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

 7 STATE OF NEW MEXICO,

 8          Plaintiff-Appellee,

 9 v.                                                                           NO. 29,172

10 JASON CHRISTOPHER REID,

11          Defendant-Appellant.

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

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

16 for Appellee

17 Hugh W. Dangler, Chief Public Defender
18 Nancy M. Hewitt, Appellate Defender
19 Santa Fe, NM

20 for Appellant

21                                 MEMORANDUM OPINION

22          Defendant appeals his conviction entered pursuant to an Alford plea to two

23 counts of criminal sexual contact, asserting that his constitutional right to a speedy
 1 trial was violated. We issued a notice of proposed disposition, proposing to affirm.

 2 Defendant has filed a memorandum in opposition. After due consideration, we remain

 3 unpersuaded by Defendant’s assertions of error. We therefore uphold the conviction.

 4 DISCUSSION

 5         “When a speedy trial claim is made, the defendant must make a threshold

 6 showing that the length of delay is presumptively prejudicial.” State v. Stock, 2006-

 7 NMCA-140, ¶ 12, 140 N.M. 676, 147 P.3d 885. Once that showing has been made,

 8 the burden of persuasion shifts to the State to show, on balance, that the factors from

 9 Barker v. Wingo, 407 U.S. 514 (1972), do not weigh in favor of dismissal. Id.; State

10 v. Garza, 2009-NMSC-038, ¶ 21, 146 N.M. 499, 212 P.3d 387. The four factors

11 guiding our inquiry include the following: (1) the length of the delay, (2) the reasons

12 for delay, (3) the defendant’s assertion of the right, and (4) prejudice to the defendant.

13 Salandre v. State, 111 N.M. 422, 425, 806 P.2d 562, 565 (1991) (citing Barker). In

14 considering each of these factors, we defer to the district court’s factual findings but

15 review de novo the question of whether Defendant’s constitutional right to a speedy

16 trial was violated. State v. Brown, 2003-NMCA-110, ¶ 11, 135 N.M. 356, 76 P.3d

17 1113.

18 Length of Delay


                                               2
 1        In this case, relying on the facts in the docketing statement, we proposed to

 2 conclude that a delay of around nineteen months in a case of intermediate complexity

 3 was a sufficient amount of time to create a presumption of prejudice and trigger

 4 analysis of the factors from Barker. See State v. Coffin, 1999-NMSC-038, ¶ 56, 128

 5 N.M. 192, 991 P.2d 477 (stating that a delay beyond twelve-months in a case of

 6 intermediate complexity is presumptively prejudicial and “trigger[s] further inquiry

 7 into the claim of a violation of the right to speedy trial”). [CN 2] According to

 8 Defendant’s response, the delay in this case appears to be about twenty months from

 9 the date of Defendant’s arrest on December 30, 2006, to entry of his plea on August

10 22, 2008. [MIO 6-7] Although Defendant now attempts to argue that this is a simple

11 case, [id. 7-8] he did not make that argument below in his motion to dismiss [RP 119,

12 123] and the district court apparently found that the case was of intermediate

13 complexity. [DS 5, MIO 8] We defer to the district court’s determination of the level

14 of complexity this case presented. See State v. Tortolito, 1997-NMCA-128, ¶ 7, 124

15 N.M. 368, 950 P.2d 811. Accordingly, assuming the delay was twenty months, the

16 delay appears to be presumptively prejudicial in this intermediate case. Coffin, 1999-

17 NMSC-038, ¶ 56.

18        We further note that our Supreme Court recently changed the guidelines for


                                             3
 1 determining when the length of delay is presumptively prejudicial. See Garza, 2009-

 2 NMSC-038, ¶¶ 48-50 (changing current guidelines concerning the presumptively

 3 prejudicial length of delay in cases of intermediate complexity to fifteen months and

 4 applying the new guidelines to speedy trial motions to dismiss initiated after August

 5 13, 2007). Thus, although Defendant argues that the delay of twenty months in this

 6 case is excessive, [MIO 8-9] we are not persuaded that the delay was so lengthy that

 7 this factor must weigh heavily against the State. Given the new guidelines, we simply

 8 conclude that the delay weighs against the State. Because the delay is presumptively

 9 prejudicial, we consider it alongside the other three factors in determining whether a

10 violation has occurred. Id. ¶ 23.

11 Reasons for Delay

12        When examining the second Barker factor, we allocate the reasons for the delay

13 to each side and determine the weight attributable to each reason. State v. Plouse,

14 2003-NMCA-048, ¶ 45, 133 N.M. 495, 64 P.3d 522. Here, the State argued below

15 that its reason for the delay from Defendant’s arrest on December 30, 2006, until the

16 trial setting on April 8-9, 2008, was to complete DNA testing. [RP 131-32] The State

17 argued that during this period of more than fifteen months Defendant did not oppose

18 any of the continuances and extensions of time. [Id.] We continue to agree with the


                                             4
 1 State that the delay during this time period does not weigh heavily against the State.

