{ "id": 4241584, "name": "STATE OF NEW MEXICO, Plaintiff-Appellee, v. DEANGELO M., Child-Appellant", "name_abbreviation": "State v. DeAngelo M.", "decision_date": "2015-02-06", "docket_number": "No. 34,995; Docket No. 31,413", "first_page": "330", "last_page": "342", "citations": [ { "type": "official", "cite": "2015-NMCA-019" } ], "court": { "name_abbreviation": "N.M. Ct. App.", "id": 9025, "name": "Court of Appeals of New Mexico" }, "jurisdiction": { "id": 52, "name_long": "New Mexico", "name": "N.M." }, "cites_to": [ { "cite": "2003-NMCA-080", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 15907 ], "weight": 15, "pin_cites": [ { "page": "\u00b6\u00b6 10-11" }, { "page": "\u00b6 7" }, { "page": "\u00b6 10" }, { "page": "\u00b6 8" }, { "page": "\u00b6 8" }, { "page": "\u00b6 5" }, { "page": "\u00b6 6" }, { "page": "\u00b6\u00b6 3, 10" }, { "page": "\u00b6\u00b6 9-11" }, { "page": "\u00b6 10" }, { "page": "\u00b6\u00b6 9-11" }, { "page": "\u00b6 5" }, { "page": "\u00b6 5" } ], "opinion_index": 0, "case_paths": [ "/nm/133/0815-01" ] }, { "cite": "2011-NMCA-013", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 4249416 ], "weight": 6, "pin_cites": [ { "page": "\u00b6 11" }, { "page": "\u00b6 21" } ], "opinion_index": 0, "case_paths": [ "/nm/149/0373-01" ] }, { "cite": "283 P,3d 288", "category": 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"case_ids": [ 3668359 ], "weight": 3, "pin_cites": [ { "page": "\u00b6 14" } ], "opinion_index": 0, "case_paths": [ "/nm/141/0853-01" ] }, { "cite": "1997-NMSC-006", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 322282 ], "weight": 3, "pin_cites": [ { "page": "\u00b6\u00b6 36, 38" } ], "opinion_index": 0, "case_paths": [ "/nm/122/0777-01" ] }, { "cite": "510 S.W.2d 116", "category": "reporters:state_regional", "reporter": "S.W.2d", "case_ids": [ 10119935 ], "year": 1974, "pin_cites": [ { "page": "119", "parenthetical": "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" } ], "opinion_index": 0, "case_paths": [ "/sw2d/510/0116-01" ] }, { "cite": "299 P.3d 863", "category": "reporters:state_regional", "reporter": "P.3d", "opinion_index": 0 }, { "cite": "2013-NMCERT-001", "category": "reporters:neutral", "reporter": "NMCERT", "opinion_index": 0 }, { "cite": "298 P.3d 458", "category": "reporters:state_regional", "reporter": "P.3d", "opinion_index": 0 }, { "cite": "2013-NMCA-024", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 4190826 ], "opinion_index": 0, "case_paths": [ "/nm-app/3/0393-01" ] }, { "cite": "118 N.M. 636", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1563495 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/118/0636-01" ] }, { "cite": "1994-NMCA-128", "category": "reporters:neutral", "reporter": "NMCA", "pin_cites": [ { "page": "\u00b6 24" } ], "opinion_index": 0 }, { "cite": "119 N.M. 638", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1561276 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/119/0638-01" ] }, { "cite": "1995-NMSC-026", "category": "reporters:neutral", "reporter": "NMSC", "pin_cites": [ { "page": "\u00b6 59" } ], "opinion_index": 0 }, { "cite": "33 N.M. 193", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1554482 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/33/0193-01" ] }, { "cite": "1927-NMSC-048", "category": "reporters:neutral", "reporter": "NMSC", "pin_cites": [ { "page": "\u00b6 9" } ], "opinion_index": 0 }, { "cite": "2011-NMSC-027", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 4250059 ], "weight": 3, "pin_cites": [ { "page": "\u00b6 55" } ], "opinion_index": 0, "case_paths": [ "/nm/149/0704-01" ] }, { "cite": "88 N.M. 338", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2839119 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/88/0338-01" ] }, { "cite": "1975-NMSC-050", "category": "reporters:neutral", "reporter": "NMSC", "weight": 3, "pin_cites": [ { "page": "\u00b6 12" }, { "page": "\u00b6 20" }, { "page": "\u00b6 20" } ], "opinion_index": 0 }, { "cite": "2005-NMCA-135", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 2549304 ], "weight": 3, "pin_cites": [ { "page": "\u00b6 17" } ], "opinion_index": 0, "case_paths": [ "/nm/138/0636-01" ] }, { "cite": "370 U.S. 49", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6165284 ], "year": 1962, "pin_cites": [ { "page": "54", "parenthetical": "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" } ], "opinion_index": 0, "case_paths": [ "/us/370/0049-01" ] }, { "cite": "2000-NMCA-019", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 106522 ], "weight": 8, "pin_cites": [ { "page": "\u00b6 7" }, { "page": "\u00b6 12" }, { "page": "\u00b6 12" }, { "page": "\u00b6 10" }, { "page": "\u00b6 12" }, { "page": "\u00b6 6" } ], "opinion_index": 0, "case_paths": [ "/nm/128/0673-01" ] }, { "cite": "1999-NMSC-018", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 