November 04, 2014 – State of New Mexico v. Deangelo M., No. 31,413

IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
Opinion Number: 	_______________
Filing Date: 	November 4, 2014
NO. 31,413
STATE OF NEW MEXICO,
Plaintiff-Appellee,
v.
DEANGELO M.,
Child-Appellant.
APPEAL FROM THE DISTRICT COURT OF ROOSEVELT COUNTY
Drew D. Tatum, District Judge
Gary K. King, Attorney General
Pranava Upadrashta, Assistant Attorney General
Santa Fe, NM
for Appellee
Robert E. Tangora, L.L.C.
Robert E. Tangora
Santa Fe, NM
for Appellant

OPINION
KENNEDY, Chief Judge.
{1} 	DeAngelo M. (Child) appeals his convictions for second-degree murder,
burglary, larceny, and tampering with evidence. 	Child appeals the district court’s
denial of his motion to suppress statements he made during an interrogation by three
investigating officers and contends that the State did not overcome the rebuttable
statutory presumption that his statements were inadmissible against him because he
was thirteen years of age. See NMSA 1978, § 32A-2-14(F) (2009).
{2} 	We evaluate whether the State successfully rebutted the presumption of
inadmissibility of statements made by a thirteen-year-old child under Section 32A-2-
14(F). We conclude that the evidence presented by the State to the district court did
not rebut the presumption of inadmissibility with clear and convincing evidence.
State v. Adam J., 2003-NMCA-080, ¶¶ 10-11, 133 N.M. 815, 70 P.3d 805. Therefore,
Child’s statements were improperly admitted. 	We reverse the district court on its
denial of the motion to suppress Child’s statements. We affirm on the issues of denial
of his motion to sever, request for a bill of particulars, and demand for a twelve-person
jury. Accordingly, we remand this case for a new trial.
I. 	BACKGROUND
{3} 	Child was eight days past turning age thirteen when he was interrogated by
three investigators in connection with the murder of Angel Vale. 	The officers

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interviewed neighbors and witnesses, including Child’s mother. 	On July 23, two
retired police officers, who were acting as agents of the district attorney, and a
uniformed police officer drove Child and his mother to the Roosevelt County Law
Enforcement Complex where they questioned him. 	His mother was present
throughout the interrogation. One officer read and explained Child’s Miranda rights
to him, which, according to the officer’s testimony, Child appeared to understand.
During the interrogation, Child made inculpatory statements to the officers regarding
the burglary of Vale’s home. Child was arrested.
{4} 	Child filed a motion to suppress his statements. Two of the investigators and
Child’s teacher at the Curry County Juvenile Detention Center testified at the
suppression hearing. The district court found that Child had knowingly, intelligently,
and voluntarily waived his rights and denied his motion to suppress his statements.
Child also filed a motion to sever the murder, aggravated burglary, one count of
tampering with evidence from larceny, and the second count of tampering, a motion
for a bill of particulars, and a motion to compel the State to allow the case to be heard
by twelve jurors instead of six. 	The district court denied each motion. 	Defendant
timely filed this appeal.
II. 	DISCUSSION
A. 	Child’s Motion to Suppress His Statements

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{5} 	Prior to trial, Child filed a motion to suppress his statements that were obtained
during the interrogation by the two district attorney investigators and a police officer
based on the State’s failure to rebut the presumption of inadmissibility for a thirteen-
year-old child’s statements under Section 32A-2-14(F). The district court denied the
motion. 	The denial of a motion to suppress is reviewed de novo. 	See State v.
Gutierrez, 2011-NMSC-024, ¶ 7, 150 N.M. 232, 258 P.3d 1024; State v. Jade G.,
2007-NMSC-010, ¶ 15, 141 N.M. 284, 154 P.3d 659.
{6} 	Child argues that the standard created in Adam J. for the State to rebut the
“presumptive inadmissibility” of statements by a child under the age of fifteen years
is contrary to legislative intent because it requires comparison of the accused’s ability
to give a knowing, intelligent, and voluntary waiver of rights to an average of other
protected young children, instead of requiring an individualized determination of
whether the child has the ability to understand legal consequences and not to be
unduly influenced by authority figures. Child further argues that, even if Adam J. was
correct, the State did not sufficiently rebut the presumption that his statements to the
police were inadmissible. 2003-NMCA-080, ¶ 7.
{7} 	The State argues that the Adam J. standard is appropriate and that the State
rebutted the presumption that Child’s statements were inadmissible by presenting
evidence from the two investigating officers and his teacher regarding his personal
traits that supported the district court’s finding that he had the ability to knowingly,

