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Certiorari Denied, December 4, 2013, No. 34,384

IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

Opinion Number: 2014-NMCA-004

Filing Date: October 2, 2013

Docket No. 31,023

STATE OF NEW MEXICO,

Plaintiff-Appellee,

v.

ERIC FIERRO,

Defendant-Appellant.

APPEAL FROM THE DISTRICT COURT OF SANDOVAL COUNTY

George P. Eichwald, District Judge

Gary K. King, Attorney General

Santa Fe, NM

Ralph E. Trujillo, Assistant Attorney General

Albuquerque, NM

for Appellee

Bennett J. Baur, Acting Chief Public Defender

Will O’Connell, Assistant Appellate Defender

Santa Fe, NM

for Appellant

OPINION

HANISEE, Judge.

{1} Defendant appeals his convictions for criminal sexual penetration (CSP) in the

second degree, which resulted in Victim’s pregnancy. Defendant contends that he was

denied his right to a speedy trial, the pretrial delay denied him due process, the district court

lacked jurisdiction, the indictment should have been quashed, and there was insufficient
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evidence to support his conviction. We affirm on all grounds.

I. BACKGROUND

{2} Between October 1, 1999, and November 30, 1999, Defendant impregnated his

fourteen-year-old stepdaughter (Victim) when she was in the eighth grade. This occurred

while she and her family were living in Rio Rancho with Defendant. Defendant perpetrated

the sexual intercourse by threatening Victim that he would kill her and her family and by

misuse of his status as an authority figure. Victim gave birth to the child that resulted from

the CSP in July 2000. Forensic DNA evidence indicated that there was at least a 99.9 percent

likelihood that Defendant fathered Victim’s daughter.

{3} On June 24, 2004, Defendant was arrested for committing various sexual acts against

Victim, including the CSP charge that resulted in her pregnancy and is at issue in this case.

He was indicted on that same charge on July 8, 2004 in Bernalillo County. On June 7, 2007,

Defendant for the first time brought a motion to dismiss for improper venue, arguing that the

CSP that resulted in Victim’s pregnancy took place in Sandoval County. The State agreed

and, in response, sought that only that charge be dismissed without prejudice so that it could

be refiled in Sandoval County. The Bernalillo County District Court granted Defendant’s and

the State’s requests, dismissing the charge without prejudice. Of the charged offenses

remaining in Bernalillo County, Defendant was convicted of eight counts of first degree

CSP, sixteen counts of second degree CSP, four counts of third degree criminal sexual

contact (CSC), and two counts of bribery of a witness on January 7, 2009. We note that

Defendant also appealed those convictions on speedy trial grounds, and we concluded that

his rights were not violated since the reasons for the delay were mostly attributable to

Defendant, and Defendant failed to demonstrate that he suffered any type of significant or

individualized prejudice from the delay. State v. Fierro, 2012-NMCA-054, ¶ 61, 278 P.3d

541, cert. denied, 2012-NMCERT-004, 293 P.3d 886.

{4} On December 4, 2008, Defendant was indicted in Sandoval County for six counts of

CSP against Victim. Count one of the indictment charged Defendant with CSP resulting in

Victim’s pregnancy. The district court subsequently dismissed the other five counts, which

also alleged sexual misconduct against a minor, because they were duplicative of the

Bernalillo County charges for which Defendant had been convicted. As to the count that

related to the CSP resulting in Victim’s pregnancy, the district court concluded that it was

properly charged in Sandoval County. Following Defendant’s waiver of trial by jury,

Defendant’s bench trial commenced on November 30, 2010.

{5} Defendant was represented by counsel prior to and during trial, but nonetheless filed

numerous pro se motions that the district court entertained at intervals throughout the

proceeding. In multiple such motions brought by both his counsel and himself, Defendant

argued that his right to a speedy trial had been violated. The district court rejected

Defendant’s speedy trial argument on the grounds that he had not shown prejudice, and

subsequently convicted Defendant of CSP in the second degree. Defendant now appeals.
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II. DISCUSSION

A. Defendant’s Right to Speedy Trial Was Not Violated

{6} Defendant first renews his contention that his right to a speedy trial was violated.

“[T]he initial inquiry in speedy trial analysis is a determination as to whether the length of

pretrial delay is presumptively prejudicial. A presumptively prejudicial length of delay is

simply a triggering mechanism, requiring further inquiry into the [four] Barker factors.”

