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 Please see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions.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

v. NO. 33,551 4 VICTOR H. BALDONADO, JR., 5 Defendant-Appellant. 6 APPEAL FROM THE DISTRICT COURT OF DOÑA ANA COUNTY 7 Douglas R. Driggers, District Judge 8 Hector H. Balderas, Attorney General 9 Santa Fe, NM 10 Walter Hart, Assistant Attorney General 11 Albuquerque, NM 12 for Appellee 13 JustAppeals.Net 14 The Appellate Law Office of Scott M. Davidson 15 Scott M. Davidson 16 Albuquerque, NM 17 for Appellant 18 MEMORANDUM OPINION 19 VIGIL, Judge. 202 {1} A jury found Defendant guilty of seven counts of criminal sexual penetration 1 (CSP) in the first degree, four counts of criminal sexual contact of a minor (CSCM) 2 in the second degree, twenty-six counts of CSCM in the third degree, and one count 3 of attempt to commit CSP in the first degree. See NMSA 1978, § 30-9-11(D)(1) 4 (2003, amended 2009); NMSA1978, § 30-9-13(B)(1), (C)(1) (2003); NMSA 1978, 5 § 30-28-1 (1963). Defendant appeals, contendi ng that: (1) his right to a speedy trial 6 was violated; (2) he received ineffective a ssistance of counsel; (3) the district court 7 erroneously excluded evidence of purported sexual abuse upon a witness; and (4) the 8 district court improperly sentenced him to four counts of CSCM in the second degree, 9 rather than in the third degree. We reject all of Defendant ’s arguments except the last. 10 We therefore remand to modify the judgment and for resentencing. 11 I. BACKGROUND 12 {2} Defendant lived with his girlfriend, Rachael Medina (then Nevarez), and her 13 two daughters, E.N. and D.N. While Defendant lived with E.N. and D.N., he 14 committed numerous acts of sexual abuse ag ainst the two children. After Defendant 15 and Medina had been separated for several months, Me dina became aware of the 16 molestation in a meeting with the girls’ school counselor. Defendant was arrested on 17 February 19, 2007, and indicted on March 1, 2007. Defendant’s attorney filed his 18 entry of appearance, a request for discovery, and a demand for a speedy trial on March 19 21, 2007. 203 {3} Nine motions to continue were filed: one was opposed by the State; six were 1 stipulated motions to continue; one was not opposed by the State; and the State 2 concurred in another. The State also filed four motions to reschedule trial settings that 3 were either stipulated to or unopposed by De fendant. In addition, the district court 4 vacated, for reasons not appearing in the record, many trial settings, and also declared 5 a mistrial grounded on manifest necessity, cau sing further delay, but the record does 6 not disclose why. The jury trial resulting in Defendant ’s convictions commenced on 7 July 22, 2013. 8 II. DISCUSSION 9 {4} Defendant requests that we remand the case for a hearing on the issue of a 10 speedy trial violation, or in the alternativ e, on the issue of ineffective assistance of 11 counsel without a determination of a prim a facie showing. Defendant does not provide 12 any authority that it is within our discretion to remand on either one or both of these 13 particular issues. We therefore decline De fendant’s requests and turn to the issues 14 raised on appeal. 15 A. Right to Speedy Trial 16 {5} Defendant claims for the first time on app eal that his right to a speedy trial was 17 violated. We therefore review Defendant ’s contention only to determine whether 18 fundamental error was committed. See State v. Arrendondo , 2012-NMSC-013, ¶¶ 45, 19 49, 278 P.3d 517 (reviewing for fundamental error a claim raised for first time on 204 appeal that the constitutional right to a speedy trial was violated); see also Rule 12- 1 216(B)(2) NMRA (2015, current version at Rule 12-321 NMRA) (stating that an 2 appellate court may consider, in its di scretion, questions concerning fundamental 3 error). As such, our review is limited to determining whether there was such “a 4 striking violation of the constitutional right to a speedy trial that it would be 5 appropriate to consider that i ssue for the first time on appeal.” State v. Rojo , 1999- 6 NMSC-001, ¶ 53, 126 N.M. 438, 971 P.2d 829 (i nternal quotation marks and citation 7 omitted). In examining a speedy trial claim, weapply the four-factor balancing test set 8 forth in Barker v. Wingo , 407 U.S. 514 (1972). State v. Garza , 2009-NMSC-038, ¶ 13, 9 146 N.M. 499, 212 P.3d 387. Those factors are: “(1) the length of delay, (2) the 10 reasons for the delay, (3) the defendant’s assertion of his right, and (4) the actual 11 prejudice to the defendant.” Id. (internal quotation marks and citation omitted). 