1Child does not challenge the adequacy of the advice of Miranda rights given
to him by the officers in this case.
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intelligently, and voluntarily waive his rights. 1 For the reasons that follow, we
conclude that Adam J., while equating a particular age to a legislative line between
children who do or do not have the developmental maturity to make a valid waiver,
nevertheless significantly expands the range of inquiry to assess factors “particular to
an individual child.” Id. ¶ 8. Viewing this case in light of the expansive evaluation
of circumstance and personal characteristics that Adam J. and Subsection (F) require
to be conducted by the district court with regard to thirteen-year-old children, we
conclude that the State’s evidence was insufficient to rebut the presumption that Child
was incapable of a valid waiver of his right under Section 32A-2-14(F).
1. 	The 	Two-Tier 	Analysis 	of 	Ability 	to 	Waive 	Rights 	and 	Knowing,
Intelligent, 	and 	Voluntary 	Waiver 	Under 	Section 	32A-2-14 	of 	the
Children’s Code
{8} 	The capacity to waive Fifth Amendment rights is assumed for children over
fifteen and for adults. See State v. Jonathan M., 1990-NMSC-046, ¶ 8, 109 N.M. 789,
791 P.2d 64; see also Gutierrez, 2011-NMSC-024, ¶ 7 (requiring the same assessment
for adults and children when determining the legitimacy of a Miranda waiver); State
v. Martinez, 1999-NMSC-018, ¶¶ 14-15, 127 N.M. 207, 979 P.2d 718 (determining
that the factors used in evaluating a waiver of constitutional rights for juveniles over
the age of fourteen are essentially the same as those used for an adult). 	This is

5
because Section 32A-2-14 of the Children’s Code assumes that children fifteen years
old and older are more similar in development and maturity to adults and, therefore,
are better able to protect their rights. 	See Jonathan M., 1990-NMSC-046, ¶ 8
(explaining that children over fifteen and adults are unlikely to make involuntary
statements after Miranda warnings due to their higher level of sophistication); see also
Martinez, 1999-NMSC-018, ¶ 18 (stating that Section 32A-2-14 codifies that the adult
rule for a successful waiver of rights applies to children fifteen years old and older).
When a defendant fifteen years old and older raises his lack of capacity to waive Fifth
Amendment rights, the state must prove that he waived his rights by a preponderance
of the evidence. Gutierrez, 2011-NMSC-024, ¶ 7.
{9} 	However, the Children’s Code emphasizes the difficulty a child younger than
fifteen experiences due to a lack of maturity and development when waiving Fifth
Amendment rights. The Children’s Code protects children younger than fifteen years
old by creating a rebuttable presumption that statements given by thirteen- or
fourteen-year-old children are inadmissible. 	Section 32A-2-14(F); 	see In re
Francesca L., 2000-NMCA-019, ¶ 7, 128 N.M. 673, 997 P.2d 147 (holding that the
Children’s Code grants heightened protection only for the statements of those under
fifteen years old), overruled on other grounds by Adam J., 2003-NMCA-080, ¶ 10.
The rebuttable presumption of inadmissibility created by Subsection (F) “stresses age
in its effort to draw the line between children who are too young to waive their rights

6
and those who are not.” Adam J., 2003-NMCA-080, ¶ 8. The presumption is based
on a legislative recognition that most children under fifteen are less capable of
understanding and protecting their legal interests than are older children and adults.
E.g., Jonathan M., 1990-NMSC-046, ¶ 8 (interpreting previous version of Section
32A-2-14 to reflect that young children do not have the capacity to understand or
protect 	their 	constitutional 	rights). 	Subsection 	(F) 	creates 	a 	constitutional
classification based on age that requires this level of protection. Francesca L., 2000-
NMCA-019, ¶ 12. It is an age-based presumption that is intended to “draw the line
between children who are too young to waive their rights and those who are not.”
Adam J., 2003-NMCA-080, ¶ 8.
{10} 	The child’s “[a]ge is particularly pertinent because Subsection [(F)] creates a
distinction based upon the age of a child.” Francesca L., 2000-NMCA-019, ¶ 12. A
child’s proximity in age to thirteen is also relevant to this determination and can alone
serve as an indication that the state did not rebut the presumption. See Adam J., 2003-
NMCA-080, ¶ 5 (stating that the district court could have determined that the state did
not rebut the presumption based exclusively on the fact that the child had only
recently turned thirteen). Without sufficient intellectual and emotional development,
not only are young children unable to understand and protect their legal interests, they
are also unable to understand the legal consequences of their statements. They may
also be affected by the inherent intimidation of questioning by authority figures such

