(dissenting).
{27} I respectfully dissent from the majority opinion. I believe that the majority (1) has taken the State’s argument below for admission of the evidence out of context and (2) has improperly rested its rationale (a) on the incomplete justification articulated by the trial judge, as opposed to justifications that can be lawfully articulated based on the facts and evidence adduced below, and (b) on Defendant’s argument to the jury, as opposed to the evidence introduced below from which the jury could draw inferences that could be properly rebutted by evidence of the Colorado acts. I explain.
{28} First, the majority concentrates on one sentence in the State’s opening argument, during which the State used a shorthand version of its contention — that what happened in Alamogordo was not an accident or a mistake, but instead was intentional and purposeful “because” Defendant continued to do the same thing in Colorado. This shorthand version did not do justice to the State’s argument that it articulated to the trial court during the hearing on the motion in limine and during its closing argument. That argument concentrated on Defendant’s statement made to the police, in which he claimed that he was “ready to finger” the child, but woke up and did not think that he did, and that he might have come close to penetration, but did not remember any penetration. The State argued that this statement was ambiguous and subject to interpretation as to Defendant’s knowledge of what he was doing and his intent. It 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. As the State argued in closing argument, the Colorado acts “tell[] you that [what Defendant did in Alamogordo] was unlawful and intentional. It was not an accident that [D]efendant did that on that first occasion. You know, not like he was in his sleep or anything, because this is something that continued to occur.”
{29} Second, in my view, the majority has violated one cardinal rule of appellate procedure and one basic rule of criminal law in resting its decision on the trial court’s inartful articulation of why it was allowing admission of the evidence and on the defense’s tactical concession to the jury that Defendant committed contact but not penetration. The rule of appellate procedure is that an appellate court “will affirm a trial court’s decision reaching a correct result, even though the reason offered to support the result is wrong.” Moore v. Sun Pub’g Corp., 118 N.M. 375, 379, 881 P.2d 735, 739 (Ct.App. 1994). This rule applies equally to criminal cases. See State v. Clah, 1997-NMCA-091, ¶ 20, 124 N.M. 6, 946 P.2d 210; State v. Urban, 108 N.M. 744, 747, 779 P.2d 121, 124 (Ct.App.1989). This rule is subject to an exception, in that the rule will not be applied when it would be unfair to an appellant to apply it, such as when the issue being reviewed is fact dependent and the failure to give the correct reason below deprived the appellant of the opportunity to offer facts that would show the potential error of the allegedly correct reason. See State v. Franks, 119 N.M. 174, 177, 889 P.2d 209, 212 (Ct.App.1994). The exception does not apply here. Nor do those cases in which we have been reluctant to apply the rule because we really do not know how the trial court would have exercised its discretion had it not been mistaken as to the law. See State v. Salgado, 112 N.M. 793, 796, 819 P.2d 1351, 1354 (Ct. App.1991). In this case, the rationale articulated by the trial court was that the jury should be aware of the complete picture. This rationale was, at most, incomplete. The trial court could well have been correct in thinking that the jurors should be aware of why Defendant cried and apologized to his wife in Colorado. Otherwise, they would not understand and appreciate the strength of Defendant’s admissions. But there were additional reasons why the evidence was properly admissible under Rule 11-404(B). The trial court having found that the jury should be aware of the whole picture and, having found that unfair prejudice did not outweigh probative value, it is virtually certain that the trial court would have admitted the evidence for these additional reasons as well.
{30} The rule of criminal law is that we do not limit the State’s presentation of evidence to the narrow question of what a defendant has expressly put in issue. For example, we routinely uphold the admission of gory photographs even though a defendant concedes that the victim is dead or died in a particular way. See, e.g., State v. Hernandez, 115 N.M. 6, 19, 846 P.2d 312, 325 (1993); State v. Stephens, 93 N.M. 368, 370, 600 P.2d 820, 822 (1979); State v. Upton, 60 N.M. 205, 210, 290 P.2d 440, 442-43 (1955). Moreover, we apply this principle in the context of the admission of Rule 11-404(B) evidence. See State v. Martinez, 1999-NMSC-018, ¶¶ 30-34, 127 N.M. 207, 979 P.2d 718 (holding Rule 11-404(B) evidence admissible and not excluded by Rule 11 — 403 because a defendant’s offers to stipulate do not bind the state to the sanitized way that the defendant wants the case presented); State v. Nguyen, 1997-NMCA-037, ¶¶ 6-11, 123 N.M. 290, 939 P.2d 1098 (indicating, among other things, that the defendant’s willingness to stipulate that mistake or accident would not be defenses does not mean that the state does not have to prove intent and it may do so by offering other bad acts evidence).
{31} Our Rule 11 — 404(B) jurisprudence permits the admission of other bad acts evidence if there is an “articulation or identification of the consequential fact to which the proffered evidence of other acts is directed.” Jones, 120 N.M. at 187, 899 P.2d at 1141. Moreover, the articulation should not be “based on the proposition that a bad person is more likely to commit a crime.” See id. at 188, 899 P.2d at 1142. Here, the evidence of the Colorado acts satisfies this test. The consequential facts were intent, lack of accident, mistake, and knowledge of what Defendant was doing, all put in issue by Defendant’s statement to the police. Moreover, the fact that the defense tactic was to admit that Defendant committed contact and urge the jury to convict of the lesser included offense did not mean that the jury would necessarily do so. With the evidence and inferences available from Defendant’s own statement, the jurors could easily have believed that whatever Defendant did, he did in his sleep and stopped as soon as he was awake and aware. The State should have the right to rebut Defendant’s statements as long as it can do so consistently with the rules of evidence.
{32} Because I believe that the State did rebut Defendant’s statements consistently with the rules of evidence in this case, even though the majority has utilized certain statements by the trial judge and the prosecutor that make it seem that those rules were violated, I would affirm Defendant’s conviction. The rule requiring cases to be affirmed if the correct result is reached, regardless of the rationale articulated below, is one of judicial economy that is designed to spare the system and the people who deal with it the time, expense, and emotions of a new trial where the result would surely be the same. In this ease, had the prosecutor and the trial judge more artfully articulated proper Rule 11-404(B) rationales, it appears that the case would have been affirmed. I would not put the judge and the prosecutor through another trial, nor the victim and her family through another emotional ordeal, on the grounds given by the majority. If the true basis of the majority’s opinion is not the articulations of the prosecutor or the trial judge, then other bad acts evidence will never be able to be used in child sexual abuse cases, which I do not believe is the law. See, e.g., State v. Jordan, 116 N.M. 76, 80-81, 860 P.2d 206, 210-11 (Ct.App.1993).