12 {6} We first examine the length of the delay. Defendant was arrested on February 13 19, 2007 and brought to trial on July 22, 2013—a time span of almost six and one14 half years. This delay exceeds the threshol d of presumptively prejudicial delay and 15 thus requires further inquiry into the Barker factors. See Garza , 2009-NMSC-038, ¶ 16 21 (requiring the length of delay to exceed a presumptively prejudicial threshold 17 period of delay before inquiring into the remaining Barker factors); see also State v. 18 Spearman , 2012-NMSC-023, ¶ 21, 283 P.3d 272 (“A delay of trial of one year is 195 presumptively prejudicial in simple cases, fifteen months in intermediate cases, and 1 eighteen months in complex cases.”). 2 {7} Under the second factor, the reason fo r the delay was cau sed by Defendant’s 3 motions for continuances, the State’s stipulated or unopposed motions to continue, 4 and the district court’s own rescheduling. Defendant filed six motions to continue the 5 trial setting—only one was opposed—and joined the State in three motions to reset 6 the trial date, resulting in approximately a thirty-month delay. Defendant waived his 7 speedy trial right for the resulting time delays in four of these motions, alerted the 8 district court that the State was blameless inone of the motions, said counsel had other 9 trial conflicts in two other motions, and stated that counsel needed additional time to 10 prepare for trial in the rest of the motions. 11 {8} In State v. Taylor , 2015-NMCA-012, ¶ 18, 343 P.3d 199, we said, “The right 12 to a speedy trial is fundamental and is not waived even if never asserted.” Relying on 13 this language, Defendant sugge sts that the right to a spee dy trial can never be waived 14 without a hearing, even when counsel waiv es the right in pleadings filed with the 15 court. However, our case law supports a contrary conclusion. See State v. Serros, 16 2016-NMSC-008, ¶ 46, 366 P.3d 1121 (stating that in analyzing a speedy trial claim, 17 the general principle is that “the actions of defense counsel ordinarily are attributable 18 to the defendant”); Arrendondo , 2012-NMSC-013, ¶ 47 (stating that the defendant 19 was bound by defense counsel’s stipulation thatthe delay in bringing the case to trial 206 was not the state’s fault). In addition, Defe ndant does not cite to any authority holding 1 that a hearing is required in order to es tablish a knowing, intelligent, and voluntary 2 waiver of the constitutional right to a speedy trial. 3 {9} In regards to the State’s four motions to continue the trial date that resulted in 4 a delay of eighteen months, Defendant eitherstipulated or did not oppose the motions. 5 The delays that resulted from the foregoing pleadings filed by the respective parties 6 do not support a speedy trial violation. See State v. Moreno , 2010-NMCA-044, ¶ 28, 7 148 N.M. 253, 233 P.3d 782 (“[W]here a defendant causes or contributes to the delay, 8 or consents to the delay, he may not comp lain of a denial of the right to a speedy 9 trial.” (alteration, internal quotation marks, and citation omitted)). 