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IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO 1 STATE OF NEW MEXICO, 2 Plaintiff-Appellee, 3

v. NO. A-1-CA-34592 4 KAREN VIGIL, 5 Defendant-Appellant. 6 APPEAL FROM THE DISTRICT COURT OF TAOS COUNTY 7 Sarah C. Backus, District Judge 8 Hector H. Balderas, Attorney General 9 Anita Carlson, Assist ant Attorney General 10 Santa Fe, NM 11 for Appellee 12 Bennett J. Baur, Chie f Public Defender 13 Nina Lalevic, Assist ant Appellate Defender 14 Santa Fe, NM 15 for Appellant 16 MEMORANDUM OPINION 17 BOGARDUS, Judge. 18

{1}Defendant Karen Vigil app eals her convictions, followi ng a jury trial, of two 19 counts of great bodily injury by vehicle (DWI); one count of child abuse (no death 202 or great bodily harm); one count of know ingly leaving the scene of an accident 1 (great bodily harm); and two counts of criminal damage to property (more than 2 $1,000). Defendant contends that (1) he r convictions are not supported by 3 sufficient evidence; (2) the district court erred by improperly instructing the jury 4 on the child abuse charge; (3) the district court abused its discretion in finding 5 Defendant competent to stand trial; (4) the district court abused its discretion in 6 allowing an expert witness to testify on retrograde extrapol ation; and (5) the 7 district court erred in failing to dismi ss the charges against her on speedy trial 8 grounds. We affirm. 9 BACKGROUND 10

{2} The charges against Defendant stem from a three-car accident in which 11 Defendant, her friend, VenessaVelarde, and Defendant’s minor son, Antonio, were 12 traveling from Santa Fe in a minivan north on U.S. 68 through Taos Canyon at 13 high speed. Other drivers reported having seen the minivan being driven erratically 14 and passing other vehicles in no-passing zones. As the minivan passed another 15 vehicle just before a blind curve, the minivan and a car traveling in the opposite 16 direction collided. Meanwhile, the driver of the car being passed veered off the 17 road and crashed into a guardrail. Ms. Ve larde and the driverof the car that 18 collided with the minivan were seriously in jured, and the other drivers’ vehicles 19 were totaled. 203 {3} At trial, Defendant and Ms. Velarde di sputed which of them was driving the 1 minivan when it crashed. Defendant testifie d that Ms. Velarde was driving and that 2 Defendant was sitting in the back seat. According to Ms. Velarde, she was a 3 passenger at the time of the accident. Both she and Defendant testified that they 4 had been drinking alcohol in the minivan during the drive. A test of Defendant’s 5 blood-alcohol content (BAC ) conducted several hours afte r the accident measured 6 her BAC at .07. 7

{4} Because this is a memorandum opinion and the parties are familiar with the 8 facts and the procedural history of the case, we provide additional facts only as 9 necessary to our analysis. 10 DISCUSSION 11 I. Sufficient Evidence Exists to Support the Jury’s Verdict 12

{5} At Defendant’s trial, the jury was instru cted that the State had to prove that 13 Defendant “operated a motor vehicle” to convict Defendant of the two counts of 14 great bodily injury by vehicle and of know ingly leaving the scene of an accident. 15

{6} Defendant argues that the evidence the State presented is insufficient to 16 sustain her convictions, and so the convic tions must be vacated. Defendant bases 17 her argument on her contention that the St ate failed to prove that she was driving 18 the minivan when the accident occurred. 194 {7} “The test for sufficiency of the eviden ce is whether substantial evidence of 1 either a direct or circumstantial nature ex ists to support a verdict of guilty beyond a 2 reasonable doubt with respect to every element essential to a conviction.” State v. 3 Montoya , 2015-NMSC-010, ¶ 52, 345 P.3d 1056 (internal quotation marks and 4 citation omitted). “Substantial evidence is re levant evidence that a reasonable mind 5 might accept as adequate to support a conclusion.” State v. Rojo , 1999-NMSC-001, 6 ¶ 19, 126 N.M. 438, 971 P.2d 829. When revi ewing for sufficiency of evidence, 7 “we resolve all disputed facts in favor of the [s]tate, indulge all reasonable 8 inferences in support of the verdict, and disregard all evidence and inferences to 9 the contrary.” Id. 10

{8} The State, to meet its burden to pr ove that Defendant was guilty of the 11 crimes charged, presented di rect evidence that Defendant was the driver through 12 the testimony of Ms. Velarde. She testifie d that Defendant was driving the minivan 13 recklessly and dangerously in the moments leading up to the accident. 14

{9} In addition to its direct evidence, th e State presented i ndirect evidence 15 supporting reasonable inferences that De fendant was the driver. For example, Ms. 16 Velarde testified to (1) havi ng shattered her right-side pe lvis, her right femur, and 17 her right ankle in the accident; (2) requir ing post-accident reconstructive surgery; 18 and (3) not being able to walk unassisteduntil fifteen months after the accident. 19 Ms. Velarde’s serious injuries to the right side of her body is consistent with the 205 conclusion that she was sitting in the passenger’s, not the driver’s, seat: the 1 passenger side of the minivan, in De fendant’s own words, was “completely 2 crushed.” 3