State v. Montoya, 2011-NMCA-074, ¶ 10, 150 N.M. 415, 259 P.3d 820 (alteration, internal

quotation marks, and citation omitted). If the delay is presumptively prejudicial, we balance

these four factors to determine whether a speedy trial violation has occurred. The factors to

be considered are “(1) the length of delay, (2) the reason for delay, (3) the defendant’s

assertion of the right, and (4) prejudice to the defendant.” State v. Plouse, 2003-NMCA-048,

¶ 34, 133 N.M. 495, 64 P.3d 522. “We are mindful of the fact that [a] speedy trial analysis

is not mechanical and must take into account all . . . relevant circumstances.” State v. Stock,

2006-NMCA-140, ¶ 45, 140 N.M. 676, 147 P.3d 885 (internal quotation marks and citation

omitted). “In considering each of these factors, we defer to the [district] court’s factual

findings[,] but review de novo the question of whether [the d]efendant’s constitutional right

[to a speedy trial] was violated.” State v. Brown, 2003-NMCA-110, ¶ 11, 134 N.M. 356, 76

P.3d 1113.

{7} In this case, Defendant was brought to trial on November 30, 2010. Defendant argues

that the delay amounted to six years because his right to a speedy trial attached when he was

arrested on the Bernalillo County charges on June 24, 2004. The State responds that

Defendant’s right to a speedy trial attached on December 4, 2008, when the indictment in

Sandoval County was filed, and that the delay thus persisted for approximately twenty-three

months. Regardless of the starting point, the delay was presumptively prejudicial because

its length exceeded the limits for even a complex case. See State v. Garza, 2009-NMSC-038,

¶¶ 47-48, 146 N.M. 499, 212 P.3d 387 (holding that twelve months is presumptively

prejudicial for simple cases, fifteen months is presumptively prejudicial for intermediate

cases, and eighteen months is presumptively prejudicial for complex cases). As such, we

must balance the four Barker factors, including the length of delay, to determine whether

Defendant’s speedy trial right was violated.

1. Length of Delay

{8} “Considering the length of delay as one of the four Barker factors, the greater the

delay the more heavily it will potentially weigh against the State.” Garza, 2009-NMSC-038,

¶ 24. In determining the length of delay, the interval at which Defendant’s speedy trial right

attached is the decisive starting point. “The speedy trial right attaches when the defendant

becomes an accused, that is, by a filing of a formal indictment or information or arrest and

holding to answer.” State v. Parrish, 2011-NMCA-033, ¶ 20, 149 N.M. 506, 252 P.3d 730

(internal quotation marks and citation omitted). In making this calculation, we take heed that

“[t]he speedy trial guarantee is to prevent lengthy incarceration prior to trial, to reduce
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impaired liberty while an accused is released on bail, and to shorten the disruption of life

caused by pending and unresolved criminal charges.” State v. McCrary, 1984-NMSC-005,

¶ 22, 100 N.M. 671, 675 P.2d 120. As such, “once charges are dropped in good faith, the

delay is not scrutinized by the speedy trial clause of the Sixth Amendment of the federal

constitution.” Id.

{9} In this case, Defendant was arrested on June 24, 2004, for impregnating Victim. On

July 8, 2004, he was indicted on that charge in Bernalillo County. Nearly three years later,

on June 7, 2007, Defendant brought a motion to dismiss for improper venue, successfully

asserting that the CSP that resulted in Victim’s pregnancy took place in Sandoval County.

Upon the State’s agreement, the Bernalillo County district court promptly dismissed that

charge. On December 4, 2008, Defendant was indicted in Sandoval County for the CSP

which resulted in Victim’s pregnancy. On November 30, 2010, Defendant’s trial on the

merits for that CSP commenced.

