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 Please 1 see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions. 2 Please also note that this electronic memorandum opinion may contain computer-generated 3 errors or other deviations from the official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. 29,172 9 JASON CHRISTOPHER REID, 10 Defendant-Appellant. 11 APPEAL FROM THE DISTRICT COURT OF DOÑA ANA COUNTY 12 Douglas R. Driggers, District Judge 13 Gary K. King, Attorney General 14 Santa Fe, NM 15 for Appellee 16 Hugh W. Dangler, Chief Public Defender 17 Nancy M. Hewitt, Appellate Defender 18 Santa Fe, NM 19 for Appellant 20 MEMORANDUM OPINION 21 Defendant appeals his convic tion entered pursuant to an Alford plea to two 22 counts of criminal sexual contact, asserti ng that his constitutional right to a speedy 232 trial was violated. We issued a notice of proposed disposition, proposing to affirm. 1 Defendant has filed a memorandum in opposition. After due consideration, we remain 2 unpersuaded by Defendant’s assertions of error. We therefore uphold the conviction. 3 DISCUSSION 4 “When a speedy trial claim is made, th e defendant must make a threshold 5 showing that the length of delay is presumptively prejudicial.” State v. Stock , 2006- 6 NMCA-140, ¶ 12, 140 N.M. 676, 147 P.3d 885. Once that showing has been made, 7 the burden of persuasion shifts to the State to show, on balance, that the factors from 8 Barker v. Wingo , 407 U.S. 514 (1972), do not weigh in favor of dismissal. Id .; State 9 v. Garza , 2009-NMSC-038, ¶ 21, 146 N.M. 499, 2 12 P.3d 387. The four factors 10 guiding our inquiry include the following: (1 ) the length of the delay, (2) the reasons 11 for delay, (3) the defendant’s assertion of the right, and (4) prejudice to the defendant. 12 Salandre v. State , 111 N.M. 422, 425, 806 P.2d 562, 565 (1991) (citing Barker). In 13 considering each of these factors, we defer to the district court’s factual findings but 14 review de novo the question of whether De fendant’s constitutional right to a speedy 15 trial was violated. State v. Brown , 2003-NMCA-110, ¶ 11, 135 N.M. 356, 76 P.3d 16 1113. 17 Length of Delay 183 In this case, relying on the facts in the docketing statement, we proposed to 1 conclude that a delay of around nineteen months in a case of intermediate complexity 2 was a sufficient amount of time to create a presumption of prejudice and trigger 3 analysis of the factors from Barker

. See State v. Coffin , 1999-NMSC-038, ¶ 56, 128 4 N.M. 192, 991 P.2d 477 (stating that a delay beyond twelve-months in a case of 5 intermediate complexity is presumptively prejudicial and “trigger[s] further inquiry 6 into the claim of a violation of the rightto speedy trial”). [CN 2] According to 7 Defendant’s response, the delay in this cas e appears to be about twenty months from 8 the date of Defendant’s arrest on December 30, 2006, to entry of his plea on August 9 22, 2008. [MIO 6-7] Although Defendant now attempts to argue that this is a simple 10 case, [id. 7-8] he did not make that ar gument below in his motion to dismiss [RP 119, 11 123] and the district court apparently found that the case was of intermediate 12 complexity. [DS 5, MIO 8] We defer to the district court’s determination of the level 13 of complexity this case presented. See State v. Tortolito , 1997-NMCA-128, ¶ 7, 124 14 N.M. 368, 950 P.2d 811. Accordingly, assu ming the delay was twenty months, the 15 delay appears to be presumptively prej udicial in this intermediate case. Coffin , 1999- 16 NMSC-038, ¶ 56. 17 We further note that our Supreme Court recently changed the guidelines for 184 determining when the length of delay is presumptively prejudicial. See Garza , 2009- 1 NMSC-038, ¶¶ 48-50 (changing current gui delines concerning the presumptively 2 prejudicial length of delay in cases of intermediate complexity to fifteen months and 3 applying the new guidelines to speedy trial motions to dismiss initiated after August 4 13, 2007). Thus, although Defendant argues thatthe delay of twenty months in this 5 case is excessive, [MIO 8-9] we are not persuaded that the delay was so lengthy that 6 this factor must weigh heavily against the State. Given the new guidelines, we simply 7 conclude that the delay weighs against the State. Because the delay is presumptively 8 prejudicial, we consider it alongside the othe r three factors in determining whether a 9 violation has occurred. Id . ¶ 23. 