This memorandum opinion was not selected for pub lication in the New Mexico Reports. Please 1 see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions. 2 Please also note that this electronic memorandum opinion may contain computer-generated 3 errors or other deviations from the official paper version filed by the Court of Appeals and does 4 not include the filing date. 5 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO 6 STATE OF NEW MEXICO, 7 Plaintiff-Appellee, 8

v. NO. 28,288 9 OLIVER STANLEY, 10 Defendant-Appellant. 11 APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY 12 Ross C. Sanchez, District Judge 13 Gary K. King, Attorney General 14 Anita Carlson, Assistant Attorney General 15 Santa Fe, NM 16 for Appellee 17 Hugh W. Dangler, Chief Public Defender 18 Will O’Connell, Assistan t Appellate Defender 19 Santa Fe, NM 20 for Appellant 21 MEMORANDUM OPINION 22 KENNEDY, Judge. 23 Oliver Stanley (Defendant) appeals his convictions for four counts of criminal 242 sexual penetration in the second degree (CSP II), two counts of criminal sexual 1 contact of a minor in the third degree (CSP III), and one count of bribery of a witness. 2 He argues that the jury should have been instructed on statutory rape as a lesser3 included offense of CSP II and that the State violated his right to a speedy trial by 4 delaying his case for thirty-six months. For the reasons discussed below, we affirm 5 Defendant’s convictions. 6 I. BACKGROUND 7 The State alleged Defendant committe d CSP II by coercion when he sexually 8 penetrated Victim on four separate occasions. At the time of the crimes, Victim was 9 living in Defendant’s home with his fiancé, Esther, who is Victim’s older sister and 10 legal guardian. When Esth er discovered Defendant had engaged in intercourse with 11 Victim, she called the police and removed both herself and Vic tim from Defendant’s 12 home. 13 The State asserted that Defendant wa s guilty of CSP II by coercion because he 14 used his position of authority as head of the household to unduly influence Victim to 15 have sex with him. Defendant argued that he had no au thority over Victim and that 16 she therefore could not have felt coerced. Defendant did not testify; his case relied 17 instead upon Victim’s unexpressive tes timony and upon cross-examination of both 18 Victim and Esther. 193 At the close of the evidence, Defendant requested the jury be instructed on both 1 CSP II by coercion and the lesser-included offe nse of CSP of a minor (statutory rape). 2 He argued that under the cognate approach adopted in State v. Meadors , 121 N.M. 38, 3 44, 908 P.2d 731, 737 (1995), he wa s entitled to such an instruction. Specifically, he 4 argued that the evidence adduced at trial could be reasonably interpreted to support 5 a statutory rape charge; for instance, the jurycould have chosen to disbelieve that he 6 used his position of authority to coerce Victim into sex and instead chose to convict 7 him of statutory rape based on evidence that he was more than four years older than 8 Victim. After considering extensive argumen t on the matter, the district court refused 9 Defendant’s request to instruct the jury on statutory rape, and the jury returned a 10 conviction for, among other charges, four counts of CSP II by coercion. Defendant 11 then unsuccessfully moved for a mistrial on th e basis that the statutory rape instruction 12 was not given. He makes two arguments on appeal: first, he contends that under the 13 cognate approach, the district court improperly refused to instruct the jury on the 14 lesser-included offense of statutory rape; and second, he argues hewas deprived of a 15 speedy trial. 16 II. DISCUSSION 17 A. Lesser-Included Offense Instruction 18 “The propriety of jury instructions is a mixed question of law and fact. When 194 considering a defendant’s requested instru ctions, we view the evidence in the light 1 most favorable to the giving of the requestedinstruction[s]. Viewing the facts in that 2 manner, we review the issue de novo.” State v. Contreras , 2007-NMCA-119, ¶ 8, 142 3 N.M. 518, 167 P.3d 966 (alteration in original ) (internal quotation marks and citation 4 omitted). 5 The Rules of Criminal Procedure permit the jury to find a defendant guilty of 6 an offense that is necessarily included in the greater offense, wh ere the lesser offense 7 is instructed. See Rule 5-611(D) NMRA. “We use the terms ‘lesser-included’ and 8 ‘necessarily-included’ interchangeably.” Meadors , 121 N.M. at 41 n.2, 908 P.2d at 9 734 n.2. “‘The rules regard ing lesser-included offenses developed at common law to 10 aid the prosecution in cases in which its proof may have failed as to the higher offense 11 charged but nonetheless was sufficient to support a conviction on a lesser offense.’” 12 State v. Munoz , 2004-NMCA-103, ¶ 9, 136 N.M. 235, 96 P.3d 796 (quoting 5 Wayne 13 R. LaFave, et al., Criminal Procedure § 24.8(d), at 574 (2d 1999)). “New Mexico 14 common law extended the right to lesser-included offense in structions to defendants 15 under appropriate circumstances.” Munoz , 2004-NMCA-103, ¶ 9. 