{10} Defendant argued below and reasserts on appeal that because he was arrested in June

2004 on charges for molesting and impregnating Victim, the lengthy delay before his

November 2010 trial required the court to determine that his right to a speedy trial was

violated. Defendant contends that the period of time between the initial arrest in Bernalillo

County and his indictment in Sandoval County should be calculated within the speedy trial

analysis. For support, Defendant cites cases that have concluded that the time between

indictments is counted against the government where the government dismissed the charge

and refiled it in another jurisdiction to gain a tactical advantage. See United States v. Lara,

520 F.2d 460, 465 (D.C. Cir. 1975) (holding that long and unnecessary delays caused by the

deliberate act of government forum-shopping for a tactical advantage showed bad faith and,

as such, the interim between the first indictment and the second counted under speedy trial

analysis); United States v. Avalos, 541 F.2d 1100, 1108-09 (5th Cir. 1976) (ruling that the

four-month tactical delay between the government’s dismissal of arrest warrants and its

subsequent indictment before a different trial court would be counted in speedy trial

analysis); United States v. Thomas, 527 F. Supp. 261, 262-63 (D.C. 1981) (holding that the

period following the formal dismissal of charges before they were refiled counted for

purposes of speedy trial analysis where the dismissal was attributable to government forumshopping). Yet, Defendant does not argue here that the State acted in bad faith or with

motivation to gain a tactical advantage, as the government did in those cases. Unlike those

cases, Defendant himself sought the initial dismissal on the grounds of improper venue.

Unlike those cases, the State does not appear to have dismissed and refiled the charges in

order to benefit from the lapse in time or any change of venue.

{11} Defendant also likens his case to State v. Talamante, 2003-NMCA-135, 134 N.M.

539, 80 P.3d 476. In Talamante, the State initially indicted the defendant on March 25, 1999,

and then dismissed the case without prejudice on May 5, 2000. Id. ¶¶ 4-5. That same day,

a second indictment was returned, charging the defendant with the same offenses in the same

court. Id. ¶ 5. “On October 23, 2001, [the d]efendant conditionally pleaded no contest to

reduced charges, reserving his right to appeal the denial of his motion to dismiss the
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indictment on speedy trial grounds.” Id. ¶ 7. There, we analyzed that “[d]uring this

continuous period of time, a formal indictment was pending against [the defendant]. The fact

that the first indictment was dismissed is of no consequence because the second indictment

was returned on the same day charging the identical offenses set forth in the first

indictment.” Id. ¶ 8. We concluded that “the charges against [the d]efendant were never

dismissed or discharged in any real sense, thus his speedy trial rights continued to apply.”

Id. We also noted that

numerous factors support[ed] the conclusion that both the [s]tate and the

[district] court treated the two indictments as the same case: (1) the first

indictment was dismissed, and the second indictment was returned on the

same day with the conditions of release on the first indictment intact; . . . (3)

both indictments were assigned to the same judge; (4) the same prosecutor

handled both indictments; (5) orders filed under the first indictment to

interview witnesses were deemed applicable to the second indictment; (6) the

prosecutor treated both indictments as a single case for purposes of Rule 5-

604. . .; (7) the first Rule 5-604 petition filed by the [s]tate in the Supreme

Court after the second indictment recites the extensions and deadlines

obtained under the first indictment as the deadline to commence trial; (8) the

Rule 5-604 petitions filed in the Supreme Court by the [s]tate after the second

indictment are all filed under the case numbers of both indictments; and (9)

the clerk of the [district] court filed all the Rule 5-604 pleadings under the

case numbers of both indictments.

Id. ¶ 9.

{12} In contrast to Talamante, the present case commenced after a significant lapse in time

following the initial indictment and dismissal. The charge related to Victim’s pregnancy was

dismissed on Defendant’s motion. Had Defendant not been incarcerated as a result of his

Bernalillo County trial, he presumably would have been released without restraints on his

freedom as no charges had yet been brought in Sandoval County. See State v. Ross,

1999-NMCA-134, ¶ 15, 128 N.M. 222, 991 P.2d 507 (“[U]ntil the State files an information

or indictment, the district court is without jurisdiction to try the defendant.”). Unlike

Talamante, the case numbers, judges, defense attorneys, and prosecutors all differed between

the Bernalillo County case and the Sandoval County case. And significantly, the Sandoval

County district court did not assume the Bernalillo County district court’s evidentiary rulings

would apply to the case before it. In fact, the court notified Defendant that he would need

to seek exclusion of evidence anew and seek an evidentiary hearing if he again wished to

exclude his confession despite the Bernalillo County district court’s prior suppression of it.

Therefore, the collective facts attendant to the dismissal of the Bernalillo indictment and the

filing of the Sandoval indictment are of significant consequence, and we accordingly treat

the two matters as separate cases.

