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 1          IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

 2 STATE OF NEW MEXICO,

 3          Plaintiff-Appellee,

 4 v.                                                                            No.    30,317

 5 JOSE LUIS CORTINA,

 6          Defendant-Appellant.


 7 APPEAL FROM THE DISTRICT COURT OF DOÑA ANA COUNTY
 8 Douglas R. Driggers, District Judge

 9 Gary K. King, Attorney General
10 Margaret McLean, Assistant Attorney General
11 Santa Fe, NM

12 for Appellee

13 Bennett J. Baur, Acting Chief Public Defender
14 Carlos Ruiz de la Torre, Assistant Appellate Defender
15 Santa Fe, NM

16 for Appellant


17                                 MEMORANDUM OPINION

18 BUSTAMANTE, Judge.
 1   {1}   Convicted after two trials of twelve counts of criminal sexual penetration of a

 2 minor and six counts of criminal sexual contact with a minor, Jose Luis Cortina

 3 (Defendant) appeals. Defendant alleges a number of errors by the district court, as

 4 well as violation of his speedy trial and due process rights, insufficiency of the

 5 evidence, and ineffective assistance of counsel. We reverse his convictions for one

 6 count of vaginal penetration, one count of anal penetration, and one count of criminal

 7 sexual contact. We affirm the remainder of the convictions.

 8 I.      BACKGROUND

 9   {2}   Defendant was indicted in August 2005 on twenty-seven counts, including

10 criminal sexual penetration of a minor (CSPM) and criminal sexual contact with a

11 minor (CSCM). The indictment alleged one act of vaginal penetration, one act of anal

12 penetration, and one act of touching the victim’s (Child’s) breasts each month from

13 September 2004 to May 2005. After a three-day trial in March 2007, the district court

14 declared a mistrial when the jury could not agree on the verdict. The State filed a

15 nolle prosequi dismissing nine counts of the indictment corresponding to December

16 2004, January 2005, and February 2005. A second trial on the remaining eighteen

17 counts took place nearly a year later. Defendant was convicted of twelve counts of

18 CSPM and six counts of CSCM. Additional facts are provided hereafter as necessary

19 for our discussion of Defendant’s arguments.


                                              2
 1 II.     DISCUSSION

 2   {3}   Defendant makes nine separate arguments. Four address the district court’s

 3 denial or grant of motions at trial and are reviewed together for an abuse of discretion.

 4 We review a fifth argument related to the district court’s denial of Defendant’s motion

 5 for a mistrial for fundamental error. Next we review Defendant’s two constitutional

 6 arguments de novo. Finally, we assess whether any rational trier of fact could have

 7 convicted Defendant based on the evidence presented and whether Defendant was

 8 ineffectively represented at trial.

 9   {4}   Defendant alleges that the district court abused its discretion by (1) denying

10 Defendant’s motion for an independent psychological evaluation of Child, (2)

11 granting the State’s motion to exclude expert testimony on child victims of sexual

12 abuse, (3) granting the State’s motion to exclude expert testimony about Defendant’s

13 lack of pedophilic tendencies, and (4) denying Defendant’s motion for a mistrial after

14 a witness testified that Defendant was incarcerated.

15   {5}   We review the district court’s grant or denial of evidentiary motions for an

16 abuse of discretion. State v. Layne, 2008-NMCA-103, ¶ 6, 144 N.M. 574, 189 P.3d

17 707; see State v. Ruiz, 2001-NMCA-097, ¶¶ 38, 40, 131 N.M. 241, 34 P.3d 630.

18 Similarly, the grant or denial of a motion for mistrial is within the district court’s

19 discretion. State v. Ruiz, 2003-NMCA-069, ¶ 6, 133 N.M. 717, 68 P.3d 957. “An


                                               3
 1 abuse of discretion occurs when the ruling is clearly against the logic and effect of the

 2 facts and circumstances of the case. We cannot say the trial court abused its discretion

 3 by its ruling unless we can characterize it as clearly untenable or not justified by

 4 reason.” State v. Rojo, 1999-NMSC-001, ¶ 41, 126 N.M. 438, 971 P.2d 829 (internal

 5 quotation marks and citations omitted).

 6 Independent Psychological Evaluation of Child

 7   {6}   Defendant argues that the district court erred in denying his motion for a

 8 forensic psychological evaluation of Child. He contends that the district court’s denial

 9 “deprived [him] of his constitutional right to confront the [S]tate’s evidence in the way

10 necessary to his defense[,]” because an evaluation “could have illustrated ways in

11 which [C]hild’s recollection and testimony might have been distorted by . . . [a]

12 suggestive pamphlet and/or interactions with her grandmother, or through coaching.”

13 The State responds that “Defendant made no showing . . . that a psychological

14 examination would have led to the discovery of information relevant to the issue of

15 [Child]’s credibility” and that, therefore, “[t]he district court properly exercised its

16 discretion to deny Defendant’s proposed fishing expedition into [Child]’s

17 psychology.”