 2 See Tortolito, 1997-NMCA-128, ¶ 9 (finding that the period attributable to DNA

 3 testing did not weigh heavily against the State).

 4        From April 8-9, 2008, to the trial setting on August 27-28, 2008, the State

 5 requested a delay in order to prepare the child victim to testify by deposition. [RP

 6 132-33] We find that the delay during this time period was attributable to the State.

 7        Defendant maintains that this factor should weigh heavily against the State

 8 because Defendant did not contribute to the delay, which was all caused by the State’s

 9 failure to process the DNA evidence in a timely manner. [MIO 9-10] However, we are

10 not persuaded. As our cases have recognized, specifically in the context of DNA

11 testing, Barker distinguished intentional delay from negligent or administrative delay

12 such that a neutral reason such as negligence should be weighed more lightly than a

13 deliberate intent to harm the defense. See id.

14        In addition, Defendant’s quotation of State v. Mascarenas cuts against him. 84

15 N.M. 153, 155, 500 P.2d 438, 440 (Ct. App. 1972). [Id. 10] Defendant quotes

16 Mascarenas as follows, “[W]here a defendant causes or contributes to the delay, or

17 consents to the delay, he may not complain of a denial of the right.” Id. (citation

18 omitted). As Defendant acknowledges, Defendant did not oppose the State’s requests


                                             5
 1 for continuances or extensions until April 2008, when Defendant claims he opposed

 2 the State’s motion for a continuance and petition for an extension. [MIO 10; RP 119,

 3 121-22] Thus, it appears that Defendant may have consented to the delay. One

 4 rationale for the sympathetic treatment of pretrial delays for DNA testing is that the

 5 evidence is obtained in part for the benefit of the accused because it could be

 6 exculpatory. See See Tortolito, 1997-NMCA-128, ¶ 12. Here, Defendant repeatedly

 7 maintained his innocence. [DS 2-3] Thus, it might appear that Defendant did not

 8 object to the delay because he thought the DNA test results might be helpful to his

 9 defense. In light of Defendant’s failure to object to the continuances and extensions,

10 we are not inclined to weigh the delay caused by DNA testing heavily in Defendant’s

11 favor.

12 Assertion of Right

13          In weighing Defendant’s assertions of his right to a speedy trial, we examine

14 “the timing and manner in which [d]efendant asserted his right.” Laney, 2003-

15 NMCA-144, ¶ 23 (citation omitted). “An early assertion of the speedy trial right

16 indicates the defendant’s desire to have the charges resolved rather than gambling that

17 the passage of time will operate to hinder prosecution.” Zurla v. State, 109 N.M. 640,

18 644, 789 P.2d 588, 592 (1990).


                                              6
 1        Defendant’s response maintains that Defendant asserted his right to a speedy

 2 trial on March 6, 2007, by filing a motion for a speedy trial. [MIO 10] Thus,

 3 Defendant claims that he made a timely assertion of the right within three months of

 4 his indictment. [Id.] Our calendar notice questioned this assertion. [CN 4-5] We

 5 observed that Defendant’s motion to dismiss indicates that Defendant first asserted his

 6 right to a speedy trial by filing a motion for speedy trial on March 6, 2007; however,

 7 the motion also concedes that Defendant withdrew this motion in exchange for his

 8 release from custody. [RP 119] Defendant’s response fails to explain this discrepancy.

 9        We further note, as discussed above, that Defendant did not object to any of the

10 State’s requests for continuances or extensions until April 2008, when Defendant

11 opposed the State’s requests for a continuance and an extension. [MIO 10; RP 119,

12 121-22] Even though the district court reset the trial in April for August 27, 2008,

13 Defendant did not file a motion to dismiss based on a violation of his right to a speedy

14 trial until June 25, 2008. [MIO 3-4] Under these circumstances, Defendant has failed

15 to persuade us that he specifically invoked a ruling on his constitutional right to a

16 speedy trial until he filed his motion to dismiss on June 25, 2008, which was about

17 eighteen months after he was arrested. [RP 119-120] See Tortolito, 1997-NMCA-

18 128, ¶ 17 (recognizing that a defendant’s late assertion of the right to a speedy trial


                                              7
 1 does not weigh significantly in the defendant’s favor). Moreover, even if we assume

 2 that Defendant asserted his right early by filing his motion for a speedy trial,

 3 Defendant apparently withdrew the motion when he was released so that he could live

 4 with his mother in Texas. Thus, it appears that Defendant may have wanted an

 5 immediate release from confinement, but was not in a hurry to be tried. While

 6 Defendant may not have waived his right to a speedy trial, we remain persuaded that

 7 he did not make a frequent and forceful assertion of his right and that his assertion was

 8 mitigated by his apparent acquiescence to the delay. See State v. Maddox, 2008-

 9 NMSC-062, ¶ 31, 145 N.M. 242, 195 P.3d 1254. We therefore hold that this factor

10 does not weigh significantly in Defendant’s favor.