{13} Because we see no evidence that the State acted in bad faith by dismissing the charge
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and subsequently refiling it in a proper venue, we conclude that the delay should be

measured from the date Defendant was indicted in this case. As such, the delay amounts to

twenty-three months. We conclude that this period of time weighs in Defendant’s favor,

although not heavily. See Garza, 2009-NMSC-038, ¶ 24 (citing United States v. SernaVillarreal, 352 F.3d 225, 232 (5th Cir. 2003) for the proposition that a three-year and ninemonth delay was too short to weigh heavily in the defendant’s favor).

2. The Reasons for Delay

{14} “The reasons for a period of the delay may either heighten or temper the prejudice

to the defendant caused by the length of the delay.” State v. Maddox, 2008-NMSC-062, ¶

13, 145 N.M. 242, 195 P.3d 1254. “[A] deliberate attempt to delay the trial in order to

hamper the defense should be weighted heavily against the government.” Garza, 2009-

NMSC-038, ¶ 25 (internal quotation marks and citation omitted). Defendant “is more likely

to prevail if [he can] show that the [g]overnment had intentionally held back in its

prosecution of him to gain some impermissible advantage at trial.” Id. (internal quotation

marks and citation omitted). Next, “[a] more neutral reason such as negligence or

overcrowded courts should be weighted less heavily but nevertheless should be considered

since the ultimate responsibility for such circumstances must rest with the government rather

than with the defendant.” Id. ¶ 26 (alteration in original) (internal quotation marks and

citation omitted). The weight we assign for negligent delay is dependent on the length of

delay. “[O]ur toleration of such negligence varies inversely with its protractedness, and its

consequent threat to the fairness of the accused’s trial.” Id. (alteration in original) (internal

quotation marks and citation omitted). Lastly, “a valid reason, such as a missing witness,

should serve to justify appropriate delay.” Id. ¶ 27 (internal quotation marks and citation

omitted).

{15} Defendant contends that “[b]ecause the lion’s share of the delay in this case occurred

while the Sandoval County charge was lodged in the Bernalillo County court, . . . the

enormous length of time the case was pending in Albuquerque was the fault of the State.”

Defendant asserts that we wrongly decided his appeal in the Bernalillo County case by

holding that his right to a speedy trial was not violated based on our conclusion that the

delay was mostly attributable to Defendant, and Defendant failed to demonstrate that he

suffered any type of significant or individualized prejudice. Fierro, 2012-NMCA-054, ¶ 61.

{16} First and foremost, upon our Supreme Court’s denial of certiorari, our decision in the

Bernalillo County case became final. See Fierro, 2012-NMCERT-004. Separately, in this

case, we have concluded that the delay is measured from the date of the Sandoval County

indictment until the date Defendant was brought to trial. Defendant makes no arguments

with regard to that time period.

{17} Nonetheless, in our review of the Sandoval County district court record, Defendant

appears to have caused a great deal of the delay in a manner that is unattributable to the

State. While being simultaneously represented by counsel in that district court, Defendant
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filed numerous pro se motions that the district court entertained at intervals throughout the

proceeding. On December 4, 2009, the district court compiled a list of fifteen motions

brought by Defendant beginning in February 2009. Of those, thirteen were filed pro se by

Defendant himself. Even after December 4, 2009, Defendant filed numerous additional

motions, including a motion to dismiss for lack of jurisdiction; a motion to dismiss for

speedy trial and due process; a motion to dismiss for failure to observe the rules; five

motions seeking hearings; a motion for pre-summary judgment; an objection to the court’s

extension of time and motion to reconsider; a motion to dismiss; an addendum to his motion

to dismiss for speedy trial and due process; and a motion to show cause. Defendant’s

motions were repetitive and confusing and caused significant delays to the progression of

his case to trial. We note that the first and third of the State’s requests for extensions of time

were based on the fact that there were pending motions before the court that had to be

resolved before trial commenced.

{18} We therefore conclude that the delay in this case was not the product of intentional

dilatory tactics by the State. Rather, it occurred in large part due to Defendant’s own pro se

trial tactic of bombarding the court with frequent and redundant motion practice. Therefore,

this factor does not weigh in Defendant’s favor.