257627 ], "weight": 5, "pin_cites": [ { "page": "\u00b6\u00b6 14-15" }, { "page": "\u00b6 18" }, { "page": "\u00b6 30" } ], "opinion_index": 0, "case_paths": [ "/nm/127/0207-01" ] }, { "cite": "109 N.M. 789", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1590280 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/109/0789-01" ] }, { "cite": "1990-NMSC-046", "category": "reporters:neutral", "reporter": "NMSC", "weight": 3, "pin_cites": [ { "page": "\u00b6 8" }, { "page": "\u00b6 8" }, { "page": "\u00b6 8" } ], "opinion_index": 0 }, { "cite": "2007-NMSC-010", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 3668917 ], "weight": 3, "pin_cites": [ { "page": "\u00b6 15" } ], "opinion_index": 0, "case_paths": [ "/nm/141/0284-01" ] }, { "cite": "2011-NMSC-024", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 4249959 ], "weight": 6, "pin_cites": [ { "page": "\u00b6 7" }, { "page": "\u00b6 7" }, { "page": "\u00b6 7" }, { "page": "\u00b6 7" } ], "opinion_index": 0, "case_paths": [ "/nm/150/0232-01" ] } ], "analysis": { "cardinality": 1291, "char_count": 40797, "ocr_confidence": 0.784, "pagerank": { "raw": 5.061447019797991e-08, "percentile": 0.3186199272621686 }, "sha256": "99b7e74532b6063097ea7da00f9661ec45559042f413fb21f36569d20a6cb932", "simhash": "1:77254a22084a8a63", "word_count": 6495 }, "last_updated": "2023-07-14T17:10:55.229683+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "RODERICK T. KENNEDY, Chief Judge", "JONATHAN B. SUTIN, Judge", "M. MONICA ZAMORA, Judge" ], "parties": [ "STATE OF NEW MEXICO, Plaintiff-Appellee, v. DEANGELO M., Child-Appellant." ], "opinions": [ { "text": "OPINION\nKENNEDY, Chief Judge.\nDeAngelo M. (Child) appeals his convictions for second-degree murder, burglary, larceny, and tampering with evidence. Child appeals the district court\u2019s 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, \u00a7 32A-2-14(F) (2009).\nWe 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, \u00b6\u00b6 10-11, 133 N.M. 815, 70 P.3d 805. Therefore, Child\u2019s statements were improperly admitted. We reverse the district court on its denial of the motion to suppress Child\u2019s 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.\nI. BACKGROUND\nChild was eight days past turning age thirteen when he was interrogated by three investigators in connection with the murder of Angel Vale. The officers interviewed neighbors and witnesses, including Child\u2019s 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 throirghout the interrogation. One officer read and explained Child\u2019s Miranda rights to him, which, according to the officer\u2019s testimony, Child appeared to understand. During the interrogation, Child made inculpatory statements to the officers regarding the burglary of Vale\u2019s home. Child was arrested.\nChild filed a motion to suppress his statements. Two of the investigators and Child\u2019s 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.\nII. DISCUSSION\nA. Child\u2019s Motion to Suppress His Statements\nPrior 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\u2019s failure to rebut the presumption of inadmissibility for a thirteen-year-old child\u2019s 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, \u00b6 7, 150 N.M. 232, 258 P.3d 1024; State v. Jade G., 2007-NMSC-010, \u00b6 15, 141 N.M. 284, 154 P.3d 659.\nChild argues that the standard created in Adam J. for the State to rebut the \u201cpresumptive inadmissibility\u201d of statements by a child under the age of fifteen years is contrary to legislative intent because it requires comparison ofthe accused\u2019s 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, \u00b6 7.\nThe State argues that the Adam J. standard is appropriate and that the State rebutted the presumption that Child\u2019s statements were inadmissible by presenting evidence from the two investigating officers and his teacher regarding his personal traits that supported the district court\u2019s finding that he had the ability to knowingly, intelligently, and voluntarily waive his rights. 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 \u201cparticular to an individual child.\u201d Id. \u00b6 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\u2019s evidence was insufficient to rebut the presumption that Child was incapable of a valid waiver of his right under Section 32A-2-14(F).\n1. The Two-Tier Analysis of Ability to Waive Rights and Knowing, Intelligent, and Voluntary Waiver Under Section 32A-2-14 of the Children\u2019s Code\nThe capacity to waive Fifth Amendment rights is assumed for children over fifteen and for adults. See State v. Jonathan M., 1990-NMSC-046, \u00b6 8, 109 N.M. 789, 791 P.2d 64; see also Gutierrez, 2011-NMSC-024, \u00b6 7 (requiring the same assessment for adults and children when determining the legitimacy of a Miranda waiver); State v. Martinez, 1999-NMSC-018, \u00b6\u00b6 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 because Section 32A-2-14 of the Children\u2019s 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, \u00b6 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, \u00b6 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, \u00b6 7.