18   {7}   When a victim’s mental state is an essential element of the crime or placed in

19 issue by the State, it is an abuse of discretion to deny a motion for a psychological


                                               4
 1 examination of the victim. See Ruiz, 2001-NMCA-097, ¶ 38. When this is not the

 2 case, a defendant must demonstrate a “compelling need,” which exists when “the

 3 probative value of the evidence reasonably likely to be obtained from the examination

 4 outweighs the prejudicial effect of such evidence and the prosecutrix’ right of

 5 privacy.” Id. ¶ 40 (internal quotation marks and citation omitted). This balancing test

 6 is within the discretion of the district court. Id.

 7   {8}   Here, Child’s mental state is not an essential element of the crimes charged, nor

 8 does Defendant argue that the State has placed her mental state in issue. Rather, he

 9 argues that he demonstrated a compelling need for the examination. We do not agree.

10 Defendant argued in his motion that the purpose of the examination was

11         to determine whether [Child] was coached; whether [Child’s] account of
12         the alleged incident is reliable and valid; whether her ability to
13         distinguish fact from fantasy is reliable and valid; whether her statements
14         are consistent from the safe house interview and the victim assessment
15         forensic evaluation; . . . whether she has strong emotions and or [sic]
16         feelings about the alleged incidents which occurred and lastly to
17         determine whether [Child] shows any evidence of malingering.

18 At the motion hearing, Defendant argued that Child’s lack of detail about the dates of

19 the offenses, inconsistencies in her safe house interview, and irregularities in the safe

20 house interview suggested the need for a psychological examination. He argued that

21 the examination would “determine . . . whether she can differentiate between fact and

22 fantasy, . . . whether she was coached, [and] whether she has a good memory” and that


                                               5
 1 an examination “would . . . help with the organizational structure of the trial.”

 2 Defendant does not explain on appeal why investigation and cross-examination were

 3 inadequate to explore these issues. Thus, Defendant fails to “show[] a reasonable

 4 likelihood that a psychological examination would have produced probative evidence

 5 relating to [Child]’s credibility—much less that the probative evidence would have

 6 outweighed the prejudicial effect of the evidence and [Child]’s privacy interests.”

 7 State v. Dombos, 2008-NMCA-035, ¶ 31, 143 N.M. 668, 180 P.3d 675.

 8   {9}    To the extent that Defendant asks that we consider a Kansas case that sets out

 9 a six-part test for when there is a compelling need for a psychological examination,

10 we decline to do so. See State v. Price, 61 P.3d 676, 681-82 (Kan. 2003). The test in

11 New Mexico has been succinctly stated, and there is no reason for us to turn to other

12 jurisdictions. See Ruiz, 2001-NMCA-097, ¶ 40. We find no error in the district

13 court’s denial of Defendant’s motion for a psychological examination of Child.

14 Expert Testimony Regarding Child’s Safe House Interview

15   {10}   Defendant next argues that the district court erred when it granted the State’s

16 motion to exclude testimony by a psychologist whom Defendant asked to provide an

17 “opinion about the evidence obtained during a [s]afe [h]ouse interview of [Child].”

18 He maintains that this Court should order a new trial because exclusion of the expert’s

19 testimony prevented him from “demonstrat[ing] that [Child] might have been coached


                                               6
 1 or at least influenced to make statements against him by her maternal grandmother.”

 2 The State argues that Defendant’s argument is unpreserved either because Defendant

 3 failed to provide the district court with enough information on which to rule on the

 4 motion or because there was no post-ruling offer of proof in the record from which

 5 this Court may assess the excluded evidence.

 6   {11}   On appeal, Defendant argues that the expert’s “testimony would have laid a

 7 necessary predicate and important framework in which the jury might have regarded

 8 important issues present in the case concerning the context in which [Child] made

 9 statements.” Defendant argues that “[t]he defense’s strategy in this case was no

10 different from that in [State v.] Campbell,” in which this Court held that expert

11 testimony on inaccurate reporting of abuse by children and possible motivations for

12 such reporting should have been admitted when the defense asserted that a child

13 witness had been influenced by family members or other sources. 2007-NMCA-051,

14 ¶ 20, 141 N.M. 543, 157 P.3d 722. At a hearing on the State’s motion, however,

15 Defendant did not make these arguments. Instead, he argued that the expert would

16 address “how should . . . a victim of this type with these kinds of allegations, how

17 should she . . . react, what should they expect the emotional impact, what could the

18 absence of—no emotionality suggest.” He also suggested that the expert would

19 comment on Child’s testimony in court. Because Defendant did not make this


                                             7
 1 argument to the district court, it is not preserved for appeal. Woolwine v. Furr’s, Inc.,

 2 106 N.M. 492, 496, 745 P.2d 717, 721 (Ct. App. 1987) (“To preserve an issue for

 3 review on appeal, it must appear that appellant fairly invoked a ruling of the trial court

 4 on the same grounds argued in the appellate court.”).