3. Defendant’s Assertion of the Right

{19} “Generally, we assess the timing of the defendant’s assertion and the manner in

which the right was asserted. Thus, we accord weight to the ‘frequency and force’ of the

defendant’s objections to the delay. We also analyze the defendant’s actions with regard to

the delay.” Garza, 2009-NMSC-038, ¶ 32 (citations omitted) (explaining that the force of

the defendant’s assertions of his speedy trial right was diminished where he filed numerous

motions which would inevitably slow down the proceedings).

{20} The State concedes that Defendant timely and frequently asserted his right to a

speedy trial. Nonetheless, his assertion of this right was coupled with the filing of numerous

motions (listed above) which served to slow the proceedings in the district court. See State

v. Coffin, 1999-NMSC-038, ¶ 67, 128 N.M. 192, 991 P.2d 477 (concluding that the

defendant’s assertion of his speedy trial right did not weigh in his favor where he

simultaneously represented that he was not prepared for trial); United States v. Loud Hawk,

474 U.S. 302, 314-15 (1986) (according little weight to the defendants’ repeated motions to

dismiss on speedy trial grounds when the defendants simultaneously “filled the [d]istrict

[c]ourt’s docket with repetitive and unsuccessful motions”). It is inconsistent for Defendant

to object to continuances and to assert his speedy trial rights, while concurrently inundating

the district court with motions and requests for pretrial hearings. Based on the foregoing, the

assertion of his speedy trial right weighs only slightly in Defendant’s favor.

4. Prejudice to Defendant

{21} In Garza, our Supreme Court held that with regard to the Barker factors, “a
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defendant must show particularized prejudice of the kind against which the speedy trial right

is intended to protect.” Garza, 2009-NMSC-038, ¶ 39. “The United States Supreme Court

has identified three interests under which we analyze prejudice to the defendant: ([1]) to

prevent oppressive pretrial incarceration; ([2]) to minimize anxiety and concern of the

accused; and ([3]) to limit the possibility that the defense will be impaired.” Id. ¶ 35 (internal

quotation marks and citation omitted). With regard to the oppressive pretrial incarceration

and the anxiety and concern of the accused, “[s]ome degree of oppression and anxiety is

inherent for ever[y] defendant who is jailed while awaiting trial.” Id. (alterations in original)

(internal quotation marks and citation omitted). Therefore, we only weigh this factor in the

defendant’s favor when the oppressiveness and anxiety suffered is undue. Id. Furthermore,

“[t]he oppressive nature of the pretrial incarceration depends on the length of incarceration,

whether the defendant obtained release prior to trial, and what prejudicial effects the

defendant has shown as a result of the incarceration.” Id.

{22} Defendant has the burden to demonstrate and substantiate prejudice. Id. ¶¶ 35-37. In

the present case, Defendant asserts that he had been “incarcerated since 2004, mostly in

solitary confinement, causing him to require medication for anxiety and depression, and that

a defense witness, who would have testified that [Victim]’s mother had confessed to him that

she had fabricated the charges [of long-term abuse,] had died while the case was pending.”

{23} After reviewing the record, we conclude that Defendant did not suffer any pretrial

incarceration in this, the Sandoval County case. Defendant had been in custody since 2004

based upon the Bernalillo County charges and continued to serve time in jail until he was

convicted and imprisoned on those charges in 2009. Because Defendant was already in

custody in what we have concluded to be a separate matter, his pretrial incarceration did not

derive from the case that is the subject of this appeal.

{24} Furthermore, Defendant failed to present any evidence that he suffered an unusual

degree of anxiety and concern as a result of the pending charges in Sandoval County.

Defendant solely made an assertion of prejudice through counsel and mere assertions are

insufficient to prove this factor. See In re Ernesto M., Jr., 1996-NMCA-039, ¶ 10, 121 N.M.

562, 915 P.2d 318 (stating that “[a]n assertion of prejudice is not a showing of prejudice”).

{25} To the extent that Defendant claims his ability to present a defense was inhibited by

the death of one of his witnesses, Defendant has failed to produce evidence to this effect.

Defendant claims in the present case, as he did in the Bernalillo County case, that his

witness, Aaron Chavez, died before he went to trial. See Fierro, 2012-NMCA-054, ¶¶ 59-60.