10 {10} The evidence also demonstrates that the rest of the delay is attributable to the 11 district court. The district court vacated trial dates throughout the case, but the record 12 does not provide any reason for the majority of these resettings. The district court also 13 declared a mistrial grounded on manifest n ecessity, but the record again does not give 14 any further explanation for this ruling. With these deficien cies in the record, we must 15 presume that the district court had valid reasons for its actions. See Rojo , 1999- 16 NMSC-001, ¶ 53 (“Where there is a doubtful or deficient record, every presumption 17 must be indulged by the revi ewing court in favor of the correctness and regularity of 18 the [district] court’s judgment.” (internal quotation marks and c itation omitted)). The 19 only support for Defendant’s claim that delays attributable to the district court weigh 207 against the State is an approximate five-month delay caused by the district court 1 rescheduling due to a holiday, the need to reschedule for a three-day trial setting, and 2 a conflicting trial on another case. See Spearman , 2012-NMSC-023, ¶ 25 (“Negligent 3 or administrative delay is weighed against the [s]tate, since the ultimate responsibility 4 for such circumstances must rest with the [state] rather than with the defendant, but 5 such a reason is not weighed heavily.” (internal quotation marks and citation 6 omitted)). 7 {11} The third factor “acts as a preservation mechanism by requiring a defendant to 8 assert his right to a speedy trial throughout the process.” Arrendondo , 2012-NMSC9 013, ¶ 48. Defendant only asserted his right in a demand for speedy trial with his 10 counsel’s entry of appearance, State v. Valencia , 2010-NMCA-005, ¶ 27, 147 N.M. 11 432, 224 P.3d 659 (“Early pro forma assertions are generally afforded relatively little 12 weight.”), and he never f iled a motion to dismiss grounded on a speedy trial violation. 13 Defendant asserts this was sufficient under Taylor where we declinedto consider the 14 state’s contention that the defendant needed to reassert his right after the delay in that 15 case became unacceptable. See Taylor , 2015-NMCA-012, ¶ 18. However, Defendant 16 overlooks the fact that we declined to answer the state’s contention in Taylor because 17 the state cited no authority in support of its argument. Id . Importantly, we also 18 concluded that the defendant in Taylor had speedy trial considerations on his mind 19 when his stipulation that the state’s motion to continue would not count against the 208 state was followed by a motion to dismiss for a speedy trial violation. Id. Defendant 1 filed no such motion here. 2 {12} Finally, Defendant “must show particularized prejudice of the kind against 3 which the speedy trial right is intended to protect.” Garza , 2009-NMSC-038, ¶¶ 35, 4 39 (stating the types of prejudice the speedy trial right was designed to prevent are (1) 5 oppressive pretrial incarceration, (2) anxi ety and concern of the accused, and (3) 6 impairment to a defense). “Because the pres umption of prejudice intensifies the longer 7 that the delay extends beyond the presumptive threshold, less proof of prejudice is 8 required from [the d]efendant, and more proof of lack of prejudice is required from 9 the [s]tate where the delay is significant.” State v. Montoya , 2015-NMCA-056, ¶ 25, 10 348 P.3d 1057. 11 {13} While the delay here is substantial, Defendant fails to establish any actual 12 prejudice he suffered as a result of the delay. Defendant assert s prejudice due to: (1) 13 his one-month incarceration before release on bond, subject to usual conditions such 14 as no contact with any child under the age of eighteen, and no contact with witnesses; 15 (2) impaired memory of a prosecution witn ess; and (3) alleged improvement of the 16 memories of the victim children. Defendant points to nothing demonstrating that his 17 pretrial incarceration, conditions of release, or anxiety was “undue” giving rise to 18 particular prejudice. See Garza , 2009-NMSC-038, ¶ 35 (stating that the factor of 19 anxiety while awaiting trial weighs in a defendant’s favor “only where the pretrial 209 incarceration or the anxiety suffered is undue”). As to Defendant’s second claim of 1 prejudice, the evidence demonstrates thatDefendant was able to impeach the 2 prosecution witness due to her memory impairment. Defendant fails to cite to any 3 authority holding that this is prejudice which the Sixth Amendment protects against, 4 as opposed to the memory of a defense witn ess being impaired as a result of delay. 