Discovery Is Not GRE 404(b) Notice: Failure to Provide Requested Notice Renders Other-Acts Evidence Inadmissible and Can Require Reversal

3.1. Precedents Cited (and How They Shaped the Court’s Decision)

A. Reconsidering and overruling prior appellate rulings (“law of the case”)

• People v. Gutierrez, 2005 Guam 19 (quoting Chun v. Bd. of Trs. of Emps.’ Ret. Sys., 992 P.2d 127): supplied Guam’s articulation that “law of the case” is not inexorable like res judicata and may yield when the prior ruling is probably erroneous and would do more harm than correction.
• Gonzalez v. Arizona, 677 F.3d 383 (quoting Jeffries v. Wood, 114 F.3d 1484): provided the commonly recognized exceptions—(1) clearly erroneous + manifest injustice, (2) intervening controlling authority, or (3) substantially different evidence.
• People v. Katzuta, 2016 Guam 25, Johnson v. Cadillac Motor Car Co., 261 F. 878, and McGovern v. Kraus, 227 N.W. 300: reinforced the historical and doctrinal acceptability of appellate departure from earlier rulings within the same case when error is evident.
• People v. Hualde, 1999 Guam 3 (citing United States v. Alexander, 106 F.3d 874) and later Ninth Circuit clarification in United States v. Gartenlaub, 2024 WL 4987258 (quoting United States v. Jingles, 702 F.3d 494), plus the concurrence in People v. Orallo, 2006 Guam 8 (quoting Leslie Salt Co. v. United States, 55 F.3d 1388): the court used these to refine how “clearly erroneous” and “manifest injustice” relate (as parts of one exception rather than independent ones), and to justify overruling Sablan I.
• People v. Sablan, 2023 Guam 4 (“Sablan I”): the court held its earlier approach—reserving whether testimony was 404(b) and implying it “could have been admissible”—was erroneous in light of the record showing the testimony was other-acts evidence and was inadmissible absent notice.

B. What counts as GRE 404(b) evidence and the prosecution’s burden

• People v. Camaddu, 2015 Guam 2: confirmed de novo review for whether evidence falls within GRE 404(b), framing the court’s independent assessment of the testimony’s character as “other acts.”
• People v. Pinaula, 2025 Guam 6: provided the court’s modern articulation of the dangers of propensity reasoning and the universal application of GRE 403 balancing to relevant evidence.
• People v. Palisoc, 2002 Guam 9: supplied the requirement that the prosecution articulate a precise non-propensity evidentiary hypothesis; the court emphasized the People did not do so here.
• People v. Pugh, 2018 Guam 14: supported the policy concern that “unproven imputations of criminality” are disfavored and reinforced procedural safeguards (including conducting proceedings to prevent inadmissible evidence from being suggested to the jury, consistent with GRE 103(c) and GRE 104(a)).

