                              SECOND DIVISION
                                MILLER, P. J.,
                           RICKMAN and REESE, JJ.

                   NOTICE: Motions for reconsideration must be
                   physically received in our clerk’s office within ten
                   days of the date of decision to be deemed timely filed.
                               http://www.gaappeals.us/rules


                                                                 November 25, 2019




In the Court of Appeals of Georgia
 A19A2411. JUNG v. THE STATE.

      MILLER, Presiding Judge.

      In this interlocutory appeal, Jae Sun Jung seeks review of the trial court’s order

denying his motion to dismiss the criminal charges against him due to an alleged

violation of his right to a speedy trial. He argues that the trial court erroneously

applied the four-factor balancing test applicable to speedy-trial claims and that the

trial court failed to properly account for the four-year delay between the time of the

criminal accusation and his motion to dismiss. After considering the delicate four-

factor balancing test applicable to motions to dismiss on speedy trial grounds, we

conclude that the trial court did not abuse its discretion in denying Jung’s motion to

dismiss. We therefore affirm.
      We review a trial court’s ruling on a motion to dismiss on speedy trial grounds

for an abuse of discretion. Teasley v. State, 307 Ga. App. 153, 157 (704 SE2d 248)

(2010).

      In October 2014, a police officer arrested Jung for driving under the influence

(“DUI”) and following too closely. A breath test conducted at the scene showed that

Jung’s blood alcohol content was 0.211 grams, which was above the legal limit of .08

grams set out in OCGA § 40-6-391 (a) (5).

      On February 24, 2015, the State filed an accusation against Jung in state court,

charging him with one count of DUI less safe (OCGA § 40-6-391 (a) (1)), one count

of DUI per se (OCGA § 40-6-391 (a) (5)), and one count of following too closely

(OCGA § 40-6-49). Prior to the court arraignment, in March 2015, Jung filed a

waiver of arraignment, entered a plea of not guilty, and demanded a jury trial. In June

2015, Jung filed an amended supplemental motion, seeking to suppress the test results

from the state-administered breath test. The trial court granted the motion on

September 10, 2015. The State appealed, and this Court affirmed the trial court’s

decision. State v. Jung, 337 Ga. App. 799 (788 SE2d 884) (2016). The case was

remitted to the trial court in late July 2016.



                                           2
        The case did not reappear on a trial calendar until February 2, 2017, and was

then set on five consecutive calendars from February through June 2017. Jung

announced ready or appeared at all five calendars. In April 2017, the State filed a

motion in limine regarding arguments made by Jung’s counsel at a previous

evidentiary hearing. The trial court heard argument concerning that motion in June

2017 and denied the motion in limine on August 11, 2017.

        The State filed a motion for reconsideration of the order to suppress on April

23, 2018, and a second motion for reconsideration on different grounds on July 5,

2018. When the parties appeared to argue the April 23 motion, Jung asked for time

to respond to the second motion for reconsideration, which the trial court granted.

The trial court heard the motions in September 2018 and denied them on October 31,

2018.

        On January 8, 2019, Jung filed his plea in bar and motion to dismiss based

upon a violation of his constitutional right to a speedy trial. Following a hearing, the

trial court denied Jung’s motion in an amended order entered on January 30, 2019.

The trial court concluded that the first two factors of the speedy-trial balancing test

weighed against the State, but that the fourth factor weighed against Jung and the

third factor weighed heavily against Jung. Considering the four factors together, the

                                           3
trial court concluded that Jung had failed to demonstrate that the dismissal of the

charges against him was warranted. The trial court certified its decision for immediate

review. We granted Jung’s application for an interlocutory appeal, and this appeal

followed.

      Jung’s sole enumeration of error is that the trial court abused its discretion

when it denied his motion to dismiss on speedy trial grounds. We address each factor

of the balancing test and conclude that the trial court assigned the proper weight to

each factor and that it did not abuse its discretion in denying Jung’s motion.

