N.M. R. Crim. P. Dist. Ct. 5-203
N.M. R. Crim. P. Dist. Ct. 5-203
Committee commentary. - Paragraph A of this rule was derived from American Bar Association Standards Relating to Joinder and Severance, Section 1.1 (Approved Draft 1968). For decisions upholding joinder of offenses under Paragraph A of this rule, see State v. Riordan, 86 N.M. 92, 519 P.2d 1029 (Ct. App. 1974) and State v. McCallum, 87 N.M. 459, 535 P.2d 1085 (Ct. App. 1975). See Paragraph C of this rule for the provisions on severance. Joinder under Paragraph A(2) of this rule has been suggested as a possible way of avoiding double jeopardy. State v. Tanton, 88 N.M. 5, 536 P.2d 269 (Ct. App. 1975).
As a result of a supreme court order, the committee prepared amendments to Paragraph A of this rule in 1979 which changed Paragraph A of this rule from a permissive to a mandatory rule.
The 1979 supreme court order provided as follows:
When a person is charged with more than one crime and the crimes can be incorporated in one information or indictment in separate counts, this practice shall be followed.
Paragraph B of this rule, providing a liberal procedure for joinder, was derived from American Bar Association Standards Relating to Joinder and Severance, Section 1.2 (Approved Draft 1968). See Paragraph C of this rule, providing for severance to avoid an injustice which may result from joinder under Paragraph B of this rule.
Paragraph B of this rule was amended by the committee in 1979 to implement a supreme court order requiring the joinder of certain defendants. The supreme court order provided as follows:
Likewise, if the charges against more than one defendant can be properly filed in one information or indictment, the defendants shall be charged jointly under one case number.
The 1990 amendment of Rule 5-202 and Paragraph B of this rule were made at the request of the state Administrative Office of the Courts to accommodate the automation of the district courts. These amendments have no substantive effect. The 1990 amendments were made to require separate files for each defendant. The state and the defendant will be required to file separate pleadings for each defendant joined pursuant to this rule. Joinder is automatically accomplished under Paragraph B by the filing of a statement of joinder by the state contemporaneously with two or more informations, indictments and complaints. Paragraph B was amended effective August 1, 1992, to make it clear that joinder of defendants is also permissible upon motion of any party if the other conditions of Paragraph B are met.
Paragraph C of this rule was derived in part from American Bar Association Standards Relating to Joinder and Severance, Section 2.2 (Approved Draft 1968). It is almost identical to Rule 14 of the Federal Rules of Criminal Procedure. Paragraph C of this rule requires a showing of prejudice before the court is compelled to sever the trial. Some examples of when prejudice may be shown include: (1) where the defendant might wish to testify in his own behalf on one offense but not on another; see e.g., Cross v. United States, 335 F.2d 987, 989 (D.C. Cir. 1964 ); (2) where a combined trial might result in the admissibility of evidence of other crimes which would not normally be admissible under Paragraph B of Rule 11-404; see e.g., Drew v. United States, 331 F.2d 85, 90 (D.C. Cir. 1964 ).
Paragraph C of this rule also allows the court to sever a joint trial of defendants where justice requires. Some examples cited by the American Bar Association Standards Relating to Joinder and Severance, supra, include: (1) where the number of defendants or the complexity of the evidence is such that the trier of fact probably will be unable to distinguish the evidence and apply the law intelligently as to the charges against each defendant; and (2) where the defendants have antagonistic defenses.
As revised, Paragraph C of this rule allows the admission of a statement of one codefendant deleting all references to the defendant seeking the severance, provided that, as deleted, the statement does not prejudice the defendant seeking severance.
An accused's right of cross-examination, secured by the confrontation clause of the sixth amendment, is violated at the accused's joint trial with a codefendant who does not testify by admission of codefendant's confession inculpating accused, notwithstanding jury instructions that codefendant's confession must be disregarded in determining accused's guilt or innocence. Bruton v. United States, 391 U.S. 123 (1968), 88 S. Ct. 1620, 20 L. Ed. 2d 476. See Parker v. Randolph, 442 U.S. 62, 99 S. Ct. 2132, 60 L. Ed. 2d 713 (1979) for an exception to the Bruton rule allowing the admission of interlocking confessions of codefendants in certain circumstances when accompanied by an appropriate limiting instruction to the jury. See also State v. Shade & Vincent, 104 N.M. 710, 726, 726 P.2d 864 (Ct. App. 1986) (cert. quashed, Vincent v. State, 104 N.M. 702, 726 P.2d 856).
Even though the court may review the confession or statement given by a codefendant which is produced to show reason for severance, such review may be held in camera, and the statement or confession need not be made part of the record.