{10} As another example, a nurse experien ced in treating accident victims and 4 who treated Ms. Velarde after the accident testified to seeing bruising apparently 5 caused by a seatbelt on Ms. Velarde’s right shoulder. The abrasion on Ms. 6 Velarde’s left shoulder, in c ontrast, appeared not to have been caused by a seatbelt, 7 the nurse said. This evidence supports a re asonable inference th at Ms. Velarde was 8 in the passenger’s seat at the time of th e crash, placing Defendant in the driver’s 9

seat. 10

{11} Additional testimony of a witness to the accident also supports the verdict. 11 Jesse Montoya, the driver of the car that co llided with the minivan, testified that he 12 saw “a big frizzy figure” in the minivan’s driver’s seat before the crash. When 13 asked the color of that “figure’s” hair, hesaid he saw it after the accident when he 14 saw the figure walking away from the scen e; in saying that, he implied that the 15 driver was the same person who walked away from the scene. Mr. Montoya’s 16 statements support the State’s cas e because—by Defendant’s admission— 17 Defendant was the only one of the two fema le passengers in the minivan to walk 18 away from the accident scene. Mr. M ontoya’s testimony supports a reasonable 19 inference that Defendant was the driver. 206 {12} Nevertheless, Defendant asks this Court to consider evidence, the absence of 1 additional evidence, and inferences that s upport a different result. In so doing, she 2 relies on her own testimony that she was not the driver. She notes that Ms. Velarde 3 has curly hair matching the description of witnesses who saw the driver, and that 4 both had post-accident injuries to their left shoulders that could have been caused 5 by a driver’s-side seatbelt. She further co mplains that the accident investigation 6 was incomplete and that no witness at trial either corroborated or impeached Ms. 7 Velarde’s testimony. In sum, Defendant asserts that th ere was no more evidence to 8 convict her than there was to convict Ms. Velarde. 9

{13} In essence, Defendant asks us to weigh the witnesses’ credibility and 10 entertain the question of whether—with the evidence presented at trial and without 11 further evidence—the jury could have reach ed a different conclu sion. However, it 12 is the role of the jury to gauge De fendant’s credibility and Ms. Velarde’s 13 credibility and to resolve the conflict in their testimony. See In re Ernesto M., Jr. , 14 1996-NMCA-039, ¶ 15, 121 N.M. 562, 915 P.2d 318. The jury was free, as it did, 15 to reject Defendant’s version of the facts. See Rojo , 1999-NMSC-001, ¶ 19. In 16 contrast, we are not free to concern our selves with the contrary evidence 17 supporting Defenda nt’s acquittal. See id. 18

{14} Rather, we ask whether there is “rel evant evidence that a reasonable mind 19 might accept as adequate to support [the ] conclusion” that Defendant was driving 207 the minivan at the time of the accident. See id. Based on Ms. Velarde’s testimony 1 that Defendant was the driver, on the na ture of Ms. Velarde’s injuries, on the 2 location of the damage to the minivan, a nd on the witnesses’ pre- and post-accident 3 observations, we conclude that sufficient evidence supports the jury’s finding that 4 Defendant was the driver. 5 II. Use of the Child Abuse Jury Instruction Does Not Constitute 6 Fundamental Error 7

{15} Defendant’s next assertion is that the district court fundamentally erred by 8 including the phrase “knew or should ha ve known” in the jury instruction on 9 Defendant’s child abuse charge. The portion of the instruction De fendant refers to 10 reads: 11 For you to find [D]efendant guilty of child abuse which did not 12 result in death or great bodily harm, . . . the [S]tate must prove . . . 13 [that d]efendant acted intentionally or with reckless disregard and 14 without justification; To find that [Defendant] actedwith reckless 15 disregard, you must find that [Defendant] knew or should have known 16 [her] conduct created a substantial and foreseeable risk, [D]efendant 17 disregarded that risk and [D]efendant was wholly indifferent to the 18 consequences of the conduct and to the welfare and safety of Antonio 19 Vigil[.] 20 (Emphasis added.) The instruction wa s based on UJI 14-604 NMRA (1999), the 21 instruction in effect at the time of th e trial. Neither party objected to the 22 instruction. 23

{16} Five days before Defendant’s tr ial, our Supreme Court decided State v. 24 Consaul , 2014-NMSC-030, 332 P.3d 8 50, which concerned the application of the 258 child abuse statute and its corres ponding uniform jury instructions. Consaul 1 reiterated that the culpability standard associated with th e crime of child abuse is 2 recklessness. Id. ¶¶ 34, 38. In Consaul , the Court expressed concern about the 3 then-current child abuse uniform jury in structions, similar to the one used at 4 Defendant’s trial. Id. ¶ 39. In particular, the Court cast doubt on the “continued 5 vitality of ‘knew or should have known’ in [the] instructions,” id. ¶ 40, because of 6 the phrase’s “close association with prin ciples of civil negligence and ordinary 7 care.” Id. ¶ 39

. 8

{17} In Consaul , the Supreme Court indicated thatit would address “in detail” the 9 uniform jury instructions associated w ith the child abuse statute “in the near 10 future.” Id. ¶ 40. About seven months later, the Court amended UJI 14-604 in part 11 by removing “knew or should have known” from the definition of “reckless 12 disregard” and inserting in its place “mor e than merely negligent or careless.” The 13 Court recompiled the instruction as UJI 14- 612 NMRA, with an effective date of 14 April 3, 2015. 15

{18} Defendant now objects to the use of“should have known”—the since16 removed phrase associated with the civ il negligence culpability standard—in the 17 child abuse jury instruction at her trial. We review for fundamental error because 18 the issue was not preserved. See, e.g. , State v. Benally , 2001-NMSC-033, ¶ 12, 131 19 N.M. 258, 34 P.3d 1134. Under the fundament al error standard, “we seek to 209 determine whether a reasonable juror would have been confused or misdirected by 1 the jury instruction . . . despite the factthat the juror considers the instruction 2 straightforward and perfectly comprehensible on its face.” Id. (internal quotation 3 marks and citations omitted). “Thus, juror confusion or misdirection may stem not 4 only from instructions that are facia lly contradictory or ambiguous, but from 5 instructions which, through omission or mi sstatement, fail to provide the juror with 6 an accurate rendition of the relevant law.” Id. We bear in mind in our review that 7 “[t]he rule of fundamental error applies only if there has been a miscarriage of 8 justice, if the question of guilt is so doubt ful that it would shock the conscience to 9 permit the conviction to stand, or if substantial justice has not been done.” State v. 10 Orosco , 1992-NMSC-006, ¶ 12, 113 N.M. 780, 833 P.2d 1146. 11

