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 Please 1 see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions. 2 Please also note that this electronic memorandum opinion may contain computer-generated 3 errors or other deviations from the official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. 30,143 9 MARK RICHART, 10 Defendant-Appellant. 11 APPEAL FROM THE DISTRICT COURT OF OTERO COUNTY 12 Jerry H. Ritter, District Judge 13 Gary K. King, Attorney General 14 Santa Fe, NM 15 Ralph E. Trujillo, Assistant Attorney General 16 Albuquerque, NM 17 for Appellee 18 Warren F. Frost, P.C. 19 Warren F. Frost 20 Logan, NM 21 for Appellant 22 MEMORANDUM OPINION 23 VANZI, Judge. 242 Defendant was convicted of stalking, aggravated stalking, harassment, and 1 criminal trespass. On appeal, Defe ndant challenges his convictions on double 2 jeopardy and speedy trial grounds. Having considered Defendant’s arguments, we 3 affirm in part and reverse in part. 4 BACKGROUND 5 This case arises from conduct occurri ng between September 2005 and March 6 2008. Defendant and the victim , Petra Nedimovic, worked together as engineers for 7 the 46th Test Group at Holloman Air Fo rce Base in Alamogordo, New Mexico. 8 Between September 2005 and June 2007, Defendant engaged in a pattern of behavior 9 in which he asked Petra to coffee and was refused; left Petra presents, cards, and 10 letters at her parents’ home; tried to as k Petra personal questi ons at work; began 11 following Petra to work and arriving at th e same time as her; went by Petra’s house; 12 and accused Petra of drugging him, raping him, bearing his child, and then keeping 13 his child from him. Petra informed her supervisors at work , and Defendant was 14 reprimanded. When Defe ndant’s conduct did not cease, Petra contacted the police 15 in June 2006. 16 The State filed charges against Defendant for stalking, harassment, and criminal 17 trespass in September 2007. The jury found Defendant guilty of stalking and criminal 18 trespass, but was unable to reach a verdict on the charge of harassment. The district 193 court entered a mistrial on th e harassment charge and reserved the right for the State 1 to retry the case. In September 2008, prio r to Defendant being tried on the stalking, 2 harassment, and criminal trespass charges, Defendant was indicted for aggravated 3 stalking based on violations of the conditions of his release. Petra and her father 4 testified at the second trial that they saw Defendant driving by Petra’s house after he 5 had been released on bond. The harassmen t charge and aggravated stalking charge 6 were joined and tried beforea second jury. The jury found Defendant guilty of both 7 charges. Judgment and sentence was entere d as to all charge s on November 16, 2009. 8 DISCUSSION 9 Defendant raises three issues on appeal: (1) double jeopardy prohibits him from 10 being convicted for both stalking and aggravated stalking; (2) double jeopardy 11 prohibits him from being prosecuted for both stalking and hara ssment; and (3) his 12 right to speedy trial was violated. 13 Double Jeopardy 14 The United States Constitution and the New Mexico Constitution protect 15 criminal defendants against double jeopardy for the same offense. U.S. Const. 16 amends. V, XIV; N.M. Const. art. II, § 15. “The right to be free from double jeopardy 17 consists of three separate constitutional protections. It protects against a second 18 prosecution for the same offense after acquittal. It protects against a second 194 prosecution for the same offense after c onviction. And it protects against multiple 1 punishments for the same offense.” State v. Rodriguez , 2005-NMSC-019, ¶ 6, 138 2 N.M. 21, 116 P.3d 92 (alteration, internal quotation mark s, and citation omitted). 3 “Within the multiple punishment context, th ere are two types of cases: (1) multiple 4 violations of the same statute, referred to as ‘unit of prosecution’ cases; and (2) 5 violations of multiple statutes, referred to as ‘double description’ cases.” State v. 6 Armendariz , 2006-NMSC-036, ¶ 20, 140 N.M. 182, 141 P.3d 526. De fendant argues 7 that his convictions for aggravated stalking and stalking violate our unit of 8 prosecution line of cases and that his convi ctions for stalking and harassment violate 9 our double description line of cases. We address each of these arguments below. 