16 Meadorsprovides guidance for how courts should analyze whether one crime 17 constitutes a lesser-included offe nse of another. “First, the trial court should, when 18 faced with a request . . . for a lesser-incl uded offense instruction, grant the request 195 when the statutory elements of the lesser crime are a subset of the statutory elements 1 of the charged crime.” 121 N.M. at 44, 908 P.2d at 737. This is commonly referred 2 to as the “strict elements approach.” Id . Defendant does not argue this issue. He 3 instead focuses on the remaining prongs of the Meadorsstandard, an inquiry 4 commonly referred to as the “cognate approach.” Id. at 43-44, 908 P.2d at 736-37. 5 [T]he trial court should grant [a lesser-i ncluded offense] instruction if (1) 6 the defendant could not have committed the greater offense in the 7 manner described in the charging doc ument without also committing the 8 lesser offense, and therefore notice of the greater offense necessarily 9 incorporates notice of the lesser offens e; (2) the evidence adduced at trial 10 is sufficient to sustain a convicti on on the lesser offense; and (3) the 11 elements that distinguish the lesser and greater offenses are sufficiently 12 in dispute such that a jury rationally could acquit on the greater offense 13 and convict on the lesser. 14 Id. at 44, 908 P.2d at 737. All three prongs must be satisfied to entitle a party to a 15 lesser-included offense instruction. See, e.g. , Contreras , 2007-NMCA-119, ¶¶ 23-24 16 (affirming the district court’s refusal to in struct the jury on the lesser-included offense 17 because the defendant failed to establish the third prong of the Meadorstest); State 18 v. Collins , 2005-NMCA-044, ¶¶ 13-16, 137 N.M. 353, 110 P.3d 1090 (examining all 19 three prongs and holding that because they were all met the de fendant was entitled to 20 the instruction), overruled on other grounds by State v. Willie , 2009-NMSC-037, 146 21 N.M. 481, 212 P.3d 369. We also note that th e cognate analysis has been described 22 as tailored to the state’s request for a le sser-included offense instruction, while the 236 contours of the analysis for a defendant’s request have remained somewhat undefined. 1 See State v. Darkis , 2000-NMCA-085, ¶ 14, 129 N.M. 547, 10 P.3d 871. In 2 determining whether the three prongs of the standard have been met, we must “look[] 3 to the elements of the respec tive offenses, not in the abstract, but as seen through the 4 prism of the charging documents and the facts alleged therein.” State v. McGee , 5 2002-NMCA-090, ¶ 10, 132 N.M. 537, 51 P.3d 1191; see Meadors , 121 N.M. at 44, 6 908 P.2d at 737. We begin by fi rst laying out the elements of the crimes at issue and 7 then proceeding to a consid eration of each prong of the Meadorscognate approach. 8 The statutory elements of CSP II by co ercion in effect at the time Defendant 9 was charged provide, in relevant part: 10 D. Criminal sexual penetration in the second degree consists 11 of all criminal sexual penetration perpetrated: 12 (1) on a child thirteen to ei ghteen years of age when the 13 perpetrator is in a position of authority over the child and uses this 14 authority to coerce the child to submit[.] 15 NMSA 1978, § 30-9-11(D)(1) (2003) (amended 2009). The elements of statutory 16 rape, also called CSP IV, in relevant part, are as follows: 17 F. Criminal sexual penetration inthe fourth degree consists of 18 all criminal sexual penetration: 19 (1) . . . perpetrated on a child thirteen to sixteen years of 20 age when the perpetrator is at least eighteen years of age and is at least 21 four years older than the child and not the spouse of that child[.] 227 Section 30-9-11(F). 1 1. Notice and the Charging Document 2 Under the first prong of the cognate appr oach, we analyze the State’s assertions 3 in the charging document to determine whether, under the specific language found 4 there, “the defendant could not have committed the greater offense . . . without also 5 committing the lesser offense.” Meadors , 121 N.M. at 44, 908 P.2d at 737. Such an 6 analysis ensures the defendant’s due process right to notice of the charges against him 7 because the charging document “serves as a re liable indicator of th e [s]tate’s theory.” 8 Darkis , 2000-NMCA-085, ¶ 17. Accordingly, ina case such as th is where Defendant 9 (not the State) requested the lesser-included offense instruction, notice is not an issue. 10 See Munoz , 2004-NMCA-103, ¶ 12 (holding that “lack of notice to the defendant is 11 not a concern when the defendant himself reque sts the instruction”). Indeed, the facts 12 clearly demonstrate Defendant was sufficien tly apprised of the charges against him. 13 The State charged him specifically with CSP II by coercion and gave no indication 14 that it would pursue any other theory of rape , statutory or otherwise. It was Defendant 15 who requested the statutory rape instruc tion, and he therefore did not suffer any 16 surprise by the manner in which the State sought to instruct the jury on CSP II. 17 2. The Evidence Adduced at Trial 18 The second prong of the cognate approach requires courts to view the evidence 198 to determine whether it could have supported a conviction under the requested lesser1 included offense instruction. See Meadors , 121 N.M. at 42-43, 908 P.2d at 735-36. 