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 Please see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions.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

v. NO. 32,618 4 STEVEN AYERS, 5 Defendant-Appellant. 6 APPEAL FROM THE DISTRICT COURT OF VALENCIA COUNTY 7 William A. Sanchez, District Judge 8 Gary K. King, Attorney General 9 Santa Fe, NM 10 for Appellee 11 Bennett J. Baur, Acting Chief Public Defender 12 Santa Fe, NM 13 Josephine H. Ford, Assistant Public Defender 14 Albuquerque, NM 15 for Appellant 16 MEMORANDUM OPINION 17 VANZI, Judge. 182 {1} Defendant, Steven Ayers, appeals from his conviction for second degree 1 murder. [RP 185] We issued a notice proposing to summarily affirm. Defendant 2 filed a memorandum in opposition and a motion to amend the docketing statement. 3 He continues to argue that the district c ourt erred by (1) denying his motion to dismiss 4 for speedy trial violation; (2) finding th at his confession was voluntary; and (3) 5 allowing the State to show mu ltiple photographs of the victim at trial. We remain 6 unpersuaded by Defendant’s arguments. In addition, we conclude that the new 7 argument Defendant seeks to raise—that the district court erred in sentencing him as 8 an adult—is without merit. We thus deny Defendant’s motion to amend and affirm 9 his conviction. 10 BACKGROUND 11
{2} On August 7, 2009, Defendant, fifteen years old at the time, beat Fermin 12 Lucero. [RP 27, 72, 80] He was arrested that same day and taken to the Los Lunas 13 Police Department for questioning. [MIO 1] Defendant signed a written waiver of 14 his rights. [MIO 1] He was then que stioned by police and confessed to beating 15 Lucero. [RP 121, ¶ 8] On August 28, 2009, Lucero died from the injuries he 16 sustained in the beating. [RP 28] Defendant was charged by a consolidated grand 17 jury indictment with four counts: (1) firs t degree murder or, in the alternative, felony 18 murder; (2) aggravated battery; (3) bribery of a witness (retaliation – bodily injury); 19 and (4) bribery of a witness (threats) (false testimony). [RP 15-16, 31] Prior to trial, 203 the State dismissed Counts 2 and 3 and th e alternative to Count 1. [RP 128] 1 Defendant was arraigned on September 29, 2009. [RP 113, ¶ 11] 2
{3} Defendant turned eighteen on October 1, 2011, and was transferred from the 3 Juvenile Detention Center in Albuquerque to the Valencia County Detention Center. 4 [MIO 3] On November 10, 2011, Defendant filed a moti on to dismiss with prejudice 5 based on speedy trial and Bradyviolations. [RP 112] The district court denied 6 Defendant’s motion. A jury trial began on November 30, 2011. [MIO 4] The jury 7 found Defendant guilty of second degree murder. [RP 161] On June 5, 2012, the 8 district court held an amenability heari ng and concluded that Defendant should be 9 sentenced as an adult. [MIO 5] On September 25, 2012, the district court sentenced 10 Defendant to the maximum sentence of fifteen years imprisonment, with credit for 11 time served. [MIO 5, RP 185-86] 12 DISCUSSION 13
{4} Defendant raised three issues in his docketing statement. He now seeks to 14 amend the docketing statement to add the i ssue of whether the district court abused 15 its discretion in sentencing him as an adult. [MIO 5] We will address this issue first 16 and then the remaining issues in turn. 17 A. Amenability Hearing 18
{5} Defendant seeks to amend his docketing statement to argue that the amenability 19 hearing held in the district court vi olated the Delinquency Act and Defendant’s 204 constitutional right to due pro cess because the district court’s decision to sentence him 1 as an adult was not supported by substantial evidence. [MIO 9] 2
{6} The Delinquency Act provides, in pertin ent part, that “[t]he court has the 3 discretion to invoke either an adult sentence or juvenile sanctions on a youthful 4 offender.” NMSA 1978, § 32A-2 -20(A) (2009). In order toinvoke an adult sentence, 5 a court must make the following findings: “( 1) the child is not amenable to treatment 6 or rehabilitation as a child in available fac ilities; and (2) the child is not eligible for 7 commitment to an institution for children with developmental disabilities or mental 8 disorders.” Section 32A-2-20(B). In determining whether an adult sentence is 9 warranted, the judge shall consider the following factors: 10 (1) the seriousness of the alleged offense; 11 (2) whether the alleged offense was committed in an aggressive, 12 violent, premeditated or willful manner; 13 (3) whether a firearm was used to commit the alleged offense; 14 (4) whether the alleged offense was against persons or against 15 property, greater weight being gi ven to offenses against persons, 16 especially if personal injury resulted; 17 (5) the maturity of the child as determined by consideration of the 18 child's home, environmental situation, social and emotional health, 19 pattern of living, brain development, trauma history and disability; 20 (6) the record and previous history of the child; 215 (7) the prospects for adequate protection of the public and the 1 likelihood of reasonable rehabilitati on of the child by the use of 2 procedures, services and fac ilities currently available; and 3 (8) any other relevant factor, provided that factor is stated on the record. 4 Section 32A-2-20(C); see State v. Jones , 2010-NMSC-012, ¶ 15, 148 N.M. 1, 229 5 P.3d 474 (discussing the requirements of the Delinquency Act). 6