C. Notice under 404(b): “condition precedent” and why discovery isn’t enough

• People v. Chinel, 2013 Guam 24 and People v. Tuncap, 2014 Guam 1: justified the court’s reliance on federal analogs and other jurisdictions because GRE 404(b) is modeled on FRE 404(b).
• People v. Evaristo, 1999 Guam 22: rejected as controlling because it predated Guam’s adoption (in 2006) of the 1991 FRE 404(b) notice amendment; also factually distinguishable because counsel there said he was prepared to address the evidence, unlike Sablan’s “stupefied” objection.
• United States v. Spinner, 152 F.3d 950: directly supported the proposition that producing evidence in discovery does not satisfy Rule 404(b) notice requirements.
• United States v. Vega, 188 F.3d 1150: supported that 404(b) notice obligations extend even to rebuttal use and can require reversal absent compliance; also cited for harmless-error review posture.
• United States v. Barnes, 49 F.3d 1144, United States v. Kern, 12 F.3d 122: supported the concept that the prosecution has a continuing duty to disclose 404(b) evidence discovered later and that courts evaluate the adequacy/timeliness of notice.
• State v. Marquez, 2023-NMSC-029 (quoting State v. Acosta, 2016-NMCA-003, and citing State v. Gomez, 2003-NMSC-012): strongly influenced the court’s reasoning that discovery disclosure “misses the point” of the notice rule—defendants may reasonably infer that absence of notice means the state will not introduce other-acts evidence.
• Webb v. State, 36 S.W.3d 164: reinforced that merely listing a witness does not communicate intent to offer extraneous-offense evidence, and defendants are entitled to rely on the state’s failure to provide requested notice.
• Dixon v. State, 712 N.E.2d 1086 and Henderson v. Commonwealth, 438 S.W.3d 335: used to emphasize that the government—not the defendant—bears the notice burden and that notice is a prerequisite to admissibility.
• United States v. Carrasco, 381 F.3d 1237 and United States v. Carrillo, 660 F.3d 914: cited to show notice must meaningfully apprise the defense of the nature of the intended evidence; inadequate notice may be error (sometimes harmless, depending on prejudice).
• United States v. Erickson, 75 F.3d 470: treated as inapposite; the court characterized Erickson’s reasoning as essentially harmless-error-driven and emphasized that actual awareness of allegations is not the same as notice that the prosecution intends to introduce them at trial.

D. Harmless error: burden allocation and standard

• People v. Sharpe, 2024 Guam 12 (quoting People v. Jesus, 2009 Guam 2): supplied the governing standard for non-constitutional harmless error—whether it is more probable than not the error did not materially affect the verdict—and placed the burden on the People.
• People v. Roten, 2012 Guam 3 and Inthavong v. Lamarque, 420 F.3d 1055 (quoted in People v. Pugh, 2018 Guam 14): framed harmless-error review as fact-specific, requiring review of the entire trial record.
• Mitchell v. State, 2020 WY 142: supplied a cautionary note that prosecutors should err on the side of providing notice; the court used it as a comparative policy point.
• People v. Palacios, 2023 Guam 5 and Bocanegra v. Vicmar Servs., Inc., 320 F.3d 581: invoked by the People to argue the defendant must show prejudice; the court rejected this framing in light of Guam’s burden allocation to the prosecution.

E. Related trial-management and “stricken evidence” concerns

• People v. Taitano, 2015 Guam 33: appeared in the trial court’s material-variance discussion; the Supreme Court referenced it in background and declined to resolve other issues once reversal was warranted.
• Throckmorton v. Holt, 180 U.S. 552 and Holt v. United States, 94 F.2d 90: cited in the trial court’s earlier new-trial order for the proposition that later striking of prejudicial evidence may not cure its effect; while Sablan I had focused on the “exceptional circumstances” standard for new trials, the 2026 opinion ultimately reaches reversal through GRE 404(b) notice and harmless error.
• Cutter v. Wilkinson, 544 U.S. 709: invoked for the principle that appellate courts are courts of review, not first view—supporting refusal to recharacterize the evidence as admissible under GRE 413 on appeal when the trial court did not conduct the required analysis.
• People v. Wesen, 2022 Guam 18, United States v. LeMay, 260 F.3d 1018, and People v. Chinel, 2013 Guam 24: used to reject the People’s attempt to lean on GRE 413 concepts; the court noted GRE 413 was not argued below and no “searching inquiry” under LeMay occurred, so it would not affirm on that alternative basis.

F. Standards for new trials and credibility (contextual background)

• People v. Messier, 2014 Guam 34, People v. Leslie, 2011 Guam 23, and People v. Quinata, 1999 Guam 6: formed the backdrop to Sablan I (new trial/credibility “thirteenth juror” debate). The 2026 opinion did not re-litigate those standards as the basis for relief; it instead corrected the evidentiary/notice error and reversed on harmless-error grounds.

G. Other cited authorities

• People v. Felton, 928 N.W.2d 307: cited for de novo review of whether a rule prohibits certain evidence.
• Ammons v. State, 880 S.E.2d 544 (concurring): used to support the institutional legitimacy of overruling harmful error rather than perpetuating it.