10 1. Stalking and Aggravated Stalking 11 Defendant contends that his convictions for stalking and aggravated stalking 12 violate our unit of prosecution cases. Although we note that generally unit of 13 prosecution cases involve multiple convic tions under a single statute, and here 14 Defendant was convicted under two different statutes, weassume for the purpose of 15 addressing Defendant’s argument on appealthat our unit of prosecution analysis 16 applies. SeeNMSA 1978, § 30-3A-3.1 (1997) (aggravated stalking); NMSA 1978, 17 § 30-3A-3 (1997) (amended 2009) (stalking) . We review this issue de novo. State v. 18 Stone , 2008-NMCA-062, ¶ 2, 144 N.M. 78, 183 P.3d 963. 195 In unit of prosecution cases, “we attemp t to determine, based upon the specific 1 facts of each case, whether a defendant’s activity is better characterized as one unitary 2 act, or multiple, distinct acts, consis tent with legislative intent.” State v. Bernal , 3 2006-NMSC-050, ¶ 16, 140 N.M. 644, 146 P.3d 289. “Time and space considerations 4 help to determine distinctness.” Stone , 2008-NMCA-062, ¶ 3. “If time and space 5 considerations cannot resolve the case, thena court may look at the quality and nature 6 of the acts, or the objects and results involved.” Bernal , 2006-NMSC-050, ¶ 16 7 (internal quotation marks and citation omitte d). Thus, “[i]n our consideration of 8 whether conduct is unitary, wehave looked for an identifiable point at which one of 9 the charged crimes had been completed and the other not yet committed” or for an 10 intervening event. State v. DeGraff , 2006-NMSC-011, ¶ 27, 139 N.M. 211, 131 P.3d 11 61. 12 Defendant contends that his convictions for stalking and aggravated stalking 13 violate our unit of prosecution cases, becausethe State based two stalking charges on 14 the same course of conduct. Although Defendant concedes that there was a break in 15 that conduct based on the State’s filing of stalking charges against Defendant, 16 Defendant argues that “there must be two separate and di stinct patterns of conduct that 17 are separated by a legal break in the c onduct to allow separate convictions for 186 stalking.” Defendant next contends thatthe State failed to demonstrate a second 1 pattern of conduct to support the aggrav ated stalking charge. We disagree. 2 Pursuant to Section 30-3A-3.1(A), 3 A. Aggravated stalking consists of stalking perpetrated by a person: 4 (1) who knowingly violates a permanent or temporary order of 5 protection issued by a court, except that mutual violations of such orders 6 may constitute a defense to aggravated stalking; 7 (2) in violation of a court order setting conditions of release and 8 bond; 9 (3) when the person is in possession of a deadly weapon; or 10 (4) when the victim is less than sixteen years of age. 11 Stalking is defined as 12 13 knowingly pursuing a pattern of conduc t that would cause a reasonable 14 person to feel frightened, intimidated or threatened. The alleged stalker 15 must intend to place another person inreasonable apprehension of death, 16 bodily harm, sexual assault, confinement or restraint or the alleged 17 stalker must intend to cause a reasona ble person to fear for his safety or 18 the safety of a household member. Infurtherance of the stalking, the 19 alleged stalker must commit one or more of the following acts on more 20 than one occasion: 21 (1) following another person, in a place other than the residence 22 of the alleged stalker; 23 (2) placing another person under surveillance by being present 24 outside that person’s residence, school, workplace or motor vehicle or 25 any other place frequented by that person, other than the residence of the 26 alleged stalker; or 27 (3) harassing another person. 28 Section 30-3A-3(A). In State v. Smile , this Court held that it is not necessary for a 29 pattern of one or more of the aggravated f actors to be established to prove aggravated 307 stalking. 