2 Defendant dedicates much of his brief to th is question. He argues the district court 3 erred when it concluded that the parties’ ages were insufficiently established to 4 support a conviction for statutory rape. We disagree. 5 Under Meadors , a party is entitled to a lesser-i ncluded offense instruction when 6 the evidence supporting the lesser offense was pr esented at trial pursuant to the state’s 7 theory of the case and was somehow necessary to prove the greater offense. See, e.g. , 8 State v. Neatherlin , 2007-NMCA-035, ¶ 24, 141 N.M. 328, 154 P.3d 703 (holding that 9 the defendant was entitled to an instruc tion on the lesser offense of misdemeanor 10 aggravated battery where th e evidence that would support that charge was the same 11 evidence presented for the greater chargeof aggravated battery with a deadly 12 weapon); Collins , 2005-NMCA-044, ¶ 15 (holding that the state was entitled to a 13 lesser offense instruction for DWI where the state presented evidence of the 14 defendant’s breath alcohol content as the basis for its case for aggravated DWI); 15 Munoz , 2004-NMCA-103, ¶¶ 7, 16 (holding that the defendant was entitled to the 16 lesser offense instruction for DWI in th e state’s case against him for great bodily 17 injury by vehicle because the state pres ented evidence that the defendant was 18 intoxicated while driving pursuant to its th eory that his intoxication was the proximate 199 cause of the collision); Darkis , 2000-NMCA-085, ¶¶ 18-19 (holding that the 1 defendant was entitled to a lesser offense instruction for possession of drug 2 paraphernalia where the state presented ev idence of the drug paraphernalia to prove 3 the defendant’s possession of cocaine, the great er charge). As stated previously, CSP 4 II by coercion requires proof of (1) sexual penetration, (2) a child between thirteen 5 and eighteen years of age, and (3) a person in a position of authority who uses that 6 authority to coerce the child into submission. See § 30-9-11(D)(1). In contrast, 7 statutory rape requires proof of (1) sexual pe netration, (2) a child between thirteen and 8 eighteen years of age, and (3) a person older than eighteen years of age who is at least 9 four years older than the child and is not the child’s spouse. See § 30-9-11(F). 10 Comparing these elements with the evidence presented at trial, the district court found 11 that the second prong of the cognate approach was not met because there was 12 insufficient evidence presented to establish the difference between the ages of Victim 13 and Defendant. As the c ourt concluded, “The evidence adduced at trial is not 14 sufficient to sustain a conviction on [statu tory rape]. [D]efendant’s age was not 15 adduced at trial.” Thus, “[ t]he age difference required by [statutory rape] has not been 16 accomplished in evidence and the juryis not allowed to speculate.” 17 The district court was partly mistaken in its conclu sion. Our review of the 18 record indicates that evidence waspresented at trial which established Defendant’s 1910 age. Nevertheless, we agree with the district court that the second prong of the 1 cognate approach was not met because, although such evidence was presented, it was 2 of negligible value and entirely incidental to the State’s theory of the case. The parties 3 prepared and argued their cas es under the State’s theory that Defendant was in a 4 position of authority, as Victim’s guardian’s fiancé and head of the household in 5 which Victim resided, and that he used that position to coerce Victim. Defendant’s 6 age was mentioned only twice, both times in order to identify him as the offender, not 7 to establish the element of authority nece ssary for CSP II. Fo r example, Defendant’s 8 age came in through the testimony of Victim ’s examining nurse, who testified that 9 when asked to identify the offender, Victim identified Defendant as forty-two-year-old 10 Oliver Stanley. She did not specify the s ource of this indirect evidence of Defendant’s 11 age. Defendant’s age was al so alluded to, but not explicitly stated, in the testimony 12 of his older brother, Sylvester Stanle y. This testimony was elicited on cross13 examination and seems to be either a form of impeachme nt to establish that the 14 witness did not know his brother very well or to corroborate the identity of Defendant. 15 The State’s next question was: “He doe sn’t have an identical twin, does he?” 16 As a result, we agree withthe district court’s conclusion that the second prong 17 of the cognate approach was not met due to the incidental and indirect nature of this 18 evidence which was not admitted to s upport the State’s theory of the case. 1911 3. The Lesser Offense Not Reasonably the Greatest Crime Committed 1 Nevertheless, even if we assumed that the second prong of the cognate approach 2