{19} On appeal, the parties invite us to resolve this issue by examining, among 12 other topics: (1) the integrity, in light of Consaul , of the child abuse jury 13 instruction used at Defendant’s trial, in cluding whether the instruction’s other parts 14 make up for its alleged deficiency; (2) whether the district court should have 15 learned of Consaul and responded to it by modify ing the child abuse jury 16 instruction used at trial; and (3) the leve l of tolerance for UJI 14-604 our Supreme 17 Court expressed by its Consaul language and its subs equent UJI-amending 18 actions—and, by extension, the level of tolerance for it we should now show. 19 Further, Defendant argues that the districtcourt erred by allowing the jury to be 2010 instructed as to both intentional and neglig ent child abuse in the same instruction. 1 In light of Defendant’s failure to addr ess this contention fu rther or develop a 2 supporting argument, we decline to review this undeveloped argument. See Corona 3 v. Corona , 2014-NMCA-071, ¶ 28, 329 P.3d 701. 4

{20} We need not address Defendant’s arguments regarding the effect Consaul 5 should have had on the child abuse jury in struction used at trial to resolve the 6 issue. We look instead to the rule of funda mental error and ask if Defendant’s guilt 7 regarding child abuse is so doubtful that it would shock the conscience to let her 8 conviction stand. See Orosco , 1992-NMSC-006, ¶ 12. Unde r this standard, we 9 cannot conclude that use of the jury in struction amounted to fundamental error. 10 The trial record includes testimony by Ms. Velarde that she and Defendant took 11 turns doing shots from two pints of Yukon Jack whisky on the drive from Santa Fe 12 north toward Taos with Defendant’s teen age son, Antonio, in the minivan. She 13 further testified that, before the acci dent, Defendant was driving the minivan 14 erratically and recklessly, passing cars inno-passing zones and in blind curves, 15 speeding, driving more daringly in response to Ms. Velarde’s pleas that she slow 16 down, and not caring about the danger of her actions. 17

{21} The evidence presented at trial is su fficient to satisfy the revised UJI’s 18 requirement of showing “more than me rely negligent or careless” conduct. See UJI 19 14-612. Thus, we cannot say that there has be en a “miscarriage of justice” or that it 2011 would “shock the conscience to permit the conviction to stand[.]” Orosco , 1992- 1 NMSC-006, ¶ 12. We c onclude that the district court’s use of the jury instruction 2 on child abuse does not constitute fundamental error. 3 III. District Court’s Finding of Competency Was No t an Abuse of 4 Discretion 5

{22} Defendant argues that the district court abused its discretion by determining 6 that she was competent to stand trial. Defendant claims that she was unable to 7 rationally assist her attorney and contends that the bulk of evidence presented to 8 the district court on the matter sugge sted that she was not competent. 9

{23}Defendant presented evidence of her incompetency to stand trial, and the 10 State presented countervailin g evidence in response. De fendant submitted to three 11 forensic evaluations of her competency. The district court ordered, and Dr. Cave 12 conducted, the first. Dr. Ca ve concluded that Defendant was not competent. The 13 State requested a second evaluation, wh ich Dr. Kernen conducted. Dr. Kernen 14 found Defendant competent. Lastly, Dr. Westfried, Defe ndant’s expert, conducted 15 a third evaluation and found Defendant not competent. 16

{24} At the competency hearing, the distri ct court did not hear testimony from Dr. 17 Cave, but did hear testimony from Dr. We stfried, Dr. Kernen, and Dr. Shwartz, 18 who works with Dr. Kernen and who re viewed Dr. Kernen’s evaluation. Dr. 19 Westfried testified that he reviewed the reports of the other experts and found them 2012 inconclusive. He testified that Defe ndant was not malingering while undergoing 1 evaluations and that she was the driver at the time of the accident but had created a 2 delusion that Ms. Velarde instead was the driver. Overall, Dr. Westfried believed 3 that Defendant lacked a rational perspe ctive and hence was unable to rationally 4 assist her attorney. 5

{25} Dr. Kernen and Dr. Shwartz testified to the contrary. Dr. Kernen testified 6 that, in her opinion, Defendant did not have a delusional disorder and was 7 malingering by feigning a multiple personality disorder. Dr. Kernen believed that 8 Defendant was competent to stand trial. Dr. Shwartz testified that she concurred 9 with Dr. Kernen’s findings of malingering and competency. 10

{26} At the end of the competen cy hearing, the district court found that Defendant 11 did not overcome the presumption that she was competent to stand trial. The court 12 determined that Defendant failed to show by a preponderance of the evidence that 13 she was incapable of assisting in her own defense, a finding that would have 14 qualified her as incompetent to stand trial. See State v. Rotherham , 1996-NMSC15 048, ¶ 13, 122 N.M. 246, 923 P. 2d 1131 (“An accused must have the capacity to 16 assist in his own defense and to comp rehend the reasons for punishment.”). The 17 district court reached its conclusion largely by finding Dr. Kernen’s and Dr. 18 Shwartz’s testing more reliable than Dr. Westfried’s. 1913 {27}We review district court determinati ons of competency to stand trial for 1 abuse of discretion, State v. Linares , 2017-NMSC-014, ¶ 23, 393 P.3d 691, which 2 occurs when a ruling is “against logic” a nd “clearly untenable or not justified by 3 reason.” Id. ¶ 24 (internal quotation marks and citation omitted). “Where an abuse 4 of discretion is claimed by appellant, appe llant bears a heavy burden, in view of 5 the long-standing rule that the reviewing court will not overturn the action of the 6 trial court absent a patent abuse of manifest error in the exercise of discretion.” 7 Spingola v. Spingola , 1978-NMSC-045, ¶ 19, 91 N.M. 737, 580 P.2d 958. On this 8 review, “[w]e view the evidence in the lightmost favorable to the district court’s 9 decision, resolve all conflicts and indulge all permissible inferences to uphold that 10 decision, and disregard all evidence and inferences to the contrary.” Linares , 2017- 11 NMSC-014, ¶ 24. 12

{28} That is, we disregard the findings and conclusions in the reports and 13 testimony on Defendant’s competency to sta nd trial that do not support the district 14 court’s finding of competency. We are le ft with the testimony of Dr. Kernen, an 15 expert in forensic neurops ychology, and Dr. Shwartz, an expert in forensic 16 psychology and neuropsychology, who stated plainly that Defendant was 17 competent to stand trial, and who laid out cogent reasons for that conclusion. 18

