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

 2 STATE OF NEW MEXICO,

 3          Plaintiff-Appellant,

 4 v.                                                                                   No. 34,443

 5 DAMON MORGAN,

 6          Defendant-Appellee.

 7 APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY
 8 George P. Eichwald, District Judge

 9   Hector H. Balderas, Attorney General
10   Santa Fe, NM
11   Kenneth H. Stalter, Assistant Attorney General
12   Albuquerque, NM

13 for Appellant

14 Ray Twohig
15 Albuquerque, NM

16 for Appellee


17                                 MEMORANDUM OPINION

18 VIGIL, Chief Judge.
 1   {1}   The State appeals from the district court’s order granting Defendant’s motion

 2 to dismiss for a speedy trial violation. We affirm.

 3 BACKGROUND

 4   {2}   Defendant was a waiter at a restaurant where he served drinks to two female

 5 customers. The State alleged that Defendant placed Valium in the women’s drinks

 6 without their knowledge and consent. Defendant was arrested on May 13, 2011, and

 7 on March 15, 2012, was indicted on two counts of distribution of a controlled

 8 substance under NMSA 1978, Section 30-31-22 (2011), and two counts of aggravated

 9 battery (great bodily harm) under NMSA 1978, Section 30-3-5(C) (1969).

10   {3}   Defendant filed a motion to dismiss on speedy trial grounds. Following a two-

11 day motion hearing and the admission of approximately fifty-six exhibits, the district

12 court found: (1) without determining the level of complexity, that the length of the

13 delay was “excessive even for a complex case”; (2) the reason for the delay, except

14 for three months, “can [all] be attributed to administrative lapse [and] laxity in

15 prosecution,” thus weighing heavily against the State; (3) that Defendant asserted his

16 right to a speedy trial; and (4) that Defendant was substantially prejudiced by the

17 delay. The State argues on appeal that the district court erred in its examination of the

18 Barker factors. Because this is a memorandum opinion and the parties are familiar




                                               2
 1 with the facts and procedural posture in this case, it is unnecessary for us to set them

 2 forth, except as required for our analysis.

 3 DISCUSSION

 4 I.      Standard of Review

 5   {4}   When we review a speedy trial claim, we weigh the conduct of both the

 6 prosecution and the defendant by balancing the four factors as set forth in Barker v.

 7 Wingo, 407 U.S. 514, 530 (1972). State v. Garza, 2009-NMSC-038, ¶ 13, 146 N.M.

 8 499, 212 P.3d 387. Those factors are: (1) the length of the delay; (2) the reasons for

 9 the delay; (3) the defendant’s assertion of his right; and (4) the actual prejudice to the

10 defendant. Id. We give deference to the district court’s factual findings on each factor

11 as long as they are supported by substantial evidence, but weigh and balance the

12 Barker factors de novo. State v. Montoya, 2015-NMCA-056, ¶ 12, 348 P.3d 1057.

13 II.     Analysis

14   {5}   The State’s argument on appeal, in essence, is that while the district court

15 properly weighed each of the Barker factors against the State, it weighed them too

16 heavily. Without deciding whether the State is correct about the weight to be given to

17 each factor here, the result does not change. The Barker factors are weighed “either

18 in favor of or against the State or the defendant, and then balanced to determine if a

19 defendant’s right to a speedy trial was violated.” State v. Spearman, 2012-NMSC-023,



                                                 3
 1 ¶ 17, 283 P.3d 272. If each of the Barker factors weighs against the State, there is a

 2 speedy trial violation. See State v. Lujan, 2015-NMCA-032, ¶ 27, 345 P.3d 1103

 3 (stating that a district court properly dismissed the defendant’s charges on speedy trial

 4 grounds when the Barker factors weighed against the State and in favor of the

 5 defendant).

 6   {6}   Once Defendant has shown that the delay is beyond the presumptively

 7 prejudicial threshold, the State has the burden of persuasion “to show, on balance, that

 8 the four factors do not weigh in favor of dismissal.” See State v. Stock, 2006-NMCA-

 9 140, ¶ 12, 140 N.M. 676, 147 P.3d 885 (internal quotation marks and citation

10 omitted). Neither party disputes that the length of delay was forty-three months and

11 went beyond the presumptively prejudicial threshold. See Spearman, 2012-NMSC-

12 023, ¶ 21 (“A delay of trial of one year is presumptively prejudicial in simple cases,

13 fifteen months in intermediate cases, and eighteen months in complex cases.”).