wasmet as Defendant contends, analysis of the third prong would mandate affirmance 3 under Meadors

. See, e.g., Contreras , 2007-NMCA-119, ¶¶ 23-24 (refusing to address 4 whether the district court misapprehended the showing required fo r the lesser offense 5 under the second prong of the c ognate analysis because the third prong was not met). 6 Under that prong, Defendant must demonstrate “some view of the evidence pursuant 7 to which the lesser offense is the highestdegree of crime committed, and that view 8 must be reasonable.” State v. Lente , 2005-NMCA-111, ¶ 14, 138 N.M. 312, 119 P.3d 9 737 (internal quotation marks and citati on omitted). Defendant argues that a 10 reasonable jury might find that statutory rape was the highest degree of crime 11 committed. Such a jury might reasonably reject the State’s theory that Victim 12 submitted to intercourse due to Defendant’s position of authority. He argues that 13 Victim never directly testified that she submitted as a result of Defendant’s position 14 of authority. Defendant also points out th at Victim did not knowwhy she had sexual 15 intercourse with him, stati ng she felt “confused.” Defe ndant did not occupy a position 16 of authority, he contends, because he wa s not Victim’s parent or legal guardian, 17 Victim did not respect him, and because Victim thought Esther’s subservience to him 18 was “pathetic.” Defendant co rrectly cites Victim’s tes timony above but fails to note 1912 how consistently undescriptive and taciturn she was as a witness under both direct and 1 cross-examination. While Defendant corr ectly cites Victim, his assertion that a 2 reasonable jury could have chosen to disbelie ve the State’s theory that he coerced her 3 from a position of authority denies the overw helming weight of evidence against him. 4 Indeed, evidence of his position of authority and coercion of Victim was almost 5 entirely uncontradicted and firmly establishe s that he used his position of authority to 6 coerce Victim into submission. 7 “Position of authority’ is defined as a position occupied by a parent, relative, 8 household member, teacher, employer or other person who, by reason of that position, 9 is able to exercise undueinfluence over a child.” State v. Lamure , 115 N.M. 61, 66, 10 846 P.2d 1070, 1075 (Ct. App. 1992) (internal quotation marks and citation omitted). 11 “Undue influence has been defi ned as the result of moral, social, or domestic force 12 exerted upon a party, so as to control the free action of his [or her] will[.]” Id. 13 (internal quotation marks and citation omitted). 14 The evidence presented at trial overwhelmingly demonstrated both coercion and 15 Defendant’s position of authority. Vic tim arrived in Defendant’s home after 16 experiencing abuse and neglect at the hands of her parents. The State presented 17 uncontroverted evidence that social servi ces removed her just before she turned 18 thirteen years old from her parents’ home on an isolated mesa on the Navajo 1913 reservation. At trial, Victim reported th e erratic behavior of her parents; rarely 1 returning home at times and other times never leaving the house. In her home, Victim 2 commonly witnessed domestic abuse betweenher parents and physical fights between 3 her three older brothers. Victim testifie d that she felt alone, did not have anyone to 4 talk to about the problems at home, and did not know where else she could live. 5 Victim was placed in a group home for troubledchildren for two or three months and 6 then placed with Esther, who was nineteen at the time. Esther was named her legal 7 guardian and given power of attorney over her. Social services had no other family 8 placement options for Vic tim and was unwilling to place her back in her parents’ 9 home. As part of Victim’s living arrange ment, she stayed with Defendant and Esther 10 in Defendant’s three-bedroom trailer in Albuquerque. Defendant was Esther’s fiancé, 11 whom Victim had met beforeshe was placed with them. When she moved in, Victim 12 did not know how long she would be ableto live with Defendant and Esther. 13 After arriving in Defendant’s home, a family dynamic in which Defendant 14 occupied the role of father quickly emerged. While Victim lived in the trailer, she 15 stayed home most of the time and watche d television with Defendant and Esther. 16 Defendant was in charge of the household. He was de manding, controlling, and told 17 Victim what to do—she complied. Defe ndant controlled all the money in the 18 household, even Esther’s work income, gi ving her an allowan ce, money for shopping, 1914 and expecting receipts in return. Defe ndant also gave Victim an allowance, 1 demanding that she have cleaning chores inthe home, performed to his satisfaction. 