STATE of New Mexico, Plaintiff-Appellee, v. Danny WRIGHTER, Defendant-Appellant, 122 N.M. 200

OPINION APODACA, Chief Judge. 1. Defendant appeals his jury conviction of trafficking a controlled substance. He raises two issues on appeal: (1) the trial court erred in admitting testimony that he had previously sold drugs and (2) his conviction was not supported by sufficient evidence. We hold that, although Defendant’s conviction was supported by substantial evidence, the trial court abused its discretion in admitting the testimony in question. We therefore reverse and remand for a new trial. I. FACTUAL AND PROCEDURAL BACKGROUND 2. The State’s chief witness was Raney Spense.

She testified that she was a former drug user who offered her services to the Lea County Drug Task Force to help get drug dealers off the streets of Hobbs. She stated that she knew Defendant because she had bought cocaine from him on January 13, 1994 (the date relevant to Defendant’s conviction) and previously. She then described her purchase on that day from Defendant. About 6 p.m., she drove to the sheriffs substation where she usually met members of the Task Force. No one was there. She then drove to the Chicken Shack.

Detective Gartman, a Task Force member, later testified that the sting operation was to be conducted in this particular location because the police were aware of the area’s high narcotics trafficking pattern. Her account of what happened next was as follows: So I drove by the Chicken Shack on Byers. And as I pulled up to the stop sign, he ran up to my car. So I rolled my window down. And he asked me if I wanted to buy anything. So I told him I didn’t have any money, that I was going to go get some money, I would be back. So that’s when I went back to the old substation. 3.

At the substation, Spense met members of the Task Force. As standard procedure, she was strip-searched, and her ear was searched. The Task Force members found no controlled substances or currency. They then gave Spense $60 to buy drugs, equipped her with a transmitter so that they could monitor her conversation, and followed Spense back to the Chicken Shack. 4. When Spense arrived at the Chicken Shack, Defendant immediately entered her car. She gave him the money, and he went back into the restaurant. About four minutes later he returned to her car and handed her “three rocks” of crack cocaine.

He asked her to smoke the drugs with him, but she refused, saying that she had to pick up her children from her mother. Defendant then left, and Spense drove back to the substation. On her arrival, she handed the drugs to a Task Force agent, was searched again, and gave a statement. 5. Several Task Force agents corroborated Spense’s account. Additionally, one officer testified that, after Defendant’s arrest in March 1994, Defendant stated that he was unsure whether he had sold Spense “crack” on January 13. 6. Defendant testified in his own defense.

He described his relationship with Spense as a romantic one, although he admitted that they used drugs most of the time they were together. He also admitted that on January 13 he saw Spense at the Chicken Shack and that she gave him money to get drugs. But he denied purchasing drugs for her that night. He said that after she gave him the money, he returned to the Chicken Shack, having made arrangements to meet Spense at her home at 8 p.m. that night. When he went to her home at 8 p.m., however, no one was there. He denied that he had any drugs when he went to her house.

He stated that he had planned to make a telephone call when he got there to have the drugs delivered. Although he later admitted on cross-examination that he had purchased drugs for Spense in the past, he contended that he had not really sold her the drugs because they both had contributed money for drugs that they could use together. He said that she would give him money for drugs only when he had none of his own and that the money was always for drugs that they used together. II. DISCUSSION A. Whether The Trial Court Erred In Admitting Testimony Of Defendant’s Prior Rock Cocaine Sales To Raney Spense 7.

Defendant argues that the trial court erred in admitting Spense’s testimony that he had sold her drugs in the past. He contends that the only purpose for offering the evidence was improper — to prove Defendant’s propensity to deal drugs. Defendant relies on SCRA 1986, 11 — 404(B) (1996 ed.) (Rule 404(B)), which states: 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 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. The prohibition in the first sentence of the rule “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.” State v.

Lamure, 115 N.M. 61, 69, 846 P.2d 1070, 1078 (Ct.App.1992) (Hartz, J., specially concurring), cert. denied, 114 N.M. 720, 845 P.2d 814 (1993). 8. In contrast, the second sentence of the rule allows admissibility of prior misconduct if it serves a purpose' other than to prove that the defendant is a bad person.