      “The determination of whether the constitutional right to a speedy trial has

been violated has two stages. The court first determines whether the interval between

the accused’s arrest, indictment, or other formal accusation to the trial is sufficiently

long to be considered ‘presumptively prejudicial.’” (Citation omitted.) Teasley, supra,

307 Ga. App. at 157 (1). If so, then the court “proceeds to application of a delicate,

context-sensitive, four-factor balancing test to determine whether the accused has

been deprived of the right to a speedy trial. (Citation omitted.) Id. The four factors are

      (1) whether delay before trial was uncommonly long; (2) whether the
      government or the criminal defendant is more to blame for the delay; (3)
      whether, in due course, the defendant asserted the right to a speedy trial;
      and (4) whether [he] suffered prejudice as the delay’s result. Under the

                                            4
      test, none of these factors are a necessary, or sufficient condition to a
      finding of deprivation of the right to a speedy trial, but rather should be
      considered as part of a balancing test. Thus, we must apply and weigh
      these factors together to determine if the defendant’s constitutional right
      to a speedy trial has been abridged. The analysis requires courts to
      engage in a difficult and sensitive balancing process and necessarily
      compels them to approach speedy trial cases on an ad hoc basis.


(Citation and punctuation omitted.) Id. at 157-158 (2). See also Doggett v. United

States, 505 U. S. 647, 651 (II) (112 SCt 2686, 120 LE2d 520) (1992); Barker v.

Wingo, 407 U. S. 514, 530 (IV) (92 SCt 2182, 33 LE2d 101) (1972).

      As an initial matter, the State conceded at the hearing below that the length of

the pretrial delay here created a presumption of prejudice. Accordingly, we move on

to discuss the application of the four-factor Barker-Doggett test.

      (a) Length of delay uncommonly long

      As to the first factor, Jung asserts that the trial court should have weighed this

factor “heavily against the State.” We find no abuse of discretion as to this factor.

      “[T]he length of delay that can be tolerated in a particular case depends to some

extent on the complexity and seriousness of the charges in that case. And there is no

bright-line rule that all uncommonly long delays must be weighed heavily against the

State.” (Citations omitted.) Taylor v. State, 338 Ga. App. 804, 807 (1) (a) (792 SE2d

                                          5
101) (2016). “The delay that can be tolerated for an ordinary street crime is

considerably less than for a serious, complex conspiracy charge.” (Citation omitted.)

Rogers v. State, 286 Ga. 387, 388 (688 SE2d 344) (2010).

      When weighing the four factors, the trial court found the length of delay in this

case “weighed against the State,” without further analysis. Although Jung was not

charged with the most complex of crimes, the case did present a tricky evidentiary

issue that resulted in a published decision from this Court. See Jung, supra, 337 Ga.

App. at 801-804. As such, we cannot conclude that it was an abuse of discretion

insofar as the trial court declined to weigh this factor “heavily” against the State. See

Cawley v. State, 330 Ga. App. 22, 25 (2) (a) (766 SE2d 581) (2014) (trial court did

not abuse its discretion in weighing a 57-month delay against the State in a simple

DUI case, even though such delay was not weighed heavily); Stewart v. State, 310

Ga. App. 551, 554 (2) (a) (713 SE2d 708) (2011) (trial court did not abuse its

discretion in declining to weigh a pretrial delay of over five years “heavily” against

the State).

      (b) Reason for delay

      As to the second factor, Jung asserts that the trial court abused its discretion in

failing to analyze the reasons for and timing of the delays, which he argues should

                                           6
have been “weighted heavily” against the State. We discern no such abuse of

discretion.

      “While a deliberate attempt to delay the trial in order to hamper the defense

should be weighted heavily against the government, an unintentional delay, such as

that caused by the mere negligence of the prosecuting attorneys or the overcrowded

docket of the trial court, should be weighted less heavily.” State v. Buckner, 292 Ga.

390, 394 (3) (b) (738 SE2d 65) (2013) (punctuation omitted).

      In its order, the trial court found that both parties had prompted the delays. The

trial court noted that both parties filed multiple motions, which led to periods of time

during which the trial court took those motions under advisement, and that the delay

was also accounted for by an appeal, motions for reconsideration, requests for

continuance, and leaves of absence. The trial court did attribute to the State the delays

from the July 2016 remittur until the case reappeared on the trial calendar February

2, 2017, and the time period from the denial of the State’s motion in limine until April

18, 2018, when the case was placed on the jury trial calendar. But, the trial court

found that none of the delays attributable to the State were deliberately imposed to

hamper the defense and, thus, were not weighted “as heavily against the State as

intentional delays would be.”