2 Victim and Defendant got along in the beginning, but she reported that Defendant 3 would get angry and become phys ically and verbally violent. Both Victim and Esther 4 testified that Defendant would often yell at and beat Esther many times in Victim’s 5 presence. Testimony also established that Defendant was a large man, over six feet 6 tall, weighing over 300 pounds. We hold that such evidence establishes Defendant’s 7 dominance over domestic life in the home, sufficient from which a reasonable jury 8 would infer the degree of influence described by the State. 9 In June 2003, approximately four months after Victim move d into Defendant’s 10 home, he began touching her sexually when Esther was not at home. One morning, 11 when Victim woke up, she went to the kitchen to make breakfast and Defendant 12 stopped her and told her to take off her clothes and get on the floor. He laid on top of 13 Victim and forced his penis inside her vagina . Victim testified that Defendant told her 14 not to tell anyone or he would hurt Victim and her family. On another occasion, 15 Defendant told Victim to come into his room, where he was standing in the doorway 16 naked. Victim hesitated, but eventually complied. Defendant removed Victim’s 17 clothes, told her to get on the bed and forcedhis penis inside her vagina again. Victim 18 wrote in her journal that Defendant said he would kill her and her family if she told 1915 anyone, and wrote that “‘[h]e had sex with me and I hate him.’” In four other 1 instances, all occurring in his home, Defendant penetrated Victim twice with his 2 fingers, once with his tongue, and made Victimperform fellatio on him. Victim wrote 3 in her journal that she was “really scared ” during this time and scared to tell Esther 4 about Defendant. 5 The final sexual encounter between De fendant and Victim occurred on the 6 evening of June 12, 2003, when Esther went to bed, leaving Defendant and Victim in 7 the living room watching television. Once Esther was gone, Defendant turned up the 8 volume on the television, lifted up Victim’s shirt, kissed her breasts, penetrated her 9 vagina with his fingers, and attempted to have intercoursewith her. Esther felt 10 suspicious that something was wrong, heard strange noises coming from the living 11 room, and saw what she thought might be in appropriate touching. She walked into 12 the room and stopped Defendant. Esther yelled to him, “What the hell are you 13 doing?” Defendant yelled back at Esther, then he slapped her, pushed her down on 14 the couch, and beat her. Victim wrote in her journal that although she was worried 15 about Esther, she was relieved that she did not “have to do this anymore [with 16 Defendant].” Esther testified that Victim was scared that night. Victim had asked 17 them not to fight, ran into her room, and stayed there until the next morning, when 18 Defendant opened her door and told her to come out and eat her breakfast. That day, 1916 Victim returned to her room and stayed th ere until Defendant left the house, at which 1 time Esther called the police. One of the officers took Victim to the hospital. Victim 2 and Esther moved out of Defendant’s house and into a shelter. At the time of trial, 3 Victim was enrolled in a Native Americanboarding school in Oklahoma where she 4 had attended since the school year after she left Defendant’s home. 5 Defendant presented no evidence, aside fr om that previously stated, to refute 6 these facts and offered no reasons for how a reasonable jury might ignore the State’s 7 theory of CSP II by coercion and convict him instead of statutory rape. Indeed, 8 Victim testified that she engaged in the sexual acts with De fendant out of fear that he 9 might hurt her. Our review of the evidence shows a troublesome picture of a 10 confused, thirteen-year-old-girl confronted by an authority figure’s manipulative, 11 erratic, and domineering behavior. Although Victim’s testimony was somewhat non12 expressive in nature, there can be little ambiguity as to Defendant’s position of 13 authority—one which was used to coerce Vi ctim into engaging in sex. There was 14 almost no evidence presented to refute this conclusion, and we agree with the district 15 court’s conclusion, because as the court emphasized, the elements distinguishing the 16 crime of CSP II from statutory rape—namely, a position of authority and 17 coercion—were not sufficiently in dispute that a jury could rationally acquit 18 Defendant on CSP II. See Neatherlin , 2007-NMCA-035, ¶ 24 (stating that the third 1917 prong of the cognate approach asks whether “[t]he element that distinguished the 1 lesser and greater offenses . . . was ‘suffici ently in dispute such that a jury rationally 2 could acquit on the greater offense and convict on the lesser.’” (quoting Darkis , 2000- 3 NMCA-085, ¶ 14)); Munoz , 2004-NMCA-103, ¶ 17. We affirm the district court’s 4 denial of Defendant’s requested lesser-included offense instruction. 