August 12, 2020- State of New Mexico v. Cesar B., No. A-1-CA-38448

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IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO	1
Opinion Number:______________	2
Filing Date: AUGUST 12, 2020	3
No. A-1-CA-38448	4
STATE OF NEW MEXICO,	5
Plaintiff-Appellee,	6
v.	7
CESAR B.,	8
Child-Appellant.	9
APPEAL FROM THE DISTRICT COURT OF DOÑA ANA COUNTY	10
Marci E. Beyer, District Judge	11
Hector H. Balderas, Attorney General	12
Anne Minard, Assistant Attorney General	13
Santa Fe, NM	14
for Appellee	15
Bennett J. Baur, Chief Public Defender	16
B. Douglas Wood, III, Assistant Appellate Defender	17
Santa Fe, NM	18
for Appellant	19
Court of Appeals of New Mexico
Filed 8/12/2020 11:45 AM

OPINION	1
BOGARDUS, Judge.	2
{1} 	We withdraw the opinion filed June 8, 2020, and substitute this opinion in its	3
place.	4
{2} 	Child appeals from a conditional plea agreement, wherein he pled no contest	5
to the delinquent act of unlawful carrying of a deadly weapon on school premises,	6
contrary to NMSA 1978, Section 30-7-2.1 (1994) and NMSA 1978, Section 32A-2-	7
3(A) (2009, amended 2019). Child entered into the agreement following the district	8
court’s partial denial of his motion to suppress certain statements he made to the	9
assistant principal at his school. Child argues that the district court’s partial denial	10
of his motion to suppress was based on an erroneous interpretation of NMSA 1978,	11
Section 32A-2-14(F) (2009), a provision of the Delinquency Act, NMSA 1978,	12
§§ 32A-2-1 to -33 (1993, as amended through 2019). Child further argues that if this	13
Court concludes that his statements are presumptively inadmissible under Section	14
32A-2-14(F), we should also conclude that the State has failed to rebut that	15
presumption. We agree with Child that the district court’s partial denial of his motion	16
to suppress was based on an erroneous interpretation of Section 32A-2-14(F) and	17
reverse on that basis. However, because the district court did not determine whether	18
the State rebutted the presumptive inadmissibility of Child’s statements under	19

2
Section 32A-2-14(F), we leave that question for the district court to answer on	1
remand.	2
BACKGROUND	3
{3} 	No evidence was presented at the hearing on Child’s motion to suppress. The	4
parties and the district court, however, relied on the following stipulated facts when	5
arguing and deciding the motion.	6
{4} 	Child, a thirteen-year-old middle school student, showed a knife to a	7
classmate on school grounds. Another student witnessed this and reported what she	8
saw. Child was called into the assistant principal’s office, and the assistant principal	9
questioned him. Child admitted he had brought the knife to school. The assistant	10
principal relayed what she learned to the school’s resource officer. The officer also	11
questioned Child and elicited incriminating statements about the knife.	12
{5} 	The State subsequently filed a petition alleging that Child committed the	13
delinquent act of unlawfully carrying a deadly weapon on school premises. Child	14
moved to suppress his statements to school officials and to the school resource	15
officer. Following a hearing on Child’s motion, the district court entered an order	16
granting the suppression of Child’s statement to the officer but otherwise denied the	17
motion. Child then entered into a conditional plea and dispositional agreement,	18
reserving his right to appeal the district court’s partial denial of his motion to	19
suppress. This appeal followed.	20

3
DISCUSSION	1
{6} 	Following our opinion dismissing Child’s appeal on mootness grounds, Child	2
filed a timely motion for rehearing. Having granted Child’s motion and after full	3
consideration of the briefing submitted by the parties, we are persuaded that we	4
should review this case—even if it is moot—as it presents an issue of substantial	5
interest and that is also capable of repetition yet evading review. See Gunaji v.	6
Macias, 2001-NMSC-028, ¶ 10, 130 N.M. 734, 31 P.3d 1008 (“[Appellate courts]	7
may review moot cases that present issues of substantial public interest or which are	8
capable of repetition yet evade review.”); State v. Jones, 1998-NMCA-076, ¶ 15,	9
125 N.M. 556, 964 P.2d 117 (“In determining whether the requisite degree of public	10
interest exists to prevent dismissal on mootness grounds, we consider among other	11
factors . . . the desirability of an authoritative determination for future guidance of	12
public officers[] and the likelihood that the question will recur in the future.”); cf.	13
State v. Sergio B., 2002-NMCA-070, ¶ 11, 132 N.M. 375, 48 P.3d 764 (noting that	14
the short-term commitments involved in many children’s court cases would allow	15
issues to evade review unless appellate courts invoked the exception to the general	16
rule that they should not decide moot cases). Accordingly, we withdraw our previous	17
opinion and address the merits of Child’s appeal.	18
{7} 	This case requires us to determine whether Child’s statements, made when he	19
was thirteen years old, to the assistant principal of his school are presumptively	20