5 Finally, as to Defendant’s third claim of prejudice, Defendant fails to cite authority 6 holding that a witness’s improved memory is a type of prejudice the Sixth 7 Amendment protects against. In short, based on the record before us, none of 8 Defendant’s claims of prejudice rises to th e level of striking prejudice in violation of 9 the constitutional right to a speedy trial. 10 {14} In considering the Barker factors, we hold that no fundamental error resulted 11 from a speedy trial violation. See Rojo , 1999-NMSC-001, ¶ 53 (“[N]othing in the 12 record suggests such a striking violation of the constitutional right to a speedy trial 13 that it would be appropriate to consider that issue for the first time on appeal[.]” 14 (internal quotation marks and citation omitted)); see also Arrendondo , 2012-NMSC15 013, ¶ 49 (“Given the history of this case, [the defendant’s] stipul ation [to the delay], 16 his failure to assert his right to a speedy trial, and his failure to preserve the issue in 17 this case, we do not find any fundamental error with respect to the speedy trial 18 claim.”). 19 B. Ineffective Assistance of Counsel 2010 {15} Defendant also argues for the first time on appeal a claim of ineffective 1 assistance of counsel. His sole contention is that he received ineffective assistance of 2 counsel because defense counsel failed to raise the issue concerning a violation of his 3 speedy trial right. 4 {16} We review ineffective assistan ce of counsel claims de novo. State v. Montoya , 5 2015-NMSC-010, ¶ 57, 345 P.3d 1056. “When an ineffective assistance claim is first 6 raised on direct appeal, [the appellate courts ] evaluate the facts that are part of the 7 record.” State v. Roybal , 2002-NMSC-027, ¶ 19, 132 N.M. 657, 54 P.3d 61. 8 {17}To successfully establish a prima facie case of ineffective assistance of counsel, 9 a defendant must show “(1) that counsel’s performance fell below that of a reasonably 10 competent attorney and (2) that [the d]efendant was prejudiced by the deficient 11 performance.” State v. Martinez , 2007-NMCA-160, ¶ 19, 143 N.M. 96, 173 P.3d 18. 12 If a defendant fails to satisfy both prongs, the presumption of effective assistance of 13 counsel controls. Id . ¶¶ 19, 23. A defendant fails to satisfy the first prong if a 14 plausible, rational strategy or tactic can explain defense counsel’s conduct. State v. 15 Ortega , 2014-NMSC-017, ¶ 55, 327 P.3d 1076. To satisfy the second prong of 16 prejudice, a defendant must establish “a reasonable probability that, but for counsel’s 17 unprofessional errors, the result of the pr oceeding would have been different.” Id. 18 (internal quotation marks and citation omitted). 1911 {18} Defendant argues that defense counselhad no strategic purpose in failing to 1 raise the issue of a speedy trial violati on. The State contends that, based on the 2 substantial evidence of Defendant’s guilt, defense counsel had a reasonable defense 3 tactic to delay the trial as long as possible. Barker , 407 U.S. at 521 (“Delay is not an 4 uncommon defense tactic.”). We are unabl e to address whether it was reasonable not 5 to raise the speedy trial issue as a trial t actic because the record does not contain any 6 testimony from defense counsel why a spee dy trial claim was not pursued. Thus, any 7 determination concerning the reasonablen ess of defense counsel’s action must 8 necessarily be based on sp eculation at this time. See Arrendondo , 2012-NMSC-013, 9 ¶ 42 (“However, because the record is void of any testimony from defense counsel 10 regarding the reason for her decision, we do not know her motivation, and thus we 11 cannot speculate regarding the reasonableness of that decision.”). Because all the facts 12 necessary to a full determination of this ques tion are not part of the record before us, 13 the ineffective assistance of counsel claim is more properly brought in a habeas corpus 14 petition. Roybal , 2002-NMSC-027, ¶ 19. 15 {19} Because Defendant has failed to establis h the first prong of a prima facie case 16 of ineffective assistance of counsel claim, we need not address whether the second 17 prong was satisfied. Cf. Martinez , 2007-NMCA-160, ¶ 19 (stating that if there is an 18 insufficient showing of prejudice, we neednot address the first prong of whether 19 counsel’s performance was deficient). 