[As revised, April 9, 1992.]
ANNOTATIONS The 1992 amendment, effective for cases filed in the district courts on or after August 1, 1992, inserted "may be joined on motion of a party, or" near the beginning of the second sentence in Paragraph B. The 1991 amendment, effective for cases filed in the district courts on or after March 1, 1991, in Paragraph B, substituted the present introductory language for the former introductory language, which read "Two or more defendants shall initially be joined in the same complaint, indictment or information"; and, in the first sentence of Paragraph C, substituted "by the filing of a statement of joinder" for "in any complaint, indictment or information, or by joinder". Compiler's notes. - Paragraph A of this rule is similar to Rule 8(a) of the Federal Rules of Criminal Procedure. Paragraph B of this rule is similar to Rule 8(b) of the Federal Rules of Criminal Procedure. Paragraph C of this rule is similar to Rule 14 of the Federal Rules of Criminal Procedure. I. JOINDER OF OFFENSES. Preservation of improper joinder claim. - To preserve an improper joinder claim, a defendant must raise the claim prior to trial pursuant to Paragraph C of Rule 5-601 NMRA and ground the claim in the criteria enumerated in Paragraph A or Rule 5-203 NMRA. State v. Paiz, 2011-NMSC-008, 149 N.M. 412, 249 P.3d 1235. Showing of prejudice not required for severance of improperly joined offenses. - At the trial level, a severance of improperly joined offenses under Paragraph A of Rule 5-203 NMRA does not require a showing of prejudice. The defendant only has to show that the offenses joined in the indictment, information, or complaint do not meet the criteria for joinder under Paragraph A of Rule 5-203 NMRA. If the trial court finds that the defendant has made this showing, the trial court should sever the improperly joined offenses. State v. Paiz, 2011-NMSC-008, 149 N.M. 412, 249 P.3d 1235. Factors to determine whether actual prejudice resulted from improper joinder of offenses. - The improper joinder of offenses is subject to a harmless error analysis. The factors set forth in State v. Gallegos, 2007-NMSC-007, 141 N.M. 185, 152 P.3d 828 to determine whether a defendant was actually prejudiced by the proper joinder of offenses are relevant to determine whether the improper joinder of offenses actually prejudiced the defendant or if it resulted in a harmless error. State v. Paiz, 2011-NMSC-008, 149 N.M. 412, 249 P.3d 1235. Improperly joined offense resulted in actual prejudice. - Where a confrontation between defendant and others resulted in a shooting where one victim was killed and three other victims were injured; during a search of defendant's residence for evidence relating to the shooting, the police found cocaine and drug paraphernalia; defendant was charged with murder, shooting at a motor vehicle, various counts of aggravated battery with a deadly weapon, tampering with evidence, and drug trafficking; defendant filed a motion before trial to sever the drug trafficking charge; the motion specifically outlined the grounds for joinder in Paragraph A of Rule 5-203 NMRA; neither party argued that the shooting had any relationship to the trafficking of drugs; the main focus of the state's case-in-chief was the charges relate to the shooting; the drug trafficking charge comprised a small portion of the state's case-in-chief and there was little evidence linking defendant to drug trafficking; and the trial court did not emphasize to the jury that they should consider the evidence related to the shooting charges independently of the evidence related to the drug trafficking charge, Paragraph A of Rule 5-203 NMRA was violated when the drug trafficking count was joined to the counts related to the shooting and the improper joinder resulted in actual prejudice to defendant which was not harmless error. State v. Paiz, 2011-NMSC-008, 149 N.M. 412, 249 P.3d 1235. Felon in possession of a firearm charge. - The denial of the defendant's motion to sever his felon in possession of a firearm charge from his other charges was not error where the defendant pled guilty to the felon in possession of a firearm charge prior to trial. State v. Dominguez, 2007-NMSC-060, 142 N.M. 811, 171 P.3d 750. If multiple charges logically arise from the same episode or acts of a similar nature, then they may be tried together. State v. Hernandez, 1986-NMCA-040, 104 N.M. 268, 720 P.2d 303. Generally. - As a statement of judicial policy rather than a rule of law the supreme court does not intend to encourage or approve piecemeal prosecution, which involves a myriad of problems threatening the existence of the state's judicial system. The risk of prejudice to the accused and the waste of time inherent in multiple trials both perpetuate delays in the judicial process and unconscionable expenditures of public funds, all of which could be avoided by prosecutors getting their facts straight, their theories clearly in mind and trying all charges together. State v. Tanton, 1975-NMSC-057, 88 N.M. 333, 540 P.2d 813. Joinder