2009-NMCA-064, ¶ 14, 146 N.M. 525, 212 P.3d 413, cert. quashed , 2010- 1 NMCERT-006, 148 N.M. 584, 241 P. 3d 182. Rather, it is suffi cient that a pattern of 2 conduct is established that stalking has occurred, and “the crime charged may be 3 escalated to aggravated stalking as soon as one of the aggravating factors occurs.” Id. 4 The State presented evidence at Defendant’s second trial that after Defendant 5 had been charged with stalking in June2007, Defendant engaged in a subsequent 6 pattern of conduct sufficient to satisfy the a ggravated stalking statute. Petra testified 7 that on March 1, 2008, she observed Defendant drive by her property. Petra’s father 8 testified that on March 1, 2008, he was with Petra and observed Defendant drive by 9 Petra’s property twice. Petra’s father testif ied that he also saw Defendant drive by his 10 house sometime after March 3, 2008. Further, Petra submitted an affidavit stating that 11 she saw Defendant drive by her house on March 4, 2008. This evidence constitutes 12 a new pattern of conduct that was in vi olation of the terms and conditions of 13 Defendant’s release. Thus, contrary to De fendant’s argument, the State met its burden 14 of establishing a pattern of conduct and aggravating factors that occurred subsequent 15 to the break in conduct established by the f iling of stalking charges against Defendant. 16 To the extent Defendant argues reversalon this ground, Defendant’s argument is 17 unpersuasive. 18 2. Stalking and Harassment 198 Defendant also contends that his double jeopardy rights were violated when he 1 was convicted of both stalking and harassment based on the same conduct. Thus, 2 Defendant argues that his convictions on th ese charges violate our double description 3 line of cases. New Mexico courts have“adopt[ed] a two-part test for double4 description multiple punishment cases.” Armendariz , 2006-NMSC-036, ¶ 20 (citing 5 Swafford v. State , 112 N.M. 3, 810 P.2d 1223 (1991)). “The first part of the test 6 requires the determination of whether the conduct underlying the offenses is unitary.” 7 Id. ¶ 21. The second part of the test “requi res us to examine the relevant statutes to 8 determine whether the Legislature intended to create separately punishable offenses.” 9 Id. “If the conduct is non-unitary, multiple punishments do not violate the Double 10 Jeopardy Clause, and our examination ends.” State v. Ford , 2007-NMCA-052, ¶ 10, 11 141 N.M. 512, 157 P.3d 77. Howe ver, “if the conduct can reasonably be said to be 12 unitary,” we proceed to determine “w hether the Legislature intended multiple 13 punishments.” Id. (alteration, internal quotati on marks, and citation omitted). 14 To address unitary conduct for double description cases, we consider whether 15 the defendant’s acts are separated by sufficient “indicia of distinctness.” Swafford , 16 112 N.M. at 13, 810 P.2d at 1233. Indicia of distinctness are present when “two 17 events are sufficiently separated by eith er time or space (in the sense of physical 18 distance between the places wh ere the acts occurred).” Id. at 13-14, 810 P.2d at 1233- 199 34. But if time and space considerations are not determinative, “resort must be had 1 to the quality and nature of the acts orto the objects and results involved.” Id. at 14, 2 810 P.2d at 1234; see State v. Barrera , 2001-NMSC-014, ¶ 36, 130 N.M. 227, 22 P.3d 3 1177 (stating that “[d]istinctness may also be established by the existence of an 4 intervening event, the defendant’s inte nt as evinced by his or her conduct and 5 utterances, the number of victims, and th e behavior of the defendant between acts” 6 (internal quotation marks and citation omitted)). 7 The State contends that no double jeopardy violation occurred because the 8 conduct supporting Defendant’s convicti ons for stalking and harassment were 9 supported by two separate and distinct courses of conduct. Specifically, the State 10 argues that Defendant’s acts of following Petra to and from and work and placing her 11 under surveillance constituted the conduct supporting the stalking charges, and that 12 Defendant’s claims that Petra kidnaped, raped, and drugged him and was keeping his 13 child from him constituted the pattern of conduct for the harassment charge. 