(specially concurring).
I concur in the result and join in all of Judge Bivins’ opinion for the Court except the discussion under the heading “Incest Testimony by Defendant’s Son.”
I would not rest admissibility of the incest testimony on SCRA 1986, 11-404(B). To understand that rule properly, it needs to be read in the context of the entire Rule 11-404, as well as SCRA 1986, 11-405. These rules are virtually identical to Federal Rules of Evidence 4041 and 405. For ease of reference I will refer to the two rules, and their federal counterparts, as simply Rules 404 and 405. They state: Rule 404. Character evidence not admissible to prove conduct; exceptions; other crimes.
A. Character evidence generally. Evidence of a person’s character or a trait of his character is not admissible for the purpose of proving that he acted in conformity therewith on a particular occasion, except:
(1) Character of accused. Evidence of a pertinent trait of his character offered by an accused, or by the prosecution to rebut the same;
(2) Character of victim. Evidence of a pertinent trait of character of the victim of the crime offered by an accused, or by the prosecution to rebut the same or evidence of a character trait of peacefulness of the victim offered by the prosecution in a homicide case to rebut evidence that the victim was the first aggressor;
(3) Character of witness. Evidence of the character of a witness, as provided in Rules 11-607, 11-608 and 11-609.
B. Other crimes, wrongs or acts. Evidence of other crimes, wrongs or acts is not admissible to prove the character of a person in order to show that he acted 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.
Rule 405. Methods of proving character.
A. Reputation or opinion. In all cases in which evidence of character or a trait of character of a person is admissible, proof may be made by testimony as to reputation or by testimony in the form of an opinion. On cross-examination, inquiry is allowable into relevant specific instances of conduct.
B. Specific instances of conduct. In cases in which character or a trait of character of a person is an essential element of a charge, claim or defense, proof may also be made of specific instances of his conduct.
Rules 404 and 405 establish two pertinent general propositions. One is that ordinarily a person’s character should not be used circumstantially — that is, to prove that a person acted in conformity with his or her character. This prohibition, particularly in the context of criminal prosecutions, is justified by concern that character evidence when used circumstantially is 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. See Fed.R.Evid. 404 advisory committee’s note. The other proposition is that ordinarily character is not to be proved by evidence of specific instances of conduct. This prohibition is justified by the danger that when character is proved by evidence of specific acts, the inquiry into those acts may constitute minitrials that consume too much time and may distract or confuse the fact-finder. See Fed.R.Evid. 405 advisory committee’s note.
Both of these propositions support the prohibition in Rule 404(B) against proving conduct to establish character to prove action in conformity with that character. The second sentence of Subsection B recognizes, however, that evidence of specific conduct may be relevant for other purposes. Although one might read the sentence as establishing an exception to the first sentence, cf David W. Louisell & Christopher B. Mueller, Federal Evidence § 135, at 117 (rev. vol. 2 1985) [hereinafter Louisell] (Rule 404 “does not exclude character evidence which is relevant for any other purpose, such as showing motive or intent.”), a more natural reading of Subsection B is that the second sentence simply clarifies that the first sentence does not always exclude other-acts evidence. Under this reading one must be cautious in applying the second sentence to be sure that one is not using a rubric such as “plan” to obscure the fact that other-acts evidence is actually being used for the purpose prohibited by the first sentence.
That leaves the question of what is prohibited by the first sentence of Rule 404(B). In particular, what is meant by “character”? The most common view — what I will call the “traditional view” — equates “character” with “propensity.” In other words, the first sentence excludes evidence of a person’s specific acts to show that the person has a propensity to engage in a certain type of conduct to show that the person engaged in specific conduct on the occasion at issue. One school of thought would also exclude propensity evidence offered to establish that a person had a particular state of mind on the occasion at issue. See Lee E. Teitelbaum & Nancy A. Hertz, Evidence II: Evidence of Other Crimes as Proof of Intent, 13 N.M.L.Rev. 423 (1983). But the dominant approach appears to be that the prohibition in Rule 404(B) against other-acts evidence to prove that a person “acted in conformity with” a character trait addresses only actions, not the state of mind accompanying the act at issue. See 22 Charles A. Wright & Kenneth W. Graham, Jr., Federal Practice and Procedure, Evidence § 5242, at 473-74 (Supp.1992) [hereinafter Wright & Graham], There is, however, a widely recognized constraint on the use of propensity evidence to prove state of mind. Because the actor’s state of mind is generally an issue in the case — certainly when the actor is the defendant in a criminal case — almost any evidence prohibited by the first sentence of Subsection B could be argued to be admissible to prove the actor’s state of mind. Thus, to prevent the eyisceration of the prohibition in the first sentence, courts commonly require that the “intent exception” be limited to cases in which the issue of intent is seriously disputed. See Wright & Graham, supra, § 5242, at 488-89.