of crimes based in the same conduct is mandatory. - Failure to join crimes based in the same conduct bars piecemeal persecution in a subsequent trial. State v. Gonzales, 2013-NMSC-016, 301 P.3d 380, aff'd on other grounds, 2011-NMCA-081, 150 N.M. 494, 263 P.3d 271. Failure to join crimes based in the same conduct. - Where defendant, who was drunk and driving recklessly, crashed into another vehicle, killing a child; defendant was charged with child abuse resulting in death; the State did not charge defendant with vehicular homicide; defendant's conviction of child abuse resulting in death was reversed by the Court of Appeals for insufficient evidence; and the State then sought to prosecute defendant for vehicular homicide based on the same conduct against the same victim, the State was barred from subsequently prosecuting defendant for vehicular homicide because the State violated the mandatory joinder rule. State v. Gonzales, 2013-NMSC-016, 301 P.3d 380, aff'd on other grounds, 2011-NMCA-081, 150 N.M. 494, 263 P.3d 271. Compulsory joinder rule. - Where defendant was initially charged with assault with intent to commit murder, and where the district court directed a verdict on the charged offense and then sua sponte instructed the jury on a new and different charge of aggravated assault with a deadly weapon after the close of evidence, the district court's failure to properly instruct the jury on aggravated assault with a deadly weapon resulted in a bar to a subsequent prosecution on aggravated assault with a deadly weapon, because aggravated assault with a deadly weapon is not a lesser included offense of assault with intent to commit murder, and therefore defendant was not put on notice that he had to defend against aggravated assault with a deadly weapon, and the compulsory joinder rule bars subsequent prosecutions of charges not joined in the original trial that stem from the same conduct. State v. Radosevich, 2016-NMCA-060, 376 P.3d 871, rev'd on other grounds, 2018-NMSC-028. Rule permits joinder of additional offenses post-indictment, but prior to case being submitted to a jury. - Where defendant was charged in two separate cases after he allegedly surreptitiously videotaped the minor daughter (victim) of his former girlfriend unclothed in her bathroom, and where defendant, in his motion to dismiss the second indictment, claimed that the state was required under Rule 5-203 NMRA to bring all charges related to defendant's alleged videotaping of victim in a single indictment and that because the state chose not to pursue the charges in a single indictment, dismissal of his second case was appropriate, the district court did not err in denying defendant's motion to dismiss but should have granted the pretrial motion to join the two cases, because the offenses in both cases were related to defendant's alleged videotaping of victim in her bathroom, were of the same or similar character or based on the same conduct or on a series of acts either connected together or constituting parts of a single scheme or plan, and because Rule 5-203 NMRA permits additional offenses to be joined post-indictment, but prior to a case being submitted to a jury. State v. Webb, 2017-NMCA-077. Joinder of DWI and speeding not required where the offenses are not based on the same conduct. - Where defendant was stopped by law enforcement for driving 111 miles per hour in a 55 mile-per-hour zone, and was subsequently determined to be driving while impaired, and where the state charged defendant with third degree felony DWI, which was later changed to a misdemeanor DWI, and with speeding in a separate magistrate court cause, the district court did not err in denying defendant's motion to dismiss the DWI charge where defendant claimed that joinder of the two cases was compulsory, because the speeding offense played no part in the per se DWI charge, and thus the offenses are not of the same or similar character, nor are the offenses based on the same conduct. State v. Aragon, 2017-NMCA-005. Review of evidence on motion for consolidation. - A motion for consolidation necessitates a review of the evidence to determine whether the charges logically arise from the same episode or acts of a similar nature. State v. Burdex, 1983-NMCA-087, 100 N.M. 197, 668 P.2d 313. Abatement of inferior court proceedings. - Proceedings pending in an inferior court ought to be abated when charges are instituted in district court in relation to the same episode. Since such procedures would promote judicial economy, the overriding state interest being the efficient prosecution of all crimes and especially felonies, a defendant in such a situation would have a right to move the inferior court for an abatement to abide the event in district court and should a defendant in such a case, for whatever reason, fail to so move, he might well have thereby waived any right to complain of piecemeal prosecution. State v. Tanton, 1975-NMSC-057, 88 N.M. 333, 540 P.2d 813. Effect of misjoinder. - An information shall not be invalid or insufficient because