Defendant provided no other evidence about this witness’s potential testimony. As such, we

conclude that Defendant failed to make a particularized showing of prejudice that resulted

from the asserted loss of this witness. See Coffin, 1999-NMSC-038, ¶ 71 (concluding that

to prove prejudice resulting from the unavailability of a witness, the defendant must show

that the witness’s testimony would have benefitted his case).

{26} We note that a defendant is not required to make a particularized showing of
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prejudice where the other Barker factors weigh heavily in his favor. Garza, 2009-NMSC038, ¶ 39 (stating that “if the length of delay and the reasons for the delay weigh heavily in

[the] defendant’s favor and [the] defendant has asserted his right and not acquiesced to the

delay, then the defendant need not show prejudice for a court to conclude that the

defendant’s right has been violated”). However, in the instant case, neither the length of

delay nor the reasons for it weigh heavily in Defendant’s favor, and Defendant himself has

contributed to the delay. Pursuant to the Barker factors discussed above, we conclude that

Defendant’s speedy trial right was not violated.

B. The Pre-indictment Delay Did Not Violate Defendant’s Right to Due Process

{27} Defendant asserts that he was subject to unconstitutionally long pre-indictment delay.

“[T]he United States Supreme Court has held that the due process clause of the fifth

amendment provides additional, albeit limited, protection against improper preaccusation

delay.” Gonzales v. State, 1991-NMSC-015, ¶ 4, 111 N.M. 363, 805 P.2d 630. To establish

whether a defendant has been denied procedural due process by pre-indictment delay, we

utilize a two-part test. “First, the defendant must show prejudice to his or her defense as a

result of the delay and, second, the defendant must show that the state intentionally caused

the delay in order to gain a tactical advantage.” State v. Palmer, 1998-NMCA-052, ¶ 4, 125

N.M. 86, 957 P.2d 71. “In determining whether a pre[-]indictment delay denied [the

d]efendant his right of procedural due process, we conduct an independent review of the

record and the law.” Id. (internal quotation marks and citation omitted).

{28} On appeal, Defendant solely argues that “the State’s lack of diligence in getting the

case before a Sandoval County grand jury demonstrates an unacceptable indifference by the

prosecution to its constitutional duty to make a diligent, good-faith effort to bring

[D]efendant to trial.” On appeal, Defendant provides no evidence or even an argument about

how he was prejudiced by the pre-indictment delay. Below, Defendant merely asserted that

he suffered anxiety and concern over his case, that his defense had been impaired by the

passage of time due to the faded memories of his witnesses, and that he had spent a

significant amount of time in jail. Yet, mere assertions are insufficient in this context.

Defendant “must establish prejudice by more than mere conjecture: vague and conclusory

allegations of prejudice resulting from the passage of time and the absence of witnesses are

insufficient . . . ; [D]efendant must be able to show definite and not speculative prejudice,

and in what specific manner missing witnesses would have aided his defense.” Gonzales,

1991-NMSC-015, ¶ 8 (omission in original) (internal quotation marks and citation omitted).

The prejudice must be more than nominal: it does not have to “rise to the level of severe

prejudice, but must establish that the prejudice impacted the defense.” Id.

{29} Defendant provided no proof or concrete explanations of how this delay impacted

his defense. Additionally, Defendant failed to produce any evidence that the State

intentionally delayed the indictment in order to gain a tactical advantage. As there is no

evidence to support either element of the due process test, we conclude Defendant’s right

to due process was not impaired by the pre-indictment delay.
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C. The Sandoval County District Court Had Jurisdiction to Hear This Case

{30} Pursuant to State v. Franklin, 1967-NMSC-151, ¶ 9, 78 N.M. 127, 428 P.2d 982, and

State v. Boyer, 1985-NMCA-029, ¶ 24, 103 N.M. 655, 712 P.2d 1, Defendant argues that the

Sandoval County District Court lacked jurisdiction to hear his case. Defendant argues that

“the State’s decision to arrest him, charge him, and hold him in Albuquerque for several

years on the allegation that he impregnated [Victim] required the State to follow through in

that county, or else lose jurisdiction.” We disagree.

