 1   This memorandum opinion was not selected for publication in the New Mexico Reports. Please
 2   see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions.
 3   Please also note that this electronic memorandum opinion may contain computer-generated
 4   errors or other deviations from the official paper version filed by the Court of Appeals and does
 5   not include the filing date.
 6        IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

 7 STATE OF NEW MEXICO,

 8          Plaintiff-Appellee,

 9 v.                                                                                     No. 30,129

10 NEHEMIAH L.,

11          Child-Appellant.

12 APPEAL FROM THE DISTRICT COURT OF SAN JUAN COUNTY
13 William C. Birdsall, District Judge

14 Gary K. King, Attorney General
15 Santa Fe, NM

16 for Appellee

17 Hugh W. Dangler, Chief Public Defender
18 Susan Roth, Assistant Appellate Defender
19 Santa Fe, NM

20 for Appellant

21                                 MEMORANDUM OPINION

22 SUTIN, Judge.

23          Nehemiah L. (Child) appeals from the judgment and disposition, convicting him

24 upon a conditional guilty plea of receiving or transferring a stolen vehicle and
 1 shoplifting. [RP 75] In his plea and disposition agreement, Child reserved the right

 2 to appeal the district court’s denial of his motion to suppress. [RP 70] Child raises

 3 two issues, contending that the district court erred in denying the motion to suppress,

 4 because: (1) after the arresting officer determined that Child was involved in a car

 5 crash, his protections under NMSA 1978, Section 32A-2-14 (2003) (amended 2009)

 6 (discussing the basic rights of a child subject to the Delinquency Act) were triggered

 7 when Child was first questioned by police in the hospital emergency room without

 8 being advised of his right to remain silent; and (2) after Child invoked his

 9 constitutional and statutory rights during the second interview by asking to have his

10 aunt present, the arresting officer continued questioning Child. [DS 5-6]

11        This Court’s calendar notice proposed summary affirmance. [CN 1] Child

12 filed a memorandum in opposition that we have duly considered.                  [MIO]

13 Unpersuaded, however, we affirm.

14 DISCUSSION

15        In State v. Javier M., 2001-NMSC-030, ¶ 1, 131 N.M. 1, 33 P.3d 1, our

16 Supreme Court addressed whether Section 32A-2-14 provides children with broader

17 rights than those guaranteed by Miranda v. Arizona, 384 U.S. 436 (1966). The

18 Supreme Court determined that the statute did provide a child broader rights, holding

19 that the protections are triggered when a child is subject to investigatory detention.


                                              2
 1        After careful analysis, we find that Section 32A-2-14 evinces a
 2        legislative intent to expand the rights of children beyond those embodied
 3        in Miranda jurisprudence. Thus, we conclude that a child need not be
 4        under custodial interrogation in order to trigger the protections of the
 5        statute. Instead, we find that the protections are triggered when a child
 6        is subject to an investigatory detention. Therefore, Section 32A-2-14
 7        requires that, prior to questioning, a child who is detained or seized and
 8        suspected of wrongdoing must be advised that he or she has the right to
 9        remain silent and that anything said can be used in court. If a child is not
10        advised of the right to remain silent and warned of the consequence of
11        waiving that right, any statement or confession obtained as a result of the
12        detention or seizure is inadmissible in any delinquency proceeding.

13 Javier M., 2001-NMSC-030, ¶ 1.

14        At the suppression hearing, the State presented evidence that at about 9:47 a.m.

15 on April 25, 2009, New Mexico Police Officer Gary Chavez arrived at a one-car crash

16 site between Albuquerque and Farmington, New Mexico. [RP 31] There was severe

17 damage to the vehicle, the vehicle had rolled over, and blood was found at the scene.

18 [DS 2] There were no persons found at the accident scene, however, but the officer

19 knew that someone was injured. [Id.]

20        A. Officer Smith’s Initial Encounter with Child. On the same day at 2:19

21 p.m., New Mexico Police Officer Jeff Smith was dispatched to the emergency room

22 at San Juan Regional Medical Center. [RP 31] Dispatch advised that two males were

23 admitted to the emergency room for injuries sustained in a single vehicle crash that

24 morning. [Id.] The officer was assigned to get statements from the two people in

25 order to finish a traffic crash report. [DS 2] At the hospital, the officer was advised

                                               3
 1 that the two people involved in the crash were in emergency rooms 4 and 6. [DS 3]

 2 The officer asked if he could interview the two people, and he was told by the nurse

 3 that they were both awake and alert but should not be moved.           [Id.] Child was

 4 wearing a neck brace and had an intravenous needle in his arm. [Id.] The officer

 5 asked Child if he was involved in a car crash. [Id.] The officer asked Child who the

 6 vehicle belonged to, and Child told him that it belonged to his sister’s boyfriend. [Id.]