of a misjoinder of the offenses charged. State v. Everitt, 1969-NMCA-010, 80 N.M. 41, 450 P.2d 927. Where joinder proper. - Where two counts of fraud and one count of conspiracy to defraud arose from unfinished construction contracts, including contracts for the remodeling of homes and contracts for the purchase of materials for such remodelings, joinder was proper. State v. McCallum, 1975-NMCA-030, 87 N.M. 459, 535 P.2d 1085, cert. denied, 87 N.M. 457, 535 P.2d 1083. Three sales of controlled substances by the defendant to the same individual in the same community and all within a comparatively short period of time clearly constitute the kind of situation intended to be covered by this rule. State v. Riordan, 1974-NMCA-013, 86 N.M. 92, 519 P.2d 1029. It is not a denial of due process for a prosecutor to include in a criminal information two misdemeanor charges arising out of the same incident as the felony charge. State v. Riddall, 1991-NMCA-033, 112 N.M. 78, 811 P.2d 576. In this case, the bank robberies were similar and distinctive and the cars used in the bank robberies were stolen using a distinctive method. The tampering-with-evidence charge involved altering or hiding a gun allegedly used in both the murder and the bank robberies. All of the charges were clearly related to crimes that were the same, similar, a series of connected acts, or part of a single scheme or plan. Thus, all of the crimes charged were subject to joinder under Paragraph A. State v. Griffin, 1993-NMSC-071, 116 N.M. 689, 866 P.2d 1156. Since there was admissible evidence tending to show that the two alleged offenses were committed in a similar manner and by a single individual, the trial court did not err in rejecting the defendant's motion for severance. State v. Jones, 1996-NMCA-020, 121 N.M. 383, 911 P.2d 891, aff'd, 1997-NMSC-016, 123 N.M. 73, 934 P.2d 267. Where defendant stabbed the victim and then slashed the tires on the vehicles in the victim's driveway, defendant's charged offenses of murder and criminal damage to property were properly joined because the offenses were based on the same conduct or on a series of acts either connected together or constituting parts of a single scheme or plan; the tire slashing evidence explained defendant's blood spatters on or near the vehicles, which helped to place defendant at the scene of the murder and show the intermingling of his and the victim's blood; as well, in a separate trial for criminal damage, the evidence of the homicide is evidence of defendant's motive for slashing the tires, and the stabbing evidence is also necessary background for why defendant's and the victim's DNA were mingled in blood spatter on or near the vehicles, crucial evidence placing defendant at the scene of the criminal damage. Since the evidence in either case would be cross-admissible, the evidence did not prejudice defendant and the trial court did not abuse its discretion by refusing to sever the two cases. State v. Smith, 2016-NMSC-007. Alternative charge held improper. - A complaint charging defendants with larceny over $2,500 or, in the alternative, possession of stolen property having a value over $2,500, did not comply with this Rule. State v. Stephens, 1990-NMCA-081, 110 N.M. 525, 797 P.2d 314). Failure to sever not ineffective assistance. - Defendant's right to effective assistance of counsel was not violated by defense counsel's failure to move to sever the count of possession of a firearm by a felon from counts of first-degree murder and shooting into an occupied motor vehicle. Joinder of the felon in possession charge with the other charges was not per se prejudicial and the prior felony of vehicular homicide was so dissimilar from charges of murder or shooting into an occupied vehicle that its introduction into evidence was insufficient to cause defendant undue prejudice and require severance. State v. Gonzales, 1992-NMSC-003, 113 N.M. 221, 824 P.2d 1023. Insufficient showing of prejudice. - Assertion by defendant, charged with attempted murder and attempted armed robbery, that attempted murder charge was overemphasized and poisoned the minds of the jury and that the two charges were not part of the same transaction did not make sufficient affirmative showing of prejudice to show error in motion for severance. State v. Paul, 1972-NMCA-043, 83 N.M. 619, 495 P.2d 797. Joinder of two informations, one charging three counts of aggravated burglary, three counts of second degree criminal sexual penetration (CSP II), and one count of CSP III, and the other, one count of aggravated burglary and one count of attempted CSP II, did not result in prejudice so great as to deny defendant a fair trial. Lucero v. Kerby, 133 F.3d 1299 (10th Cir.), cert. denied, 523 U.S. 1110, 118 S. Ct. 1684, 140 L. Ed. 2d 821 (1998). Severance within trial court's discretion. - Though joinder of offenses in an indictment is authorized by this rule, severance of the counts for trial is a matter of discretion for the trial court. State v. McCall, 1983-NMCA-109, 101 N.M. 616, 686 P.2d 958, rev'd on other