{7} The district court found Defendant was not amenable to treatment as a juvenile 7 and explained its ruling as follows: 8 This is a very close call as far as amenability is concerned. I’ve kind of 9 gone back and forth on this. Weighing all factors, the seriousness of the 10 offense, the willfulness exhibited by [D]efendant in this matter, his 11 previous record, and the prospects of having [Defendant] rehabilitated 12 in the next two and a half years doesn ’t seem to be–[th ere] doesn’t seem 13 to be a very good prospect for that. So the [c]ourt’s going to find that he 14 is not amenable to treatment as a child in available facilities. 15 [MIO 13] Defendant contends the distri ct court’s decision constitutes an abuse of 16 discretion. [MIO 10] He points out that the amenability hearing la sted less than thirty 17 minutes, and the only witness who testifie d was a juvenile probation officer. [MIO 18 10, 14] This witness recommended that Defendant be sentenced as an adult because 19 the State would “lose all responsibilities [ over] him” after he reached the age of 20 twenty-one. [MIO 11] Defense counsel re quested that Defendant be sentenced as a 21 juvenile and noted that a doctor who had examined Defendant concluded he would be 22 amenable to treatment. [MIO 11] 23
{8} While Defendant’s situation is troublesome, it is not unique. This Court has 246 previously noted that New Mexico desper ately needs a legislative solution to the 1 sentencing gaps created by the Delinquency Act and the criminal justice system. See 2 State v. Ira , 2002-NMCA-037, ¶¶ 25-32, 132 N.M. 8, 43 P.3d 359 (urging the 3 Legislature to consider sentencing altern atives for juveniles and providing examples 4 of approaches used in other jurisdictions ). Our Supreme Court has also recognized 5 this problem. In Jones , our Court explained: 6 As a [consequence of our current system], the accused may receive an 7 adult sentence for an act that was committed at an age when the accused 8 may have lacked the ability to appreci ate the gravity or consequences of 9 his actions. Thus, the child loses any meaningful chance at treatment or 10 rehabilitation on the one hand, and gets punished for an act potentially 11 lacking the culpability required for anadult sentence. Such a result does 12 not accomplish the ends of either the juvenile or adult justice systems. 13 We urge the Legislature and any other interested groups to address this 14 issue. 15 2010-NMSC-012, ¶ 58 (citation omitted). As these cases reflect, the fact that the 16 district court considered the length of time that Defendant could berehabilitated in the 17 juvenile system does not indicate legal error. 18
{9} The record reflects that the district court considered all of the evidence 19 presented to it and weighed all of the statutory factors. In addition, the district court 20 heard the evidence presented attrial and was familiar withthe facts and circumstances 21 surrounding Defendant’s commission of the offense (second degree murder). We 22 perceive no abuse of discretion in its ruling. And because weconclude that this issue 23 is not viable, we deny Defendant’s motion to amend. See Rule 12-208(F) NMRA 247 (“The Court of Appeals may, upon good cause shown, allow the amendment of the 1 docketing statement.”); see also State v. Moore , 109 N.M. 119, 129, 782 P.2d 91, 101 2 (Ct. App. 1989) (discussing standard for motion to amend), superceded by statute on 3 other grounds as recognized in State v. Salgado , 112 N.M. 537, 817 P.2d 730 (Ct. 4 App. 1991). 5 B. Speedy Trial 6
{10} Defendant continues to arguethat the district court erred in denying his motion 7 to dismiss for violation of his right to a sp eedy trial. In our notice, we recognized that 8 Defendant’s pre-trial incarceration of twenty-seven months was presumptively 9 prejudicial and thus considered (1) the length of delay, (2) the reasons for the delay, 10 (3) the defendant’s assertion of his right, and (4) the actual prejudice to the defendant. 11 See State v. Fierro , 2012-NMCA-054, ¶ 33, 278 P.3d 541. In his memorandum in 12 opposition, Defendant focuses his argument on the fourth factor—actual prejudice. 13