                                           7
          While Jung points out the timing of the delays, he has not shown or argued

why those delays should have been weighted “heavily” against the State. The trial

court here did analyze the delays, and it ultimately and correctly found that this factor

was weighted against the State, but not “as heavily” since both parties participated

in causing the delays. See Wilkie v. State, 290 Ga. 450, 452 (721 SE2d 830) (2012)

(“[D]elay due to negligence or workloads is weighed lightly against the State.”)

(citation omitted). Crucially, “[n]owhere in the record . . . is there any evidence that

the delay was the result of bad faith. Notably, there is no evidence that [the State]

deliberately delayed the trial in an effort to gain a tactical advantage, or in an effort

to hamper the defense.” (Citations and punctuation omitted.) Stewart, supra, 310 Ga.

App. at 556 (2) (b). Thus, it does not appear that Jung has shown that the trial court

abused its discretion when it weighed this factor. See id. at 555-556 (2) (b) (trial court

did not abuse its discretion in failing to weigh the second factor “heavily” against the

State).

      (c) Assertion of Right to Speedy Trial

      With respect to the third factor, Jung argues that the demand for a jury trial that

he filed at the same time that he entered a plea should have counted as an invocation



                                            8
of his right to a speedy trial and that the trial court erred in concluding otherwise. We

disagree.

      “It is the defendant’s responsibility to assert the right to trial, and the failure to

exercise that right is entitled to strong evidentiary weight against the defendant.”

(Citations and punctuation omitted.) Brannen v. State, 274 Ga. 454, 456 (553 SE2d

813) (2001). The “failure to assert the right will make it difficult for a defendant to

prove that he was denied a speedy trial.” (Citation omitted.) Id.

      The trial court noted that Jung did not assert his speedy trial right until

approximately four years after his arraignment. Although Jung did file a demand for

a jury trial in April 2015 just after the accusation was filed, the trial court correctly

noted that the filing of a demand for a jury trial does not also invoke a defendant’s

constitutional right to a speedy trial. Nusser v. State, 275 Ga. App. 896, 899 (622

SE2d 105) (2005). In addition, the fact that Jung appeared ready for trial at various

points in the proceedings also did not constitute an assertion of his right to a speedy

trial. Brannen, supra, 274 Ga. at 456. Thus, the trial court properly weighed the third

factor heavily against Jung because he did not raise his constitutional right to a

speedy trial until four years after his arraignment. See Buckner, supra, 292 Ga. at 397

(3) (c) (trial court did not abuse its discretion in weighing the third factor heavily

                                            9
against the defendant when the defendant waited four years after the indictment to

invoke his speedy trial right).

      (d) Prejudice to Defendant

      As to the final factor, Jung first asserts that the trial court should have

presumed prejudice given the length of the delay, which he maintains was

“egregious.” We are not persuaded.

      While we may presume actual prejudice if a delay is sufficiently long, “the

[forty-seven] month delay in this case falls a full [thirteen] months shy of the five

years that we have previously held gives rise to a presumption of actual prejudice.”

(Citation omitted.) State v. Moses, 301 Ga. App. 315, 321 (2) (d) (692 SE2d 1)

(2009). However,

      the fact that the delay in this case was less than five years does not
      automatically foreclose a presumption of actual prejudice. Rather, in
      determining whether a pre-trial delay gives rise to a presumption of
      actual prejudice, the trial court must examine the delay relative to all
      other factors, including the complexity of the case and the evidence
      existing on the date the State initiated the prosecution.


(Citation omitted.) Id.




                                         10
      First, we again note that although none of the three charges by their nature

were particularly complex, the case did present an evidentiary issue that eventually

resulted in a successful suppression of the breath test result, a crucial piece of

evidence in this case. See Jung, supra, 337 Ga. App. at 801-804. Because of this

suppression, the State had to change the course of its prosecution after its appeal, as

evidenced by the number of motions that were filed in this case afterwards. We

cannot say that the State unreasonably abandoned its pursuit of the charges against

Jung, and so we cannot conclude that the trial court abused its discretion in not

finding a presumption of actual prejudice based on the length of the delay.