grounds, 1984-NMSC-007, 101 N.M. 32, 677 P.2d 1068. Where no prejudice, no error in refusing to sever counts. - Where the strength and quality of the evidence on the various counts convinces the appellate court that the defendant was not prejudiced by the failure to sever multiple counts submitted to the jury, the trial court did not err in refusing to sever. State v. Montano, 1979-NMCA-101, 93 N.M. 436, 601 P.2d 69, cert. denied, 93 N.M. 683, 604 P.2d 821. Defendant was not prejudiced by court's denial of his motion to sever trial on robbery and murder charges from trial on drug paraphernalia charges; jury was competent to evaluate the drug evidence separately from the robbery and murder evidence. State v. Duffy, 1998-NMSC-014, 126 N.M. 132, 967 P.2d 807. In a prosecution for murder, the trial court did not abuse its discretion in joining escape charges because the court determined properly that escape evidence would be cross-admissible in separate trials and weighed the probative value against the danger of unfair prejudice. State v. Jacobs, 2000-NMSC-026, 129 N.M. 448, 10 P.3d 127. II. JOINDER OF DEFENDANTS. Generally. - So far as concerns essentials in the ascertainment of truth and the administration of justice, a joint trial of two defendants on two separate indictments for one crime differs in no respect from a single trial of the same defendants joined in one indictment for the identical crime. State v. Fagan, 1967-NMCA-032, 78 N.M. 618, 435 P.2d 771 (decided under former law). Conspiracy charge. - Trial of multiple defendants was properly joined under Subdivisions (b) and (c) (see now Paragraphs B(1) and B(2)) where conspiracy was charged against all and it was difficult, if not impossible, to separate the proof as to each defendant without leaving gaps in the testimony. State v. Johnston, 1982-NMCA-083, 98 N.M. 92, 645 P.2d 448. Denial of motion to sever is not error where the charges contained in the indictment grew out of an alleged crime spree by the defendant and his codefendants and the victims of the robberies testify as to certain similarities in the modus operandi and patterns of the crimes. State v. Burdex, 1983-NMCA-087, 100 N.M. 197, 668 P.2d 313. III. MOTION FOR SEVERANCE. Severance of felon in possession charge. - A trial judge is required to sever or bifurcate a felon in possession charge when the trial judge determines that prior felony evidence is not cross-admissible. The trial judge may exercise discretion only as to whether to sever or bifurcate in considering the competing advantages and disadvantages of the two alternatives. State v. Garcia, 2011-NMSC-003, 149 N.M. 185, 246 P.3d 1057, modifying State v. Dominguez, 2007-NMSC-060, 142 N.M. 811, 171 P.3d 750. Severance as matter of right. - Where it was obvious to the trial court that the prosecution intended to use one defendant's illegally induced confession at the joint trial, and that evidence would not have been admissible at separate trials of either of the other two defendants, those defendants were entitled to severance of their trials as a matter of right, and failure to sever their trials constituted reversible error. State v. Benavidez, 1975-NMCA-013, 87 N.M. 223, 531 P.2d 957 (decided prior to 1980 amendment). Rule explicitly requires prejudice and prejudice only. State v. Volkman, 1974-NMCA-079, 86 N.M. 529, 525 P.2d 889. Fact that two charges are joined in one trial does not, in itself, show legal prejudice to defendant. State v. Silver, 1971-NMCA-112, 83 N.M. 1, 487 P.2d 910 (decided under former law). To obtain a severance, defendant must prove he was prejudiced. State v. Gallegos, 1989-NMCA-066, 109 N.M. 55, 781 P.2d 783. Failure to sever multiple counts not error where defendant not prejudiced. - Where the strength and quality of the evidence on various counts convinces the appellate court that the defendant was not prejudiced by the failure to sever multiple counts submitted to the jury, the trial court did not err in refusing to sever. State v. Montano, 1979-NMCA-101, 93 N.M. 436, 601 P.2d 69, cert. denied, 93 N.M. 683, 604 P.2d 821. Failure to sever two counts of forgery arising from two separate incidents involving alteration of bingo cards did not prejudice defendant where evidence of the two offenses would be independently admissible in separate trials to prove the essential elements of intent and knowledge. State v. Nguyen, 1997-NMCA-037, 123 N.M. 290, 939 P.2d 1098. When failure to request findings constitutes waiver. - The failure to request findings by the trial court when they are required by this rule could be construed as a waiver. However, where the state stipulated that it would present a confession against one defendant and admitted that this hearsay evidence would not be admissible in a separate trial of the moving defendants, no findings were necessary and there was no waiver. State v. Volkman, 1974-NMCA-079, 86 N.M. 529, 525 P.2d 889. Motion for severance of defendants is waived if it is not made before trial or before or at the close of all the evidence. State v. Garcia, 