{29} The district court, in its fact-finding role on this issue, had the choice to 19 accept Dr. Kernen’s and Dr. Shwartz’s te stimony and to reject Dr. Westfried’s. See 2014 State v. Jason F. , 1998-NMSC-010, ¶ 29, 125 N.M. 111, 957 P.2d 1145 (noting 1 that court, as fact-finder at competency he aring, is not required to credit testimony 2 of experts). The court so c hose. Defendant articulates no reason that the choice was 3 illogical or clearly untenable, and having reviewed the record, we see none. We 4 conclude that the district court did not abuse its discretion by determining that 5 Defendant was competent to stand trial. 6 IV. Admission of Expert Witness’s Testimony on Retrograde Extrapolation 7 Was Not an Abuse of Discretion 8

{30} Defendant contends that the distri ct court erred by admitting the trial 9 testimony of Gerasimos Razato s, asserting that the State’s “sole purpose” in calling 10 Mr. Razatos was for him to testify on retrogr ade extrapolation, wh ich calculates an 11 individual’s prior BAC level on the basis of a subsequently administered BAC test. 12 Defendant further claims that she objected to Mr. Razatos’ retrograde extrapolation 13 testimony because it was not relevant and because he was not qualified to testify 14 on retrograde extrapolation. Defendant argues that admitting this testimony was 15 prejudicial because it invited the jury to improperly speculate as to her BAC at the 16 time of the accident. The Stat e counters that the court did not abuse its discretion in 17 this way because Mr. Razatos had extensiv e qualifications and experience in the 18 field of blood-alcohol analysis, the general field encompassing retrograde 19 extrapolation. The State contends that shortcomings, if any, in Mr. Razatos’ 20 qualifications affect the weight of his testimony, not its admissibility. 2115 {31} The State called Mr. Razatos, a thirteen -year employee of the Department of 1 Health’s Toxicology Bureau, to testify about Defendant’s BAC because it was he 2 who certified the test result. Mr. Razatos testified on his qualifications, his 3 experience as a test reviewer, and the factors he considered when reviewing 4 Defendant’s BAC test. 5

{32} Defendant raised no objection to Mr. Razatos’ expert testimony until the 6 State asked Mr. Razatos to explain retr ograde extrapolation. At that point, 7 Defendant objected, not based on relevanc y, but based solely on Mr. Razatos’ 8 qualifications to perform retrograde extr apolation. The court allowed defense 9 counsel to question Mr. Raza tos regarding his specific training on and experience 10 with retrograde extrapolation. Mr. Raza tos testified that his expertise in blood11 alcohol analysis included retrograde extr apolation, although he had not been 12 formally tested on it. The court ruled, ove r Defendant’s objection, that Mr. Razatos 13 was qualified as an expert in the field of blood-alcohol analysis. 14

{33} Once the court found that Mr. Razatos was qualified in the field of blood15 alcohol analysis, he testified generally about the theory of retrograde extrapolation 16 but emphasized that he did not perform a retrograde extrapolation in this case 17 because he lacked the data necessary to do so. Mr. Razatos offered no opinion on 18 Defendant’s BAC at the time of the accident. 1916 {34} We review the district court’s admi ssion of expert testimony under an abuse 1 of discretion standard. “The rule in this [s]tate ha s consistently been that the 2 admission of expert testimony or other scie ntific evidence is peculiarly within the 3 sound discretion of the trial court and w ill not be reversed absent a showing of 4 abuse of that discretion.” State v. Alberico , 1993-NMSC-047, ¶ 58, 116 N.M. 156, 5 861 P.2d 192. “The trial judge has wide discretion to de termine whether a witness 6 is qualified to give testimony as an expert , and no set criteria can be laid down to 7 test an expert’s qualifications.” State v. McDonald , 1998-NMSC-034, ¶ 19, 126 8 N.M. 44, 966 P.2d 752 (alterati on, internal quotation mark s, and citations omitted). 9 “An abuse of discretion occurs when the ruling is clearly against the logic and 10 effect of the facts and circumstances of the case. We cannot say the trial court 11 abused its discretion by its ruling unless we can characterize [the ruling] as clearly 12 untenable or not justified by reason.” Rojo , 1999-NMSC-001, ¶ 41 (internal 13 quotation marks and citation omitted). 14

{35}We see no abuse of disc retion here. Mr. Razatos ha d extensive experience 15 and training in blood-alcohol analysis. The fact that he had not been specifically 16 tested in retrograde extrapolation goes to the weight of his testimony on the 17 subject, but does not preclude its admissibility. See McDonald , 1998-NMSC-034, 18 ¶ 21 (observing that a jury is free to weigh every aspect of an expert’s 19 qualifications and free to disregar d an expert’s testimony entirely). 2017 {36}Defendant argues next that she wa s prejudiced by Mr. Razatos’ general 1 discussion of retrograde extrapolation becau se it invited jury speculation, which we 2 interpret as an argument that the testim ony does not assist the trier of fact to 3 understand the evidence or to determine a fact in issue pursuant to Rule 11-702 4 NMRA. Defendant refers to a question the jury asked—“In general how much 5 alcohol is metabolize[d] per hour by someone [Defendant’s height and 6 weight]?”—as evidence of speculation and a sserts that the jury engaged in its own 7 “pseudoscience” to convicther. Defendant cites State v. Downey , 2008-NMSC8 061, ¶ 28, 145 N.M. 232, 195 P.3d 1244, for th e proposition that expert testimony 9 on retrograde extrapolation is unreliable and inadmissible when it is “predicated on 10 factual assumptions unsupported by the ev idence adduced at tr ial[.]” Unlike the 11 expert in Downey , the expert in this case made clear that he did not have the 12 relevant information to cal culate Defendant’s BAC, a nd he reached no conclusion 13 regarding Defendant’s BAC at the time of the accident. Because no retrograde 14 extrapolation was done by the expert here, Downey does not apply. 15

