This memorandum opinion was not selected for pub lication in the New Mexico Appellate Reports. Please see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions. Please also note that this electronic memorandum opinion may contain computer-generated errors or other deviations from the official paper version filed by the Court of Appeals and does not include the filing date. IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO 1 STATE OF NEW MEXICO, 2 Plaintiff-Appellee, 3

v. NO. 32,937 4 RICARDO HEREDIA, 5 Defendant-Appellant. 6 APPEAL FROM THE DISTRICT COURT OF DOÑA ANA COUNTY 7 Douglas R. Driggers, District Judge 8 Hector H. Balderas, Attorney General 9 Santa Fe, NM 10 M. Anne Kelly, Assistant Attorney General 11 Santa Fe, NM 12 for Appellee 13 Jose R. Coronado 14 Las Cruces, NM 15 for Appellant 16

MEMORANDUM OPINION 17 BUSTAMANTE, Judge. 182 {1} Defendant Ricardo Heredia appeals his c onviction by a jury of five counts of 1 aggravated indecent exposure, three count s of aggravated stalking, one count of 2 enticement of a child, and one count of attempted aggravated indecent exposure. 3 Defendant argues that the district court erred in denying his motion to sever the counts 4 alleging different victims. We affirm. Because this is a memorandum opinion and 5 because the parties are familiar with the cas e, we reserve further discussion of the 6 facts for our analysis of Defendant’s arguments on appeal. 7 DISCUSSION 8 {2} Rule 5-203(A) NMRA requires two or moreoffenses to be joined when they 9 “are of the same or similar character, even if not part of a single scheme or plan; or . 10 . . are based on the same conduct or on a seri es of acts either connected together or 11 constituting parts of a single scheme or plan .” Here, the State joined all ten counts in 12 a single indictment. Defendant does not challe nge the propriety of joining the offenses 13 in the indictment. Rather, he argues that th e district court erred in denying his motion 14 to sever the charges under Rule 5-203(C). Ru le 5-203(C) permits a party to move for 15 severance of offenses or de fendants “[i]f it appears that a defendant or the state is 16 prejudiced by a joinder” of those offenses or defendants. “A defendant might . . . be 17 prejudiced if the joinder of offenses permit[ s] the jury to hear testimony that would 18 have been otherwise inadmissible in separate trials.” State v. Gallegos , 2007-NMSC- 193 007, ¶ 19, 141 N.M. 185, 152 P.3d 828 (alteration in original) (internal quotation 1 marks and citation omitted). Here, the questi on is whether evidence related to different 2 victims would have been admissible in separate trials under Rule 11-404(B)(1) 3 NMRA, which provides that “[e]vidence of a crime, wrong, or other act is not 4 admissible to prove a person’s character in order to show that on a particular occasion 5 the person acted in accordance with the ch aracter.” However, such “other-acts 6 evidence may be admissible if it is relevant to an issue besides th e inference that the 7 defendant acted in conformity with his or her character[,]” Gallegos , 2007-NMSC8 007, ¶ 22, such as “motive, opportunity, in tent, preparation, plan, knowledge, identity, 9 absence of mistake, or lack of accident .” Rule 11-404(B)(2). When the State opposes 10 severance, it must “identify and articulate the consequential fact to which the evidence 11 is directed before it is admitted.” Gallegos , 2007-NMSC-007, ¶ 22. As with all 12 evidence, evidence admissibl e under an exception to Rule 11-404(B)(1) must also be 13 admissible under Rule 11-403 NMRA. 14 {3} Consistent with these principles, Defe ndant argued in his motion to sever that 15 “[u]nless the [S]tate can articulate a valid purpose for a joint trial . . . , taking into 16 consideration the dictates of Rule 11-404[ (B)], this court shoul d sever each of the 17 counts which allege separate victims, and require the [S]tate to proceed to separate 18 jury trials.” The State argue d at the hearing on the motion that “join[t trials were] 19 appropriate because the evid ence was cross-admissible to show [the] identity [of the 204 perpetrator.]” It referred to an earlier nine-hour evidentiary hearing on Defendant’s 1 motion to suppress photographic evidence and argued that the hearing demonstrated 2 that the identity of the perp etrator was hotly disputed and that the evidence as to each 3 victim showed a “distinctive pattern of conduct” and related to identity, not 4 propensity. 