4
inadmissible under Section 32A-2-14(F).1 Because this determination requires us to	1
interpret Section 32A-2-14(F), our review is de novo. State v. Jade G., 2007-NMSC-	2
010, ¶ 15, 141 N.M. 284, 154 P.3d 659. “When interpreting Section 32A-2-14(F),	3
we seek to give effect to the Legislature’s intent.” Jade G., 2007-NMSC-010, ¶ 15.	4
“In discerning legislative intent, we look first to the language used and the plain	5
meaning of that language.” State v. Trujillo, 2009-NMSC-012, ¶ 11, 146 N.M. 14,	6
206 P.3d 125. “However, we look not only to the language used in the statute[] but	7
also to the purpose to be achieved and the wrong to be remedied.” State v. DeAngelo	8
M., 2015-NMSC-033, ¶ 7, 360 P.3d 1151 (internal quotation marks and citation	9
omitted). “In doing so, we examine the plain language of the statute as well as the	10
context in which it was promulgated, including the history of the statute and the	11
object and purpose the Legislature sought to accomplish.” Id. (internal quotation	12
marks and citation omitted).	13
1 On appeal, Child’s suppression arguments concern only the statements Child
made to the assistant principal. This appears to be a limitation on the relief requested
by Child at the district court, where Child sought suppression of “any and all
statements [he made] to all school officials[.]” However, based on the limited record
before us, we are unable to tell if this is a meaningful limitation—that is, we do not
know whether Child made any statements to any school officials other than the
assistant principal. Nevertheless, because Child’s appellate arguments concern only
his statements to the assistant principal, we limit our analysis accordingly.

5
I. 	Child’s 	Statements 	to 	the 	Assistant 	Principal 	Are 	Presumptively	1
Inadmissible Under Section 32A-2-14(F)	2
{8} 	“The Children’s Code . . . provides a child greater protections than those	3
constitutionally afforded adults with regard to the admissibility of a child’s	4
statements or confessions.” State v. Adam J., 2003-NMCA-080, ¶ 3, 133 N.M. 815,	5
70 P.3d 805. In line with those greater protections, Section 32A-2-14(F) establishes	6
“a rebuttable presumption that any confessions, statements or admissions made by a	7
child thirteen or fourteen years old to a person in a position of authority are	8
inadmissible.” Whether Child’s statements to the assistant principal are entitled to	9
this presumption of inadmissibility turns on whether our Legislature intended	10
assistant principals to be included as persons in a “position of authority.”	11
{9} 	Our 	Legislature 	has 	not 	defined 	“position 	of 	authority” 	within 	the	12
Delinquency Act or, more broadly, the Children’s Code. Acknowledging as much,	13
Child urges this Court to adopt the definition of “position of authority” contained in	14
NMSA 1978, Section 30-9-10(E) (2005). There, our Legislature defined “position	15
of authority” as “that position occupied by a parent, relative, household member,	16
teacher, employer or other person who, by reason of that position, is able to exercise	17
undue influence over a child.” Id.; see Adam J., 2003-NMCA-080, ¶ 16 (Alarid, J.,	18
specially concurring) (citing Section 30-9-10(E) when suggesting that “position of	19
authority” as used in Section 32A-2-14(F) “is broad enough to include . . . parents,	20
other adult relatives, employers, private security guards or teachers”). Child	21