{37} Defendant offers no evidence, beyond th e jury’s question, to support her 16 claim that the jury’s verdict is based on improper speculation. Defendant fails to 17 direct us to any evidence that the jury’s question was put to Mr. Razatos or any 18 witness during the trial. The jury was instru cted at the start of trial that it could 19 submit a question to the court, but also that if a question was not asked, not to give 2018 it any further consideration. See UJI 13-112 NMRA. At the end of trial, the jury 1 was specifically instructed that its ve rdict should not be based on “speculation, 2 guess or conjecture.” We presume that the jury followed the instructions given. See 3 State v. Sellers , 1994-NMCA-053, ¶ 28, 117 N.M. 644, 875 P.2d 400 (“There is a 4 presumption that the jury follows th e instructions they are given.”). 5

{38} The jury had ample evidence, without engaging in speculation based on 6 retrograde extrapolation, to conclude that Defendant was driving under the 7 influence of alcohol at the time of the ac cident. Ms. Velarde testified that she and 8 Defendant shared two pints of Yukon Jack whisky between Santa Fe and the crash 9 site in Taos Canyon. Other witnesses testified that De fendant was driving fast, 10 erratically, and dangerously and was pa ssing cars hazardously on the narrow two11 lane road. The Department of Hea lth’s Toxicology Bureau employee who 12 performed the blood-alcohol test testified that Defendant’s BAC was .07 when the 13 sample was taken. Based on the gene ral nature of the testimony and the 14 instructions given by the district court, we hold that the district court did not abuse 15 its discretion by allowing Mr. Razatos’ testimony. 16 V. Defendant’s Right to a Speedy Trial Was Not Violated 17

{39}Defendant asserts that the district court erred by denyi ng her motion to 18 dismiss because her right to a speedy tr ial was violated. Th ere was a delay of 19 approximately forty months between th e filing of the underlying criminal 2019 information and the final trial setting. Defendant contends that the delay is 1 prejudicial because her case was of interm ediate complexity, and for such cases, 2 any delay beyond fifteen months is presumptively prejudicial. See State v. Garza , 3 2009-NMSC-038, ¶ 48, 146 N.M. 499, 212 P.3d 387 (adopting fifteen months of 4 delay as the guideline beyond which intermediate cas es may become 5 presumptively prejudicial). The State conced es that the delay exceeded the fifteen6 month presumptively prejudicial period, but contends that Defendant’s right to a 7 speedy trial was not violated because most of the delay was attributable to her. 8 After careful review of the record, we conc lude that the delay in this case did not 9 violate Defendant’s right to a speedy trial. 10

{40}The accused in New Mexi co have a fundamental right to a speedy trial 11 guaranteed by both the Sixth Amendment of the United States Constitution and 12 Article II, Section 14 of th e New Mexico Constitution. Garza , 2009-NMSC-038, 13 ¶ 10. Our courts have not interprete d New Mexico’s speedy trial guarantee 14 differently from the Sixth Amendment guara ntee, and thus we view them as co15 extensive. State v. Spearman , 2012-NMSC-023, ¶ 16 n.1, 283 P.3d 272. We do not 16 apply an inflexible, bright-line approach to speedy trial analyses; rather, we 17 analyze the specific facts and circumstances of each case to de termine whether an 18 accused person’s speedy trial right has been violated. Garza , 2009-NMSC-038, 19 ¶¶ 11, 14. 2020 {41}To determine whether a criminal defe ndant’s speedy trial right was violated, 1 we analyze the four f actors established in Barker v. Wingo , 407 U.S. 514, 530-32 2 (1972): 3 Under the Barker framework, courts weigh the conduct of both the 4 prosecution and the defendant under th e guidance of four factors: (1) 5 the length of the delay; (2) the reas ons for the delay; (3) the timeliness 6 and manner in which the defendant a sserted his speedy trial right; and 7 (4) the particular prejudice that the defendant actually suffered. 8 State v. Smith , 2016-NMSC-007, ¶ 58, 367 P.3d 420 (internal quotation marks and 9 citation omitted). None of these factors al one is “a necessary or sufficient condition 10 to the finding of a deprivation of the rightof speedy trial[;] . . . they are related 11 factors and must be considered together with such other circ umstances as may be 12 relevant.” Barker , 407 U.S. at 533. “In analyzing th ese factors, we defer to the 13 district court’s factual findings that are supported by substantial evidence, but we 14 independently review the record to dete rmine whether a defendant was denied his 15 speedy trial right and we weigh and balance the Barker factors de novo.” State v. 16 Flores , 2015-NMCA-081, ¶ 4, 355 P.3d 81. 17 A. Length of Delay 18

{42} The length of delay is both “a tri ggering mechanism requiring further 19 inquiry into the Barker factors” and also one of the four factors in the Barker 20 analysis. Spearman , 2012-NMSC-023, ¶ 20 (internal quotation marks and citation 21 omitted). “Whether or not the threshold for further inquiry is met depends upon 2221 whether the delay is considered presumptively prejudicial.” State v. Gallegos , 1 2016-NMCA-076, ¶ 6, 387 P.3d 296. Here, the district court did not determine the 2 complexity of this case, leaving us free to do so. See State v. O’Neal , 2009- 3 NMCA-020, ¶ 16, 145 N.M. 604, 203 P.3d 135. This case involved six felony 4 counts, approximately ten w itnesses, expert testimony, and it was set for a three5 day trial. These factors support the conc lusion that the case was intermediately 6 complex. See State v. Montoya , 2011-NMCA-074, ¶ 16, 150 N.M. 415, 259 P.3d 7 820 (concluding that a case with four “somewhat difficult” charges and nine 8 witnesses, including a forensic scien tist, was intermediately complex); see also 9 State v. Laney , 2003-NMCA-144, ¶ 14, 134 N.M. 648, 81 P.3d 591 (noting that 10 intermediately complex cases are charact erized by numerous witnesses, expert 11 testimony, and scientific evidence). For an intermediately comple x case, a delay of 12 longer than fifteen months is presumptively prejudicial. Garza , 2009-NMSC-038, 13 ¶ 48. 14