 5   {12}   Even if we construed Defendant’s arguments at trial and on appeal as the same,

 6 we agree with the State that we cannot review the exclusion of the expert’s testimony

 7 in the absence of an offer of proof as to the substance of that testimony. Defendant’s

 8 description at the hearing of what the expert would address is not sufficient to permit

 9 us to evaluate whether the testimony would have been admissible or not, and therefore

10 to determine whether it was error to exclude it. See State v. Ortiz, 88 N.M. 370, 375,

11 540 P.2d 850, 855 (Ct. App. 1975) (declining “to guess as to what questions the

12 defendant was prevented from asking” when the defendant did not make an offer of

13 proof following a sustained objection); State v. Jackson, 88 N.M. 98, 100, 537 P.2d

14 706, 708 (Ct. App. 1975) (“The record before us is void of any indication whatsoever

15 of how [the witness] might have responded to counsel’s inquiry, and the alleged error

16 raised under this point is consequently not capable of resolution on appeal.”),

17 overruled on other grounds by State v. Fiechter, 89 N.M. 74, 77, 547 P.2d 557, 560

18 (1976).

19 Expert Testimony Regarding Defendant’s Lack of Pedophilic Tendencies


                                               8
 1   {13}   Before the second trial, Defendant indicated his intent to call an expert to testify

 2 “to present his opinion to the jury that [Defendant’s] sexual history and behavior was

 3 inconsistent with the profile tendencies of a pedophile.” The State moved to exclude

 4 this testimony because it was not useful to the jury either because it was not based on

 5 scientific, technical, or specialized knowledge, or because it was irrelevant or

 6 confusing to the jury. See Rule 11-702 NMRA (stating that an expert “may testify in

 7 the form of an opinion or otherwise if the expert’s scientific, technical, or other

 8 specialized knowledge will help the trier of fact to understand the evidence or to

 9 determine a fact in issue”); Rule 11-401(A) NMRA (“Evidence is relevant if . . . it has

10 any tendency to make a fact more or less probable than it would be without the

11 evidence[.]”); Rule 11-403 NMRA (“The court may exclude relevant evidence if its

12 probative value is substantially outweighed by a danger of one or more of the

13 following: . . . confusing the issues [or] misleading the jury[.]”).

14   {14}   Dr. Sosa, the proposed expert, testified that “[Defendant] does not look like

15 many sex predators or sex offenders that [he had] met in the last forty years” and that

16 “the evidence is pretty strong that this man does not look like a typical, average run

17 of the mill sex offender.” But Dr. Sosa also testified that “[He couldn’t] tell you that

18 [Defendant] is [a sex offender], but [he couldn’t] tell you that [Defendant] isn’t,

19 because there’s no test, no test.” He also testified that he didn’t “have any evidence


                                                 9
 1 to say either way.” He stated that his conclusion was based in part on the criminal and

 2 sexual history given to him by Defendant and that Defendant’s statements as to

 3 Defendant’s sexual history could not be verified by other sources.

 4   {15}   Both parties cite to Lytle v. Jordan, which we find instructive here. 2001-

 5 NMSC-016, ¶¶ 35-36, 130 N.M. 198, 22 P.3d 666. In Lytle, the defendant was

 6 convicted of two counts of CSPM and four counts of CSCM, and this Court affirmed.

 7 Id. ¶ 1. By writ of habeas corpus, the Supreme Court reversed the district court’s

 8 ruling that trial counsel had been ineffective. Id. At the evidentiary hearing on

 9 effectiveness of counsel, the defendant argued that his counsel was ineffective because

10 they failed to present expert psychological testimony “that [the defendant] did not

11 meet the criteria to support a diagnosis of pedophilia.” Id. ¶ 22. The district court

12 determined that this testimony “would have been of use for the defense: the defense

13 could have presented the personality assessment.” Id. ¶ 35 (internal quotation marks

14 omitted). The Supreme Court, however, determined that at trial the district court

15 “might reasonably have concluded that [the] profile would not have made the

16 existence of a fact of consequence more probable or less probable than without the

17 evidence” or that its probative value was “minimal,” making it inadmissible under

18 Rules 11-401 or 11-403. Lytle, 2001-NMSC-016, ¶ 36. The Court concluded that

19 given “the limited value of this evidence, [the defendant] has failed to demonstrate


                                             10
 1 that his counsel’s failure to obtain this type of evidence, even if admissible, rendered

 2 the result of the trial unreliable.” Id.

 3   {16}   Here, Dr. Sosa’s testimony is similar to that in Lytle. We agree with the Lytle

 4 Court that because the value of the evidence is limited, the district court could

 5 reasonably have excluded the testimony under either Rule 11-401 or Rule 11-403. We

 6 conclude that there was no abuse of discretion by the district court in excluding this

 7 evidence.

 8 Motion for a Mistrial

 9   {17}   Defendant argues that the district court erred in denying his motion for a

10 mistrial after the State elicited testimony in the second trial that Defendant had been

11 in custody. He maintains that he was prejudiced by this testimony even though the

12 district court gave a curative instruction. We disagree.