14 In order to assess whether the conduct underlying the offenses is unitary, we 15 turn to the evidence presented below in the context of the respective jury instructions. 16 See Kersey v. Hatch , 2010-NMSC-020, ¶ 9, 148 N.M. 381, 237 P.3d 683. Here, there 17 was evidence presented that Defendant follo wed Petra to and fro m work, drove by her 18 house, stopped at her house, bothered her at work, drove by her family’s house, and 1910 left presents, cards, and letters for Petra. There was also evidence presented that 1 Defendant accused Petra of drugging and raping him, bearing his child, and keeping 2 his child from him, and he also made similar statements to co-workers. 3 The jury instruction for stalking under which Defendant was convicted 4 provides, in pertinent part, that the Stat e must prove that “[D]efendant maliciously 5 pursued a pattern of conduct that would cau se a reasonable person to feel frightened, 6 intimidated or threatened on more th an one occasion by: (a) following Petra 7 Nedimovic . . . ; or (b) placing Petra Nedi movic under surveillance.” The harassment 8 instruction provided that the State must prove, in addition to other elements, that 9 “[D]efendant maliciously pursued a patternof conduct that wa s intended to annoy or 10 seriously alarm Petra Nedimovic[.]” Although the stalking instruction limits the type 11 of conduct to following or surveillance, there is no similar limitation in the harassment 12 instruction that would limit it to the type of conduct specified by the State on appeal. 13 As a result, it is possible that due to the absence of a factual basis in each of the 14 written instructions that this could have resulted in the jury convicting Defendant of 15 both stalking and harassment based on the same course of conduct. See generally 16 State v. Cook , 2006-NMCA-110, ¶ 19, 140 N.M. 356, 142 P.3d 944 (remanding for 17 dismissal of one conviction for tampering w ith evidence because th e instructions did 18 not make clear to the jury which conduct it should consider to support each charge). 1911 We therefore disagree with the Stat e that the conduct supporting Defendant’s 1 convictions for stalking and harassment was not unitary. 2 Accordingly, we proceed to the next step in the double description analysis and 3 address whether the Legislature intended to create separately punishable offenses. To 4 address legislative intent for double description cases, when the statutes at issue do not 5 expressly provide for multiple punishment, this Court applies the Blockburger test and 6 compares the elements of the relevant statutes to determine if the Legislature intended 7 multiple punishments. Swafford , 112 N.M. at 8-9, 810 P.2d at 1228-29; see State v. 8 Franco , 2005-NMSC-013, ¶ 12, 137 N.M. 447, 112 P.3d 1104 (applying the 9 Blockburger test to determine legislative intent). If the Blockburger test establishes 10 that one statute is subsumed within the other, the inquiry is over and the statutes are 11 the same for double jeopardy purposes—punishment cannot be had for both. 12 However, if each statute requires an element of proof not required by the other, we 13 presume that the Legislature intended to punish the offenses separately. State v. 14 Almeida , 2008-NMCA-068, ¶ 9, 144 N.M. 235, 185 P.3d 1085. 15 This Court previously conducted a comp arison of the offenses of harassment 16 and stalking in State v. Duranand held that under the facts of that case and previous 17 versions of the statutes, the charge of harassment was subsumed by the stalking 18 charge. 1998-NMCA-153, ¶ 26, 126 N.M. 60, 966 P.2d 768. We therefore held in 1912 Duranthat the defendant could not be convicted of both stalking and harassment for 1 the same course of conduct. Id. (“While it is clear that stalking may be committed in 2 several alternative ways, where both harassment and stalking are charged against the 3 same defendant and the two o ffenses arise out of the sameunitary conduct, the offense 4 of harassment is subsumed into the offense of stalking.”). 5 The State contends that the harassment and stalking statutes each require proof 6 of an element that the other does not . This argument was rejected in Duran