 7 Child also told the officer that he and his brother took the vehicle from his sister’s

 8 home in Albuquerque. [Id.] While driving around Albuquerque, they came near a bus

 9 stop and a black man offered them cash for a ride to Farmington. [Id.] They picked

10 up the man and somewhere north of Cuba, the man began driving. [Id.] Child was

11 a passenger and asleep when the rollover crash occurred. [DS 3-4; RP 32] The officer

12 did not read Miranda warnings to Child and did not record the interview. [DS 3]

13 After interviewing Child, the officer talked to Child’s brother whose statements

14 corroborated Child’s statements. [See also RP 31-32]

15        B. Officer Smith’s Second Encounter with Child. After leaving the hospital,

16 dispatch notified the officer that Brandon Jose, Child’s sister’s boyfriend, had reported

17 his vehicle as stolen that morning. [RP 32] Officer Smith went back to the hospital

18 to re-interview Child and his brother. [DS 4] Child was still there but his brother had

19 been discharged. [Id.] As the docketing statement states, “[a]t this second interview,


                                               4
 1 [the officer] believed he had suspicion of a crime and read ‘children’s rights[]

 2 warnings’ to [Child] and recorded the interview.” [DS 4] The docketing statement

 3 further states that Child asked to have his aunt present, told the officer that his aunt

 4 was on her way but that he did not know her telephone number, and the officer began

 5 questioning “despite . . . Child’s request to have his [a]unt present.” [Id.] Child then

 6 told the officer that he was staying with the owner of the car, he took the keys, he and

 7 his brother took the vehicle, drove around Albuquerque, met the unidentified man who

 8 offered them cash for a ride to Farmington, on the way they let him drive, and the

 9 crash occurred. [DS 4-5] Child was arrested and charged with receiving or

10 transferring a stolen vehicle. [Id.]

11        The State’s response to Child’s motion to suppress, however, states that Child

12 did not adamantly request that his aunt be present. [RP 53] Rather, the officer

13 testified that Child merely inquired about whether his aunt would qualify as a “parent,

14 guardian, or custodian,” saying “What about my aunt?” [Id.] The officer then asked

15 Child several questions, including the name of the aunt, what her phone number was,

16 and where she had gone. [Id.] Child did not have his aunt’s phone number, and there

17 was no way to contact her. [Id.] The officer then testified that, thereafter, Child, who

18 was 17 years old at the time, stated that he understood his rights and the warnings and

19 agreed to talk to the officer anyway. [RP 53 (¶ D)(iii), 52 (¶ D)(ii)]


                                              5
 1        C. Child’s Memorandum.            In his memorandum, with regard to the first

 2 interview, Child states that Officer Smith was investigating a serious rollover car

 3 crash. [MIO 1] Child points out that he was not given any Miranda warnings, and

 4 in response to questioning, Child told the officer that he and his brother took a mini-

 5 van from Albuquerque belonging to his sister’s boyfriend. [Id.] With regard to the

 6 second interview, Child indicates that Officer Smith admitted that Child was under

 7 investigation and read him his Miranda warnings. [Id.] Child also reiterates that there

 8 was testimony that Child asked if his aunt counted as a parent or guardian, and asked

 9 to have his aunt present, but was unable to produce a phone number to contact her.

10 [Id.] The memorandum states that Child “waived his rights.” [Id.] Child further

11 argues that because the officer failed to inform Child that his earlier statement could

12 not be used against him, due to his immaturity and lack of experience, Child felt

13 obligated during the second interview to repeat the answers to the same questions.

14 [MIO 2] As such, Child argues, “the second confession was involuntary, as it was

15 the result of the prior influence from the first improper investigation where . . . Child

16 also confessed.” [Id.]     Thus, Child continues to argue that he was “in Miranda

17 custody when he made incriminating statements the first time he was questioned.”

18 [MIO 4]




                                               6
 1        Child further points out that although he was not physically restrained by the

 2 officer, he was physically restrained to the bed and isolated in a room and that “no

 3 reasonable person would feel free to leave or terminate the encounter under these

 4 circumstances.” [MIO 5] Child also argues that he was not free to leave when the

 5 officer stood over him while Child lay prone with a neck brace. [MIO 7] Child

 6 further argues that even if the officer did not know whether Child was involved in

 7 receiving or transferring a stolen vehicle when he first questioned Child, the officer

 8 was still investigating potential criminal conduct for his crash report, such as whether

 9 the driver was under the influence of drugs or alcohol. [MIO 7-8] Thus, Child

10 asserts, the officer was obliged to tell Child that any statement he made in the first

11 interview could not be used against him, and because Child was unaware of the effect

12 of the first interview, his waiver during the second interview was unknowing and

13 involuntary. [MIO 8, 9] Finally, Child contends that the police prevented a knowing

14 and voluntary waiver of rights by excluding his aunt from the second interrogation.