Another view adopts a narrower definition of character. Professor Paul Roth-stein has suggested that the term “character” in the first sentence of Rule 404(B) refers to only a subset of potential propensities. He provides the following definition:
“Character” is a propensity that is both general (i.e. propensity for “honesty” or “dishonesty,” “violence” or “non-violence”) as opposed to specific (i.e., propensity for executing certain kinds of violent or dishonest acts, or for executing them in a certain manner) and possessed of good or bad moral connotations.
Paul F. Rothstein, Evidence in a Nutshell: State and Federal Rules 355-56 (2d ed. 1981). See generally Wright & Graham, supra, § 5233; A.B.A. Criminal Justice Section, Federal Rules of Evidence: A Fresh Review and Evaluation, 120 F.R.D. 299, 322-24 (1987) [hereinafter A.B.A.]. His definition of “character” is apparently based on the observation that judicial decisions tend to admit evidence of non-character propensities pursuant to the second sentence of Subsection B. These decisions can then be rationalized on the ground that evidence of non-character propensity is more likely to be probative and less likely to lead to unfair prejudice than is evidence of character. Professor Rothstein’s discussion of the admissibility of propensity or character evidence has been described as “[a] valiant effort to make general sense out of general nonsense.” 1A Wigmore, Evidence § 54.1, at 1156 n. 2 (Tillers rev. 1983) [hereinafter Wigmore]. In my view adoption of his approach would lead to greater judicial candor and a sounder analysis of the critical factors arguing for or against admissibility.
I would not admit the incest testimony under either the traditional approach or Professor Rothstein’s approach. First, under the traditional approach, the court must determine whether there is some “other” purpose (other than that prohibited by the first sentence of Rule 404(B)) for the evidence. The majority opinion states that the incest testimony “went directly to the question of whether Defendant had the plan, design, or intent to control the victim by use of a position of authority.” The incest testimony, however, does not establish a “plan” (which I take to encompass also the term “design”) as that term should properly be used in applying Rule 404(B). I see no relevance for the incest testimony, and the majority suggests none, other than via the chain of logic that because Defendant engaged in similar conduct in the past, he was more likely to have done so on the occasions alleged in this case. A leading treatise states:
The justification for admitting evidence of other crimes to prove a plan is that this involves no inference as to the defendant’s 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. The other crime is admitted to show this larger goal rather than to show defendant’s propensity to commit crimes.
Wright & Graham, supra, § 5244, at 499-500. For example, in a prosecution of a defendant for murdering one of her partners, the state could prove her plan to take total control of the company by removing her partners through any means available, including blackmail, involuntary commitment to mental institutions, murder, etc. The evidence in this case is rather similar to evidence whose admission is criticized by the treatise:
A recent Washington case illustrates the problem many courts have in distinguishing between “plan” and “modus operandi” as grounds for admission of other crimes. The defendant was charged with two counts of statutory rape and two uncharged crimes were admitted. In all of these, the defendant had enticed teenage runaways into exchanging sex for food and shelter. This common modus operandi was said to be admissible under Rule 404(b) to prove that defendant had engaged in intercourse as part of a plan to take advantage of runaways in this fashion.
This is evidence of propensity, not plan. But the opinion suggests that what misled the court was to read “plan” to mean something like a blueprint. Proof that the witch had constructed one gingerbread house will support an inference that she has the “plans” for this type of architectural endeavor but it does not prove whether or not she will ever use the blueprint to construct another lure for lost children. It is only when we can infer a plan for a subdivision to be called “Gingerbread Acres” that we can infer from the plan that the witch also constructed a second house.
To say that the defendant had a “plan” to seduce every runaway 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. To be properly admissible under Rule 404(b) it is not enough to show that each crime was “planned” in the same way; rather, there must be some overall scheme of which each of the crimes is but a part.