. 7 Although we note that Duranwas decided based on previous versions of the statutes, 8 we have reviewed the amendments tothose statutes and find no basis for 9 distinguishing Duran . As a result, we conclude that Defendant’s double jeopardy 10 rights were violated. We therefore remand this matter to the district court to vacate 11 Defendant’s convicti on for harassment. 12 Speedy Trial 13 Defendant contends that his speedy trial rights as to the aggravated assault 14 charge were violated. We balance four factors to determine whether a speedy trial 15 violation has occurred. The factors to be c onsidered are “(1) the length of delay, (2) 16 the reason for delay, (3) the defendant’s assertion of the right, and (4) prejudice to the 17 defendant.” State v. Plouse , 2003-NMCA-048, ¶ 34, 133 N.M . 495, 64 P.3d 522. “In 18 considering each of these factors, we defer to the trial court’s factual findings but 1913 review de novo the question of whether De fendant’s constitutional right [to a speedy 1 trial] was violated.” State v. Brown , 2003-NMCA-110, ¶ 11, 134 N.M. 356, 76 P.3d 2 1113. 3 Length of Delay 4 Appellate courts consider the length of delay for two reasons: (1) as “a 5 threshold inquiry that triggers the rest of th e analysis” and (2) “as part of the balancing 6 test itself.” State v. Stock , 2006-NMCA-140, ¶ 13, 140 N.M. 676, 147 P.3d 885. We 7 begin with the threshold inquiry. 8 On March 4, 2008, Defendant was charged with aggrav ated stalking. He was 9 arrested for that charge the following day and remained incarcerated until sentencing. 10 Defendant was indicated for aggravated stalking on September 9, 2008. His trial 11 commenced on July 27, 2009. 12 The district court determined that Defe ndant’s aggravated stalking charge is a 13 matter of intermediate complexity, and both parties agree that this determination was 14 correct. As Defendant’s speedy trial moti on was filed after Augus t 13, 2007, we apply 15 the post- Garzatime frames. Garza , 2009-NMSC-038, ¶ 50. Presumptive prejudice 16 for an intermediate claim is established if the delay exceeds fifteen months. Id. ¶ 48. 17 The State argues that at the hearing on the motion to dismiss, counsel for 18 Defendant stated that the aggravated stalking charge had been pending less than 1914 fifteen months, and consequently, the State contends that no presumption of prejudice 1 arises because the delay is less thanthe fifteen months set forth in Garza. On appeal, 2 however, Defendant contends that the delay was more than seventeen months. Neither 3 party explains how the delay was calculated. 4 We begin our calculation with the date of arrest on March 5, 2008. See State 5 v. Moreno , 2010-NMCA-044, ¶ 10, 148 N.M. 253, 233 P.3d 782 (measuring the 6 length of delay from the time of the defe ndant’s arrest). The duration between 7 Defendant’s arrest and trial is one year, f our months, and twenty-two days, or slightly 8 more than sixteen and one-half months. Acco rdingly, we conclude that Defendant has 9 established presumptive prejudice; his de lay exceeded the thre shold by one and one10 half months. 11 “If a court determines that the length of delay is presumptively prejudicial, then 12 it should consider the length of delay as one of four factors in the analysis, none of 13 which alone are sufficient to find a violation of the right.” Garza , 2009-NMSC-038, 14 ¶ 23 (internal quotation marks and citation omitted). We cons ider the extent to which 15 the delay stretched beyond the bare minimum required to trigger judicial examination 16 of the claim. See Doggett v. United States , 505 U.S. 647, 652 (1992) (“If the accused 17 [shows that the interval between accusati on and trial has crossed the threshold 18 dividing ordinary from presumptively prejudici al delay], the court must then consider 1915 . . . the extent to which the delay stretche s beyond the bare minimum needed to trigger 1 judicial examination of the cl aim.”). “[T]he greater the delay the more heavily it will 2 potentially weigh against the [s]tate.” Garza , 2009-NMSC-038, ¶ 24. 3 As noted, the delay here stretched one and one-half months over the threshold. 