5 B. Speedy Trial 6 Defendant argues that the district court erred by denying his motion to dismiss 7 for violation of his right to a speedy trial. In reviewing a district court’s denial of a 8 speedy trial claim, we give deference to the facts found below. See State v. Maddox , 9 2008-NMSC-062, ¶ 8, 145 N.M. 242, 195 P.3d 1254, modified on other grounds as 10 recognized by State v. Valencia , 2010-NMCA-005, ¶¶ 18-19, 147 N.M. 432, 224 P.3d 11 659 (filed 2009). Weighing and balancing the speedy trial f actors are legal decisions, 12 which we review de novo. Id. In analyzing whether a de fendant was denied a speedy 13 trial, we “consider the following factors: (1) the length of the delay, (2) the reasons 14 given for the delay, (3) the de fendant's assertion of the right to a speedy trial, and (4) 15 prejudice to the defendant. We begin by considering the length of the delay.” State 16 v. Lopez , 2009-NMCA-127, ¶ 20, 147 N.M. 364, 223 P.3d 361 (citation omitted), cert. 17 denied , 2009-NMCERT-010, 147 N.M. 452, 224 P.3d 1257. 18 1. Length of Delay and Presumption of Prejudice 1918 The length of delay in tryi ng a defendant is not alone determinative of whether 1 his right to a speedy trial has been violated. See State v. Garza , 2009-NMSC-038, ¶ 2 23, 146 N.M. 499, 212 P.3d 387. The analysis is relevant for two purposes: (1) 3 making the threshold determination of wh ether the gross length of the delay was 4 presumptively prejudicial; and more importantly, (2) triggering a consideration of that 5 delay as part of the speedy trial analysis. Id ¶ 24. “We calculate the length of delay 6 from the date the Sixth Amendment right to a speedy trial attached when the defendant 7 becomes an accused, that is, by a filing of a formal indictme nt or information or arrest 8 and holding to answer.” Maddox , 2008-NMSC-062, ¶ 10 (internal quotation marks 9 and citation omitted). 10 Defendant was indicted on June 30, 2004, nearly thirty-six months before his 11 trial finally commenced. Such a length of delay is presumptively prejudicial under the 12 guidelines established for complex cases as in Garza , 2009-NMSC-038, ¶¶ 2, 48, 13 which states that any delay longer than fifteen months is presumptively prejudicial. 14 Id. The district court found Defendant’s case to be complex, and ne ither party disputes 15 that the amount of delay was presumptively prejudicial. We therefore defer to the 16 district court’s conclusion that this case was complex. See State v. O’Neal , 2009- 17 NMCA-020, ¶ 16, 145 N.M. 604, 203 P.3d 135 (filed 2008) (holding that we must 18 defer to district court rulings on complexity as long as they are supported by 1919 substantial evidence). 1 Where the length of the delay is presumptively prejudicial, we continue to an 2 analysis and balancing of the Barker factors: (1) the length of delay, (2) the reasons 3 for the delay, (3) the defendant’s asserti on of his right, and (4) the actual prejudice to 4 the defendant. Barker v. Wingo , 407 U.S. 514, 530 (1972); Zurla v. State , 109 N.M. 5 640, 642, 789 P.2d 588, 590 (1990) (adop ting the balancing test in Barker), modified 6 on other grounds by Garza , 2009-NMSC-038. In Garza , the Supreme Court clarified 7 that a “‘presumptively prejudicial’ length of delay is simply a triggering mechanism, 8 requiring further inquiry into the Barker factors,” not a delay that carries forward a 9 presumption of prejudice. Garza , 2009-NMSC-038, ¶ 21. 10 “[T]he greater the delay the more heav ily it will potentially weigh against the 11 [s]tate.” Id. ¶ 24. Thus, reconsidering the le ngth of delay as part of the Barker 12 balancing test, we hold that this thirty-six -month delay was extraordinary, even for a 13 complex case, and weighs against State. See Maddox , 2008-NMSC-062, ¶ 12 (stating 14 that a “twenty-eight-month delay is extraordinary and, therefore, presumptively 15 prejudicial”). The State makes no argument as to how we might weigh such a lengthy 16 delay differently. 1720 2. Reasons for the Delay 1 The length of a delay, however, is clos ely linked to the reasons that caused it. 2 See Garza , 2009-NMSC-038, ¶ 25. “The reasons fo r a period of . . . delay may either 3 heighten or temper the prejudice to the defendant caused by” its length. Maddox , 4 2008-NMSC-062, ¶ 13. There are several types of delay, each of which weighs 5 against the state to a differing degree. Garza , 2009-NMSC-038, ¶ 25. Deliberate 6 delay in an attempt “‘to hamper the defense should be weighted heavily against the 7 government.’” Id. (quoting Barker , 407 U.S. at 531). Negligent or administrative 8 reasons for delay are more neutral and weigh more lightly against the state. Id. ¶ 26. 9 Government preparation in pretrial delay, such as locating witnesses and opposing 10 defense motions, are valid reasons th at “justify appropriate delay.” Id. ¶ 27 (quoting 11 Barker , 407 U.S. at 531). On appeal, Defendantreasserts his arguments before the 12 district court regarding the reasons for the delay. Specifically, hecontends that the 13 State delayed production of a DNA report until three days before the third trial setting, 14 produced DNA results along with almost one-hundred pages of evidence six days 15 prior to trial, and unnecessarily delaye d obtaining DNA evidence from him. Such 16 delays, the district court concluded, should we igh slightly against th e State. We agree. 