15 [MIO 12] Child argues that the officer made no effort to locate the aunt, which

16 supports his argument that his waiver was not knowingly, intelligently, or voluntarily

17 made. [Id.] Because he was unaware of the effect of the first interview, according to

18 Child, his waiver during the second interrogation was unknowing and not voluntary.

19 [Id.] We are not persuaded.


                                              7
 1        D. Analysis. Child’s contentions on appeal rest on the assertion that Officer

 2 Smith was required to give Child Miranda warnings prior to questioning him in the

 3 first interview. As we discussed in our calendar notice, however, the first interview

 4 occurred prior to the officer’s learning that the vehicle was stolen. The officer

 5 interviewed Child in order to complete a traffic crash report. There is no evidence that

 6 Child was suspected of driving the vehicle under the influence of drugs or alcohol.

 7 Child told the officer that he was asleep and not driving when the rollover occurred.

 8 Moreover, as mentioned earlier, when the officer asked Child who owned the vehicle

 9 and Child responded that the vehicle belonged to his sister’s boyfriend, the officer had

10 not yet learned that Child’s sister’s boyfriend had reported that the vehicle was stolen.

11 Thus, the purpose of the first interview was not to investigate Child’s involvement in

12 a crime.

13        Child was 17 years old at the time; he was awake and alert. Although he could

14 not leave the hospital at that moment because he was undergoing emergency

15 treatment, Child was in a public place surrounded by medical personnel should he

16 have had need of assistance or should he have preferred not to talk to or answer the

17 officer’s questions. We remain persuaded that during the first interview, Child was

18 not the subject of or subject to investigatory detention. Accordingly, the Section

19 32A-2-14 protections were not triggered when Child was first questioned by police


                                               8
 1 in the hospital emergency room without being advised of his right to remain silent and

 2 without being advised that the statements he made could be used against him. As

 3 such, because the officer was not required to advise Child of his rights with regard to

 4 the first interview, there is no prior improper influence that otherwise tainted the

 5 knowing and voluntary nature of Child’s waiver of his rights with regard to the second

 6 interview.

 7        During the second interview, the officer recognized that Child was now the

 8 subject of a stolen vehicle investigation. Therefore, the officer correctly advised Child

 9 of his Section 32A-2-14 rights and appropriately recorded the interview. Moreover,

10 Child then validly waived his rights and spoke to the officer about stealing the vehicle.

11 To the extent Child argues that the officer refused to contact Child’s aunt, evidence

12 was presented that Child did not know how to contact his aunt, and he then proceeded

13 to waive his rights. To the extent that Child asserts that he adamantly requested his

14 aunt’s presence, the officer presented conflicting testimony from which the district

15 court, as fact finder, could conclude otherwise. See State v. Martinez, 1999-NMSC-

16 018, ¶ 20, 127 N.M. 207, 979 P.2d 718 (stating that “there is no due process

17 requirement that the juvenile’s parents be notified for the waiver to be valid. . . .

18 Rather, the lack of parental notification is one factor to consider in the totality of the

19 circumstances” (alteration omitted) (omission in original) (internal quotation marks


                                               9
 1 and citation omitted)); State v. Salas, 1999-NMCA-099, ¶ 13, 127 N.M. 686, 986 P.2d

 2 482 (recognizing that it is for the fact finder to resolve any conflict in the testimony

 3 of the witnesses and to determine where the weight and credibility lay); see also State

 4 v. Rojo, 1999-NMSC-001, ¶ 19, 126 N.M. 438, 971 P.2d 829 (filed 1998) (stating that

 5 “[c]ontrary evidence supporting acquittal does not provide a basis for reversal because

 6 the jury is free to reject [the d]efendant’s version of the facts”).

 7 CONCLUSION

 8        For the foregoing reasons, we affirm the district court’s order denying

 9 Defendant’s motion to suppress.

10        IT IS SO ORDERED.




11                                          __________________________________
12                                          JONATHAN B. SUTIN, Judge

13 WE CONCUR:


14 _________________________________
15 RODERICK T. KENNEDY, Judge


16 _________________________________
17 LINDA M. VANZI, Judge




                                              10