14   {7}   After reviewing the State’s arguments, we conclude it has failed to meet its

15 burden. First, the State concedes that the length of the delay weighs moderately

16 against it. Second, with regard to the reason for the delay, the State only argues that

17 Defendant acquiesced or caused at least eight months of the delay out of a forty-three-

18 month period. The State does not cite to any authority that the overall delay should

19 weigh against Defendant based on this eight-month period where he either consented

20 to or caused the delay. See State v. Ibarra, 1993-NMCA-040, ¶ 13, 116 N.M. 486, 864
                                               4
 1 P.2d 302 (“We are entitled to assume, when arguments are unsupported by cited

 2 authority, that supporting authorities do not exist.”). Third, the State concedes that

 3 Defendant’s assertion of his right “was clearly adequate and somewhat frequent and

 4 forceful.” Finally, regarding the actual prejudice suffered by Defendant, the State does

 5 not challenge the district court’s finding that “Defendant has suffered mental and

 6 emotional deterioration due to the delay in bringing this matter to finality.” See Garza,

 7 2009-NMSC-038, ¶ 35 (stating the types of prejudice the speedy trial right was

 8 designed to prevent as (1) oppressive pretrial incarceration, (2) anxiety and concern

 9 of the accused, and (3) impairment to a defense). This finding is sufficient to establish

10 prejudice grounded on undue anxiety. See id. (stating that when the anxiety suffered

11 is undue, this factor weighs in the defendant’s favor).

12   {8}   Nevertheless, because of the importance of a finding of prejudice to a speedy

13 trial violation, we address the State’s sufficiency of evidence challenge to the district

14 court’s finding of prejudice. See State v. Valencia, 2010-NMCA-005, ¶ 30, 147 N.M.

15 432, 224 P.3d 659 (“The heart of the right to a speedy trial is preventing prejudice to

16 the accused.” (internal quotation marks and citation omitted)). The district court found

17 that Defendant was “substantially prejudiced” by the delay for the following reasons:

18 (1) Defendant’s education and future career in nursing were negatively affected; (2)

19 Defendant’s current or future employment prospects have been “severely hampered”;

20 and (3) a crucial defense witness was no longer available due to his death. In
                                               5
 1 reviewing the record, we hold that there was sufficient evidence to support these

 2 findings.

 3   {9}   Defendant testified about the hardships that he faced as a student in nursing

 4 school during the pending case. Defendant was “blackballed and shunned” by people

 5 who had previously interacted with him prior to the allegations. The “upper echelons”

 6 behaved the same way toward Defendant. At a clinical site located at the University

 7 of New Mexico, staff members became aware of the allegations when a fellow student

 8 showed them publicity about Defendant and the student warned them to be careful

 9 with this individual; he further stated that “[Defendant] is a rotten apple.” When the

10 accusations became known, Defendant was escorted from the dormitories. Complaints

11 were then made against Defendant, and within a few hours from Defendant’s

12 notification about these complaints, he received an e-mail that he was expelled from

13 nursing school. Defendant was reinstated and received his degree after defense

14 counsel had a meeting with the Director of the Central New Mexico Community

15 College, School of Health, Wellness & Public Safety, and the Nursing Director, but

16 he was not allowed to graduate with his class. Moreover, Defendant was escorted from

17 the building on the last day of the school year. Defendant said these incidents

18 happened as a result of this case.




                                             6
 1   {10}   In addition, Defendant had difficulty in obtaining employment and pursuing his

 2 nursing career while the case was on-going. Defendant first lost his job after the

 3 alleged incident and was rejected for approximately forty-six positions by Tri-Core

 4 Reference Laboratories and the Lovelace Respiratory Research Institute, both

 5 asserting that they found a better candidate. Another company would not hire

 6 Defendant after it consulted with its attorney who stated that he was a liability. In

 7 addition Defendant did not apply for a nursing license due to this case. A criminal

 8 background check must be authorized in order for the application to be processed for

 9 the licensing exam. See NMSA 1978, § 61-3-28(A)(3) (2004) (stating that the

10 licensing board can deny any application for a nursing license on the grounds that the

11 applicant “is unfit or incompetent”). Defendant spoke with the staff at the New

12 Mexico Board of Nursing, potential employers, and people who have obtained their

13 license, and he was advised not to apply for the exam because it would ruin his ability

14 to submit his application again once the case was resolved. Based on the “red flags”

15 that the pending charges created, Defendant postponed his nursing career.

16   {11}   The State contends, referring to dicta in Spearman, 2012-NMSC-023, ¶ 39, and

17 Lujan, 2015-NMCA-032, ¶ 20, that we only consider whether the prejudice resulted

18 from the delay beyond the prejudice threshold in our speedy trial analysis. We have

19 previously rejected this interpretation of the dicta in Spearman:



                                               7
 1          The [s]tate relies on the Spearman Court’s statement that such evidence
 2          could have established that the delay in trial beyond the presumptive
 3          period caused the alleged prejudice as opposed to the original
 4          indictment. In our view, however, the [s]tate’s reliance on the Court’s
 5          dicta is misplaced. We do not believe that the Spearman Court’s
 6          statement was intended to espouse a principle that prejudice suffered
 7          after the indictment but prior to the speedy trial triggering date has no
 8          bearing on our analysis. Rather, insofar as the Spearman Court was
 9          focused on the question whether the allegations of prejudice could be
10          substantiated by evidence, we believe the Court’s statement was intended
11          to convey that the defendant must prove with specificity whether and
12          how he was prejudiced by the pending charges. That is all that can
13          reasonably be read into the Court’s dicta in this regard.