2Although Adam J. and Francesca L. speak of comparing the child-defendant
to the average thirteen- or fourteen-year-old, Child here is only days past his thirteenth
birthday. 	Even if he was advanced for his age to the developmental level of an
average fourteen-year-old child, he would still presumptively have given an
inadmissible statement.
7
as police. Gallegos v. Colorado, 370 U.S. 49, 54 (1962) (stating that a fourteen-year-
old child is unequal to police in knowledge and understanding of consequences of
interrogation questions and is unable to protect his interests). For these reasons, our
Legislature has required the state to rebut a presumption that a child of thirteen years
is incapable of giving a valid waiver of his rights before his statement can be used
against him. Section 32A-2-14(F); Adam J., 2003-NMCA-080, ¶ 6.
{11} 	Section 32A-2-14(F) specifically provides heightened protection to thirteen-
year-old children beyond the specific requirements of Subsection (E). Adam J., 2003-
NMCA-080, ¶¶ 3, 10. Thus, before ever deciding admissibility based on whether the
waiver was knowing, intelligent, and voluntary, the district court must make an initial
determination of whether a thirteen-year-old child who has made a statement is
capable of such a waiver. 	Id. ¶ 10; Francesca L., 2000-NMCA-019, ¶ 10. 	The
statutory expectation is simply that thirteen-year-old children are presumed incapable
of a valid waiver absent a showing that the child had at least the same ability to give
a knowing, voluntary, and intelligent waiver as an average fifteen-year-old child. See
Adam J., 2003-NMCA-080, ¶¶ 9-11.2 The child’s personal traits, including

8
“background, maturity, intelligence, ability to understand and react to new situations,
and other relevant personal factors” are examined to determine whether the child is
sufficiently above average as to rebut the presumption. Id. ¶ 8.
{12} 	Even while “an analysis of the circumstances may assist the children’s court in
understanding the child’s personal traits, such analysis is secondary to, and does not
substitute for, an analysis of the child’s personal traits” under Subsection (F). Adam
J., 2003-NMCA-080, ¶ 10. 	Thus, under Section 32A-2-14, the determination of
whether a thirteen-year-old child knowingly, intelligently, and voluntarily waived his
rights first requires an analysis of the child’s “personal traits.” The focus in this case
must be on the child’s maturity, intelligence, and development. 	In short, the state
must affirmatively distinguish the particular child’s ability to waive rights from the
presumptive inability to do so established by Subsection (F) of any child under the age
of fifteen. Adam J., 2003-NMCA-080, ¶¶ 9-11. If the district court is not satisfied
that the rebuttable presumption of incapacity has been overcome based on competent
evidence of the personal traits of the child beyond age alone, then the court’s inquiry
is complete at that point, and the statement is excluded. 	Id. ¶ 10 (holding that the
child’s ability to waive is a threshold determination and must be decided before
determining the statement’s admissibility as the product of a knowing, intelligent, and
voluntary waiver).

9
{13} 	For the state to make such a distinction, the characteristics of an average fifteen-
year-old child must be established by the evidence, as well as the individual
characteristics of the child. 	We note that, upon the question of competency being
raised by the adult defendant in a criminal case, evaluating his or her competency to
stand trial “must be professionally evaluated by a qualified professional.” 	State v.
Flores, 2005-NMCA-135, ¶ 17, 138 N.M. 636, 124 P.3d 1175. 	We do not regard
competency being that a defendant “understands the nature and significance of the
proceedings, has a factual understanding of the charges, and is able to assist his
attorney in his defense” to be so far removed in concept or scope from determining
a thirteen- or fourteen-year-old child’s developmental status with regard to having the
ability to waive Fifth Amendment rights. 	Id. ¶ 16 (internal quotation marks and
citation omitted). This consideration is particularly acute when the child, as here, has
only recently turned thirteen. 	See Francesca L., 2000-NMCA-019, ¶ 12; see also
Adam J., 2003-NMCA-080, ¶ 5 (acknowledging that “the children’s court’s finding
that the child had only recently turned thirteen . . . was relevant to its conclusion that
the child was entitled to a heightened protection because of her age” (internal
quotation marks and citation omitted)). 	We regard as beyond the ability of lay
witnesses, such as were presented by the State in this case, the task of rebutting a
presumption that a thirteen-year-old does not possess the developmental attributes to
render him capable of a waiver and distinguishing those characteristics head-to-head