{31} “[J]urisdiction is satisfied if the trier of fact can infer from the evidence that the crime

occurred in New Mexico.” State v. Litteral, 1990-NMSC-059, ¶ 19, 110 N.M. 138, 793 P.2d

268. “One of the essential elements incumbent upon the [s]tate was to establish where the

offense occurred, because the law is that a crime must be prosecuted in the jurisdiction

where it was committed.” State v. Losolla, 1972-NMCA-085, ¶ 4, 84 N.M. 151, 500 P.2d

436. Here, Victim testified that the CSP took place while she was living with Defendant at

an address on 12th Street in Rio Rancho within Sandoval County. A detective from the

Sandoval County Sheriff’s Office also testified that Victim was living in Rio Rancho at a

home in Defendant’s name and attended school in Rio Rancho at the time that the CSP in

question occurred. Defendant’s father also testified that Defendant’s home at the time of the

offense was located in Sandoval County. We conclude that the State presented sufficient

evidence for the jury to infer that Defendant impregnated Victim in Sandoval County, New

Mexico. As such, jurisdiction is satisfied.

{32} Moreover, Defendant moved to dismiss this particular charge in Bernalillo County

District Court on the ground that venue was improper. Defendant cannot now complain that

this charge should have been tried in Bernalillo County. We thus affirm the district court’s

jurisdiction.

D. The District Court Properly Denied Defendant’s Motion to Quash the

Indictment

{33} Pursuant to Franklin, 1967-NMSC-151, ¶ 9, and Boyer, 1985-NMCA-029, ¶ 24,

Defendant argues that the State impermissibly used evidence that was previously suppressed

in Bernalillo County district court to obtain the indictment against Defendant in the Sandoval

County case at issue here. Defendant contends that the district court should have quashed

the indictment as a result of the improper evidence.

Defendant’s argument is unavailing. This Court has reiterated in the

past that the findings of [the] grand jury, when made by and through an

indictment, duly returned into court, and regular upon its face, are, with

respect to the kind and degree of evidence upon which it was returned,

conclusive, and that the courts are without power or jurisdiction to inquire

into the subject and review the testimony submitted to the grand jury to

determine whether or not the required kind or degree of evidence was
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submitted.

State v. Stevens, 1979-NMCA-058, ¶ 3, 93 N.M. 434, 601 P.2d 67 (internal quotation marks

and citation omitted). As such, “[w]hen inadmissible evidence is presented to the grand jury,

the proper remedy is suppression at trial.” State v. Eder, 1985-NMCA-076, ¶ 9, 103 N.M.

211, 704 P.2d 465. This is because “the barring of prosecution altogether in such a

circumstance, might advance marginally some of the ends served by exclusionary rules, but

it would also increase to an intolerable degree interference with the public interest in having

the guilty brought to book.” Id. (internal quotation marks and citation omitted).

{34} In this case, the State provided the grand jury with evidence of Defendant’s

confession, which was obtained during a custodial interrogation without Miranda warnings.

The district court stated below that Defendant’s remedy would be suppression of the

confession at trial if it determined that the evidence was inadmissible. The district court did

in fact subsequently suppress the confession at issue here. Thus, we conclude that quashing

the indictment was unnecessary. Defendant obtained the constitutionally proper relief

warranted by the situation, and no further action was required by the district court.

E. Defendant’s Conviction is Supported by Sufficient Evidence

{35} Lastly, also pursuant to Franklin, 1967-NMSC-151, ¶ 9, and Boyer,

1985-NMCA-029, ¶ 24, Defendant asserts that there is insufficient evidence to support his

conviction. “The test for sufficiency of the evidence is whether substantial evidence of either

a direct or circumstantial nature exists to support a verdict of guilty beyond a reasonable

doubt with respect to every element essential to a conviction.” State v. Riley, 2010-NMSC005, ¶ 12, 147 N.M. 557, 226 P.3d 656 (internal quotation marks and citation omitted),

overruled on other grounds by State v. Montoya, 2013-NMSC-020, ¶ 54, 306 P.3d 426. We

view the evidence “in the light most favorable to the guilty verdict, indulging all reasonable

inferences and resolving all conflicts in the evidence in favor of the verdict.” State v.

Cunningham, 2000-NMSC-009, ¶ 26, 128 N.M. 711, 998 P.2d 176. “Because an appellate

tribunal does not enjoy the same exposure to the evidence and witnesses as the jury at trial,

our review for sufficiency of the evidence is deferential to the jury’s findings.” State v.

Garcia, 2011-NMSC-003, ¶ 5, 149 N.M. 185, 246 P.3d 1057.