4 In its order, the district court failed to address how the length of delay should be 5 weighed. The State claims that this factor should weigh “only slightly against the 6 State.” We agree and conclude that the length of delay factor weighs ever so slightly 7 against the State. See State v. Wilson , 2010-NMCA-018, ¶ 29, 147 N.M. 706, 228 8 P.3d 490 (discussing delay stretching five months beyond the bare minimum and 9 concluding that such delay weighs only slightly against the State), cert. denied , 10 2010-NMCERT-001, 147 N.M. 673, 227 P.3d 1055. 11 Reasons for the Delay 12 We next evaluate the reas ons “the government assigns to justify the delay.” Id. 13 ¶ 30 (internal quotation marks and citation omitted). “[T]he reasons for a period of 14 the delay may either heighten or temper the prejudice to the defendant caused by the 15 length of the delay.” Id. (internal quotation marks and citation omitted). At 16 Defendant’s hearing, the district court iden tified the causes for the delay. The causes 17 included the State’s motion to have Defendant ’s competency evaluated, a trial setting 18 continuance the State filed, and Defendant ’s request to have the previous judge 1916 assigned to his case excused. The district court determined thatthe State’s concern 1 over Defendant’s competency was legitimate and not a delay tactic . Similarly, the 2 court determined that the trial setting c ontinuance was filed for good reason. The 3 initial setting was for only two days but a three-day trial se tting was required. Finally, 4 the court determined that the delays cau sed by Defendant’s decision to have the 5 previous judge excused would be held against Defendant. 6 We agree with the district court that the delay associated with the competency 7 hearing and with the rescheduling of the trial setting should not count against the 8 State. See Garza , 2009-NMSC-038, ¶ 27 (stating that valid reasons for delay should 9 not be held against the state). We disagree, however, with the court’s conclusion 10 concerning the delay associated with the excu sal. That delay should not weigh against 11 Defendant. See State v. Gallegos , 2010-NMCA-032, ¶ 18, 148 N.M. 182, 231 P.3d 12 1124 (declining to hold delay caused by the defendant’s request to excuse judge 13 against the defendant); but see State v. Benavidez , 1999-NMCA-053, ¶ 35, 127 N.M. 14 189, 979 P.2d 234 (concluding that the delay associated with judge excusal would 15 weigh neutrally where the state requestedto excuse two judges and the defendant 16 requested to excuse one), vacated in part on other grounds , 1999-NMSC-041, 128 17 N.M. 261, 992 P.2d 274. We conc lude that the reasons for the delay weigh neutrally. 18 Assertion of the Right 1917 “[T]he defendant’s assertion of or failure to assert his right to a speedy trial is 1 one of the factors to be cons idered in an inquiry into the deprivation of the right.” 2 Garza , 2009-NMSC-038, ¶ 31 (internal quotation marks and citation omitted). 3 “Generally, we assess the timing of the defe ndant’s assertion and the manner in which 4 the right was asserted.” Id. ¶ 32. “Thus, we accord weight to the frequency and force 5 of the defendant’s objections to the delay.” Id. (internal quotation marks and citation 6 omitted). “We also analyze the defendant's actions with regard to the delay.” Id. 7 “[T]he timeliness and vigor w ith which the right is asserted may be considered as an 8 indication of whether . . . the issue was raised on appeal as afterthought.” Id. 9 The Defendant argues, and the State conced es, that this factor weighs in his 10 favor. Defendant adds that this factor should weigh “heavily” in his favor but has 11 provided us with no case law or argument as to why we should do so. Accordingly, 12 we conclude only that this factorweighs in favor of Defendant. 