\nHowever, the Children\u2019s 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\u2019s 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, \u00b6 7, 128 N.M. 673, 997 P.2d 147 (holding that the Children\u2019s Code grants heightened protection only for the statements of those under fifteen years old), overruled on other grounds by Adam J., 2003-NMCA-080, \u00b6 10. The rebuttable presumption of inadmissibility created by Subsection (F) \u201cstresses age in its effort to draw the line between children who are too young to waive their rights and those who are not.\u201d Adam J., 2003-NMCA-080, \u00b6 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, \u00b6 8 (interpretingprevious 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, \u00b6 12. It is an age-based presumption that is intended to \u201cdraw the line between children who are too young to waive their rights and those who are not.\u201d Adam J., 2003-NMCA-080, \u00b6 8.\nThe child\u2019s \u201c[a]ge is particularly pertinent because Subsection [(F)] creates a distinction based upon the age of a child.\u201d Francesca L., 2000-NMCA-019, \u00b6 12. A child\u2019s 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, \u00b6 5 (stating that the district court could have determined that the state did not rebut the presrrmption 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 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 Legislated 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, \u00b6 6.\nSection 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, \u00b6\u00b6 3, 10. Thus, before ever deciding admissibility based on whether the \u2022waiver 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. \u00b6 10; Francesca L., 2000-NMCA-019, \u00b6 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, \u00b6\u00b6 9-11. The child\u2019s personal traits, including \u201cbackground, maturity, intelligence, ability to understand and react to new situations, and other relevant personal factors\u201d are examined to determine whether the child is sufficiently above average as to rebut the presumption. Id. \u00b6 8.\nEven while \u201can analysis of the circumstances may assist the children\u2019s court in understanding the child\u2019s personal traits, such analysis is secondary to, and does not substitute for, an analysis of the child\u2019s personal traits\u201d under Subsection (F). Adam J., 2003-NMCA-080, \u00b6 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\u2019s \u201cpersonal traits.\u201d The focus in this case must be on the child\u2019s maturity, intelligence, and development. In short, the state must affirmatively distinguish the particular child\u2019s 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, \u00b6\u00b6 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\u2019s inquiry is complete at that point, and the statement is excluded. Id. \u00b6 10 (holding that the child\u2019s ability to waive is a threshold determination and must be decided before determining the statement\u2019s admissibility as the product of a knowing, intelligent, and voluntary waiver).\nFor 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 hhat, upon the question of competency being raised by the adult defendant in a criminal case, evaluating his or her competency to stand trial \u201cmust be professionally evaluated by a qualified professional.\u201d State v. Flores, 2005-NMCA-135, \u00b6 17, 138 N.M. 636, 124 P.3d 1175. We do not regard competency being that a defendant \u201cunderstands the nature and significance of the proceedings, has a factual understanding of the charges, and is able to assist his attorney in his defense\u201d to be so far removed in concept or scope from determining a thirteen- or fourteen-year-old child\u2019s developmental status with regard to having the ability to waive Fifth Amendment rights. Id. \u00b6 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, \u00b6 12; see also Adam J., 2003-NMCA-080, \u00b6 5 (acknowledging that \u201cthe children\u2019s court\u2019s 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\u201d (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 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\u2019s statements.\n2. Clear and Convincing Evidence is Required to Rebut the Presumption\nThe question of the proper standard of proof is generally a matter for judicial resolution. In re Valdez, 1975-NMSC-050, \u00b6 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.