13   {18}   On direct examination Defendant’s wife stated that she had corresponded with

14 Defendant “[w]hen he was in prison. Not prison, in county. Sorry.” The district

15 court called counsel to the bench and reminded the State that it had ordered that there

16 be no mention of Defendant’s incarceration. Defendant moved for a mistrial, which

17 the district court denied based on its finding that the State did not intentionally elicit

18 the testimony. The district court also issued a curative instruction, stating that




                                               11
 1                The [c]ourt is going to instruct you to disregard [the witness’s]
 2        testimony as it related to [Defendant] being in either the penitentiary or
 3        jail, and that is not to be brought into deliberations.

 4              For your benefit, however, there are three letters that are going to
 5        be admitted by stipulation as evidence in this case. And these letters
 6        were written by [D]efendant shortly after being arrested and incarcerated
 7        on these charges.

 8                At the time that [D]efendant was in jail, throughout that period, it
 9        was on these charges that he is presumed innocent of until proven guilty
10        beyond a reasonable doubt to your unanimous satisfaction. So you are
11        to draw no inference whatsoever, except that [D]efendant has not been
12        in jail on any other charges.

13 “[E]ven if inadvertent admission of evidence of prior crimes is error, the prompt

14 sustaining of an objection and an admonition to disregard the witness’s answer cures

15 any prejudicial effect of the inadmissible testimony.” Ruiz, 2003-NMCA-069, ¶ 6.

16 If the State intentionally sought the prohibited testimony, however, “we must

17 determine whether there is a reasonable probability that the improperly admitted

18 evidence could have induced the jury’s verdict.” Id. Defendant does not direct us to

19 evidence that the State intentionally led the witness to mention that Defendant was

20 incarcerated, nor do we find in the questioning any indication that the State intended

21 to contravene the district court’s order. We conclude that the district court’s curative

22 instruction was sufficient to address the possible prejudicial effect of the testimony.

23 See State v. Gonzales, 2000-NMSC-028, ¶ 37, 129 N.M. 556, 11 P.3d 131, overruled

24 on other grounds by State v. Tollardo, 2012-NMSC-008, 275 P.3d 110.

                                              12
 1 Evidentiary Hearing on Performance of Interpreters

 2   {19}   Defendant contends that “[t]he district court erred in not inquiring further when

 3 [Defendant] asserted that he could not understand one of his interpreters during his

 4 testimony.” Because he did not move for a mistrial on this basis, he asks that we

 5 review the district court’s determination that the interpreter had performed effectively

 6 without an evidentiary hearing for fundamental error. State v. Gallegos, 2009-NMSC-

 7 017, ¶ 26, 146 N.M. 88, 206 P.3d 993; see Rule 12-216 NMRA. “The doctrine of

 8 fundamental error applies only under exceptional circumstances and only to prevent

 9 a miscarriage of justice.” State v. Barber, 2004-NMSC-019, ¶ 8, 135 N.M. 621, 92

10 P.3d 633. We apply fundamental error review “to reverse a conviction only if the

11 defendant’s guilt is so questionable that upholding a conviction would shock the

12 conscience, or where, notwithstanding the apparent culpability of the

13 defendant, . . . . when a fundamental unfairness within the system has undermined

14 judicial integrity.” State v. Silva, 2008-NMSC-051, ¶ 13, 144 N.M. 815, 192 P.3d

15 1192 (internal quotation marks and citation omitted), holding modified on other

16 grounds by State v. Guerra, 2012-NMSC-027, ¶ 14, 284 P.3d 1076. Here, Defendant

17 does not argue that upholding his conviction would shock the conscience. He appears

18 to argue instead that it was error for the district court not to order an evidentiary

19 hearing on his claim that he could not understand the interpreter. Therefore, we


                                               13
 1 review his claim for whether the district court’s conduct “undermined judicial

 2 integrity.” Id. (internal quotation marks and citation omitted).

 3   {20}   We cannot conclude that fundamental error occurred here. At the conclusion

 4 of his testimony, in response to the interpreter’s question, Defendant stated that he did

 5 not understand her Spanish. The interpreter then requested a bench conference. The

 6 interpreter reported that when asked what he did not understand, Defendant stated,

 7 “It’s just the words that you were using.” The other interpreter then advised the

 8 district court that she had also asked Defendant if he understood her Spanish and that

 9 Defendant affirmed that he did. The district court then stated, “I’m satisfied. I

10 understand Spanish, and I’m satisfied, based on his answers and the way you

11 interpreted, he understood fully well both of you.” At no point did Defendant himself

12 or his counsel advise the district court that he did not understand. Since this was the

13 extent of the discussion of this issue at trial, there is no evidence before us indicating

14 that Defendant did not understand the proceedings, and Defendant provides no

15 evidence that the translations were inadequate. We conclude that there was no

16 fundamental error in the district court’s handling of this issue.