3.2. Legal Reasoning

A. Classifying the testimony as “other acts” within GRE 404(b)

The court examined the prosecutor’s opening statement and questioning strategy, concluding the People anticipated and sought to elicit evidence of multiple incidents of touching—conduct distinct from (and in addition to) the single incident framework the indictment conveyed. This placed the testimony squarely within GRE 404(b)’s regulation of “other crimes, wrongs, or acts” offered in a way that risks propensity reasoning (i.e., “he did it before, so he did it this time”).

B. The notice requirement as a gatekeeping “condition precedent”

The opinion treats GRE 404(b)’s notice language—“provided that upon request by the accused, the prosecution…shall provide reasonable notice…”—as a mandatory precondition to admissibility. Where the defendant requests notice and the prosecution does not provide it (and does not obtain a “good cause” excuse for delayed notice), the evidence is inadmissible.

Critically, the court rejects the argument that “notice” can be inferred from discovery production. The purpose of 404(b) notice is not merely awareness of allegations; it is advance procedural clarity that the government intends to introduce the allegations as evidence at trial, so the defendant can litigate admissibility (via motion in limine or targeted objection) and prepare a defense strategy.

C. Preservation: treating the unanswered request as a standing objection

The court adopts a practical preservation rule: when the defense requests 404(b) notice and the People do not respond, the request is treated as an objection to any unnoticed 404(b) evidence, even if trial objections are incomplete or delayed. This rule enforces the prosecution’s obligation and prevents the notice requirement from being nullified by trial dynamics.

D. Harmless error: burden on the People, not the defendant

The court squarely places the harmless-error burden on the People: they must show it is more probable than not the error did not materially affect the verdict. The record undermined harmlessness because:

• The prosecutor previewed “other incidents” in opening and reinforced “touches” (plural) through L.G.’s testimony.
• The attempted elicitation of “how many times” touching occurred aligned with the Santos report’s uncharged incidents.
• The trial court itself found the testimony unfairly prejudicial and struck it—but only after the jury had a multi-day recess during which it could “ponder the improper testimony.”
• The People did not provide a properly articulated non-propensity purpose under GRE 404(b), and the court would not retrofit an alternative theory (e.g., GRE 413) absent the required trial-court analysis.

Given these circumstances, the court concluded it could not confidently say the stricken testimony did not materially affect the verdict.

E. Overruling Sablan I

The court used the law-of-the-case exceptions to revisit its own prior decision. It found Sablan I erroneous because it had not squarely determined the evidence was 404(b) and had suggested it could be admissible, despite the decisive notice failure and the record’s portrayal of the prosecution’s intent. Continuing to follow Sablan I would produce manifest injustice by insulating a conviction from reversal where mandatory evidentiary safeguards were violated.

3.3. Impact

• Bright-line enforcement of 404(b) notice: The People cannot rely on “open file” discovery or witness lists to satisfy GRE 404(b). Courts and litigants now have a clearer compliance benchmark: a responsive 404(b) notice (upon request) is required for admissibility.
• Enhanced defense reliance interests: Defendants may reasonably assume that absence of a response to a 404(b) request means the People will not introduce other-acts evidence—reducing surprise and improving the fairness of trial preparation.
• Standing-objection doctrine: By treating an unanswered request as an objection to unnoticed 404(b) evidence, the court reduces procedural gamesmanship and ensures the notice requirement has practical teeth.
• Prosecutorial practice shift: Prosecutors should implement routines to (a) respond to 404(b) requests, (b) supplement notice when new information arises, and (c) be prepared to articulate a specific non-propensity purpose and relevance theory, anticipating GRE 403 scrutiny.
• Appellate correction within the same case: The court’s willingness to overrule Sablan I underscores that law-of-the-case is a prudential doctrine, not a trapdoor—particularly when ongoing proceedings risk perpetuating harmful legal error.
• Limit on “affirm on other grounds” shortcuts: The refusal to reframe the evidence under GRE 413 without a trial-court LeMay/Chinel inquiry signals that the Supreme Court of Guam will not perform first-instance evidentiary balancing that the trial court did not undertake.