Wright & Graham, supra, at 504.
As for use of the incest testimony to prove intent, there was no serious dispute regarding Defendant’s “intent to control the victim by use of a position of authority.” I am not even sure that such intent was an element of the offense under NMSA 1978, Section 30-9-ll(B)(l). But even if it was an element, the real dispute concerned Defendant’s conduct, not his mental state at the time. If he acted in the manner described by the alleged victim, he undoubtedly had the requisite intent. If Defendant acted in the way that he described, he did not have the intent. This was not a case in which the act was admitted and the jury question was the defendant’s state of mind.
Under Professor Rothstein’s approach, the issue is somewhat more difficult. The propensity at issue is what one might call “coercive homosexual hebephilia.” That propensity has moral overtones, but it is probably too specific to be considered a trait of “character,” as defined by Roth-stein. Cf. State v. Swavola, 114 N.M. 472, 477, 840 P.2d 1238, 1243 (App.1992) [Vol. 31, No. 47, SBB 1064, 1066] (trait was not a sufficiently general propensity to fit the “character” rubric). Nevertheless, the Rothstein approach does not require admission of all non-character propensity evidence. Indeed, there are strong reasons to analyze with particular care whether non-character propensity evidence should be excluded pursuant to Rule 11-403. That rule, which tracks Federal Rule 403, states:
Although relevant, evidence 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.
Even if the absolute exclusionary principle stated in the first sentence of Rule 404(B) should be applied only to evidence of acts used to prove “character” as defined by Rothstein, the underlying concerns expressed in that rule must still be considered when the acts are used to prove a non-character propensity. One cannot ignore the long tradition of courts and commentators expressing fear that jurors are too likely to give undue weight to evidence of a defendant’s prior misconduct and perhaps even to convict the defendant solely because of a belief that the defendant is a bad person. Wigmore, supra, § 54.1. Also, admission of evidence of other misconduct may lead to a distracting and time-consuming trial within a trial. I find it instructive that commentators who recognize that propensity evidence often should be admitted would impose limitations on the admissibility in criminal cases of evidence of other crimes beyond the limitations set forth in Rule 403. See A.B.A., supra, at 330 (probative value must substantially outweigh danger of improper prejudice, etc.); Richard B. Kuhns, The Propensity to Misunderstand the Character of Specific Acts Evidence, 66 Iowa L.Rev. 777, 806 (1981) (probative value must outweigh danger of prejudice, etc.).
With these considerations in mind I would not admit the incest testimony even under the Rothstein approach. Because of the remoteness in time of the incest and the difference in nature of the incest incidents and the incidents at issue in this case, I do not think that the evidence was sufficiently probative of Defendant’s alleged propensity to abuse his authority in order to engage adolescent males in sexual activity.
Nevertheless, the testimony was admissible in the specific circumstances of this case. What changes the analysis is the nature of Defendant’s defense. That defense, which was disclosed before trial, was that (1) Defendant was a homosexual hebephile, (2) such hebephiles act consistently in using or not using coercion to satisfy their drives, (3) Defendant had consistently not used coercive methods, and (4) therefore it was unlikely that Defendant used the coercive methods described by the alleged victim.
Given that defense, the incest testimony was admissible, even if one views Defendant’s homosexual hebephilia (whether coercive or non-coercive) as a matter of “character.” Under Rule 404(A)(1) an accused is permitted to present evidence of his character, in which case the prosecution may offer evidence “to rebut the same.” Of course, not every prior act of Defendant would necessarily be relevant as rebuttal, but the incest testimony, which might otherwise seem too remote in time and different in nature to be probative, became very much in point in light of the testimony of Defendant’s expert. Also, I agree with the majority that the trial judge could properly find little chance of unfair prejudice from the incest testimony in the context of this case.
To be sure, the incest testimony was admitted before Defendant’s expert witness testified at trial concerning Defendant’s homosexual hebephilia. But Defendant’s attorney made his proposed defense so clear before trial — the expert testified at length at a pre-trial hearing and defense counsel withdrew his objection to almost all of the other prosecution evidence regarding Defendant’s acts of homosexual hebephilia on the ground that it would be relevant to the defense expert’s testimony — that any error in taking the State’s evidence out of order could only be harmless error. Indeed, Defendant may have been better off having the evidence presented in the State’s case in chief than having it emphasized in the State’s rebuttal case.