6
acknowledges that our Legislature specifically limited the definition in Section 30-	1
9-10(E) to the uses of that phrase within Sections 30-9-10 through -16, which	2
criminalize sexual offenses against children. Nevertheless, Child argues that the	3
definition is applicable here because, like the statutes criminalizing sexual offenses	4
against children, Section 32A-2-14(F)’s objective is to “protect[] children from the	5
coercive effects of adults in positions of authority seeking to take advantage of the	6
immaturity and inexperience of a child.”	7
{10} 	Although Child urges us to adopt the broad definition of “position of	8
authority” found in Section 30-9-10(E), we again note that this appeal involves only	9
statements made to an assistant principal. We therefore need not, and do not, address	10
whether parents, relatives, household members, and employers, among others, are	11
persons in positions of authority under Section 32A-2-14(F). Addressing only the	12
factual scenario presented here, we conclude that our Legislature intended assistant	13
principals to be included as persons in a “position of authority.” We explain.	14
{11} 	As the State points out, our relevant existing case law discussing Section 32A-	15
2-14(F) involves statements made by thirteen- and fourteen-year-old children to law	16
enforcement. See, e.g., DeAngelo M., 2015-NMSC-033, ¶ 1 (involving a thirteen-	17
year-old’s 	statements 	to 	three 	law 	enforcement 	officers 	during 	a 	custodial	18
interrogation); Adam J., 2003-NMCA-080, ¶ 2 (involving a thirteen-year-old’s	19
statement to a law enforcement officer). Based on this, the State argues that	20

7
expanding Section 32A-2-14(F)’s protections beyond law enforcement would be	1
absurd. However, the State cites no authority indicating that the factual limitations	2
of the cases presented to New Mexico’s appellate courts are suggestive of legislative	3
intent. See State v. Vigil-Giron, 2014-NMCA-069, ¶ 60, 327 P.3d 1129 (“[A]ppellate	4
courts will not consider an issue if no authority is cited in support of the issue and	5
that, given no cited authority, we assume no such authority exists.”). Further,	6
contrary to the State’s position, the plain language used by our Legislature in Section	7
32A-2-14(F) 	does 	not 	limit 	the 	presumptive 	inadmissibility 	to 	confessions,	8
statements, or admissions made to law enforcement by thirteen- and fourteen-year-	9
old children. Instead, it expressly applies to all “person[s] in a position of authority.”	10
Section 32A-2-14(F). If the Legislature intended the limitation the State advances,	11
it certainly could have drafted the statute accordingly. Cf. State v. Lopez, 2011-	12
NMCA-071, ¶ 12, 150 N.M. 34, 256 P.3d 977 (“If the Legislature had intended great	13
bodily harm to be a necessary element of the underlying felony before criminal	14
commitment can be imposed, the Legislature could have drafted the statute using	15
such language.”). And this Court previously has recognized—at least implicitly—	16
that the meaning of “a person in a position of authority” is not limited to law	17
enforcement officers, but includes them. See Adam J., 2003-NMCA-080, ¶ 3	18
(discussing how the term “a person in a position of authority . . . would include a	19

8
law enforcement officer” (emphasis added) (internal quotation marks and citation	1
omitted).	2
{12} 	Just as the language of the statute does not limit persons in a position of	3
authority to law enforcement, the recognized goal of the statute furthers our belief	4
that our Legislature did not intend to so limit the presumptive inadmissibility under	5
Section 32A-2-14(F). Our Supreme Court has recognized that Section 32A-2-14(F)	6
has a “goal of encouraging free communication between children and adults.” Jade	7
G., 2007-NMSC-010, ¶ 19. We must then ask whether it would further that goal of	8
free communication to include assistant principals as persons “in a position of	9
authority.” See Lopez v. Emp’t Sec. Div., 1990-NMSC-102, ¶ 7, 111 N.M. 104, 802	10
P.2d 9 (stating “that statutes are to be interpreted in order to facilitate their operation	11
and the achievement of their goals”). We believe that it would.	12
{13} 	New Mexico has “recognize[d] the value of preserving the informality of the	13
student-teacher relationship.” State v. Antonio T., 2015-NMSC-019, ¶ 24, 352 P.3d	14
1172 (emphasis, internal quotation marks, and citation omitted). This is “[b]ecause	15
maintaining security and order in schools requires a certain degree of flexibility in	16
school disciplinary procedures[.]” Id. (omission, internal quotation marks, and	17
citation omitted). In furtherance of school security and order, we do not question that	18
an assistant principal should be able to compel answers from a thirteen- or fourteen-	19
year-old child for the purposes of school discipline. See id. (stating that the principal	20