{43} Although the crash occurred on Augu st 11, 2010, Defendant was not 15 charged until April 13, 2011, when the Stat e filed a criminal information against 16 her for two counts of great bodily injury, one count of child abuse, and one count 17 of leaving the scene of an accident. Later, on April 19, 2012, a grand jury indicted 18 Defendant on the two counts of criminal da mage to property, and the cases were 19 joined on May 14, 2012. 2022 {44} Our appellate courts have yet to a ddress a speedy trial issue with two 1 separate dates of attachment , and we need not do so here. With clarity in mind, and 2 concluding that Defendant’s right to spee dy trial was not violated regardless of our 3 approach to the question, we treat all of De fendant’s charges as if they were part of 4 the initial set of charges. Accordingly, we assume that Defe ndant’s right to a 5 speedy trial attached on the date of her initial charges, April 13, 2011. See State v. 6 Ross , 1999-NMCA-134, ¶¶ 13-15, 128 N.M. 222, 991 P.2d 507 (holding that, in a 7 felony prosecution, an indictment or in formation must be filed to trigger a 8 defendant’s speedy trial ri ght). Defendant’s trial st arted on August 26, 2014. The 9 time from attachment of her speedy trial right to trial was more than forty months, 10 or approximately twenty-five months beyond the fifteen-month threshold for an 11 intermediately complex case . Because the delay was pres umptively prejudicial, we 12 continue to a full Barker analysis. 13

{45} This forty-month delay, more than twice as long as the presumptively 14 prejudicial delay period, weighs heavily ag ainst the State and in Defendant’s favor. 15 See State v. Taylor , 2015-NMCA-012, ¶ 9, 343 P.3d 199 (holding that a twenty16 four-month delay in a simple case weighed heavily against the state); see also State 17 v. Brown , 2017-NMCA-046, ¶ 17, 396 P.3d 171 (w eighing forty-two-month delay 18 in a complex case, which wa s approximately twice as long as the presumptively 19 prejudicial delay, heavily against the state). 2023 B. Reasons for Delay 1

{46} The reasons assigned to justify delay in a particular ca se may lessen or 2 increase the prejudice to the defendant caused by the delay. Garza , 2009-NMSC3 038, ¶ 25. We attribute three types of de lay to the state and one type to the 4 defendant. Brown , 2017-NMCA-046, ¶ 18. The first type, intentional delay, which 5 is a “deliberate attempt to delay prosecution of the case in order to hamper the 6 defense[,]” is weighed heavily against the state. Id. The second type, negligent or 7 administrative delay, is weighed against the state, but more lightly than intentional 8 delay. Id. The weight assessed against the st ate for negligent or administrative 9 delay, however, increases as the length of that delay increases. Id. The third type, 10 appropriate delay, wh ich is delay justified by validreasons, such as a missing 11 witness, is neutra l and does not weigh against the state. Id. Finally, delay caused by 12 the defense generally wei ghs against the defendant. Id. 13

{47} Because speedy trial analysis depends on the facts and circumstances of each 14 case, we review the pertinent facts of this case “to allocate to each side the reasons 15 for the delay and determine the weight we should assign the reasons for the delay.” 16 Gallegos , 2016-NMCA-076, ¶ 10. We proceed by analyzing the periods of delay 17 separately. 18 1. Seven-Month Delay from Filing Cr iminal Information to First Trial 19 Continuance 2024 {48} For purposes of this appeal, Defendant’s speedy trial right attached when the 1 State filed its criminal information on Ap ril 13, 2011. On May 10, 2011, the State 2 filed its request for schedu ling order, motion for disc overy, demand for notice of 3 alibi, request to interview witnesses, and notice of intent to call witnesses. Trial 4 was set to begin on November 28, 2011. 5

{49} We weigh this approximately seven-m onth delay neutrally because the case 6 was proceeding normally. See Taylor , 2015-NMCA-012, ¶ 11 (weighing neutrally 7 a delay during which the case was “progressing in a normal fashion”); see also 8 Garza , 2009-NMSC-038, ¶ 27 (recognizing that some pretrial delay is inevitable 9 and justifiable). 10 2. Six-Month Delay for Plea Negotiations and for Joinder 11

{50} The State moved to continue the trial because the parties were engaged in 12 plea negotiations and because discovery wa s not finished. Defendant concurred in 13 the motion. On January 25, 2012, the Stat e requested a new trial setting and the 14 case was reset for trial on April 9, 2012. Th e two cases were then joined and trial 15 was rescheduled for June 11, 2012. On May 21, 2012, De fendant filed a motion to 16 determine competency to stand trial, and so the June 11, 2012 trial setting was 17 vacated. We weigh this six-month delay ne utrally because the case was still within 18 the presumptive reasonable time for an in termediately comple x case, the case was 1925 progressing, and joinder of the two cases caused slight additional pretrial delay. 1 See Taylor , 2015-NMCA-012, ¶ 11; see also Garza , 2009-NMSC-038, ¶ 27. 2 3. Twenty-Three-Month Delay to De termine Competency to Stand Trial 3

{51} After the June 2012 trial setting was vacated, the issue of Defendant’s 4 competency was not resolved until Apr il 1, 2014, when the district court 5 determined Defendant was competent. Trial was then set to commence on August 6 26, 2014. 7

{52} Generally, delays necessary to determine competency are not weighed 8 against the state because “the state cannot try an incompetent defendant.” State v. 9 Stock , 2006-NMCA-140, ¶ 19, 140 N.M. 676, 147 P.3d 885. If a delay is for the 10 defendant’s benefit, it would be unf air to hold it against the state. Id. ; see also State 11 v. Mendoza , 1989-NMSC-032, ¶ 8, 108 N.M. 446, 774 P.2d 440 (“[A] competency 12 examination is clearly on behalf of th e accused and in no way infringes on that 13 person’s speedy trial rights.”). However, the state may share responsibility for the 14 delay if the state does nothing to move th e case forward during this period because 15 “[i]t is ultimately the state’s duty to make sure that defendants are brought to trial 16 in a timely manner.” Stock , 2006-NMCA-140, ¶ 25. 17