      Jung further argues that the record shows that he suffered actual prejudice by

the delay in this case in that he lost multiple business opportunities due to the pending

charges. We disagree.

      “The types of prejudice that may result from an unreasonable delay before trial

include oppressive pretrial incarceration, anxiety and concern of the accused, and the

possibility that the accused’s defense will be impaired by dimming memories and loss

of exculpatory evidence.” (Citation and punctuation omitted.) Cawley, supra, 330 Ga.

App. at 27 (2) (d). “Of these forms of prejudice, the most serious is the last, because

the inability of a defendant adequately to prepare his case skews the fairness of the

                                           11
entire system.” (Citation and punctuation omitted). Id. On the other hand, “[a]nxiety

and concern of the accused are always present to some extent, and thus, absent some

unusual showing, are not likely to be determinative in the defendant’s favor.”

(Citation and punctuation omitted.) Id. at 28 (2) (d).

      Here, Jung did not and does not argue that he suffered an oppressive pretrial

incarceration. Likewise, he did not and does not argue that he suffered any

demonstrable impairment to his defense as a result of the pretrial delay. Instead, he

argues that he was prejudiced as a result of anxiety and concern because the pending

charges against him interfered with his business expansion plans. However, “the

record [on appeal] contains no testimony from [Jung] regarding any purported anxiety

he might have suffered, nor does it contain any other evidence supporting [his]

contentions on this issue.1 In any event, [Jung] chose not to alleviate his anxiety and

concern by waiting over [four] years to assert his speedy trial demand.” (Citations and

punctuation omitted.) Stewart, supra, 310 Ga. App. at 558 (2) (d) (ii). Accordingly,

we conclude that the trial court did not err in concluding that Jung did not show any

unusual or particular anxiety or concern. See id. (defendant truck driver’s

      1
        While the trial court held a hearing on the motion to dismiss, it was not
transcribed or made part of the appellate record, and so any evidence that might have
been presented at that hearing is not available for us to review.

                                          12
unsupported allegations that the pending charges against him interfered with his

ability to take on work and support his family did not rise to the level of extraordinary

anxiety and concern); Nusser, supra, 275 Ga. App. at 900-901 (defendant’s

allegations that the delay had negative effects on his employment and ability to drive

to work and school failed to demonstrate an “unusual showing” of anxiety and

concern).

      (e) Balancing the factors

      As set out more fully above, we conclude that the trial court did not abuse its

discretion when it determined the amount of weight to be given to each of the four

Barker-Doggett factors. Looking at the factors as a whole, we also cannot conclude

that the trial court abused its wide discretion in coming to the conclusion that Jung’s

speedy trial claim should be denied. See Ruffin v. State, 284 Ga. 52, 65-66 (3) (663

SE2d 189) (2008) (trial court did not abuse its discretion by denying defendant’s

speedy trial claim when defendant delayed in asserting his right and could show no

actual prejudice resulting from the delay, despite the fact that the first two factors

weighed against the State); Nusser, supra, 275 Ga. App. at 902 (same).




                                           13
      Accordingly, we conclude that the trial court did not abuse its discretion in

evaluating Jung’s speedy-trial claim under the Barker-Doggett test, and we affirm the

denial of Jung’s motion to dismiss.2

      Judgment affirmed. Rickman and Reese, JJ., concur.




      2
        Although we ultimately affirm the denial of Jung’s motion to dismiss, the
extent of the delay in this case compels us to take the opportunity to repeat the
Supreme Court’s exhortation that

      the clock is still ticking. It has now been well over [four] years since
      [Jung] was [formally accused], and the vigor and formality with which
      he has pressed his constitutional speedy trial claim are no longer subject
      to challenge. The District Attorney should be aware that any further
      delay in bringing [Jung] to trial not attributable to [Jung] runs a serious
      risk of violating [Jung’s] right to a speedy trial guaranteed by the Sixth
      Amendment and the Georgia Constitution. If that were to happen, then
      under controlling United States Supreme Court precedent, dismissal of
      the charges against [Jung] would be constitutionally required.


Ruffin, supra, 284 Ga. at 66 (3).

                                          14