9
“was entitled to act on her suspicion and compel answers from [the child] for the	1
purposes of school discipline”). However, when the state then seeks to use those	2
same answers in a criminal proceeding, our Legislature has provided additional	3
safeguards for the thirteen- or fourteen-year-old child—the rebuttable presumption	4
of inadmissibility under Section 32A-2-14(F). See Antonio T., 2015-NMSC-019,	5
¶ 24 (acknowledging that certain school disciplinary violations can also lead to an	6
adjudication of delinquency).	7
{14} 	For these reasons, we hold that assistant principals are included as “person[s]	8
in a position of authority” under Section 32A-2-14(F). As such, the district court	9
erred by not concluding that Child’s statements to the assistant principal were	10
presumptively inadmissible under Section 32A-2-14(F).	11
II. 	The District Court Shall Determine Whether the State Can Overcome the	12
Presumption of Inadmissibility on Remand	13
{15} 	Having concluded that the district court erred by not applying Section 32A-2-	14
14(F)’s presumptive inadmissibility to Child’s statements to the assistant principal,	15
the next question is whether the State has overcome that presumption. Child argues	16
that the State has failed to rebut the presumption and invites us to so hold. We decline	17
this invitation.	18
{16} 	At the district court, the focus was not on whether the State could overcome	19
the presumptive inadmissibility of Child’s statements under Section 32A-2-14(F)	20
but rather on the threshold question of whether that presumptive inadmissibility was	21

10
even applicable in this case. When the district court concluded that it was not, the	1
State necessarily did not need to put on rebuttal evidence as there was no	2
presumption to rebut. Accordingly, because the State has not had the opportunity to	3
put on rebuttal evidence and because the district court has yet to rule on whether the	4
State can overcome the presumptive inadmissibility under Section 32A-2-14(F), we	5
remand for further proceedings to determine whether the State can overcome the	6
presumption.	7
{17} 	Recognizing the need to provide guidance to the district court as it makes that	8
determination, we turn to our Supreme Court’s opinion in DeAngelo M. In that case,	9
our Supreme Court held that	10
Section 	32A-2-14(F) 	requires 	the 	[s]tate 	to 	prove 	by 	clear 	and	11
convincing evidence that at the time a thirteen- or fourteen-year-old	12
child makes a statement, confession, or admission to a person in a	13
position of authority, the child (1) was warned of his constitutional and	14
statutory rights, and (2) knowingly, intelligently, and 	voluntarily	15
waived each right.	16
DeAngelo M., 2015-NMSC-033, ¶ 3. Regarding the second element, the state must	17
establish by clear and convincing evidence that the child, at the time the statements	18
were made, “had the maturity to understand his or her constitutional and statutory	19
rights and the force of will to assert those rights.” Id. ¶ 17. The district court on	20
remand should apply these principles, as set out in DeAngelo M., to determine	21
whether the presumption has been rebutted.	22

11
{18} 	Finally, we note that nothing in this opinion should be read as limiting the	1
school’s use of Child’s statements in a school disciplinary proceeding because that	2
question is not before us. See Antonio T., 2015-NMSC-019, ¶ 24 (stating that	3
“maintaining security and order in schools requires a certain degree of flexibility in	4
school disciplinary procedures” (omission, internal quotation marks, and citation	5
omitted)); In re Doe, 1975-NMCA-108, ¶ 29, 88 N.M. 347, 540 P.2d 827 (stating	6
that in-school disciplinary matters, unlike criminal proceedings, do not require	7
Miranda warnings).	8
CONCLUSION	9
{19} 	For the foregoing reasons, we reverse and remand for further proceedings	10
consistent with this opinion.	11
{20} 	IT IS SO ORDERED.	12
_________________________________	13
KRISTINA BOGARDUS, Judge	14
WE CONCUR:	15
____________________________	16
JULIE J. VARGAS, Judge	17
____________________________	18
JENNIFER L. ATTREP, Judge	19