The usual proper purposes for admitting other misconduct evidence are listed in the second sentence: “motive, opportunity, intent, preparation, plan, knowledge, identity or absence of mistake or accident.” The State argues that the list is not exclusive; it is intended only to be illustrative as evidenced by the language of the rule that other misconduct evidence may “be admissible for other purposes, such as proof of motive, [etc.].” (Emphasis added.) See State v.

Jones, 120 N.M. 185, 188, 899 P.2d 1139, 1142 (Ct.App.) (“New Mexico allows use of other bad acts for many reasons, including those not specifically listed in [Rule 404(B)].”), cert. granted, 120 N.M. 68, 898 P.2d 120 (1995). However, even if we assume that New Mexico recognizes context as an admissible purpose under Rule 404(

B) and that the testimony in question qualifies, the evidence must still meet the requirements of SCRA 1986, 11-403 (1996 ed.) (Rule 403). We therefore examine the evidence’s probative value against its prejudicial effect, which is required under that rule. 9. Rule 403 provides that relevant evidence is inadmissible when the probative value is substantially outweighed by the danger of unfair prejudice. We review the trial court’s decision for abuse of discretion. See State v.

Casaus, 121 N.M. 481, 488, 913 P.2d 669, 676 (Ct.App.1996). 10.At trial, the State argued that the testimony was necessary to explain why Defendant would approach Spense and promptly ask her whether she wanted to buy drugs. The testimony would provide a context, the State contended, that could make credible what would otherwise be a rather implausible account.

However, Spense’s testimony that she knew Defendant, the later testimony of Detective Gartman that the sting operation was conducted in the particular location because the police were aware of that area’s high narcotics trafficking pattern, and the fact that Defendant returned with cocaine after she gave him the money were completely sufficient to place the initial contact in context of a drug transaction.

The solicitation of the inadmissible response is even more puzzling in light of the fact that, at the beginning of trial, the trial court partially granted Defendant’s motion in limine forbidding the State to introduce Defendant’s statement concerning prior drug sales. The trial court so ruled by determining that the danger of unfair prejudice substantially outweighed the probative value of Defendant’s statement.

Although the trial court had the discretion to later change its mind, the State could not have known that the court would do so before its question to Spense about the prior transactions at the trial itself. To be sure, it is inconsistent to conclude that the prejudice outweighed any probative value in the case of Defendant’s statements of prior drug deals but not in the case of Spense’s testimony. We see no difference. Additionally, the record does not reflect that the trial court changed its mind from its earlier ruling.

Otherwise, the State would have attempted to admit Defendant’s statements of prior drug transactions. What the record does reflect, however, is the glaring inconsistency noted above. If the State’s goal was simply to place Defendant’s actions in Spense’s testimony in context, it could have called Detective Gartman to the stand before Spense and then later elicited from Spense that she knew Defendant, or found another way to place the contact between Spense and Defendant in context.

Instead, the State solicited the identical testimony from Spense that it was previously instructed not to present by way of Defendant’s own statements, claiming that the testimony was needed to establish context. 11. Even if we assume, however, that the testimony at issue was probative to show context, it was nonetheless highly prejudicial and properly excludable under Rule 403.

The real danger of admitting the past transactions in situations such as the one here is that, if the jury believed the informant’s testimony about prior rock cocaine transactions with Defendant, the jury would conclude that Defendant sold rock cocaine in the past, and if he did so then, it is more likely he did so now. “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.” Lamure, 115 N.M. at 71, 846 P.2d at 1080 (Hartz, J., specially concurring). 12.

Particularly illustrative is Bennett v. United States, 597 A.2d 24, 27 (D.C.1991). In Bennett, the defendant appealed his conviction of possession with intent to distribute cocaine. At trial, a witness was asked if she had been arrested for distribution and possession with intent to distribute drugs, and if so, whether she was arrested with someone else. The witness answered affirmatively to the two questions. She was then asked the identity of the person with whom she had been previously arrested, and the witness named the defendant.