\nFor 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-024, \u00b6 7. For children thirteen or fourteen years old, there is a rebuttable presumption of inadmissibility, which, by providing \u201cheightened protection\u201d 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 ofthe interests at stake. Valdez, 1975-NMSC-050, \u00b6 20. Specifically, our Supreme Court has held that the state must meet a \u201cheavy burden\u201d in order to overcome a statutory rebuttable presumption. State v. Gallegos, 2011-NMSC-027, \u00b6 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, \u00b6 9, 33 N.M. 193, 263 P. 29 (stating that \u201conly clear and convincing evidence can overcome [a rebuttable] presumption\u201d (internal quotation marks and citation omitted)); see also In re Adoption of J.J.B., 1995-NMSC-026, \u00b6 59, 119 N.M. 638, 894 P.2d 994 (stating that \u201cpresumption favoring the natural parent can be rebutted by showing serious parental inadequacy with clear and convincing evidence\u201d); Lucero v. Lucero, 1994-NMCA-128, \u00b6 24, 118 N.M. 636, 884 P.2d 527 (holding that substantial evidence supported the district court\u2019s finding that \u201cpresumption of a lack of testamentary capacity was overcome by clear and convincing evidence\u201d (internal quotation marks and citation omitted)), superseded on other grounds by statute as stated in Clinesmith v. Temmerman, 2013-NMCA-024, 298 P.3d 458, cert. denied, 2013-NMCERT-001, 299 P.3d 863; Valdez, 1975-NMSC-050, \u00b6 20 (\u201cFor 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\u2019s mind is left with an abiding conviction that the evidence is true.\u201d (internal quotation marks and citation omitted)).\nThus, 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\u2019s 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.\n3. The District Court Erred in Denying Child\u2019s Motion to Suppress His Statements to Police Officers\nChild\u2019s 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. We need to go no farther in this case than examining the evidence presented concerning Child\u2019s individual attributes to conclude that he was not capable of effectively waiving his rights in this instance. The State presented evidence from three persons during the suppression hearing: two of the three investigating officers who interrogated Child, Agents Dan Blair and Dan Aguilar; and Ron Allen, who had been Child\u2019s teacher at the detention center.\nAgents 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\u2019s mother had stated that he was an \u201cA\u201d and \u201cB\u201d student, but mentioned, on cross-examination, that she had also stated that he had \u201cC\u201d and \u201cD\u201d grades in some classes and had not told Agent Blair about an \u201cF\u201d grade. No evidence of Child\u2019s 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 no evidence as to why he chose that book or that he had read any of it yet. 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\u2019s waiver was knowing, intelligent, and voluntary. No comparison beyond \u201cchildren his age\u201d was ever provided. This is insufficient under the standard we have enunciated in Francesca L. and Adam J.\nAgent Aguilar testified that Child was more inquisitive about his rights as compared to other children he had interviewed, was more independent, understood the officers\u2019 questions, and appeared to understand his rights. Any statement relating Child\u2019s 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.\nAllen, Child\u2019s 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 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\u2019s intelligence was generally above the other average alternative school students. Allen was unable to define \u201caverage\u201d 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.\nHowever, Allen did not mention Child\u2019s school records, nor was he asked to testify regarding Child\u2019s 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\u2019s 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 establish that Child had the maturity and intelligence of an average fifteen-year-old child to understand his situation and the rights he possessed.\nEvaluating the evidence against Adam J. and the standards we have enunciated here, we note first that Child\u2019s 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, \u00b6 5;FrancescaL., 2000-NMCA-019, \u00b6 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.