13 Prejudice 14 In Garza , 2009-NMSC-038, ¶ 37, our Supreme Court held that a defendant 15 must show particularized prejudice of the kind against which the speedy trial right is 16 intended to protect. “The United States S upreme Court has identified three interests 17 under which we analyze prejudice to the defe ndant: (i) to prevent oppressive pretrial 18 incarceration; (ii) to minimize anxiety and c oncern of the accused; and (iii) to limit the 1918 possibility that the defens e will be impaired.” Id. ¶ 35 (internal quotation marks and 1 citation omitted). “As to the first two type s of prejudice, some degree of oppression 2 and anxiety is inherent for every defendant who is jailed whileawaiting trial.” Id. 3 (alterations, internal quotation marks, and citation omitted). Therefore, “we weigh 4 this factor in the defendant’s favor only wh ere the pretrial incarcer ation or the anxiety 5 suffered is undue.” Id. Furthermore, “[t]he oppressive nature of the pretrial 6 incarceration depends on the length of incarceration, whether the defendant obtained 7 release prior to trial, and what prejudicialeffects the defendant has shown as a result 8 of the incarceration.” Id. 9 Defendant has the burden to demonstr ate and substantiate prejudice. Id. ¶¶ 35- 10 37. In the case at bar, Defendant argues that he suffered tremendous prejudice due to 11 his lengthy period of incarceration and the physical, emotional and economic 12 hardships he endured due to the case bei ng prolonged. At the hearing on Defendant’s 13 speedy trial motion, Defendant presented evidence that he was incarcerated while 14 awaiting trial; that he was confined to a cell twenty-three hours a day; that the food 15 was inadequate; that he was assaulted; th at he lost his job; that his credit was 16 destroyed; and that he had to file for bankruptcy. We note, however, that Defendant 17 was incarcerated on a $10,000 cash bond after violating the conditions of his release 18 on his previous charges. Where a defendant is incarcerated for other conduct, such 1919 as other charges, this Court has held th at a defendant is notsubject to oppressive 1 pretrial incarceration. State v. Urban , 2004-NMSC-007, ¶ 17, 135 N.M. 279, 87 P.3d 2 1061. Furthermore, Defendant has not demonstrated thatany anxiety and concern he 3 suffered was at all different from the anxiety and concern inherent in being 4 incarcerated. See Wilson , 2010-NMCA-018, ¶ 48 (“Some degree of oppression and 5 anxiety is inherent for every defendant who is jailed while awaiting trial.”). 6 Moreover, the district court concluded that Defendant had not presented any 7 evidence that the delay in th is case prejudiced Defendant’s ability to present a defense. 8 Nor does Defendant make any argument on appeal that his ability to prepare his 9 defense was impaired. See Garza , 2009-NMSC-038, ¶ 36 (stating that prejudice to 10 a defendant’s ability to present a defense is the “most serious,” but the defendant must 11 still substantiate this type of prejudice). We therefore conclude that Defendant has not 12 met his burden of demonstrating actual prejudi ce. As a result, we affirm the district 13 court’s denial of Defendant’s motion to dismiss on speedy trial grounds. 14

Balancing 15 The total delay in this matter was roughly sixteen and one-half months. As this 16 was an intermediate case, this amounted toa delay of one and one-half months beyond 1720 the bare minimum required to trigger judicialscrutiny. We conclude that this degree 1 of delay weighs only slightlyin Defendant’s favor. The reasons for the delay weigh 2 against neither party. Defendant asserted his right in a timely fashion and, therefore, 3 this factor weighs against the State and in Defendant’s favor. Finally, Defendant 4 failed to establish prejudice. Under these circumstances, we conclude that 5 Defendant’s right to a spee dy trial was not violated. See id. ¶ 40 (balancing the factors 6 and concluding that there was no speedy trial violation when the defendant failed to 7 show prejudice and the remaining factors did not weigh heavily in the defendant’s 8 favor). We affirm the district court’s denial of Defendant's motion to dismiss on 9 speedy trial grounds. 10 CONCLUSION 11 For the reasons stated above, we affi rm Defendant’s conviction for stalking, 12 criminal trespass, and aggravated stalking, and we remand this matter to the district 13 court to vacate Defendant’s conviction for harassment. 14

IT IS SO ORDERED. 15

__________________________________ 16 LINDA M. VANZI, Judge 1721 WE CONCUR: 1

_________________________________ 2 CELIA FOY CASTILLO, Chief Judge 3

_________________________________ 4 JAMES J. WECHSLER, Judge 5