17 These delays, which may have taken longer than necessary due to administrative or 18 simply negligent reasons, were still the resu lt of valid trial preparation for a complex 1921 case. See id. 1 Other delays in this case weigh against Defendant. For instance, he made a 2 special request for an electronic copy of the State’s DNA report, which he then sent 3 to California for testing by anindependent laboratory. Th is request, made five months 4 after Defendant received the State’s paper copy, delayed his case an additional 5 fourteen months and could have been completely averted had Defendant simply 6 utilized the State’s paper copy instead of aw aiting the digital report. We agree with 7 the district court’s interpretation of Ru le 5-501 NMRA, which does not require the 8 State to provide electronic discovery. Furthermore, of the thirteen trial dates, which 9 had to be rescheduled in this case, ten were stipulated to by Defendant. What is more, 10 of the seven extensions obtained pursuan t to Rule 5-604 NMRA petitions, Defendant 11 stipulated to five. Where there are stipul ated continuances and extensions, that time 12 will not be weighed against the State. See State v. Downey , 2007-NMCA-046, ¶ 40, 13 141 N.M. 455, 157 P.3d 20, rev’d on other grounds by2008-NMSC-061, 145 N.M. 14 232, 195 P.3d 1244. In the last extension request, filed on April 10, 2007, the State 15 explained that although opposed by Defendant , the request should be granted because 16 of various delays caused by De fendant which included: (1 ) his request for more time 17 to consider the plea offer, (2) his rejection of the State’s plea offer the previous week, 18 (3) his own failure to file a witness list, (4) the fact thathe had several motions yet to 1922 file, (5) his requests for second interviews of two witnesses, and (6) the fact that he 1 had not yet done a first interv iew with Victim. This extension was granted in order 2 to accommodate the defense’s long-delayed n eed for preparation, and the trial began 3 on June 25, 2007. Notwithstanding Defendant’s opposition to this extension, we will 4 not charge the State with th is delay because it was grante d by the court for the purpose 5 of giving Defendant a dditional time to prepare his case. Thus, despite the lengthy 6 delay in bringing Defendant to trial, mo st of the delay was caused by Defendant or 7 done for his benefit. We therefore weigh this factor against Defendant. 8 3. Defendant’s Assertion of the Right 9 We now consider the freque ncy and force with which Defendant’s speedy trial 10 right was asserted. See Garza , 2009-NMSC-038, ¶ 32. In doing so, we consider the 11 context in which he objected to the delay, not only whether and how often Defendant 12 demanded a speedy trial, but also whether his own procedural maneuvers resulted in 13 any trial delays. Id. On August 12, 2004, Defendant f iled a demand for a speedy trial. 14 Thereafter, he stipulated to several con tinuances, six-month-rule extensions, and 15 rescheduled trial dates. OnJanuary 13, 2005, he filed a motion to exclude the State’s 16 DNA evidence and again demanded a speedy trial. As set forth in the previous 17 section, Defendant requested an electronic form of the DNA report five months after 18 he filed the motion to exclude the DNA evidence. Based on these facts, the district 1923 court observed that Defendant’s interest ina speedy trial was inconsistent with his 1 actions. Defendant did not raise any further demands for a speedy trial until May 1, 2 2007—two and a half years after his mo tion to exclude the DNA evidence and 3 demand for a speedy trial. During that time, Defendant stipulated to at least ten 4 extensions, mostly because of his desirefor independent DNA an alysis. Defendant’s 5 agreement to six-month-rule extensions precludes assertion of his right to a speedy 6 trial for the time of the extensions. See O’Neal , 2009-NMCA-020, ¶ 22. Because the 7 delay in this case was largely attributable to Defendant, his assertions of the right to 8 a speedy trial, when placed in context, do notpersuade this Court that he was overly9 concerned about the delay. We weigh this factor in the State’s favor. 10 4. Prejudice from the Delay 11 The focus of a speedy trial analysis is on undue prejudice. See State v. Coffin , 12 1999-NMSC-038, ¶ 69, 128 N.M. 192, 991 P.2d 477. “The United States Supreme 13 Court has identified three interests under wh ich we analyze prejudice to the defendant: 14 (i) to prevent oppressive pretrial incarceration; (ii) to minimize anxiety and concern 15 of the accused; and (iii) to limit the possi bility that the defense will be impaired.” 