Defense counsel objected to the questions about the defendant’s prior arrest and moved for a mistrial. The trial court denied the request. The District of Columbia Court of Appeals, however, reversed and remanded for a new trial. The court stated: The risk from the admissibility of a prior arrest of the defendant is that the jury may infer from the prior criminal conviction that the defendant is a bad man and that he therefore probably committed the crime for which he is on trial.

This risk is greatest when, as here, the crime charged and the prior arrest involve the same offense____ The risk of an inference of propensity in these circumstances is unavoidable. Nonetheless, that risk might have been diminished had the court, in response to [the defendant’s] mistrial motion, instructed the jury to disregard the question and answer; but no such ameliorative steps were taken. Bennett, 597 A.2d at 27 (citations and internal quotations omitted); see also Fields v. United States, 396 A.2d 522, 527 (D.C.1978). 13.

The evidence admitted here is precisely the kind of evidence that should not be allowed under either Rule 404(

B) or Rule 403 for the very reason that the perception of propensity and actual prejudice is unavoidable. See Bennett, 597 A.2d at 27. To state it differently, the rule was intended to bar the exact thing that the State attempted to do here — insinuate that Defendant sold cocaine to Spense on the day in question because he had done so in the past. The unfair prejudice resulting from the admission of Spense’s testimony substantially outweighed any need for context, and it was an abuse of discretion and thus reversible error for the trial court to admit it. See People v.

Mason, 219 Ill.App.3d 76, 161 Ill.Dec. 705, 708, 578 N.E.2d 1351, 1354 (1991) (suggestion that defendant had committed same crimes against same victim constituted prejudicial error). Defendant’s later admissions that he sold Spense drugs in the past were simply a necessary attempt to mitigate the significant damage caused by Spense’s inadmissible testimony. B. Sufficiency Of The Evidence 14. We resolve summarily Defendant’s second issue on appeal — that there was insufficient evidence of guilt.

When evaluating the sufficiency of evidence to support a conviction, we view the evidence in the light most favorable to the State, resolving all conflicts and indulging all permissible inferences to uphold a verdict of conviction.... The reviewing court engages in a two-step process: First it reviews the evidence ... with deference to the findings of the trial court; then it determines 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. State v.

Sanders, 117 N.M. 452, 456, 872 P.2d 870, 874 (1994). 15. Defendant essentially contends that the only evidence supporting his conviction was Spense’s testimony and that no rational jury could have found her to be credible. We disagree. Her testimony was not inherently incredible and it was corroborated by other evidence. Reviewing the evidence under the guidelines stated in Sanders, we hold that a rational trier of fact could find that each element of the crime had been established beyond a reasonable doubt. III. CONCLUSION 16.

We conclude that the testimony at issue was not admissible, first because the testimony was not highly probative to prove context as contended by the State, and second because the probative value, if any, was substantially outweighed by the danger of unfair prejudice. We also hold that substantial evidence supported Defendant’s conviction. We reverse the conviction and remand for a new trial consistent with this opinion. 17. IT IS SO ORDERED. DONNELLY, J., concurs. .

The dissent claims that “the testimony as a whole provides a plausible account of why the transaction occurred as it did, thereby making credible the testimony by Spense,” with the term plausible alluding to the contextual purpose for which the dissent maintains the testimony was admissible. However, if a witness testifies in court that a defendant presently sells drugs and has done so in the past, we believe a jury would not necessarily consider the witness’ testimony more plausible just because the witness testifies that the defendant has also sold drugs in the past.

Indeed, the witness would be just as likely to lie about the present sale as he or she would about a sale in the past, and a jury would be at liberty to so find. The jury could even conclude that the witness was lying about the past transaction but telling the truth about the present transaction, or vice versa. . Most of the cases cited by the dissent in which the probative value/prejudicial effect balancing test was applied, are distinguishable from the facts in this appeal in that those cases did not involve the same defendant, the same witness, and the same crime.