconsistencies in testimony.” State v. Morales, 2000-NMCA-046, ¶ 8, 129 N.M. 141, 2 P.3d 878 (internal quotation marks and citations omitted). In addition, the Child testified about sevei’al distinct incidents, some of which involved Defendant touching her “privates,” some of which involved straddling her or lying on top of her, some of which happened when she was alone, and some of which happened when her grandmother was in the bed with her. It was up to the jury to sort through the evidence and determine the facts. This Court should not reweigh the evidence or substitute our judgment for that of the fact finder. See State v. Mora, 1997-NMSC-060, ¶ 27, 124 N.M. 346, 950 P.2d 789. I would affirm the trial court’s denial of Defendant’s motion for directed verdict.
Evidence of Other Acts
{36} The majority holds that the trial court abused its discretion in admitting evidence of Defendant’s other acts because it was nothing more than propensity evidence, which is inadmissible under Rule 11-404(B). In support of this holding, the majority eon-eludes that the State’s theory that Defendant was “grooming” the Child was a pretext for establishing that Defendant “acted like a pervert on occasion.” Majority opinion, ¶22. Even if this statement is correct, the majority disregards the established rule that we may affirm a trial court’s ruling on a ground not relied upon by the trial court if reliance on the new ground would not be unfair to the appellant. State v. Allen, 2000-NMSC-002, ¶ 90, 128 N.M. 482, 994 P.2d 728. In this ease, two theories support the trial court’s admission of the evidence.
{37} First, the evidence was admissible to prove the absence of mistake or accident. See Rule 11-404(B) (permitting admission of evidence of other crimes, wrongs, or acts to prove the “absence of mistake or accident”). At least three witnesses testified that Defendant said he touched the Child’s vagina, but only because he was applying medication to her rash. This testimony puts this case on the same footing as State v. Otto, 2007-NMSC-012, 141 N.M. 443, 157 P.3d 8. In Otto, evidence of the defendant’s uncharged, multiple digital penetrations of the child was admissible to refute evidence that the defendant touched the child unconsciously or by mistake. Id. ¶¶ 5, 11. Similarly, in the present case, the evidence of Defendant’s sexually fraught conduct with the Child refutes the evidence that Defendant touched the Child strictly for medical reasons. “[T]he prosecution had the right to introduce evidence to show that [the defendant's actions were intentional and not committed accidentally or by mistake.” Id. ¶ 11.
{38} Second, the evidence was material to the CSCM element of unlawfulness, which may be proved by showing that Defendant’s conduct was done to arouse or gratify sexual desire. Kerby, 2007-NMSC-014, ¶26. In Kerby, our Supreme Court affirmed the trial court’s admission of evidence that the defendant created a peephole that allowed him to clandestinely peer into the child’s bathroom. Id. The Court stated that this evidence of uncharged conduct refuted evidence that the defendant’s touching of the child’s buttocks was a fatherly pat. Id. Thus, the evidence was relevant to the unlawfulness element of CSCM by creating the inference that the defendant touched the child with sexual intent. Id. The same can be said of Defendant’s conduct in this case. The jury was instructed on CSCM, and the evidence tended to show that Defendant’s touching of the Child was sexually, rather than medically, motivated.
{39} It would not be unfair to Defendant to affirm the trial court on either of these theories of admissibility. At the hearing on Defendant’s motion in limine, the prosecutor specifically argued these theories. He contended that the evidence was admissible under Rule 11-404(B) because: (1) defense counsel had submitted a jury instruction that included the element of gratifying sexual desire, and (2) it would refute the evidence that the touching was a “medical application.” Defendant had the opportunity to respond to these arguments.
{40} The majority also implies that admission of the evidence in question was improper because evidence of “grooming” is properly admitted only through the testimony of an expert, and the State did not have an expert witness. Majority opinion, ¶¶ 18, 23-24. Defendant did not make such an argument below or on appeal. Consequently, this Court should not rely on this ground to support reversal. “Courts risk overlooking important facts or legal considerations when they take it upon themselves to raise, argue, and decide legal questions overlooked by the lawyers who tailor the case to fit within their legal theories.” In re Doe, 98 N.M. 540, 541, 650 P.2d 824, 825 (1982) (internal quotation marks and citation omitted).
{41} For the foregoing reasons, and because none of Defendant’s other arguments have merit, I would affirm his convictions.