There is also a potential problem arising from Rule 405, which I repeat:
A. Reputation of opinion. In all cases in which evidence of character or a trait of character of a person is admissible, proof may be made by testimony as to reputation or by testimony in the form of an opinion. On cross-examination, inquiry is allowable into relevant specific instances of conduct.
B. Specific instances of conduct. In cases in which character or a trait of character of a person is an essential element of a charge, claim or defense, proof may also be made of specific instances of his conduct.
Was the incest testimony a proper means of proving the nature of Defendant’s homosexual hebephilia? Because Defendant’s homosexual hebephilia was not an essential element of the charge or his defense, Subsection B does not apply; and Subsection (A) appears to prohibit proof of specific instances of conduct to rebut Defendant’s character evidence. There are, however, three potential means of overcoming this obstacle.
First, the above straightforward reading of Rule 405 may not be the law in New Mexico. In State v. Baca, 114 N.M. 668, 845 P.2d 762 (1992), our Supreme Court wrote, “In cases where the pertinent character trait of the victim goes toward proving an essential element of the defense, proof may be made of specific instances of the victim’s conduct. See SCRA 1986, 11-405(B)____” (Emphasis added; citation to Court of Appeals opinion omitted). Our Supreme Court thus reads “is an essential element” to mean “goes toward proving an essential element.” In Baca the defendant tried to support a claim of self-defense by offering evidence of specific conduct that established the violent disposition of the victim. (Proof of the violent disposition of the victim is a circumstantial use of character, not proof of an essential element of the defense of self-defense. See Fed.R.Evid. 404 advisory committee’s note.) Although there is authority directly to the contrary in interpreting identical language in Federal Rule of Evidence 405, e.g., Perrin v. Anderson, 784 F.2d 1040, 1045 (10th Cir. 1986), the Baca court relied on a pre-rule opinion, State v. Ardoin, 28 N.M. 641, 216 P. 1048 (1923), as authority for admitting evidence of specific acts of violence, subject only to the general requirements of Rule 11-403. Given the authority of Baca, the evidence of specific acts illustrating Defendant’s homosexual hebephilia appears to be admissible.
A second approach is more straightforward. Simply put, Defendant cannot complain because he opened the door to such testimony when in a pretrial hearing his attorney informed the court of his intent to rely on specific conduct to prove Defendant’s psychological condition. When withdrawing his motion in limine objecting to the State’s calling various witnesses who had engaged in sexual conduct with Defendant, defense counsel stated that his expert “pretty clearly testified that [Defendant’s] sexual history is relevant and is material to his consideration and his opinions.”
The third approach is perhaps the most interesting. Psychiatric testimony of character is simply sui generis.
[I]t is settled that specific acts by the accused may be shown, to prove either sanity or the lack of it. Yet the mental element in dispute in these cases is generally not thought to involve character as that term is used in [federal] rules [of evidence] 404 and 405, but a separate aspect of the psyche, hence to lie beyond reach of these provisions.
Louisell, supra, § 141, at 279-80. But cf. Wright & Graham, supra, § 5233, at 355-56 (concluding that “at least some mental traits are to be defined as ‘character’ under Rule 404.”) Once Defendant offered a psychiatric defense based on an expert’s evaluation of Defendant’s prior conduct, it was appropriate for the State to rebut that defense by proving specific conduct inconsistent with the alleged psychiatric condition. In this case the incest testimony could be viewed as inconsistent with the expert’s conclusion that Defendant would not use a position of authority to satisfy his homosexual hebephilia. It was therefore admissible.
I recognize that the above theories of admissibility were not the ones relied upon by the district court. Yet an appellate court can affirm on a basis other than that relied upon at trial if reliance on the new ground does not prejudice the defendant. See State v. Beachum, 83 N.M. 526, 494 P.2d 188 (1972); Naranjo v. Pauli, 111 N.M. 165, 170, 803 P.2d 254, 259 (Ct.App. 1990). I see no prejudice here because the district court’s finding of relevance under Rule 404(B) would require admissibility on the grounds that I have mentioned.
. The one difference of substance is an amendment to Federal Rule of Evidence 404(b) effective in 1991, which requires the prosecutor to provide notice of evidence to be offered under that provision.