\nWe 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\u2019s 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 to waive his rights. They did not compare Child\u2019s 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\u2019s accusers, can be assumed to have colored views of their own opinions and actions. See State v. Gomez, 1997-NMSC-006, \u00b6\u00b6 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, \u00b6 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\u2019s 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\u2019s school records or testing scores from his regular school. Allen\u2019s testimony similarly does not fulfill the State\u2019s burden of presenting clear and convincing evidence in a matter of such gravity as this.\nThe 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\u2019s sole thrust in its case. Instead, the question for 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 \u201cseems\u201d 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\u2019s statements were inadmissible, and we reverse the district court\u2019s denial of Child\u2019s motion to suppress and remand for a new trial. We now address Child\u2019s other arguments that may arise should this case be tried again.\nB. Child\u2019s Motion to Sever the Charges\nChild 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 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, \u00b6 10, 286 P.3d 265.\nChild 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.\nRule 5-203 (A) NMRA requires the state to join certain charges if the offenses \u201care 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.\u201d State v. Gallegos, 2007-NMSC-007, \u00b6 10, 141 N.M. 185, 152 P.3d 828. Even.when offenses are properly joined, a district court may abuse its discretion in failing to sever charges if there is prejudice to the accused. Id. \u00b6\u00b6 9, 16.\nThe first step of this inquiry requires determination of whether the evidence pertaining to each charge would be cross-admissible in separate trials. Id. \u00b6 19. The defendant may be prejudiced by admission of evidence that would be otherwise inadmissible. Id. \u201cOn the other hand, cross-admissibility of evidence dispels any inference of prejudice.\u201d Id. (alteration, internal quotation marks, and citation omitted).\nCross-admissibility is determined through an analysis of Rule 11-404(B). See Gallegos, 2007-NMSC-007, \u00b6\u00b6 20-21. Under Rule 11-404(B)(1), \u201c[ejvidence of a crime, wrong, or other act is not admissible to prove a person\u2019s character in order to show that on a particular occasion the person acted in accordance with the character.\u201d Nevertheless, evidence of a crime, wrong, or other act may permissibly be used for another purpose, \u201csuch as proving motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident.\u201d Rule 11-404(B)(2). \u201cIt remains within a [district] court\u2019s 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.\u201d Martinez, 1999-NMSC-018, \u00b6 30 (alteration, internal quotation marks, and citation omitted). The state must \u201cidentify and articulate the consequential fact to which the evidence is directed.\u201d Gallegos, 2007-NMSC-007, \u00b6 22.\nThe 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\u2019s 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\u2019s 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\u2019s motion to sever. We affirm the district court on this issue.\nC. Child\u2019s Motion for Bill of Particulars/Statement of Facts\nChild 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\u2019s 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\u2019s open file policy. We review the district court\u2019s denial of a motion for a bill of particulars for an abuse of discretion. State v. Mankiller, 1986-NMCA-053, \u00b6 18, 104 N.M. 461, 722 P.2d 1183.\nAs our precedent indicates, \u201c[tjhe object of a bill of particulars ... is to enable [an accused] to properly prepare his defense[.]\u201d State v. Mosley, 1965-NMSC-081, \u00b6 4, 75 N.M. 348, 404 P.2d 304; State v. Archuleta, 1970-NMCA-131, \u00b6 32, 82 N.M. 378, 482 P.2d 242. The bill of particulars must \u201cgive [the accused] and the court reasonable information as to the nature and character of the crime charged.\u201d State v. Shroyer, 1945-NMSC-014, \u00b6 70, 49 N.M. 196, 160 P.2d 444; see Mosley, 1965-NMSC-081, \u00b6 4. However, these requirements do not require the state to \u201cplead evidence}.]\u201d Mosley, 1965-NMSC-081, \u00b6 4. A bill of particulars/statement of facts is generally not required when the state maintains an open file policy. Mankiller, 1986-NMCA-053, \u00b6 18. In determining whether to require a bill of particulars, the district court must consider the whole record. Archuleta, 1970-NMCA-131, \u00b6 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, \u00b6 4.\nIn his request for a bill of particulars, Child asked for the following:\n1. Each fact, stated with specificity and particularity, upon which the State relies to prove each element of the offense charged.\n2. The theory of the case.\n3. Each witness or exhibit that will prove the facts described.