{36} Here, Defendant was charged with CSP in the second degree by the use of force or

coercion resulting in personal injury, pursuant to NMSA 1978, § 30-9-11 (D)(3) (2003,

amended 2009). To convict Defendant of this charge, the State had to prove that Defendant

caused Victim to engage in sexual intercourse with him through the use of threats of physical

force or violence against her or her family and that Defendant’s acts resulted in Victim’s

pregnancy. See UJI 14-947 NMRA. In the alternative, Defendant was charged with second

degree CSP on a child thirteen to sixteen years of age when the perpetrator is in a position

of authority over the child and uses this authority to coerce the child to submit to sexual

abuse, pursuant to Section 30-9-11(D)(1). To convict Defendant of the alternative, the State

had to prove that when Victim was fourteen years old, Defendant, as her stepfather,
12

exercised undue influence over Victim to coerce her to submit to sexual intercourse with

him. See UJI 14-945 NMRA. The State had to prove that the events constituting both CSP

violations occurred in Sandoval County, New Mexico sometime between October 1, 1999

and November 30, 1999.

{37} At trial, the State presented testimony from Victim and a forensic DNA analyst

demonstrating that the elements of either of these alternative crimes had been satisfied.

Victim testified that Defendant, her stepfather, impregnated her when she was fourteen years

old and in eighth grade, while she and her family were living in Rio Rancho with Defendant.

Victim also testified that she felt compelled to have sex with Defendant because he was an

authoritative figure and that the sex was not consensual. Victim stated that Defendant told

her that if she reported the sexual intercourse he had with her to anyone, he would kill

Victim, her mother, her brothers, and himself. Victim indicated that Defendant had been

making this threat to her since she was a little girl. Victim explained that she believed

Defendant’s threats because Defendant “always used to hurt us.” Victim further stated that

she carried the child that resulted from the CSP to full term and gave birth to her in July

2000.

{38} In addition, a forensic DNA analyst testified that she obtained DNA samples from

Defendant, Victim, and Victim’s child. The analyst testified that upon her analysis of the

samples, she was able to conclude that there was at least a 99.9 percent chance that

Defendant fathered Victim’s daughter.

{39} This evidence shows that Defendant threatened to kill Victim and her family in order

to facilitate his plan to have sexual intercourse with Victim. The DNA tests demonstrate that

the resulting child is Defendant’s offspring to a near certain probability. Moreover, the

testimony also indicates that, as Victim’s stepfather, Defendant was in a position of power

and authority over Victim and he used this authority to coerce Victim to have sexual

intercourse with him when she was only fourteen years old. Viewing the evidence in the

light most favorable to the verdict, we thus conclude that this evidence is sufficient to prove

either CSP in the second degree (1) by the use of force or coercion resulting in personal

injury under Section 30-9-11(D)(3), or (2) by coercion of a child thirteen to sixteen years of

age, pursuant to Section 30-9-11(D)(1).

{40} Defendant opines that the evidence was presented after a long delay and that some

of the State’s testimony was not credible because he presented conflicting evidence. We

emphasize that the finder of fact, not an appellate court, must reconcile any conflicts in the

evidence and determine where truth and credibility lies. The fact finder can choose to believe

the State’s testimony and disbelieve Defendant’s version of events. State v. Cabezuela, 2011-

NMSC-041, ¶ 45, 150 N.M. 654, 265 P.3d 705. As there is sufficient evidence to prove each

of the alternative charging methods for second degree CSP, we affirm Defendant’s

conviction.

IV. CONCLUSION
13

{41} For the reasons stated above, we affirm Defendant’s conviction on all grounds.

{42} IT IS SO ORDERED.

____________________________________

J. MILES HANISEE, Judge

WE CONCUR:

____________________________________

RODERICK T. KENNEDY, Chief Judge

____________________________________

LINDA M. VANZI, Judge

Topic Index for State v. Fierro, No. 31,023

APPEAL AND ERROR

Standard of Review

Substantial or Sufficient Evidence

CONSTITUTIONAL LAW

Due Process

Miranda Warning

Speedy Trial

CRIMINAL LAW

Criminal Sexual Penetration

CRIMINAL PROCEDURE

Change of Venue

Indictment

Motion to Suppress

Prejudice

Quashing of Indictment

Right to Speedy Trial

speedy trial

EVIDENCE

Substantial or Sufficient Evidence