{11} Defendant committed the crime when he was fifteen years old, and he argues 14 that if his trial had been held earlier, the district court would have been more likely to 15 sentence him as a juvenile instead of an adult. He argues that “[f]acing a sentence of 16 fifteen years in adult prison, rather thancommitment to a treatment facility, may be 17 the most extreme example of prejudice that can exist in a speedy trial question.” 18 [MIO 19] While we agree in theory, there is absolutely no eviden ce in the record that 19 the district court would have sentenced Defendant as a juvenile if he had been 208 convicted at a younger age. We note that the district court imposed the maximum 1 sentence on Defendant, which reflects that the district court believed a severe 2 punishment was warranted. We will not specu late as to whether Defendant’s sentence 3 would have been any different if he had been tried earlier. Thus, for the reasons 4 explained in our notice, we conclude that the district court did not err in denying 5 Defendant’s motion to dismiss. 6 C. Defendant’s Confession 7
{12} Defendant continues to arguethat the district court erred in denying his motion 8 to suppress because there was insufficient evidence that he “fully comprehended his 9 rights when he signed the [written] waiver [o f rights].” [MIO 24] We review de novo 10 whether a defendant’s incriminati ng statements were voluntary. See State v. Cooper, 11 1997-NMSC-058, ¶ 25, 124 N.M. 277, 949 P.2d 660. 12
{13} Defendant claims that the officers who questioned him violated the 13 Delinquency Act because they did not allow him to speak to his parents and did not 14 allow his parents to be present when he wa s questioned. [MIO 25] This is not a 15 violation of the Delinquency Act. The De linquency Act requires th at, in order for a 16 child’s statement or confession to be admi ssible, “the [S]tate shall prove that the 17 statement or confession . . . was elic ited only after a knowi ng, intelligent and 18 voluntary waiver of the child’s constituti onal rights was obtained.” NMSA 1978, § 19 32A-2-14(D) (2009). Pursuant to the Delinquency Act, courts must consider eight 209 factors in determining whether a child’s waiver of rights is knowing, intelligent and 1 voluntary, including “whether the [child] had the counsel of an attorney, friends or 2 relatives at the time of being que stioned.” Section 32A-2-14(E); State v. Adam J. , 3 2003-NMCA-080, ¶ 3, 133 N.M . 815, 70 P.3d 805 (discussing these requirements). 4 Contrary to Defendant’s argument, neither this factor, nor any other factor, is 5 dispositive. In other words, the fact thatDefendant did not have the counsel of an 6 attorney, friends or relatives at the time he was questioned does not mean that his 7 confession was not knowing, intelligent, or voluntary. Based on our review of the 8 parties’ arguments below and on appeal, we continue to believe that the district court 9 correctly concluded that, under the totality of the circumstances, Defendant’s 10 confession was knowing, intellig ent, and voluntary. We thus affirm the district 11 court’s denial of Defendant’s motion to suppress. 12 D. Admission of Victim Photographs 13
{14} Defendant continues to argue that the di strict court erred in allowing the State 14 to show multiple photographs of the victim at trial because the photographs were more 15 prejudicial than probative. [MIO 26] As we stated in our notice, “[w]e review the 16 admission of evidence under an abuse of di scretion standard and will not reverse in 17 the absence of a clear abuse.” State v. Sarracino , 1998-NMSC-022, ¶ 20, 125 N.M. 18 511, 964 P.2d 72. We perceive no clear abuse in this case. 1910 {15} In State v. Bahney , we found no abuse of discretion in the district court’s 1 admission of forty crime scene photographs over the defendant’s objection. 2012- 2 NMCA-039, ¶¶ 44, 47, 274 P.3d 134. We e xplained that “[g]raphic photographs of 3 the injuries suffered by deceased victims of crime are by their nature significantly 4 prejudicial, but that fact alone does not establish that they are impermissibly so.” Id. 5 ¶ 43. We recognized that photographs “are often more accurate than any description 6 by words, and give a clearer comprehension of the physical facts than can be obtained 7 from the testimony of witnesses.” Id. (internal quotation mark s omitted). We find this 8 reasoning to be equally applicab le here, and note, as we did in our notice, that “we are 9 unaware of any case that ha s reversed a conviction due to allegedly inflammatory 10 photographs.” State v. Pettigrew , 116 N.M. 135, 139, 860 P.2d 777, 781 (Ct. App. 11 1993). 12 CONCLUSION 13
{16} For the reasons discussed above and in our previous notice, we deny 14 Defendant’s motion to amend the docketing statement and affirm his conviction. 15
{17} IT IS SO ORDERED. 16 17

__________________________________ 18 LINDA M. VANZI, Judge 19 WE CONCUR: 2011 _________________________________ 1 CYNTHIA A. FRY, Judge 2

_________________________________ 3 M. MONICA ZAMORA, Judge 4