{53} Here, while the issue of Defendant’s competency was being determined, the 18 State attempted to move the case forwar d by filing multiple requests for settings 19 for the competency hearing, as well as requests for e xpedited hearings on other 2026 disputed issues, such as disclosure of tes ting data, as those issues arose. The State 1 did cause approximately three months of delay by failing to timely provide its 2 experts’ evaluation data to Defendant’s competency e xpert. Except for this three3 month delay, there is no evidence that the St ate failed to satisfy its responsibility to 4 keep the case moving forward. Upon revi ew of the facts and circumstances 5 regarding the competency issue delay, we weigh three months of the delay against 6 the State, and the remaining twenty months of delay against Defendant. 7 4. Four-Month Delay After Compet ency Issue Resolved Until Trial 8 Commenced 9

{54} The State moved for a new trial setti ng one week after the competency 10 determination. On April 8, 2014, the distri ct court set a new tria l date of August 26, 11 2014, and the parties prepared for trial on that date. Although the case had been 12 pending for some time, given the State’s prompt request for a new trial and the 13 court’s quick response, we cannot say that the four-month delay was inappropriate. 14 Rather, it is administrative delay, whic h we weigh lightly against the State. 15

{55} Based on the foregoing, of the forty m onths of total delay, we hold that 16 approximately thirteen months weigh ne utrally because the case was progressing 17 normally towards trial. See Taylor , 2015-NMCA-012, ¶ 11 (weighing neutrally a 18 delay during which the case was “progressing in a normal fashion”). We hold that 19 the twenty months of delay attributable to the competency i ssue weighs against 20 Defendant, see Mendoza , 1989-NMSC-032, ¶ 8 (“[A] co mpetency examination is 2127 clearly on behalf of the accused and in no way infringes on that person’s speedy 1 trial rights.”), and also hol d that the seven months of delay due to the delay in 2 providing expert materials a nd trial scheduling weighed li ghtly against the State as 3 administrative delay. See Garza , 2009-NMSC-038, ¶¶ 26, 29 (stating that 4 administrative delays are we ighed against the state and the degree of weight is 5 closely related to the length of the delay). 6 C. Assertion of the Right 7

{56} A defendant does not waive his or he r fundamental speedy trial right by 8 failing to assert it. Gallegos , 2016-NMCA-076, ¶ 23. “[T] he timeliness and vigor 9 with which the right [to a speedy trial] is asserted may be considered as an 10 indication of whether a defendant was de nied needed access to speedy trial over 11 the defendant’s objection or whether th e issue was raised on appeal as an 12 afterthought.” Id. (alteration, internal quotation marks, and c itation omitted). “[P]ro 13 forma motions are generally afforded rela tively little weight in this analysis.” State 14 v. Urban , 2004-NMSC-007, ¶ 16, 135 N.M. 279, 87 P.3d 1061. 15

{57} Defendant raised her right to a speedy trial three times: once in each of her 16 answers to the charges f iled on April 13, 2011 and Ap ril 19, 2012, and once by her 17 dismissal motion six days before the August 26, 2014 trial. Her fi rst two assertions 18 were part of her initial pleadings in wh ich her counsel entered an appearance, 19 denied the charges, and aske d for discovery materials. These assertions were pro 2028 forma and are assigned minimal weight. See State v. Marquez , 2001-NMCA-062, 1 ¶ 21, 130 N.M. 651, 29 P.3d 1052 (assigning littl e weight to an assertion in the 2 form of an entry of appearance, reque st for discovery, and demand for speedy 3 trial). 4

{58} Defendant did not raise the speedy tria l issue again until six days before 5 trial, when she did so in the form of a motion to dismiss on speedy trial grounds. 6 This assertion is sufficient to wei gh this factor in Defendant’s favor. See id. ¶ 22. 7 Because the motion was filed so close to trial, however, we weigh it less in 8 Defendant’s favor than ha d it been filed earlier. See Gallegos , 2016-NMCA-076, 9 ¶ 25; see also State v. Moreno , 2010-NMCA-044, ¶ 35, 148 N.M. 253, 233 P.3d 10 782 (concluding that the assertion factor we ighed only slightly in the defendant’s 11 favor when he asserted his right once pr o forma and once in a motion to dismiss 12 two and one-half months before trial). 13

{59} Defendant’s assertions of her right to a speedy trial were neither repeated 14 nor insistent. She made two perfunctory a ssertions, and a third assertion, on the eve 15 of trial. Moreover, Defendant’s competency issue caused much of the delay, which 16 undercuts her assertions of her right. See State v. Steinmetz , 2014-NMCA-070, 17 ¶ 62, 327 P.3d 1145 (concluding that the de fendant’s multiple assertions of his 18 speedy trial right were undermined by “his own delay-causing actions”). We 1929 determine that, under the circ umstances, Defendant’s spee dy trial assertions weigh 1 only slightly against the State. 2 D. Prejudice to Defendant 3

{60} Preventing prejudice to those accused is “[t]he heart of the right to a speedy 4 trial.” Garza , 2009-NMSC-038, ¶ 12. The speedy tria l right is intended “(i) to 5 prevent oppressive pretrial incarceration; (ii) to minimize anxiety and concern of 6 the accused; and (iii) to limit the possibili ty that the defense will be impaired.” Id. 7 ¶ 35 (internal quotation marks and citation omitte d). It is the defendant’s burden to 8 “make a particularized showing of prejudi ce to demonstrate a violation of any of 9 the three interests.” State v. Samora , 2016-NMSC-031, ¶ 21, 387 P.3d 230. 10 Generally, “a defendant mustshow particularized prejudice of the kind against 11 which the speedy trial right is intended to protect.” Garza , 2009-NMSC-038, ¶ 39. 12 “[W]e weigh this factor in the defe ndant’s favor only where the pretrial 13 incarceration or the anxi ety suffered is undue.” Samora , 2016-NMSC-031, ¶ 21 14 (internal quotation marks and citation omitted). 15

