HEADNOTE: Mario Rodriguez Gutierrez v. State of Maryland, No. 98 ...

__ [slip op. at 1]. Thus, as a threshold matter, there must be “some evidence connecting the
crime and the gang.” Id. at __ n.2, __ A.2d at __, n.2 [slip op. at 18 n 2]. The probative
value of the testimony, moreover, must not be outweighed substantially by any unfair
prejudice to the defendant. Id. at __, __ A.2d at __ [slip op. at 1].
The majority concedes that the evidence of gang affiliation is evidence of “prior bad
acts,” which is admitted only upon the satisfaction of a three-part test gleaned from Md.
Rules 5-404(b) and 5-403. Gutierrez, __ Md. at __, __ A.2d at __ [slip op. at 10]. Citing
State v. Faulkner, 314 Md. 630, 634-35, 552 A.2d 896, 897 (1989), the majority states,
Gutierrez, __ Md. at __, __ A.2d at __ [slip op. at 10], that the evidence must be
“substantially relevant to some contested issue in the case[,]” and tend to prove “motive,
opportunity, intent, preparation, common scheme or plan, knowledge, identity, or absence
of mistake or accident.” Md. Rule 5-404(b). See also State v. Westpoint, 404 Md. 455, 488,
947 A.2d 519, 539 (2008) (citing Wynn v. State, 351 Md. 307, 316, 718 A.2d 588, 592
(1998); State v.Taylor, 347 Md. 363, 368, 701 A.2d 389, 392 (1997)). Pointing to the
testimony of Ellen Villatoro and the appellant’s co-defendants, turned State witnesses, who
testified that, upon driving up to where Quintanilla was standing, the appellant shouted,
“Mara Salvatrucha” and asked the victim to identify his gang affiliation, the majority states
that the “some evidence” standard was met and, thus, those facts provided sufficient basis
for the admission of “gang” expert testimony. Gutierrez, __ Md. at __ , __ A.2d at __ [slip
op. at 19-20]. The majority concedes that it was error to allow the expert to testify that “MS-
13 is ‘the gang that we had seen the most violence with recently for the past four, four and
4