10 Reasons for Delay 11 When examining the second Barker factor, we allocate the reasons for the delay 12 to each side and determine the wei ght attributable to each reason. State v. Plouse , 13 2003-NMCA-048, ¶ 45, 133 N.M. 495, 64 P.3d 522. Here, the State argued below 14 that its reason for the delay from Defendant’s arrest on December 30, 2006, until the 15 trial setting on April 8-9, 2008, was to comp lete DNA testing. [RP 131-32] The State 16 argued that during this period of more th an fifteen months Defendant did not oppose 17 any of the continuances and extensions of time. [Id.] We continue to agree with the 185 State that the delay during this time peri od does not weigh heavily against the State. 1 See Tortolito , 1997-NMCA-128, ¶ 9 (finding that the period attributable to DNA 2 testing did not weigh heavily against the State). 3 From April 8-9, 2008, to the trial se tting on August 27-28, 2008, the State 4 requested a delay in order to prepare the child victim to tes tify by deposition. [RP 5 132-33] We find that the delay during this time period was attributable to the State. 6 Defendant maintains that this factor should weigh heavily against the State 7 because Defendant did not contribute to the delay, which was all caused by the State’s 8 failure to process the DNA ev idence in a timely manner. [M IO 9-10] However, we are 9 not persuaded. As our cases have rec ognized, specifically in the context of DNA 10 testing, Barker distinguished intentional delay fro m negligent or administrative delay 11 such that a neutral reason such as neglig ence should be weighed more lightly than a 12 deliberate intent to harm the defense. See id. 13 In addition, Defendant’s quotation of State v. Mascarenascuts against him. 84 14 N.M. 153, 155, 500 P.2d 438, 440 (Ct. App. 1972). [Id. 10] Defendant quotes 15 Mascarenasas follows, “[W]here a defendant cau ses or contributes to the delay, or 16 consents to the delay, hemay not complain of a denial of the right.” Id. (citation 17 omitted). As Defendant ac knowledges, Defendant did not oppose the State’s requests 186 for continuances or extensions until Ap ril 2008, when Defendant claims he opposed 1 the State’s motion for a continuance and pe tition for an extension. [MIO 10; RP 119, 2 121-22] Thus, it appears that Defendant may have consented to the delay. One 3 rationale for the sympathetic treatment of pretrial delays for DNA testing is that the 4 evidence is obtained in part for the be nefit of the accused because it could be 5 exculpatory. See See Tortolito , 1997-NMCA-128, ¶ 12. Here, Defendant repeatedly 6 maintained his innocence. [DS 2-3] Thus , it might appear that Defendant did not 7 object to the delay because he thought the DNA test results might be helpful to his 8 defense. In light of Defendant’s failure to object to the continuances and extensions, 9 we are not inclined to weigh the delay caused by DNA testing heavily in Defendant’s 10 favor. 11 Assertion of Right 12 In weighing Defendant’s assertions of his right to a speedy trial, we examine 13 “the timing and manner in which [d ]efendant asserted his right.” Laney , 2003- 14 NMCA-144, ¶ 23 (citation omitted). “An early assertion of the speedy trial right 15 indicates the defendant’s desire to have th e charges resolved rath er than gambling that 16 the passage of time will operate to hinder prosecution.” Zurla v. State , 109 N.M. 640, 17 644, 789 P.2d 588, 592 (1990). 187 Defendant’s response maintains that Defendant asserted his right to a speedy 1 trial on March 6, 2007, by filing a motion for a speedy trial. [MIO 10] Thus, 2 Defendant claims that he made a timely assertion of the right within three months of 3 his indictment. [Id.] Our calendar noti ce questioned this assertion. [CN 4-5] We 4 observed that Defendant’s motion to dismiss i ndicates that Defendant first asserted his 5 right to a speedy trial by filing a motion for speedy trial on March 6, 2007; however, 6 the motion also concedes that Defendant w ithdrew this motion in exchange for his 7 release from custody. [RP 119] Defendant’s response fails to explain this discrepancy. 