{61} Defendant was not incarcerated whileher case was pending. Although she 16 was subject to conditions of release, sh e was not subject to “undue and oppressive” 17 pretrial incarceration, which the right to a speedy trial is intended to prevent. 18 Garza , 2009-NMSC-038, ¶ 12 (internal quota tion marks and citation omitted). 19 Defendant testified that her conditions of release interfere d with her ability to find 2030 a job and her desire to visit a sick friend who lived out of state. Yet Defendant did 1 not identify any specific job opportunity sh e lost as a result of those conditions, nor 2 did she provide evidence that she sought or was denied the court’s permission to 3 leave the state. Defendant therefore faile d to show that she was unduly prejudiced 4 by her conditions of release while her trial was pending. 5

{62} Defendant also described the anxiety sh e suffered pending trial. She testified 6 that she was emotionally stressed and exhausted by the process and that her 7 preexisting mental health issues wors ened while awaiting trial. However, 8 Defendant did not introduce any evidence beyond her own assertions establishing 9 that her anxiety was extreme. Withou t such evidence, we cannot conclude 10 Defendant suffered prejudi ce due to the delay. See Gallegos , 2016-NMCA-076, 11 ¶ 29 (concluding that the defendant did not suffer prejudice based on undue anxiety 12 when his assertions were not explaine d in detail and were not supported by 13 affidavits, testimony, or documentation). 14

{63} Defendant asserts that the pretrial de lay caused her to lo se touch with her 15 son, Antonio, who may have been a witne ss in her defense. One risk of excessive 16 delay is that a defendant’s defense may be impaired if witnesses disappear and 17 evidence is lost. Garza , 2009-NMSC-038, ¶ 36. Defenda nt is required to show 18 with particularity what the favorable evidence would have been in order to 19 establish prejudice. See id. (reasoning that a defendant must “state with 2031 particularity what exculpatory testimony woul d have been offered” to assist with 1 defense (alteration, intern al quotation marks, and citation omitted)). Here, 2 Defendant does not describe the testimony Antonio woul d have given, and she 3 conceded at a pretrial hearing that sh e was unsure what Antonio might say. It 4 appears that, on the day of the accident, Antonio made statements both that would 5 have supported Defendant’s claim that she was not the driver and that would have 6 contradicted her defense. Although De fendant claims prejudice, Antonio’s 7 unavailability may have stre ngthened Defendant’s defens e because he could have 8 undercut her claim that she was not the driver. We conclude, therefore, that 9 Defendant did not make the required showi ng of particularized prejudice based on 10 the loss of this witness. See State v. Deans , ___-NMCA-___, ¶ 26, ___ P.3d ___ 11 (No. A-1-CA-35000, Dec. 13, 2018) (holding that a clarification of law during the 12 pendency of the defendant’s trial benefitted the defendant ’s defense and tempered 13 prejudice from delay). 14

{64} Accordingly, we assign no weight to th is factor, as Defendant has failed to 15 make a particularized showing of prejudice to demonstrate a violation of any of the 16 three interests. 17 E. Balancing 18

{65} “[T]he weighing a nd balancing of the Barker factors is a difficult and 19 sensitive process.” Gallegos , 2016-NMCA-076, ¶ 32. “The heart of the right to a 2032 speedy trial is preventing pr ejudice to the accused.” Garza , 2009-NMSC-038, ¶ 12. 1 Even if a defendant cannot make the requisite showing of prejudice, a defendant 2 can show that his or her right to a speedy trial was violated by showing that “the 3 length of the delay and the reasons for the delay weigh heavily in [the] defendant’s 4 favor and [the] defendant has asserted [the] right and not acquiesced to the 5 delay[.]” Id. ¶ 39. 6

{66} Here, Defendant failed to make a showing of particularized prejudice, but 7 the length of delay, forty months to tal and twenty-five months past the 8 presumptively prejudicial period, weighs heavily in Defendant ’s favor. Defendant 9 adequately asserted her speedy trial right . We must, then, de termine whether the 10 reasons for delay weigh heav ily in favor of Defendant. 11

{67} Of the forty months of total delay inthis case, we weigh approximately 12 thirteen months neutrally, twenty months against Defendant, and seven months 13 against the State. This was an intermedia tely complex case, with a presumptively 14 prejudicial period of fifteen months. Ther efore, the question becomes whether the 15 State’s seven-month administrative de lay weighs heavily against it where 16 Defendant made no particular ized showing of prejudice. 17

{68} We find no authority to support holding that Defendant’s speedy trial right 18 was violated without a presumptive showi ng of particularized prejudice when the 19 State’s portion of the delay was administrative and was less than the presumptively 2033 prejudicial period. Defendant has not direct ed us to any and we could not find any 1 New Mexico cases to support such a holding . Compare Gallegos , 2016-NMCA2 076, ¶ 34 (holding that a fourteen -month and three-week negligent and 3 administrative delay, which exceeded pr esumptively prejudicial period by a few 4 months, did not support a finding of a speedy trial right violation without a 5 showing of particularized prejudice), with Taylor , 2015-NMCA-012, ¶¶ 11-12, 16- 6 17 (concluding that, in a simple case, a nineteen-month administrative/negligent 7 delay weighed heavily agains t the state and holding thatthere was a speedy trial 8 right violation even in the absence of particularized showing of prejudice). While 9 we acknowledge the State’s obligation to br ing Defendant to trial, and that the 10 right to a speedy trial is a fundamental constitutional right, we do not weigh the 11 seven-month administrative de lay here heavily against the State. Considering the 12 above factors together, we conclude that the Barker factors support the district 13 court’s denial of Defendant’s moti on to dismiss on speedy trial grounds. 14 CONCLUSION 15

{69}We affirm Defendant’s convictions. 16

{70}IT IS SO ORDERED. 17

_________________________________ 18 KRISTINA BOGARDUS, Judge 19 WE CONCUR: 2034 _________________________________ 1 J. MILES HANISEE, Judge 2

_________________________________ 3 JULIE J. VARGAS, Judge 4