10
against the developmental level of an average fifteen-year-old child. We believe that
a hearing that is equivalent to a competency hearing in the quality of its evidence is
required. At that hearing, the state must present evidence as to both the benchmark
to be reached and the qualities of the child that meet it and that the thirteen-year-old
child possessed personal faculties equivalent to what is required to find an ability to
waive rights that would satisfy an adult standard for waiver. 	Anything less is
insufficient. In this case, the poorly presented evidence of two retired police officers
and a teacher, who had no background with Child beyond being a half-day teacher to
all of the children in the juvenile detention facility, is insufficient as we discuss below.
Although competency to stand trial must meet only a preponderance standard, this
situation is different. We next take this opportunity to establish the standard of proof
required to rebut the presumption of inadmissibility of Child’s statements.
2. 	Clear and Convincing Evidence is Required to Rebut the Presumption
{14} 	The question of the proper standard of proof is generally a matter for judicial
resolution. 	In re Valdez, 1975-NMSC-050, ¶ 12, 88 N.M. 338, 540 P.2d 818.
Although the parties did not raise the issue of the level of evidence required to show
that Child did not have the ability to waive his rights, we take this opportunity to
clarify the law.
{15} 	For persons older than fifteen years where a valid waiver is presumed by law,
waiver may be proved by a preponderance of the evidence. Gutierrez, 2011-NMSC-

11
024, ¶ 7. For children thirteen or fourteen years old, there is a rebuttable presumption
of inadmissibility, which, by providing “heightened protection” of constitutional
proportions to those children, necessarily alters the level of proof required for the state
to meet its burden. Our Supreme Court has held that where fundamental liberties are
involved and matters involving psychological testimony are subject to some
interpretation, the standard of proof must reflect the gravity of the interests at stake.
Valdez, 1975-NMSC-050, ¶ 20. Specifically, our Supreme Court has held that the
state must meet a “heavy burden” in order to overcome a statutory rebuttable
presumption. State v. Gallegos, 2011-NMSC-027, ¶ 55, 149 N.M. 704, 254 P.3d 655.
Other cases indicate that the gravity of the burden requires clear and convincing
evidence. See Weeks v. Bailey, 1927-NMSC-048, ¶ 9, 33 N.M. 193, 263 P. 29 (stating
that “only clear and convincing evidence can overcome [a rebuttable] presumption”
(internal quotation marks and citation omitted)); see also In re Adoption of J.J.B.,
1995-NMSC-026, ¶ 59, 119 N.M. 638, 894 P.2d 994 (stating that “presumption
favoring the natural parent can be rebutted by showing serious parental inadequacy
with clear and convincing evidence”); Lucero v. Lucero, 1994-NMCA-128, ¶ 24, 118
N.M. 636, 884 P.2d 527 (holding that substantial evidence supported the district
court’s finding that “presumption of a lack of testamentary capacity was overcome by
clear and convincing evidence” (internal quotation marks and citation omitted)),
superseded on other grounds by statute as stated in Clinesmith v. Temmerman, 2013-

3We note that, although the State claims that Child was party to a voluntary
interview and not a custodial interrogation, he does not raise the issue.
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NMCA-024, 298 P.3d 458, cert. denied, 2013-NMCERT-001, 299 P.3d 863; Valdez,
1975-NMSC-050, ¶ 20 (“For evidence to be clear and convincing, it must instantly tilt
the scales in the affirmative when weighed against the evidence in opposition and the
fact finder’s mind is left with an abiding conviction that the evidence is true.”
(internal quotation marks and citation omitted)).
{16} 	Thus, we hold that rebutting the presumption in Section 32A-2-14(F) requires
the state to present clear and convincing evidence that, in the totality of the
circumstances, the child’s personal traits give him an above-average ability to
knowingly, intelligently, and voluntarily waive his rights in the way the statute
presumes a fifteen-year-old child can. We now apply this standard to the proceedings
in this case.
3. 	The District Court Erred in Denying Child’s Motion to Suppress His
Statements to Police Officers
{17} 	Child’s statements cannot be properly admitted unless the State proves that, by
clear and convincing evidence, he was capable of a knowing, intelligent, and
voluntary waiver of his rights.3 We need to go no farther in this case than examining
the evidence presented concerning Child’s individual attributes to conclude that he
was not capable of effectively waiving his rights in this instance. The State presented