2012 {20} While we reject Defendant’s argument on appeal, this does not preclude 1 Defendant from pursuing this claim in a habeas corpus proceedi ng where a full record 2 can be developed. See Arrendondo , 2012-NMSC-013, ¶ 44. 3 C. Exclusion of Evidence 4 {21} Defendant argues that the district court erred in its exclusion of testimony from 5 Medina, the mother of E.N. and D.N., aboutpurported sexual abuse she suffered from 6 her father. In a pre-trial interview with the Defendant’s investigator, Medina stated 7 that her father “[tried] to abuse [her], but it never went all th e way through.” Defense 8 counsel planned to explore the alleged sexual abuse by Me dina’s father during her 9 cross-examination and advance the theory that because he had a purported history of 10 sexual abuse against his daughter, he wa s the actual person who committed sexual 11 abuse on E.N. and D.N. The district court prohibited this line of questioning because 12 “[it is] an allegation without substantive proof [and] . . . a self-serving statement by 13 [D]efendant.” 14 {22} We review a trial court’s decision to admit or exclude evidence for an abuse of 15 discretion. State v. Campbell , 2007-NMCA-051, ¶ 9, 141 N.M. 543, 157 P.3d 722. 16 “An abuse of discretion arises when the evid entiary ruling is clearly contrary to logic 17 and the facts and circumstances of the case.” State v. Downey , 2008-NMSC-061, ¶ 24, 18 145 N.M. 232, 195 P.3d 1244. (internal quotation marks and citation omitted).We fail 19 to see an abuse of discretion in the district court’s ruling. 2013 {23} Defendant contends that hehad a right to present his defense to the jury. We 1 agree, but that right is not absolute or unlimited. State v. Rosales , 2004-NMSC-022, 2 ¶ 7, 136 N.M. 25, 94 P.3d 768. Rules of ev idence “do not abridge an accused’s right 3 to present a defense so long as they are not ‘arbitrary’ or ‘disproportionate to the 4 purposes they are designed to serve.’ ” Id . (internal quotation marks and citation 5 omitted). 6 {24} “All relevant evidence is generally admissible, unless otherwise provided by 7 law, and evidence that is not relevant is not admissible.” State v. Balderama , 2004- 8 NMSC-008, ¶ 23, 135 N.M. 329, 88 P.3d 845. Evidence is relevant if it has any 9 tendency to make a fact that is of conseque nce in determining this action more or less 10 probable than it would be without the evidence. Rule 11-401 NMRA. “Any doubt 11 whether the evidence is relevant should be resolved in favor of admissibility.” 12 Balderama , 2004-NMSC-008, ¶ 23. 13 {25} Defendant argues that Medina’s testimony was relevant because it offered an 14 alternative offender, rather than Defendant, for E.N. and D.N.’s se xual abuse. We are 15 unpersuaded. The evidence utterly fails to have any tendency to establish that 16 Medina’s father was the potential offender. Me dina’s response in the pretrial interview 17 provides no indication that the purported sexual abuse suffered by Medina has any 18 similarities to the offenses that E.N. and D.N. sustained. Cf. State v. Peters , 1997- 19 NMCA-084, ¶ 14, 123 N.M. 667, 944 P.2d 896 (“Evidence of other crimes with 2014 sufficient evidence of similar attributes ha s a strong probative value to show that the 1 person who committed the other crime and the person who committed the charged 2 crime are the same.”). Moreover, the pr oposed testimony did not establish Medina’s 3 father had access to the children or the amount of time that he spent with the children. 4 The contested evidence only would have s hown that Medina’s father allegedly 5 attempted sexual abuse against his daughter . No reasonable inference can be made 6 that, because the father allegedly attempte d to molest his daughter, he therefore was 7 the person, instead of Defendant, who molested E.N. and D.N. See State v. Gallegos , 8 2007-NMSC-007, ¶ 21, 141 N.M. 185, 152 P. 3d 828 (stating that, “although logically 9 relevant, evidence of how a person acted on a particular occasion is not legally 10 relevant when it solely shows propensity”). 