17   {21}   We turn next to Defendant’s arguments that require de novo review: (1)

18 whether the district court erred in denying his motion to dismiss based on violations

19 of Defendant’s right to a speedy trial, and (2) whether the district court erred in


                                               14
 1 denying his motion to dismiss the “carbon copy” counts in the indictment. See State

 2 v. Fierro, 2012-NMCA-054, ¶ 34, 278 P.3d 541 (“On appeal, we defer to the district

 3 court’s factual findings, but then independently evaluate the four [speedy trial] factors

 4 to ensure that the constitutional right has not been violated.”(internal quotation marks

 5 and citation omitted)), cert. denied, 2012-NMCERT-004, 293 P.3d 886; State v.

 6 Dominguez, 2008-NMCA-029, ¶ 5, 143 N.M. 549, 178 P.3d 834 (“We analyze the

 7 dismissal of criminal charges on due process grounds under a de novo standard,

 8 deferring to the district court’s findings of fact when they are supported by substantial

 9 evidence.” (internal quotation marks and citation omitted)).

10 Speedy Trial

11   {22}   Defendant argues that the district court erred in denying his motion to dismiss

12 based on alleged violations of the “six-month rule,” Rule 5-604 NMRA. That rule

13 required the initiation of trial within six months of arraignment or waiver of

14 arraignment of a defendant. Id. The rule was withdrawn by the Supreme Court in

15 State v. Savedra for all cases pending as of May 12, 2010. 2010-NMSC-025, ¶ 9, 148

16 N.M. 301, 236 P.3d 20. The Supreme Court clarified the definition of “pending”

17 cases by stating that “Savedra controls the disposition of . . . [all cases] that were

18 pending before any court at the time we issued our Opinion.” State v. Martinez, 2011-

19 NMSC-010, ¶ 12, 149 N.M. 370, 249 P.3d 82 (emphasis added). Thus, because this


                                              15
 1 case was pending before this Court on May 12, 2010, the six-month rule does not

 2 apply here. See State v. Romero, 2011-NMSC-013, ¶ 7, 150 N.M. 80, 257 P.3d 900.

 3   {23}   Defendant also argues that the delay between arraignment and the second trial

 4 violated his constitutional right to a speedy trial. See U.S. Const. amend. VI; see

 5 generally State v. Garza, 2009-NMSC-038, ¶¶ 10-12, 146 N.M. 499, 212 P.3d 387

 6 (discussing the purpose of the right to a speedy trial). Defendant argues that the

 7 thirty-month delay between arraignment and the second trial was “presumptively

 8 prejudicial” and, therefore, we must assess the length of the delay, the reasons for

 9 delay, whether he asserted the right to a speedy trial, and whether the delay caused

10 prejudice to him. See Barker v. Wingo, 407 U.S. 514, 530 (1972) (setting out the

11 factors); State v. Grissom, 106 N.M. 555, 561, 746 P.2d 661, 667 (Ct. App. 1987)

12 (“On appeal, a reviewing court is required to independently balance the factors

13 considered by the trial court to determine whether a defendant has been deprived of

14 his constitutional right to a speedy trial.”); Garza, 2009-NMSC-038, ¶¶ 2, 48 (stating

15 that the “guidelines for determining the length of delay necessary to trigger the speedy

16 trial inquiry [are] twelve months for simple cases, fifteen months for cases of

17 intermediate complexity, and eighteen months for complex cases”). The State argues

18 to the contrary that the delay was only eleven months—the period between the mistrial

19 order and the second trial—and consequently the Barker inquiry was not triggered.


                                              16
 1 See Garza, 2009-NMSC-038, ¶¶ 2, 49. The State failed to cite to authority in support

 2 of this calculation of the length of the delay. Because it concluded that a speedy trial

 3 inquiry was unnecessary, the State did not respond to Defendant’s arguments

 4 regarding the Barker factors.

 5   {24}   Even if we assume without deciding that the length of the delay was thirty

 6 months and apply the Barker factors, we conclude that there was no speedy trial

 7 violation. First, because the length of the delay is “both a threshold inquiry that

 8 triggers the rest of the analysis and . . . part of the balancing test itself[,]” we must

 9 determine whether the length of the delay weighs against Defendant or the State.

10 Fierro, 2012-NMCA-054, ¶ 35 (internal quotation marks and citation omitted). Here,

11 the district court determined that this case was of “at a minimum” intermediate

12 complexity. Neither party challenges this determination on appeal. A delay of fifteen

13 months is presumptively prejudicial in cases of this complexity. Garza, 2009-NMSC-

14 038, ¶¶ 2, 48. Here, the delay was nearly double the presumptive level. Thus, this

15 factor weighs in Defendant’s favor. See Fierro, 2012-NMCA-054, ¶ 36.