4Agents Blair and Aguilar were both investigators from the District Attorney’s
Office. Both were retired police officers.
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evidence from three persons during the suppression hearing: 	two of the three
investigating officers who interrogated Child, Agents Dan Blair and Dan Aguilar;4 and
Ron Allen, who had been Child’s teacher at the detention center.
{18} 	Agents Blair and Aguilar testified that, based on their experience interviewing
children 	of 	similar 	age, 	Child 	was 	articulate, 	inquisitive, 	and 	aware 	of 	his
constitutional rights, was more mature and intelligent than average and, in their
opinion, had knowingly, intelligently, and voluntarily waived his rights. Agent Blair
testified about Child based only upon the contact he had with Child during the
interrogation. He did not review any school or other records concerning Child. Agent
Blair stated that Child engaged in conversations with adults, seemed interested in
learning, was aware of his surroundings, and asked questions about his rights and
stated he understood. Agent Blair also testified initially that Child’s mother had stated
that he was an “A” and “B” student, but mentioned, on cross-examination, that she
had also stated that he had “C” and “D” grades in some classes and had not told Agent
Blair about an “F” grade. No evidence of Child’s actual grades was presented. Agent
Blair stated that Child was articulate and had checked out a young adult book of over
four hundred pages from the library on the day before the interrogation. There was

5Child was in the eighth grade at the time. The book has been designated at
a fourth-grade reading level.
http://www.scholastic.com/teachers/book/twilight#cart/cleanup.
14
no evidence as to why he chose that book or that he had read any of it yet.5 From this,
however, Agent Blair concluded that Child seemed mature and more intelligent than
most children his age and, based solely on the interview, he believed Child’s waiver
was knowing, intelligent, and voluntary. No comparison beyond “children his age”
was ever provided. 	This is insufficient under the standard we have enunciated in
Francesca L. and Adam J.
{19} 	Agent Aguilar testified that Child was more inquisitive about his rights as
compared to other children he had interviewed, was more independent, understood the
officers’ questions, and appeared to understand his rights. 	Any statement relating
Child’s capacity specifically to the standard we employ was not provided to the
district court. He testified that Child seemed more advanced than the average thirteen-
year-old child with whom he had come into contact as a detective in crimes against
children. Agent Aguilar felt that Child was actively involved in the explanation of his
rights. This testimony was similarly inadequate.
{20} 	Allen, Child’s teacher, testified that Child was well-read, inquisitive, and
readily corrected the grammar and vocabulary of the other juveniles in the detention
center and, in his opinion, Child was more intelligent than the average detainees in his

15
age group. Allen testified that he had only taught half time between an alternative
school and the juvenile detention center where Child was being held and, therefore,
compared Child only to other children in the alternative school. 	He had no other
contact with Child prior to his arrest or knowledge of the capabilities of children not
in an alternative school. 	Allen stated that the reading levels of the students at
alternative schools ranged from far below average to average or above, that the
students were typically behind, and that Child’s intelligence was generally above the
other average alternative school students. 	Allen was unable to define “average”
beyond the students at the school whose ages were not mentioned. Allen stated that
Child seemed well-read and read more than the other children and was intelligent and
inquisitive, though he was at an average math level.
{21} 	However, Allen did not mention Child’s school records, nor was he asked to
testify regarding Child’s grades or testing scores prior to being in custody, or
otherwise asked to conclude that Child had the maturity and discernment of an
average fifteen-year-old child. See Moreno v. State, 510 S.W.2d 116, 119 (Tex. App.
1974) (evaluating extensive records, including psychiatric diagnostic reports, to
determine that the sixteen-year-old child had average intelligence and was more
socially mature than average). Nor did Allen make any conclusion regarding Child’s
ability to understand complex legal rights and having sufficient capacity to waive
those rights. We conclude that the evidence presented by the three witnesses did not

16
establish that Child had the maturity and intelligence of an average fifteen-year-old
child to understand his situation and the rights he possessed.
{22} 	Evaluating the evidence against Adam J. and the standards we have enunciated
here, we note first that Child’s age is at the very lowest possible end of the age range
at which his statements can be used at all. Particularly important is the proximity of
his age to that which would render his statements conclusively inadmissible. Adam
J., 2003-NMCA-080, ¶ 5; Francesca L., 2000-NMCA-019, ¶ 6 (holding proximity to
age thirteen to be of possibly conclusive significance). 	Comparing him to other
thirteen-year-old children, or other children whose ages and developmental levels are
either not stated or irrelevant, does not provide evidence that he is as advanced as a
fifteen-year-old child, leaving the presumption of Subsection (F) intact as to his own
age of thirteen.
{23} 	We conclude that the evidence presented by the State through answers to a
significant number of leading questions did not amount to clear and convincing
evidence of Child’s ability to waive his legal rights. The testimony of the investigating
officers 	was 	based 	solely 	on 	their 	single 	interaction 	with 	Child 	during 	the
interrogation. 	Each officer provided no more than the knowledge they had about
Child based on the interaction during the interrogation and some statements from his
mother. On this basis alone, they concluded that Child seemed more intelligent and
mature than most children of unknown ages that they have worked with and was able