16 Maddox , 2008-NMSC-062, ¶ 32 (internal quotati on marks and citation omitted). Any 17 anxiety resulting from pretrial incarceration must be undue in nature. Garza , 2009- 18 NMSC-038, ¶ 35. The oppression and anxiety suffered depends upon the length of 1924 incarceration, any time of pretrial release, and the specific, non-speculative prejudicial 1 effects that resulted. Id. In the present case, Defendant ’s argument is too thin for this 2 Court to act upon. 3 Defendant was released on bond after his arraignment and placed in the 4 Community Corrections Program. The cond itions of his release prevented him from 5 leaving Bernalillo County and re quired him to have weekly contact with his lawyer. 6 Defendant presented some speci fic evidence of prejudicial effects resulting from these 7 conditions; for instance, he argued that hewas prejudiced by missing family reunions, 8 family funerals, three weddings, his son’s graduation from junior high school, and his 9 son’s basketball games. He also presente d evidence that he lost nearly one-hundred 10 pounds over the preceding three years (which wecannot with certainty classify as a 11 negative consequence) and had lost a few out-of-town jobs. The record also indicates, 12 however, that Defendant was given an ankl e bracelet and was permitted to work out13 of-state and stay overnight. It also appears that he was able to maintain his job as a 14 truck driver and was remande d to prison only three times for short periods during the 15 thirty-six-month pretrial period. 16 We agree with the district court that Defendant was not subjected to oppressive 17 pretrial incarceration. Although Defendant articulated that certain restrictions on his 18 liberty bore somewhat prejudicial conse quences, such consequences were not undue 1925 and certainly not extraordinary. Thus, th is Court is not pers uaded that Defendant’s 1 anxiety was excessive beyond that inherent to being accused of serious crimes. We 2 weigh these prejudicial effects only slightly in Defendant’s favor. 3 Of greatest concern in considering prejudice is the possibility that a delay 4 actually impaired preparation of the defense. See Garza , 2009-NMSC-038, ¶ 36. In 5 this case, however, because th e reasons for the delay are significantly attributable to 6 Defendant’s own maneuvers , any prejudice he suffere d is greatly offset. See Maddox , 7 2008-NMSC-062, ¶ 13. Defendant does not point to any specific impairment of his 8 defense and therefore fails to satisfy his burden of production to substantiate prejudice 9 of this type. See id. ; Garza , 2009-NMSC-038, ¶ 36. We we igh this factor in favor 10 of the State. 11 5. Balancing 12 No one factor has talismanic qualities under our speedy trial analysis, see 13 Maddox , 2008-NMSC-062, ¶ 36, but where th e defendant does not prove actual 14 prejudice to his case, the state’s ultimate bur den of persuasion to show that there was 15 no speedy trial violation is greatly reduced. Id. ¶ 32; Garza , 2009-NMSC-038, ¶ 22. 16 Our Supreme Court has held that “[w]here th e [s]tate can show that ‘[t]here were good 17 reasons for the delay; the de fendant did not timely assert his right and acquiesced in 18 the delay; or the defendantwas not actually prejudiced by the delay,’ the [s]tate 1926 discharges its burden to showthat on balance the defendant ’s speedy trial right has not 1 been violated.” Maddox , 2008-NMSC-062, ¶ 36 (third alteration in original) (citation 2 omitted). 3 In the current case, the delay of thirty -six months was significantly attributable 4 to Defendant’s pretrial motions and his de sire for an independent DNA analysis. He 5 acquiesced in much of the delay by numerous stipulations to extensions, requested to 6 accommodate both parties’ trial preparations. As a result, Defendant fails to show that 7 his defense was actually impaired by the delay. On balance, the weight of the 8 unusually long delay is highly tempered by th e reasons for the delay and the lack of 9 actual prejudice. Defendant did not suffer oppressive pretrial incarceration, and 10 though he demonstrated specific anxieties and restraints on his liberty, he does not 11 show undue prejudice. Under these circum stances, we cannot say the delay violated 12 his right to a speedy trial. See id. ¶ 37 (stating that a “total delay of twenty-eight 13 months [was] presumptively extraordinary,” but holding that several other factors 14 weighed against the defendant, including a lack of undue prejudice to the defendant’s 15 case and the defendant’s weak assertion of the right). 16 We therefore affirm the district court’s denial of Defendant’s motion to dismiss 17 for violation of his right to a speedy trial. 18 III. CONCLUSION 1927 For the reasons set forth above, we affirm the district court’s refusal of 1 Defendant’s requested jury instruction and its order denying Defendant’s motion to 2 dismiss for violation of his speedy trial right. 3 IT IS SO ORDERED. 4

______________ __________________ 5 RODERICK T. KENNEDY, Judge 6 WE CONCUR : 7

______________________________ 8 CELIA FOY CASTILLO, Judge 9

______________________________ 10 ROBERT E. ROBLES, Judge 11