16   {25}   Defendant argues that “[m]ost of the delays in this case were due to delays in

17 discovery[,] . . . setting of pretrial motions[,] . . . [and] appointment of new counsel

18 after [Defendant’s counsel] became aware of a conflict of interest.” Other delays were

19 caused by “the district court’s management of its docket.” Although Defendant states


                                              17
 1 that “[t]his factor weighs in [his] favor[,]” he fails to point to any action by the State

 2 that caused these delays. On appeal the State makes no argument on this issue, but we

 3 note that the State responded to Defendant’s motion to dismiss with explanations for

 4 the delay and argued that Defendant caused sixteen and one-half months of delay, a

 5 charge Defendant does not rebut. In addition, in the context of this case, we must

 6 consider the impact of the mistrial on the delay. Although we have assumed for the

 7 purposes of the other factors that the length of delay was thirty months, we cannot

 8 ignore the fact that the first trial ended in a hung jury, a cause for delay that weighs

 9 against neither party. In aggregate, we conclude that the reasons for delay are at least

10 neutral, if not weighed against Defendant.

11   {26}   Defendant’s first and only assertion of his right to a speedy trial occurred in

12 September 2007, after the first trial had been completed and five months before the

13 second trial. Although Defendant’s assertion of the right may have been vigorous,

14 couched as it was in a motion to dismiss all charges based on a speedy trial violation,

15 because it was filed only after the first trial we conclude that this factor is neutral with

16 respect to the period between arraignment and the first trial, and weighs only slightly

17 in Defendant’s favor with respect to the period between the mistrial and the second

18 trial. Although Defendant objected to one of the State’s petitions for an extension of

19 time under Rule 5-604, it appears that Defendant also stipulated to at least one


                                                18
 1 continuance and requested several others. Overall, this factor is neutral or weighs

 2 against Defendant.

 3   {27}   Finally, Defendant argues that he was prejudiced by the delay. There are “three

 4 interests under which we analyze prejudice to the defendant:               “(i) to prevent

 5 oppressive pretrial incarceration; (ii) to minimize anxiety and concern of the accused;

 6 and (iii) to limit the possibility that the defense will be impaired.” State v. Maddox,

 7 2008-NMSC-062, ¶ 32, 145 N.M. 242, 195 P.3d 1254 (internal quotation marks and

 8 citation omitted), abrogated on other grounds by State v. Parrish, 2011-NMCA-033,

 9 149 N.M. 506, 252 P.3d 730. “Although the State bears the ultimate burden of

10 persuasion, Defendant does bear the burden of production on this issue, and his failure

11 to do so greatly reduces the State’s burden.” State v. Urban, 2004-NMSC-007, ¶ 18,

12 135 N.M. 279, 87 P.3d 1061. Here, Defendant appears to argue that he suffered undue

13 anxiety and concern and “restrictions on [his] liberty” for an unreasonably long time.

14 He provides no support for his argument that he suffered anxiety and concern greater

15 than that “inherent for every defendant who is jailed while awaiting trial.” Garza,

16 2009-NMSC-038, ¶ 35 (alteration, internal quotation marks, and citation omitted).

17 Although the State provides no argument on this issue, we nevertheless conclude that

18 the State did not fail to meet its burden on this point.   {28}   Finally, Defendant states

19 that he was prejudiced because he was incarcerated for thirty months. He directs us


                                              19
 1 to State v. Kilpatrick, in which this Court held that a defendant was prejudiced when

 2 he was released but subject to restrictions for fifteen months. 104 N.M. 441, 446, 722

 3 P.2d 692, 697 (Ct. App. 1986). He appears to argue that because his restrictions were

 4 greater and for a longer duration than in Kilpatrick, we should weigh this factor in his

 5 favor. This argument ignores the fact that what Barker requires is a case by case

 6 assessment of the factors, which are part of a “four-pronged balancing test in which

 7 the conduct of both the prosecution and the defendant are weighed.” Kilpatrick, 104

 8 N.M. at 444, 722 P.2d at 695 (internal quotation marks and citation omitted). Thus,

 9 the conclusion by the Kilpatrick Court that the delay there was unreasonable does not

10 require a similar conclusion here. Defendant makes no other argument to support his

11 claim that the delay in prosecution prejudiced him or his defense. In the absence of

12 a showing of “particularized prejudice,” we cannot agree that Defendant’s right to a

13 speedy trial was violated. Garza, 2009-NMSC-038, ¶¶ 39-40 (determining there was

14 no violation when the other Barker factors did not “weigh heavily” in the defendant’s

15 favor and the defendant failed to show prejudice “of the kind against which the speedy

16 trial right is intended to protect”).

17   {29}   Defendant argues that “this Court must order the dismissal of the nine carbon-

18 copy counts from October, April, and May to protect [Defendant’s] fundamental rights

19 to due process and protection against double jeopardy.” He contends that both the


                                              20
 1 indictment and the evidence at trial were insufficiently particular as to those counts

 2 because they did not tie the counts to specific, discrete acts, “making it confusing and

 3 difficult for the jury to distinguish between any of the counts.”