17
to waive his rights. 	They did not compare Child’s abilities and maturity to the
panoply of other average juveniles of any stated age level. The officers also did not
testify in detail about the quality of the other children they had previously dealt with
or the nature of those contacts. 	The investigators, given the likelihood of bias
stemming from their role as Child’s accusers, can be assumed to have colored views
of their own opinions and actions. See State v. Gomez, 1997-NMSC-006, ¶¶ 36, 38,
122 N.M. 777, 932 P.2d 1 (stating that law enforcement is a competitive enterprise);
see also State v. Bomboy, 2007-NMCA-081, ¶ 14, 141 N.M. 853, 161 P.3d 898
(stating that the competitive pressures of law enforcement may compromise
judgment), rev’d on other grounds, 2008-NMSC-029, 144 N.M. 151, 184 P.3d 1045.
Furthermore, Allen’s testimony, showing his lack of contact with Child prior to being
held at the detention center, meant he could only compare Child to other children in
the detention center and alternative school. 	He neither made reference to average
thirteen-year-old children in general nor spoke to objective measures, such as Child’s
school records or testing scores from his regular school. Allen’s testimony similarly
does not fulfill the State’s burden of presenting clear and convincing evidence in a
matter of such gravity as this.
{24} 	The question in cases where the child benefits from the rebuttable presumption
of inadmissibility is not simply whether the child seems to be intelligent or mature,
which seems to have been the State’s sole thrust in its case. Instead, the question for

18
the district court is whether, under a clear and convincing standard of proof, the State
presented evidence that Child has above-average intelligence, maturity, and other
relevant personal traits compared to average thirteen-year-old children that show that
he has the capacity to understand his rights and understand the consequences of
waiving those rights in the way a fifteen-year-old child would. The State did not do
so here. Whether Child reads books, converses with adults, corrects vocabulary and
grammar, and “seems” more intelligent and mature than other children from the
perspective of his arresting officers is not clear and convincing evidence that he had
an above-average ability based on his personal traits and understanding of the
situation to allow him to waive his rights. More evidence is needed to overcome the
statutory presumption against admitting the statements of a thirteen-year-old child.
As such, Child’s statements were inadmissible, and we reverse the district court’s
denial of Child’s motion to suppress and remand for a new trial. We now address
Child’s other arguments that may arise should this case be tried again.
B. 	Child’s Motion to Sever the Charges
{25} 	Child filed a motion to sever the murder, aggravated burglary, and one count
of tampering with evidence charges from larceny and the second count of tampering.
The district court denied the motion to sever on the grounds that the courses of
conduct alleged in all five charges were based on a connected series of acts, the
evidence would have been cross-admissible, and Child failed to show sufficient

19
prejudice to warrant severance of the charges. 	The denial of a motion to sever is
reviewed under an abuse of discretion standard. State v. Lovett, 2012-NMSC-036, ¶
10, 286 P.3d 265.
{26} 	Child argues that the evidence of the larceny, primarily his confession, would
not be cross-admissible because it was improper evidence under Rule 11-404(B)
NMRA. 	Child further argues that, even if the evidence was cross-admissible, it
should have been kept out because the probative value was substantially outweighed
by the danger of unfair prejudice under Rule 11-403 NMRA. The State argues that
the evidence would be cross-admissible because it is proper other act evidence
because it shows intent, opportunity, knowledge, and absence of mistake. The State
points out that Child did not fully argue his reasoning for the inadmissibility of the
evidence under Rule 11-403, but the State argues that the probative value of the
evidence is the other act evidence of intent, opportunity, knowledge, and absence of
mistake and that the potential prejudice is diluted by the varying time frames between
the alleged acts and the nature of the crimes charged.
{27} 	Rule 5-203(A) NMRA requires the state to join certain charges if the offenses
“are of the same or similar character, even if not part of a single scheme or plan[] or
. . . are based on the same conduct or on a series of acts either connected together or
constituting parts of a single scheme or plan.” State v. Gallegos, 2007-NMSC-007,
¶ 10, 141 N.M. 185, 152 P.3d 828. Even when offenses are properly joined, a district