5 {4} At the hearing, Defendant continued to argue that the State must articulate the 6 consequential facts to which the evidence of other acts pertained, that the identity 7 exception to Rule 11-404(B) did not apply to permit admission of the victims’ 8 testimony, and that admission of other-acts evidence here would confuse or enflame 9 the jury. The district court denied Defendant’s motion, stating that “[t]he evidence 10 contested under Rule 11-404(B) does not fall within the parameters of propensity 11 evidence, but to prove identity with a distin ctive pattern of conduc t. A further analysis 12 under Rule 11-403 shows that the evidence is more probative than substantially 13 prejudicial and is cross[-]admissible as to each victim.” 14 {5} Defendant moved for reconsideration of the district court’s order. Referring to 15 Gallegos , Defendant argued that the district c ourt erred in finding that the evidence 16 was relevant to identity because the “pattern” on which it relied was not “so 17 distinctive [as] . . . to constitu te the defendant’s signature.” Gallegos , 2007-NMSC18 007, ¶ 30 (omission in original) (internal quotation marks and citation omitted). He 19 also stated that “the identity of the perp etrator is not at issue, as the young victims 205 have clearly identified [Defendant] as the perpetrator” and that “[t]he identity 1 exception is not applicable tothis case.” The State opposedthe motion to reconsider, 2 arguing that “the [c]ourt considered approxi mately one and a half days of testimony 3 on identity, which very much remains at i ssue in this case unless or until Defendant 4 stipulates to identity.” The district court denied Defendant’s motion to reconsider, and 5 the case proceeded to trial. 6 {6} We review the grant or denial of a mo tion to sever under the abuse of discretion 7 standard. State v. Garcia , 2011-NMSC-003, ¶ 16, 149 N.M. 185, 246 P.3d 1057. “The 8 essence of a discretionary ruling is thatit be not illogical, not unreasonable, and not 9 contrary to facts and circumst ances before the trial court.” State v. Montoya , 2005- 10 NMCA-078, ¶ 22, 137 N.M. 713, 114 P.3d 393. “An appellate court cannot say the 11 trial court abused its discretion by its ru ling unless it can characterize it as clearly 12 untenable or not justified by reason.” State v. Kent , 2006-NMCA-134, ¶ 18, 140 N.M. 13 606, 145 P.3d 86 (alteration, internal quot ation marks, and citation omitted). 14 {7} Our review proceeds in a two-step proce ss. First we determine if the district 15 court erred in concluding that the objecti onable evidence would have been admissible 16 against Defendant in a separate trial under Rule 11-404(B )(2). “If the evidence would 17 have been cross-admissible, then any in ference of prejudice is dispelled and our 18 inquiry is over. If the evidence pertaining to each victim would not have been cross19 admissible, then the trial court abused its discretion in failing to sever the charges.” 206 Gallegos , 2007-NMSC-007, ¶ 20. In other words, “[i]f evidence of one offense would 1 be admissible in the trial of the other, a trial court does not abuse its discretion in 2 denying a motion to sever.” State v. Peters , 1997-NMCA-084, ¶ 12, 123 N.M. 667, 3 944 P.2d 896. Second, “if the trial court abus ed its discretion [the appellate court] 4 must consider whether that error actually prejudiced [the defendant] at his trial; that 5 is, whether the error was harmless.” Gallegos , 2007-NMSC-007, ¶ 20. We start by 6 assessing the district court’s ruling as to admissibility under Rule 11-404(B). 7 {8} Although Defendant stated in his pleadings to the district court that identity was 8 not at issue, he appears tohave abandoned this argument on appeal. Also, he contested 9 the identity of the perpetrator at trial by cross-examining the w itnesses about their 10 memory of the perpetrator and their prior st atements about the car and driver. He also 11 raised questions about the perpetrator’s iden tity in his closing argument. We therefore 12 consider identity to have beena contested issue at trial. 13 {9} “[T]he use of modus-operandi evidence to prove identity has frequently been 14 recognized” in New Mexico. Peters , 1997-NMCA-084, ¶ 13. This exception to Rule 15 11-404(B) “may be invoked when identity is at issue and when the similarity of the 16 other crime demonstrate[s] a unique or di stinct pattern easily attributable to one 17 person.” Peters , 1997-NMCA-084, ¶ 14 (alteration in original) (internal quotation 18 marks and citation omitted); see Gallegos , 2007-NMSC-007, ¶ 30 (“In New Mexico, 19 . . . character eviden ce is admitted under Rule 11-404(B) as evidence of identity only 207 when . . . the pattern and characteristics of the prior acts [are] so distinctive [as] to 1 constitute the defendant’s signature.” (alteration, internal quotation marks, and citation 2 omitted)). We therefore consider the similarities between the charges in this case. 3 {10} All seven of the named victims testified at trial. The victims were all teenage 4 girls. All of them testified that a car drove near them or pulled up beside them while 5 they were walking outside or waiting at a bus stop. All describe d the car as gray or 6 silver. Five testified that the driver was not wearing pants and that he was touching his 7 penis. Another testified that the driver was wearing pants but his penis was exposed 8 and that the driver was “holding his stuff. ” Two testified that the driver asked them 9 if they wanted to touch his penis. Five vi ctims testified that the driver had black or 10 brown hair. Four testified that he was in his twenties and that he had light skin. Five 11 of the victims testified that the same car and driver drove by them multiple times 12 either on the same day or over several days. 13 {11} This testimony reveals “a marked number of similarities which could logically 14 lead a jury to the inferen ce that these” victims were approached by the same man. 15 Peters , 1997-NMCA-084, ¶ 15. The victims’ description of the car and the driver, the 16 way the driver approached th e victims, the number of times he drove by the victims, 17 his state of undress, and the fact that hewas touching himself is “evidence of a 18 common modus operandi by showing a distin ct pattern attributable to the same 19 assailant.” Id. The district court did not abuse its discretion in finding that the 208 testimony would have been admi ssible in separate trials against Defendant as evidence 1 of the identity of the perpetrator under Rule 11-404(B)(2). 2 {12} We next examine whether the district c ourt abused its discretion in finding that 3 the probative value of the cr oss-admissible evidence outwei ghed its prejudicial effect 4 under Rule 11-403. State v. Contreras , 2007-NMCA-045, ¶ 25, 141 N.M. 434, 156 5 P.3d 725 (“Once the proponent has made anadequate showing [under Rule 11- 6 404(B)], the court must find that the probative value of the evidence is not 7 substantially outweighed by the considerations set forth in Rule 11-403 NMRA.”). 8 Rule 11-403 permits the district court to “e xclude relevant evidence if its probative 9 value is substantially outwe ighed by a danger of . . . unf air prejudice[.]” “Because a 10 determination of unfair prejudice is fact se nsitive, much leeway is given trial judges 11 who must fairly weigh probative value against probable dangers.” State v. Otto , 2007- 12 NMSC-012, ¶ 14, 141 N.M. 443, 157 P.3d 8 (internal quotation marks and citation 13 omitted). Rule 11-403 does not prohibit prejudi cial evidence altogether. Rather, “[t]he 14 purpose of Rule 11-403 is not to guard against any prejudice whatsoever, but only 15 against the danger of unfair prejudice.” Otto , 2007-NMSC-012, ¶ 16 (alteration, 16 internal quotation marks, and citation omitted). Inculpatory evidence is unfairly 17 prejudicial “when it goes onlyto character or propensity.” Id. (internal quotation 18 marks and citation omitted). 199 {13} Here, the victims’ testimony was admitted for a purpose other than character 1 or propensity. In addition, this Court ha s acknowledged that “[e]vidence of other 2 crimes with sufficient evidence of similar attributes has a strong probative value to 3 show that the person who committed the other crime and the person who committed 4 the charged crime are the same.” Peters , 1997-NMCA-084, ¶ 14. Since the 5 perpetrator’s identity was in issue at trial and the victims’ testimony addressed 6 identity, we conclude that the district court’s decision that the victims’ testimony was 7 more probative than prejudicial was not “c learly untenable” or unjustified by reason 8 and, therefore, not an abuse of discretion. Kent , 2006-NMCA-134, ¶ 18 (internal 9 quotation marks and citation omitted). 10 {14} To the extent that Defendant asks thatwe conduct a harmless error analysis as 11 set out in Gallegos , we decline to do so. See 2007-NMSC-007, ¶ 20 (“[E]ven if the 12 trial court abused its discretion we mu st consider whether that error actually 13 prejudiced [the defendant] at his trial; th at is, whether the error was harmless.”). The 14 harmless error analys is described in Gallegosapplies only when the reviewing court 15 has determined that the district court erred in denying severance. Id. ¶¶ 19-20. Since 16 we have concluded that the district c ourt did not abuse its discretion in denying 17 severance, our inquiry is at an end. 18 CONCLUSION 19 {15} For the foregoing reasons, we affirm. 2010 {16} IT IS SO ORDERED. 1

2 MICHAEL D. BUSTAMANTE, Judge 3 WE CONCUR: 4

__________________________________ 5 JONATHAN B. SUTIN, Judge 6

__________________________________ 7 LINDA M. VANZI, Judge 8