 4   {30}   The right to due process of law stems from the Fourteenth Amendment to the

 5 United States Constitution and “requires the State to provide reasonable notice of

 6 charges against a person and a fair opportunity to defend.” State v. Dominguez, 2008-

 7 NMCA-029, ¶ 5, 143 N.M. 549, 178 P.3d 834 (internal quotation marks and citation

 8 omitted); see U.S. Const. amend XIV. In addition, due process “requires that criminal

 9 charges provide criminal defendants with the ability to protect themselves from double

10 jeopardy.” Dominguez, 2008-NMCA-029, ¶ 5 (internal quotation marks and citation

11 omitted). Following these principles, an indictment is defective when it “provide[s]

12 the defendant with little ability to defend himself [because] the counts [are] not

13 anchored to particular offenses.” State v. Tafoya, 2010-NMCA-010, ¶ 21, 147 N.M.

14 602, 227 P.3d 92 (internal quotation marks and citation omitted). The analysis of

15 whether an indictment is sufficiently particular under Tafoya is different from that

16 under cases addressing the length of the charging period.           See, e.g., State v.

17 Baldonado, 1998-NMCA-040, ¶ 26, 124 N.M. 745, 955 P.2d 214. “[E]ven if a

18 charging period is constitutionally appropriate under Baldonado, the charges may still




                                              21
 1 violate a defendant’s right to due process and double jeopardy when they are factually

 2 indistinguishable.” Tafoya, 2010-NMCA-010, ¶ 21.

 3   {31}   In Tafoya, the defendant was charged with two counts of vaginal CSPM and

 4 two counts of anal CSPM, as well as two counts of CSCM. Id. ¶ 2. The Court

 5 determined that the vaginal CSPM and anal CSPM counts “[were] distinguishable

 6 from one another because they [were] factually distinct acts.” Id. ¶ 22. Similarly, the

 7 two counts of CSCM were distinguishable from each other because the State alleged

 8 different types of touching. Id. Therefore, the question before the Court was whether

 9 each count of vaginal CSPM and each count of anal CSPM was distinguishable from

10 the other. Id. The Court determined that they were not, because the evidence at trial

11 did not support the allegation that each act of vaginal or anal CSPM was tied to a

12 distinguishable incident. Id. ¶ 24. Rather, the victim “only described a pattern of

13 vaginal CSPM and a pattern of anal CSPM and then said that each happened lots of

14 times, without relating any act to a specific incident.” Id. The Court reversed the

15 defendant’s convictions for one count of vaginal CSPM and one count of anal CSPM.

16 Id.

17   {32}   Here, Defendant maintains that “[t]he October, April, and May acts were not

18 differentiated by any facts that [Child] could recall.” Child testified that Defendant




                                             22
 1 touched her breasts and penetrated her both vaginally and anally at least one time in

 2 September, around the time that school started. Testimony continued:

 3                Q.    And that was the—September. And then in October did the
 4          same thing happen at least one time?
 5                A.    Yes.
 6                Q.    Did it happen probably more than one time?
 7                A.    Yes.

 8 Conviction for a single count of vaginal CSPM, a single count of anal CSPM, and a

 9 single count of CSCM is not inconsistent with this testimony or our case law. Child’s

10 testimony is similar to that in Tafoya describing a pattern of abuse during the charging

11 period (October) for which the State could charge a single count for each

12 distinguishable type of act. Id. ¶ 24 (finding no due process violation in upholding a

13 single count for each type of act where “the evidence presented at trial establish[ed]

14 a pattern of CSPM conduct during the charging period for which [the d]efendant had

15 notice and an opportunity to defend”).

16   {33}   The State argues that the April and May charges did not violate Defendant’s

17 rights because Child testified that “[d]uring both April and May 2005, when her

18 mother was working and Defendant would take her to school, he again did all those

19 things to her.” Child’s testimony as to April and May was as follows.

20                Q.      And in April and then May, the end of school, did he touch
21          you at least one time in each of those three places?
22                A.      Can you repeat the question?


                                              23
 1                 Q.    In April, right before you got out of school, did he at least
 2          touch you one time in each of those three places, when you were still in
 3          fourth grade and [your mother] was working at Shorty’s?
 4                 A.    I don’t remember.
 5                 Q.    Well, when you were in school, in fourth grade, and your
 6          mom was working at Shorty’s, who would mostly take you to school?
 7                 A.    My mom would—usually it was my mom and [Defendant].
 8                 Q.    But if your mom had to leave for work,—and we’ll get her
 9          hours when she comes—who would take you?
10                 A.    [Defendant] would be taking me in the morning.
11                 Q.    And so in fourth grade, was the touching still going on
12          when [Defendant] would have to take you to school?
13                 A.    Yes.
14                 Q.    And if school goes through May, was the touching still
15          going on when he would have to take you to school?
16                 A.    Yes.

17 We agree with Defendant that this testimony only connects the touching to the entire

18 two month period, not to each of the two months. Consequently convictions for three

19 of the six counts for April and May must be reversed.