20
court may abuse its discretion in failing to sever charges if there is prejudice to the
accused. Id. ¶¶ 9, 16.
{28} 	The first step of this inquiry requires determination of whether the evidence
pertaining to each charge would be cross-admissible in separate trials. Id. ¶ 19. The
defendant may be prejudiced by admission of evidence that would be otherwise
inadmissible. 	Id. 	“On the other hand, cross-admissibility of evidence dispels any
inference of prejudice.” 	Id. (alteration, internal quotation marks, and citation
omitted).
{29} 	Cross-admissibility is determined through an analysis of Rule 11-404(B). See
Gallegos, 2007-NMSC-007, ¶¶ 20-21. Under Rule 11-404(B)(1), “[e]vidence of a
crime, wrong, or other act is not admissible to prove a person’s character in order to
show that on a particular occasion the person acted in accordance with the character.”
Nevertheless, evidence of a crime, wrong, or other act may permissibly be used for
another purpose, “such as proving motive, opportunity, intent, preparation, plan,
knowledge, identity, absence of mistake, or lack of accident.” Rule 11-404(B)(2). “It
remains within a [district] court’s discretion to admit evidence of . . . prior acts . . .
when the [s]tate shows that such evidence is relevant to a material issue other than
conformity with character.” 	Martinez, 1999-NMSC-018, ¶ 30 (alteration, internal
quotation marks, and citation omitted). 	The state must “identify and articulate the

21
consequential fact to which the evidence is directed.” Gallegos, 2007-NMSC-007, ¶
22.
{30} 	The evidence in this case would have been cross-admissible because the
evidence was proper other act evidence in accordance with Rule 11-404(B)(2). The
evidence of the larceny, including Child’s statement, was evidence of his knowledge
and opportunity in relation to the eventual murder of Vale. From this evidence, the
jury could infer that Child knew how to gain access to Vale’s house and that he had
the opportunity to do so previously and could have done so again. 	This does not
require the inference that Child has the propensity or character to commit larceny and,
therefore, murder, which would be improper character evidence under Rule 11-
404(B)(1). Instead, it is permissible under Rule 11-404(B)(2). We conclude that the
district court did not abuse its discretion by denying Child’s motion to sever. 	We
affirm the district court on this issue.
C. 	Child’s Motion for Bill of Particulars/Statement of Facts
{31} 	Child argues that the denial of his motion for a bill of particulars violated his
due process rights because he required an understanding of the State’s theory for
connecting the crimes charged and the specific evidence that would be used in order
to adequately prepare his defense. The State argues that Child was able to adequately
prepare his defense because the delinquency petition described the offenses. He was
given a witness list and had access to 1200 documents due to the State’s open file

22
policy. We review the district court’s denial of a motion for a bill of particulars for
an abuse of discretion. State v. Mankiller, 1986-NMCA-053, ¶ 18, 104 N.M. 461, 722
P.2d 1183.
{32} 	As our precedent indicates, “[t]he object of a bill of particulars . . . is to enable
[an accused] to properly prepare his defense[.]” State v. Mosley, 1965-NMSC-081,
¶ 4, 75 N.M. 348, 404 P.2d 304; State v. Archuleta, 1970-NMCA-131, ¶ 32, 82 N.M.
378, 482 P.2d 242. 	The bill of particulars must “give [the accused] and the court
reasonable information as to the nature and character of the crime charged.” State v.
Shroyer, 1945-NMSC-014, ¶ 70, 49 N.M. 196, 160 P.2d 444; see Mosley, 1965-
NMSC-081, ¶ 4. 	However, these requirements do not require the state to “plead
evidence[.]” Mosley, 1965-NMSC-081, ¶ 4. A bill of particulars/statement of facts
is generally not required when the state maintains an open file policy. 	Mankiller,
1986-NMCA-053, ¶ 18. In determining whether to require a bill of particulars, the
district court must consider the whole record. Archuleta, 1970-NMCA-131, ¶ 33. In
order to satisfy due process, the primary determination is whether the accused had
enough information to adequately prepare his defense. Mosley, 1965-NMSC-081, ¶ 4.
{33} 	In his request for a bill of particulars, Child asked for the following:
1. 	Each fact, stated with specificity and particularity, upon which the
State relies to prove each element of the offense charged.
2. 	The theory of the case.

23
3. 	Each witness or exhibit that will prove the facts described.
4. 	A description with as much detail and precision as possible, and
the manner in which the alleged offense was committed.
5. 	A description with as much detail and precision as possible, and
the means by which the alleged offense was committed.
As the State indicates, Child was previously furnished with the State’s witness list and
all of the State’s 1200 documents and, as a result, appears to have had access to all
material relevant to the State’s case against him. The delinquency petition stated with
particularity each of the crimes charged, including the dates and locations of the
alleged offenses, the crimes charged and the relevant statutory provisions, and the
items stolen or moved. 	Therefore, there would be no question as to the nature and
character of the crimes charged.
{34} 	Child asserts that “simply knowing what was in the State’s file was not
enough.” However, our precedent indicates that access to the state’s files normally
is enough for the accused to prepare a defense. Other cases have considered similar
requests to Child’s and have determined that knowledge of the evidence on which the
state would rely, the particular acts that were being relied on, and the means, manner,
or method were not necessary for the accused to adequately prepare a defense.
Archuleta, 1970-NMCA-131, ¶ 33 (stating that providing the defendant with the
evidence on which the state would rely would require it to plead evidence, which is
not necessary); State v. Coulter, 1973-NMCA-019, ¶ 9, 84 N.M. 647, 506 P.2d 804