1972-NMCA-142, 84 N.M. 519, 505 P.2d 862, cert. denied, 84 N.M. 512, 505 P.2d 855. Bad reputation or conviction not sufficient ground for severance. - It is insufficient ground for severance that other defendants have bad reputations or have confessed to or been convicted of other crimes. State v. Aull, 1967-NMSC-233, 78 N.M. 607, 435 P.2d 437, cert. denied, 391 U.S. 927, 88 S. Ct. 1829, 20 L. Ed. 2d 668 (1968) (decided under former law). The bad reputation of codefendants does not require severance. State v. Johnston, 1982-NMCA-083, 98 N.M. 92, 645 P.2d 448. Defendant prejudiced where evidence of one burglary interspersed with that of another burglary. - Where defendant objected to consolidated trials and filed a motion for separate trials of two burglaries because the alleged felonies occurred at different times and places, and related to property belonging to different owners, but where the motion was denied, and evidence given at trial of facts pertaining to the one alleged burglary was interspersed with that of other alleged burglary, the trial court's denial of severance was prejudicial to defendant and constituted an abuse of discretion. State v. Johnson, 1972-NMCA-082, 84 N.M. 29, 498 P.2d 1372. Control of procedural matters where defendant acts contrary to counsel's advice. - Where defendant claimed there was an abuse of discretion because the trial court acceded to his express wish not to have the counts severed when court-appointed counsel, directed to remain on the case by the trial court, was asking for a severance, and that the trial court thus ignored counsel's control over procedural matters, then defendant was representing himself in connection with the motion and proceeding contrary to counsel's advice and the court could not say that counsel, at the time, was controlling the matter. There was no abuse of discretion in these circumstances. State v. Clark, 1971-NMCA-176, 83 N.M. 484, 493 P.2d 969, cert. denied, 83 N.M. 473, 493 P.2d 958 (1972) (decided under former law). Review of evidence on motion for severance. - A motion for severance necessitates a review of the evidence to determine whether the charges logically arise from the same episode or acts of a similar nature. State v. Burdex, 1983-NMCA-087, 100 N.M. 197, 668 P.2d 313. Numerous counts insufficient to establish prejudice to defendant. - A claim that a criminal prosecution involves too many counts to try at one time is insufficient in and of itself to establish prejudice to the defendant. State v. Burdex, 1983-NMCA-087, 100 N.M. 197, 668 P.2d 313. Conviction not reversed if evidence against joint defendant is not crucial. - Even where the trial court errs in failing to find that the prosecution will probably present evidence against a joint defendant which would not be admissible in a separate trial of the moving defendant, supreme court will not reverse a defendant's conviction if said error is harmless and the evidence admitted is not crucial to a determination of the defendant's guilt. State v. Rondeau, 1976-NMSC-044, 89 N.M. 408, 553 P.2d 688. Where no showing, that joinder of counts was prejudicial. - The trial court did not abuse its discretion in denying the defendant's motion for a complete severance as to all counts of fraud and conspiracy where there was no showing by the defendant that joinder of the counts in the trial resulted in prejudice, and evidence of the other counts was admissible whether the counts were severed or not. State v. McCallum, 1975-NMCA-030, 87 N.M. 459, 535 P.2d 1085, cert. denied, 87 N.M. 457, 535 P.2d 1083. No severance where jury separates evidence. - Where several codefendants were jointly indicted for aggravated battery, but where the jury was able to separate the evidence against each defendant and differentiate among degrees of culpability, the trial court correctly refused to sever the defendants' trial. State v. Dominguez, 1993-NMCA-042, 115 N.M. 445, 853 P.2d 147. Severance is within court's discretion. - Severance of cases is a matter of procedure which is addressed to the sound discretion of the trial court. State v. Baca, 1973-NMCA-054, 85 N.M. 55, 508 P.2d 1352; State v. Robinson, 1979-NMCA-001, 93 N.M. 340, 600 P.2d 286, cert. denied, 92 N.M. 532, 591 P.2d 286, overruled on other grounds by Santillanes v. State, 1993-NMSC-012, 115 N.M. 215, 849 P.2d 358; State v. Pacheco, 1990-NMCA-071, 110 N.M. 599, 798 P.2d 200. This rule leaves the decision to grant or deny a separate trial largely in the hands of the trial court. State v. McGill, 1976-NMCA-100, 89 N.M. 631, 556 P.2d 39; State v. Schifani, 1978-NMCA-080, 92 N.M. 127, 584 P.2d 174, cert. denied, 92 N.M. 180, 585 P.2d 324. Though joinder of offenses in an indictment is authorized, severance of the counts for trial is a matter of discretion for the trial court. State v. McCall, 1983-NMCA-109, 101 N.M. 616, 686 P.2d 958, rev'd on other grounds, 1984-NMSC-007, 101 N.M. 32, 677 P.2d 1068. Evidence, inadmissible in a separate trial, was admitted in a joint trial. - Where defendant was convicted of murdering two victims and