14 State v. Vigil-Giron, 2014-NMCA-069, ¶ 50, 327 P.3d 1129 (alteration, internal

15 quotation marks, and citations omitted). In our speedy trial analysis, we view the

16 prejudice through the life span of the case, recognizing that the anxiety, stress, and

17 social problems connected with the criminal indictment worsen over time. Id. ¶ 48.

18 We therefore follow the proposition established from our case law that “once the date

19 of presumptive prejudice has passed, we may consider indicia of prejudice spanning

20 from the date that the charges were filed through the date of the case’s resolution.” Id.

21   {12}   The State also argues that the incidents involved with Defendant’s education,

22 employment, and career are too speculative to connect to the on-going case,

23 contending that no testimony established that these occurrences resulted from the

24 unresolved case. This argument, however, ignores that when examining whether a

25 factual finding is supported by substantial evidence “we review the evidence in the

26 light most favorable to upholding the finding and indulge all reasonable inferences in
                                               8
 1 support of the trial court’s decision.” Robertson v. Carmel Builders Real Estate, 2004-

 2 NMCA-056, ¶ 20, 135 N.M. 641, 92 P.3d 653. Here, a reasonable inference from the

 3 evidence is that the unresolved case severely prejudiced Defendant’s education,

 4 employment, and career in nursing. See Salandre v. State, 1991-NMSC-016, ¶ 18, 111

 5 N.M. 422, 806 P.2d 562 (stating that the right to a speedy trial “protects against

 6 interference with a defendant’s liberty, disruption of employment, curtailment of

 7 associations, subjection to obloquy, and creation of undue anxiety”), holding modified

 8 on other grounds by Garza, 2009-NMSC-038.

 9   {13}   Finally, regarding the district court’s finding on the crucial witness, the State

10 argues that Defendant presented no evidence of Charles Yates’ potential testimony or

11 that the delay caused his unavailability. See Garza, 2009-NMSC-038, ¶ 36 (“If the

12 defendant asserts that the delay caused the unavailability of a witness and impaired

13 the defense, the defendant must state with particularity what exculpatory testimony

14 would have been offered, and the defendant must also present evidence that the delay

15 caused the witness’s unavailability.” (alterations, internal quotation marks, and

16 citation omitted)). We disagree. An impaired defense from the delay is the most

17 serious type of prejudice. Id. As the United States Supreme Court articulated in

18 Barker, [i]f witnesses die or disappear during a delay, the prejudice is obvious.” 407

19 U.S. at 532.



                                                9
 1   {14}   Here,   Defendant     showed     that   Yates    died    on    September     21,

 2 2014—approximately three years after his arrest. According to Defendant, Yates was

 3 the bartender on the night that the State claimed he placed Valium in the drinks of one

 4 of the alleged victims without her knowledge or consent. Yates made six drinks for

 5 one of the alleged victims, and Defendant, as the waiter, delivered the drinks. The first

 6 drink was returned to Yates because the alleged victim stated that it was not tasty or

 7 strong enough. Yates added more ingredients, and the drinks were then “mixed” that

 8 way throughout the night. Because the State alleges that Defendant placed Valium in

 9 the victim’s drinks, the chain of events from making to serving the drinks is

10 significant, and as such, the person who was the bartender and interacted with

11 Defendant as the waiter was clearly important to the case. Yates’s death during the

12 delay prevents Defendant in providing testimony from someone who worked with

13 Defendant closely throughout that evening.

14   {15}   The State notes that Yates was never listed as a witness and Defendant did not

15 present any evidence on whether anyone had interviewed Yates or taken his statement.

16 To the extent the State argues that Yates would not be able to testify as a witness at

17 the trial, it is unclear on what basis the State takes this position on appeal. Headley v.

18 Morgan Mgmt. Corp., 2005-NMCA-045, ¶ 15, 137 N.M. 339, 110 P.3d 1076 (“We

19 will not review unclear arguments, or guess at what [the] arguments might be.”). In



                                               10
 1 any event, the district court did not make any finding that Yates would not be allowed

 2 to testify at trial. On the contrary, the district court’s finding that Yates was a crucial

 3 defense witness supports the view that the district court would have permitted his

 4 testimony.

 5   {16}   Overall, because the State failed to meet its burden that the factors, on balance,

 6 do not demonstrate a speedy trial violation and the evidence supports the challenged

 7 findings of prejudice, we conclude that the district court properly dismissed the

 8 indictment.

 9 CONCLUSION

10   {17}   The order of the district court is affirmed.

11   {18}   IT IS SO ORDERED.

12                                                   _______________________________
13                                                   MICHAEL E. VIGIL, Chief Judge

14 WE CONCUR:


15 ___________________________________
16 MICHAEL D. BUSTAMANTE, Judge


17 ___________________________________
18 RODERICK T. KENNEDY, Judge




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