11 {26} For the foregoing reasons, we are not persuaded that the district court abused 12 its discretion in excluding the proposed evidence. 13 D. Illegal Sentence on CSCM 14 {27} Defendant contends that the district court imposed an illegal sentence because 15 under the elements instructions on the four counts of CSCM in the second 16 degree—Counts 19, 26, 32, and 38—the jury found Defendant guilty of CSCM in the 17 third degree, and not CSCM in the sec ond degree. Defendant acknowledges that he 18 did not preserve this issue in the district court. However, “[a] trial court does not have 19 jurisdiction to impose an illegal sentence on a defendant and, therefore, any party may 2015 challenge an illegal sentence fo r the first time on appeal.” State v. Paiz , 2011-NMSC1 008, ¶ 33, 149 N.M. 412, 249 P.3d 1235. We review the legality of a sentence de 2

novo. State v. Williams , 2006-NMCA-092, ¶ 4, 140 N.M. 194, 141 P.3d 538. 3 {28} To determine whether the district court imposed an illegal sentence on 4 Defendant, we review the applicable statute and the jury instructions—the law of the 5

case. See Couch v. Astec Indus., Inc. , 2002-NMCA-084, ¶ 40, 132 N.M. 631, 53 P.3d 6 398 (“Jury instructions not objected to beco me the law of the case.”). With respect to 7 the relevant statute, CSCM in the sec ond degree “consists of all criminal sexual 8 contact of the unclothed intimate parts of a minor perpetrated . . . on a child under 9 thirteen years of age”; whereas, CSCM in the third degree “consists of all criminal 10 sexual contact of a minor perpetrated . . . on a child under thirteen years of age.” 11 Section 30-9-13(B)(1), (C)(1) (2004). On eachcount of CSCM in the second degree 12 the jury was told that th e State was required to provebeyond a reasonable doubt that 13 “[D]efendant caused [child] to touch the penis of [D]efendant,” and “[child] was 12 14 years of age or younger.” 15 {29} We conclude that State v.Trujillo , 2012-NMCA-092, 287 P.3d 344, is on point 16 and binding on the issu e before us here. In Trujillo , the jury instruction on CSCM in 17 the second degree stated that “to find [the d]efendant guilty of CSCM, the [s]tate must 18 prove to your satisfaction beyond a reasonabl e doubt that [the d]efendant caused C.A. 19 to touch the unclothed penis of [the d]efendant.” 2012-NMCA-092, ¶ 14 (omissions 2016 and alterations omitted). On appeal, the defendant argued that because the uniform 1 instruction for CSCM in the third degree wa s used without modification to reflect a 2 charge of CSCM in the second degree, the di strict court erred in sentencing him to a 3 second degree felony. Id. ¶ 15. After reviewing the relevant statutory provisions, 4 Section 30-9-13(B)(1), (C)(1) , we determined that under the jury instruction, the 5 defendant’s conduct constituted CSCM in th e third degree, not in the second degree. 6 Trujillo , 2012-NMCA-092, ¶¶ 17-18. We concluded that “the Legislature classified 7 only the criminal sexual contact of the unclo thed intimate parts of a minor as second 8 degree CSCM[, and a]ll other acts of CSCM on a child under thirteen years of age are 9 considered third degree CSCM.” Id. ¶ 18. (emphasis, internal quotation marks, and 10 citation omitted). 11 {30} As in Trujillo , the jury instruction in the present case required the jury to find 12 that Defendant caused the minor to touch his penis. We concluded in Trujillo that this 13 constituted CSCM in the third degree, and we do so here. Under the instructions, the 14 jury found defendant guilty of a third degree felony on these four counts, and as such, 15 Defendant’s judgment and sentence must be based on this verdict. 16 III. CONCLUSION 17 {31} For the foregoing reasons, we reverse th e four counts of CSCM in the second 18 degree, and remand this case for adjudicati on of guilt on these counts for CSCM in the 1917 third degree and resentencing on those counts. In all other respects the judgment and 1 sentence is affirmed. 2 {32} IT IS SO ORDERED. 3

__________________________________ 4 MICHAEL E. VIGIL, Judge 5

WE CONCUR: 6

__________________________ 7 JAMES J. WECHSLER, Judge 8

__________________________ 9 M. MONICA ZAMORA, Judge 10