sexual criminal penetration of the second victim; the trial court permitted the State to present all the evidence of each separate murder and the criminal sexual penetration in a joint trial; much of the evidence was not cross admissible under Rule 11-404 NMRA as an exception to the prohibition on propensity evidence and had a potential for significant prejudicial effect because it showed that each murder involved a particularly gruesome killing of the victim and that defendant changed defendant's story about the second murder multiple times; the state intertwined the facts of the two murders in its opening statement, its case in chief, and in its closing statements by portraying the crimes as having a common theme, by alternating its discussion and presentation of evidence between the two murders rather than discussing and presenting evidence of one murder and then separately discussing and presenting evidence of the other murder, and by relying on the jury's knowledge of the second murder to discredit defendant with regard to the first murder; and the state relied on the evidence of defendant's actions and statements in relation to the second murder to prove that defendant committed the first murder, the trial court committed reversible error, not harmless error, by failing to sever the murder charges into separate trials. State v. Lovett, 2012-NMSC-036, 286 P.3d 265. There is no error unless abuse prejudices defendant. - Granting or denial of severance of cases must not be disturbed unless there is a clear showing of abuse of discretion which results in prejudice to the defendant. State v. Baca, 1973-NMCA-054, 85 N.M. 55, 508 P.2d 1352. Trial court's denial of motion for severance of offenses is not error absent a showing of an abuse of discretion which results in prejudice to defendant. State v. Clark, 1971-NMCA-176, 83 N.M. 484, 493 P.2d 969, cert. denied, 83 N.M. 473, 493 P.2d 958 (1972). The appellate issue is whether the trial court abused its discretion in denying the motion to sever. State v. McGill, 1976-NMCA-100, 89 N.M. 631, 556 P.2d 39; State v. Schifani, 1978-NMCA-080, 92 N.M. 127, 584 P.2d 174, cert. denied, 92 N.M. 180, 585 P.2d 324; State v. Robinson, 1979-NMCA-001, 93 N.M. 340, 600 P.2d 286, cert. denied, 92 N.M. 532, 591 P.2d 286, overruled on other grounds by Santillanes v. State, 1993-NMSC-012, 115 N.M. 215, 849 P.2d 358. The denial of the request for severance is not a basis for reversal unless abuse of discretion and prejudice is shown. State v. Silver, 1971-NMCA-112, 83 N.M. 1, 487 P.2d 910 (decided under former law). Abuse of discretion in denying severance. - District court abused its discretion in denying a severance at defendant's trial for three crimes involving larceny and fraudulent signing of a credit card, where the crimes charged in the indictment were remote in both time and place of occurrence, defendant's modi operandi were not similar in each crime, and the victims of the crimes were all different, as were the articles stolen or attempted to be stolen. State v. Gallegos, 1989-NMCA-066, 109 N.M. 55, 781 P.2d 783. One test for abuse of discretion in denying motion to sever charges is whether prejudicial testimony, inadmissible in a separate trial, is admitted in a joint trial. State v. Jones, 1995-NMCA-073, 120 N.M. 185, 899 P.2d 1139. Insufficient evidence of endangerment by medical neglect. - Where defendant, whose six-month-old baby died from a loss of blood associated with blunt abdominal trauma and a lacerated liver, was found not guilty of inflicting the injuries, but was convicted of negligently permitting endangerment by medical neglect, the State was required to put forth substantial evidence that defendant's neglect, failing to obtain medical care earlier, resulted in the child's death, but the state failed to present any evidence that defendant's neglect contributed to the child's death. Without some evidence to establish a causal connection between defendant's neglect and the death of the child, there was insufficient evidence to support defendant's conviction for endangerment by medical neglect. State v. Nichols, 2016-NMSC-001, rev'g 2014-NMCA-040, 321 P.3d 937. Denial of severance held proper. - Where defendant was charged with child abuse due to medical negligence resulting in the death of one of defendant's twin six-month-old babies and child abuse of the other twin baby who did not die; defendant filed a motion seeking severance of and separate trial on the charges relating to the surviving baby on the ground that at a joint trial, the State would introduce evidence of the surviving baby's injuries that was not independently admissible on the charges relating to the deceased baby; the jury found defendant not guilty of the charges relating to the surviving baby; and defendant did not demonstrate how the admission of evidence relating to the surviving baby caused prejudice to defendant's defense on the charge relating to the deceased baby, defendant was not entitled to a new trial on the charge relating to the deceased baby. State