24
(holding that the defendant was not prejudiced when the state had made available all
the information in its files to defense counsel). This is especially true when the state
maintains an open file because the child already has access to the entirety of the
evidence and the witnesses the state will use against him. Coulter, 1973-NMCA-019,
¶ 11. In the present case, Child’s request, including that he “needed to know how the
State intended to connect all the crimes charged” and the theory of the case, if not
within the documents already in Child’s possession, would require the State to plead
evidence, which is not required to satisfy due process. We fail to see how Child was
prejudiced. Child does not allege how he was prejudiced by proceeding to trial with
the information contained in the charging documents and provided in discovery.
Child was aware of the crimes with which he was charged and had access to all of the
State’s documents. There was nothing more to be given.
{35} 	The district court was in the best position to assess the whole record and
determined that Child had sufficient information to prepare his defense. 	See
Archuleta, 1970-NMCA-131, ¶¶ 33-34. Because Child had access to the entirety of
the State’s documents and witness list, and the delinquency petition stated with
particularity the charges against him, we hold that Child had enough information to
prepare his defense in accordance with due process. The district court did not abuse
its discretion by denying Child’s motion for a bill of particulars. 	We affirm the
district court.

25
D. 	Child’s Motion to Compel the State to Allow a Twelve-Member Jury
{36} 	Child filed a motion to compel the State to allow the case to be heard by twelve
jurors instead of six. 	The district court denied the motion to compel. 	An appellate
court reviews issues of statutory interpretation de novo. 	Schuster v. State Dep’t of
Taxation & Revenue, 2012-NMSC-025, ¶ 9, 283 P.3d 288.
{37} 	Child argues that, under State v. Lorenzo P., 2011-NMCA-013, ¶ 11, 149 N.M.
373, 249 P.3d 85, he is entitled to a twelve-member jury because an adult facing the
same charges would be entitled to a twelve-member jury and that NMSA 1978,
Section 32A-2-16(A) (2009) and Section 32A-2-14(A) entitle him to the same rights
as an adult. The State argues that, under Section 32A-2-16(A), Child is entitled only
to a six-member jury unless he is subject to adult penalties and, because the State did
not seek adult penalties, he is not entitled to a twelve-member jury.
{38} 	“A child . . . is entitled to the same basic rights as an adult, except as otherwise
provided in the Children’s Code[.]” Section 32A-2-14(A) (emphasis added). The
relevant section of the Children’s Code, Section 32A-2-16(A), specifically provides
that, if a “child [is] facing a juvenile disposition[, he] shall be entitled to a six-member
jury.” If the state has “invoke[d] an adult sentence,” the child is entitled to a twelve-
member jury. 	Id. While the crimes charged are serious offenses and would entitle
an adult to a twelve-member jury, whether the child is entitled to a twelve-member
jury is not determined by the charges, but by the state’s decision to invoke an adult

26
sentence. 	Id. 	That is not the case here. The State’s petition for delinquency terms
Child as a “delinquent child.” 	The jury instructions describe the offenses as a
“delinquent act,” and the State did not seek an adult sentence. We have stated that we
apply the Children’s Code as written. Lorenzo P., 2011-NMCA-013, ¶ 21. Section
32A-2-16(A) is a specific circumstance in which the rights of the child are otherwise
provided for in the Children’s Code. A child is entitled to a six-member jury unless
subject to an adult sentence. Child acknowledges this clear language of the statute.
Thus, Child was not entitled to a twelve-member jury, and we affirm the district
court’s denial of his motion to compel.
III. 	CONCLUSION
{39} 	We hold that the State is required to present clear and convincing evidence that
Child had an above-average ability based on his personal traits and understanding of
the situation to waive his rights in order to rebut the presumption of inadmissibility
under Section 32A-2-14(F). 	The State did not meet this burden, thus, Child’s
statements were inadmissible. We reverse the district court’s order denying Child’s
motion to suppress his statements and affirm the district court’s denial of his motion
to sever, the motion for a bill of particulars, and the motion to compel a twelve-
member jury. This case is remanded for further proceedings in accordance with this
Opinion.
{40} 	IT IS SO ORDERED.

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____________________________________
RODERICK T. KENNEDY, Chief Judge
WE CONCUR:
___________________________
JONATHAN B. SUTIN, Judge
___________________________
M. MONICA ZAMORA, Judge