\n4. A description with as much detail and precision as possible, and the manner in which the alleged offense was committed.\n5. A description with as much detail and precision as possible, and the means by which the alleged offense was committed.\nAs the State indicates, Child was previously furnished with the State\u2019s witness list and all of the State\u2019s 1200 documents and, as aresult, appears to have had access to all material relevant to the State\u2019s 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.\nChild asserts that \u201csimply knowing what was in the State\u2019s file was not enough.\u201d However, our precedent indicates that access to the state\u2019s files normally is enough for the accused to prepare a defense. Other cases have considered similar requests to Child\u2019s 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, \u00b6 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, \u00b6 9, 84 N.M. 647, 506 P.2d 804 (holding that the defendant was not prejudiced when the state had piade 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, \u00b6 11. In the present case, Child\u2019s request, including that he \u201cneeded to know how the State intended to connect all the crimes charged\u201d and the theory of the case, if not within the documents already in Child\u2019s 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\u2019s documents. There was nothing more to be given.\nThe 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, \u00b6\u00b6 33-34. Because Child had access to the entirety of the State\u2019s 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\u2019s motion for a bill of particulars. We affirm the district court.\nD. Child\u2019s Motion to Compel the State to Allow a Twelve-Member Jury\nChild 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, \u00b6 9, 283 P,3d 288.\nChild argues that, under State v. Lorenzo P., 2011-NMCA-013, \u00b6 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.\n\u201cA child ... is entitled to the same basic rights as an adult, except as otherwise provided in the Children\u2019s Code[.Y Section 32A-2-14(A) (emphasis added). The relevant section of the Children\u2019s Code, Section 32A-2-16(A), specifically provides that, if a \u201cchild [is] facing a juvenile disposition], he] shall be entitled to a six-member jury.\u201d If the state has \u201cinvoke[d] an adult sentence,\u201d 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\u2019s decision to invoke an adult sentence. Id. That is not the case here. The State\u2019s petition for delinquency terms Child as a \u201cdelinquent child.\u201d The jury instructions describe the offenses as a \u201cdelinquent act,\u201d and the State did not seek an adult sentence. We have stated that we apply the Children\u2019s Code as written. Lorenzo P., 2011-NMCA-013, \u00b6 21. Section 32A-2-16(A) is a specific circumstance in which the rights of the child are otherwise provided for in the Children\u2019s 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\u2019s denial of his motion to compel.\nIII. CONCLUSION\nWe 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\u2019s statements were inadmissible. We reverse the district court\u2019s order denying Child\u2019s motion to suppress his statements and affirm the district court\u2019s 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.\nIT IS SO ORDERED.\nRODERICK T. KENNEDY, Chief Judge\nWE CONCUR:\nJONATHAN B. SUTIN, Judge\nM. MONICA ZAMORA, Judge\nChild does not challenge the adequacy of the advice of Miranda rights given to him by the officers in this case.\nAlthough 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.\nWe note that, although the State claims that Child was party to a voluntary interview and not a custodial interrogation, he docs not raise the issue.\nAgents Blair and Aguilar wore both investigators from the District Attorney\u2019s Office. Both were retired police officers.\nChild was in the eighth grade at the time. The book has been designated at a fourth-grade reading level. http://www.scholastic.eom/teaehers/book/twilight#cart/ cleanup.", "type": "majority", "author": "KENNEDY, Chief Judge." } ], "attorneys": [ "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" ], "corrections": "", "head_matter": "Certiorari Granted, February 6, 2015,\nNo. 34,995\nIN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO\nOpinion Number: 2015-NMCA-019\nFiling Date: November 4, 2014\nDocket No. 31,413\nSTATE OF NEW MEXICO, Plaintiff-Appellee, v. DEANGELO M., Child-Appellant.\nGary K. King, Attorney General Pranava Upadrashta, Assistant Attorney General Santa Fe, NM for Appellee\nRobert E. Tangora, L.L.C. Robert E. Tangora Santa Fe, NM for Appellant" }, "file_name": "0330-01", "first_page_order": 346, "last_page_order": 358 }