20 Sufficiency of the Evidence

21   {34}   In a related argument, Defendant maintains that “[t]he jury returned guilty

22 verdicts on more counts of CSCM than [Child] testified occurred.” We review this

23 challenge to determine whether the evidence was sufficient to support the jury’s

24 verdict. See Tollardo, 2012-NMSC-008, ¶ 39. A sufficiency of the evidence review

25 involves a two-step process. Initially, the evidence is viewed in the light most

26 favorable to the verdict. Then the appellate court must make a legal determination of

27 “whether the evidence viewed in this manner could justify a finding by any rational

                                               24
 1 trier of fact that each element of the crime charged has been established beyond a

 2 reasonable doubt.” State v. Apodaca, 118 N.M. 762, 766, 887 P.2d 756, 760 (1994)

 3 (internal quotation marks and citation omitted).

 4   {35}   Defendant challenges the jury’s verdicts related to “twelve counts for

 5 September, October, April, and May” because Child did not identify a “specific

 6 memor[y]” to which those counts could be tied. Defendant first argues that Child’s

 7 testimony regarding inappropriate touching in September was inconsistent because

 8 although Child testified that it occurred when she started fourth grade, which started

 9 in August, also responded affirmatively to the State’s questions stating that the acts

10 occurred in September. We disagree that this inconsistency warrants reversal. State

11 v. Ortiz-Burciaga, 1999-NMCA-146, ¶ 22, 128 N.M. 382, 993 P.2d 96 (“It is the

12 exclusive province of the jury to resolve factual inconsistencies in testimony.”

13 (internal quotation marks and citation omitted)).

14   {36}   Next, Defendant argues that because Child did not identify an event in October

15 by which she remembered instances of abuse, the evidence of abuse in October was

16 insufficient.    In addition to the testimony included above, Child testified that

17 Defendant touched her inappropriately “every day” and that the last time Defendant

18 touched her was “in July or in June.” Viewing the evidence in the light most

19 favorable to the verdict, we conclude that the evidence sufficiently supports the jury’s


                                              25
 1 verdict on the October counts. Viewed the same way, the evidence for the April and

 2 May counts was sufficient to support the jury’s verdict on either the April or May

 3 counts, but not both.

 4 Ineffective Assistance of Counsel

 5   {37}   Defendant’s final argument is that he received ineffective assistance of counsel

 6 and, therefore, his case should be remanded for a new trial. There is a two-fold test

 7 for proving ineffective assistance of counsel; the defendant must show (1) that

 8 counsel’s performance fell below that of a reasonably competent attorney, and (2) that

 9 defendant was prejudiced by the deficient performance. State v. Hester, 1999-NMSC-

10 020, ¶ 9, 127 N.M. 218, 979 P.2d 729. The burden of proof is on the defendant to

11 prove both prongs. Id. “When an ineffective assistance claim is first raised on direct

12 appeal, we evaluate the facts that are part of the record. If facts necessary to a full

13 determination are not part of the record, an ineffective assistance claim is more

14 properly brought through a habeas corpus petition, although an appellate court may

15 remand a case for an evidentiary hearing if the defendant makes a prima facie case of

16 ineffective assistance.” State v. Roybal, 2002-NMSC-027, ¶ 19, 132 N.M. 657, 54

17 P.3d 61.

18   {38}   Defendant “asserts that various instances of ineffective assistance of counsel

19 occurred that may not be reflected in the record” and that trial counsel failed to call


                                               26
 1 certain witnesses, subpoena medical records, move to recuse the judge, and give

 2 Defendant certain documents.           We decline to consider these allegations of

 3 ineffectiveness because there is no relevant evidence in the record, nor do we find

 4 prima facie ineffectiveness of counsel requiring remand. State v. Ford, 2007-NMCA-

 5 052, ¶ 30, 141 N.M. 512, 157 P.3d 77 (“We will not review an allegation of

 6 ineffective assistance of counsel that depends on matters outside of the record.”).

 7 Defendant may seek review of this issue through a habeas corpus petition to our

 8 Supreme Court.

 9 III.     CONCLUSION

10   {39}   We conclude that Defendant did not demonstrate abuse of discretion in the

11 district court’s evidentiary rulings at trial, nor did the district court err in not holding

12 an evidentiary hearing on the efficacy of the interpreters. Defendant’s speedy trial

13 rights were not violated. Finally, we determine that Defendant has not shown a prima

14 facie case of ineffective assistance of counsel and we decline to address this claim

15 because relevant evidence is not in the record. We remand to the district court for

16 reversal of one count of CSPM for vaginal penetration, one count of CSPM for anal

17 penetration, and one count of CSCM in either April or May because the evidence at

18 trial did not support two factually distinguishable counts of each type. Defendant’s

19 convictions are otherwise affirmed.


                                                27
1   {40}   IT IS SO ORDERED.



2
3                                      MICHAEL D. BUSTAMANTE, Judge

4 WE CONCUR:


5 _________________________________
6 JONATHAN B. SUTIN, Judge


7 _________________________________
8 MICHAEL E. VIGIL, Judge




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