11 Prejudice to Defendant

12        Turning to the last factor, the right to a speedy trial is intended to prevent or

13 minimize three types of prejudice to a defendant: (1) oppressive pretrial incarceration,

14 (2) anxiety and concern, and (3) the possibility of impairment to the defense. Laney,

15 2003-NMCA-144, ¶ 25. “To support a finding of prejudice, the evidence [must show]

16 a nexus between the undue delay in the case and the prejudice claimed.” Id. (internal

17 quotation marks and citation omitted) (alteration in original). Defendant claimed that

18 he was prejudiced because the delay caused restrictions on his liberty and unnecessary


                                               8
 1 anxiety. [RP 125-26] However, Defendant was only in custody from December 30,

 2 2006, to May 10, 2007. [RP 79] On May 10, 2007, Defendant was released so that he

 3 could be allowed to live with his mother in Texas. [Id.] Thus, Defendant remained

 4 free on bond for the majority of time that his case was pending. Yet it was not until

 5 June 25, 2008, that Defendant filed his motion to dismiss asserting his right to a

 6 speedy trial. [RP 119-20] Cf. Zurla, 109 N.M. at 644, 789 P.2d at 592 (recognizing

 7 that early and frequent assertions of the right to speedy trial indicate “the probable

 8 extent to which the defendant has suffered from the inevitable burdens that fall upon

 9 the target of a criminal prosecution”). Under these circumstances, we conclude that

10 Defendant’s pre-trial incarceration and subsequent release was not oppressive. We

11 further conclude that Defendant did not support his claim that the delay in the trial

12 caused him any more anxiety beyond what would be expected. [RP 126] Defendant’s

13 claim of undue anxiety appears to be little more than a bare assertion, which we

14 accord no weight. In addition, nothing has been suggested to indicate that the defense

15 was impaired. See Laney, 2003-NMCA-144, ¶ 29 (“Without evidence that the defense

16 was impaired, we do not find Defendant’s pretrial incarceration to be unduly

17 prejudicial.”). Thus, we do not hold this factor in Defendant’s favor.

18 Balancing


                                             9
 1        In summary, most of the delay in this case was due to DNA analysis being

 2 completed and during that time Defendant did not oppose the continuances and

 3 extensions requested by the State. Thus, although we attribute the delay to the State,

 4 we do not weigh the length of delay significantly in Defendant’s favor. We remain

 5 persuaded that the remaining factors do not weigh heavily in Defendant’s favor.

 6 Defendant did not assert his right to a speedy trial until eighteen months into the case,

 7 at which time he failed to show any prejudice, particularly to his defense.

 8 Accordingly, in balancing the four Barker factors, we hold that the delay of twenty

 9 months between Defendant’s arrest and his plea does not violate Defendant’s right to

10 a speedy trial. See State v. Manes, 112 N.M. 161, 169, 812 P.2d 1309, 1317 (Ct. App.

11 1991) (upholding the trial court’s determination that no speedy trial violation

12 occurred, even when the first three factors all weighed slightly in the defendant’s

13 favor, as a consequence of the defendant’s failure to make a compelling showing

14 under the fourth factor).

15        In response, Defendant contends that this Court errs by acknowledging that the

16 delay in this case is presumptively prejudicial, yet concluding that Defendant’s right

17 to a speedy trial has not been violated. [MIO 12] Defendant asserts that this Court

18 is affording too much weight to the fourth factor because the prejudice was minimum.


                                              10
 1 [Id. 13] Defendant also maintains that the State failed to rebut the presumption of

 2 prejudice. [Id.] We remind counsel that a finding of presumptive prejudice no longer

 3 creates a presumption that the speedy trial right has been violated. Garza, 2009-

 4 NMSC-038, ¶ 21. Instead, it now functions as a “triggering mechanism” for a

 5 consideration of the additional Barker factors. Id. Furthermore, Defendant’s failure

 6 to produce evidence of how he suffered actual prejudice greatly reduced the State’s

 7 burden of persuasion on that issue. See State v. Urban, 2004-NMSC-007, ¶ 18, 135

 8 N.M. 279, 87 P.3d 1061. In order for a Defendant to prevail without a showing of

 9 prejudice, the remaining Barker factors must weigh heavily in his favor, Garza, 2009-

10 NMSC-038, ¶¶ 39, 40, and such is not the case here. Although none of the four

11 factors weighs heavily in either side’s favor under our analysis, we conclude that the

12 reasons for the State’s delay in analyzing the DNA evidence and preparing the child

13 witness to testify, the late or mitigated assertion of Defendant’s constitutional right to

14 a speedy trial, and most importantly the lack of any actual impairment of Defendant’s

15 ability to make a defense caused by the delay, are sufficient to outweigh the

16 presumption of prejudice that arises from the length of the delay.

17 CONCLUSION

18        We therefore affirm the district court’s conclusion that Defendant’s


                                               11
1 constitutional right to a speedy trial was not violated in this case.

2        IT IS SO ORDERED.


3                                          ___________________________________
4                                          RODERICK T. KENNEDY, Judge

5 WE CONCUR:



6 ___________________________
7 JONATHAN B. SUTIN, Judge



8 ___________________________
9 LINDA M. VANZI, Judge




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