v. Nichols, 2014-NMCA-040, cert. granted, 2014-NMCERT-003. Where defendant was charged with felony possession of a firearm, felony murder, armed robbery, and tampering with evidence; the judgment and sentence order from defendant's prior felonies was admitted into evidence; the state never identified the names or any detail of the prior offenses, only generically mentioned the fact of the prior offenses as an element of the felon in possession charge, and avoided any other mention of the prior crimes; there was substantial evidence, aside from the reference to the prior felonies, to support defendant's convictions of felony murder, armed robbery, and tampering with evidence; the court instructed the jury to consider each charged offense separately; and the charged offenses were of a dissimilar nature, the failure of the court to sever the felon in possession charge from the other charges did not prejudice defendant and constituted harmless error. State v. Garcia, 2011-NMSC-003, 149 N.M. 185, 246 P.3d 1057. On defendant's claim that the number of armed robbery charges (six), for which he was jointly tried, prejudiced him as a matter of law, consideration was given to the fact severance was discretionary with the trial court, that evidence as to certain of the charges was admissible on other charges and that the jury acquitted the defendant of some of the charges, and the trial court's denial of the motion to sever was upheld. State v. McGill, 1976-NMCA-100, 89 N.M. 631, 556 P.2d 39. A denial of a motion to sever is not error where the charges contained in the indictment grew out of an alleged crime spree by the defendant and his codefendants and the victims of the robberies testify as to certain similarities in the modus operandi and patterns of the crimes. State v. Burdex, 1983-NMCA-087, 100 N.M. 197, 668 P.2d 313. A severance is not required when defendant simply wants to testify on one count but not on the other. State v. Foye, 1983-NMCA-118, 100 N.M. 385, 671 P.2d 46. Trial court's decision denying defendant's motion to sever his trial did not result in reversible error where evidence of defendant's guilt on drug possession charge was overwhelming and trial court's instruction would have sufficed to cure any prejudice had the possession offense been the only charge. State v. Roybal, 1992-NMCA-114, 115 N.M. 27, 846 P.2d 333. The trial court did not err in denying defendant's motion to sever counts of fraud and receiving a bribe from other counts where there was no evidence the multiplicity of charges confused the jury, the multiplicity of charges were not cumulative, and the counts were predicate offenses for a racketeering charge. State v. Armijo, 1997-NMCA-080, 123 N.M. 690, 944 P.2d 919. Denial of severance proper where evidence is cross-admissible in separate trials. - The trial court did not abuse its discretion in denying motion for severance where defendant could not show prejudice from joinder of charges because evidence of multiple charges would have been cross-admissible in separate trials pursuant to Rule 11-404 NMRA. State v. Flores, 2015-NMCA-002, cert. granted, 2014-NMCERT-012. Where substantial evidence supported each conviction, adverse evidence was relevant to each charge and jury applied evidence to each count, trial court did not abuse its discretion in denying motion to sever the three counts against the defendant for trial. State v. Schifani, 1978-NMCA-080, 92 N.M. 127, 584 P.2d 174, cert. denied, 92 N.M. 180, 585 P.2d 324. Dual jury trials. - The use of dual juries is a modified form of severance and is reviewed under the same standard of review as an action on a motion to sever, i.e., defendant must show abuse of discretion and prejudice. State v. Padilla, 1998-NMCA-088, 125 N.M. 665, 964 P.2d 829, cert. denied, 125 N.M. 322, 961 P.2d 167. Law reviews. - For survey, "Children's Court Practice in Delinquency and Need of Supervision Cases Under the New Rules," see 6 N.M.L. Rev. 331 (1976). Am. Jur. 2d, A.L.R. and C.J.S. references. - 1 Am. Jur. 2d Actions § 70 et seq.; 21 Am. Jur. 2d Criminal Law § 20. Appealability of order sustaining demurrer, or its equivalent, to complaint on ground of misjoinder or nonjoinder of parties or misjoinder of causes of action, 56 A.L.R.2d 1238. Consolidated trial upon several indictments or informations against same accused, over his objection, 59 A.L.R.2d 841. Propriety of use of multiple juries at joint trial of multiple defendants in state criminal prosecution, 41 A.L.R.4th 1189. Joinder of offenses under Rule 8(a), Federal Rules of Criminal Procedure, 39 A.L.R. Fed. 479. Defendant's right, under Rule 14, Federal Rules of Criminal Procedure, to severance in federal criminal trial because of codefendant's identification with an unpopular group, 40 A.L.R. Fed. 937. What constitutes "series of acts or transaction" for purposes of Rule 8(b) of Federal Rules of Criminal Procedure, providing for joinder of defendants who are alleged to have participated in same series of acts or transaction, 62 A.L.R. Fed. 106. 1A C.J.S. Actions §§ 154 to 176.