8 We further note, as discussed above, that Defendant did not object to any of the 9 State’s requests for continuances or ex tensions until April 2008, when Defendant 10 opposed the State’s requests for a continuan ce and an extension. [MIO 10; RP 119, 11 121-22] Even though the district court rese t the trial in April for August 27, 2008, 12 Defendant did not file a motion to dismiss ba sed on a violation of his right to a speedy 13 trial until June 25, 2008. [MIO 3-4] Under these circum stances, Defendant has failed 14 to persuade us that he specifically i nvoked a ruling on his cons titutional right to a 15 speedy trial until he filed his motion to dismiss on June 25, 2008, which was about 16 eighteen months after he was arrested. [RP 119-120] See Tortolito , 1997-NMCA17 128, ¶ 17 (recognizing that a defendant’s late assertion of the right to a speedy trial 188 does not weigh significantly in the defendant’s favor). Moreover, even if we assume 1 that Defendant asserted his right early by filing his motion for a speedy trial, 2 Defendant apparently withdrew the motion whenhe was released so that he could live 3 with his mother in Texas. Thus, it appears that Defendant may have wanted an 4 immediate release from confinement, but wa s not in a hurry to be tried. While 5 Defendant may not have waivedhis right to a speedy trial, we remain persuaded that 6 he did not make a frequent and forceful assertion of his right and that his assertion was 7 mitigated by his apparent acquiescence to the delay. See State v. Maddox , 2008- 8 NMSC-062, ¶ 31, 145 N.M. 242, 195 P.3d 1254. We therefore hold that this factor 9 does not weigh significantly in Defendant’s favor. 10 Prejudice to Defendant 11 Turning to the last factor, the right to a speedy trial is intended to prevent or 12 minimize three types of prejudice to a defendant: (1) oppressive pretrial incarceration, 13 (2) anxiety and concern, and (3) the possibility of impairment to the defense. Laney , 14 2003-NMCA-144, ¶ 25. “To support a finding of prejudice, the evidence [must show] 15 a nexus between the undue delay in th e case and the prejudice claimed.” Id. (internal 16 quotation marks and citation omitted) (alteration in original ). Defendant claimed that 17 he was prejudiced because the delay caused restrictions on his liberty and unnecessary 189 anxiety. [RP 125-26] Ho wever, Defendant was only in custody from December 30, 1 2006, to May 10, 2007. [RP 79] On May 10, 2007, Defendant was released so that he 2 could be allowed to live with his mother inTexas. [Id.] Thus, Defendant remained 3 free on bond for the majority of time that his case was pending. Yet it was not until 4 June 25, 2008, that Defendant filed his mo tion to dismiss asserting his right to a 5 speedy trial. [RP 119-20] Cf. Zurla , 109 N.M. at 644, 789 P.2d at 592 (recognizing 6 that early and frequent assertions of the right to speedy trial indicate “the probable 7 extent to which the defendant has suffered from the inev itable burdens that fall upon 8 the target of a criminal pr osecution”). Under these circ umstances, we conclude that 9 Defendant’s pre-trial incarceration and s ubsequent release wa s not oppressive. We 10 further conclude that Defendant did not s upport his claim that the delay in the trial 11 caused him any more anxiety beyond what w ould be expected. [RP 126] Defendant’s 12 claim of undue anxiety appears to be little more than a bare assertion, which we 13 accord no weight. In addition, nothing has b een suggested to indi cate that the defense 14 was impaired. See Laney , 2003-NMCA-144, ¶ 29 (“Without evidence that the defense 15 was impaired, we do not find Defendant’s pretrial incarceration to be unduly 16 prejudicial.”). Thus, we do not hold this factor in Defendant’s favor. 17 Balancing 1810 In summary, most of the delay in th is case was due to DNA analysis being 1 completed and during that time Defendant did not oppose the continuances and 2 extensions requested by the State. Thus, although we attribute the delay to the State, 3 we do not weigh the length of delay significantly in Defendant’s favor. We remain 4 persuaded that the remaining factors do not weigh heavily in Defendant’s favor. 5 Defendant did not assert his right to a sp eedy trial until eighteen months into the case, 6 at which time he failed to show any prejudice, particularly to his defense. 7 Accordingly, in balancing the four Barker factors, we hold that the delay of twenty 8 months between Defendant’s arrest and hi s plea does not violate Defendant’s right to 9 a speedy trial. See State v. Manes , 112 N.M. 161, 169, 812 P. 2d 1309, 1317 (Ct. App. 10 1991) (upholding the trial court’s determin ation that no speedy trial violation 11 occurred, even when the first three factor s all weighed slightly in the defendant’s 12 favor, as a consequence of the defendant’s failure to make a compelling showing 13 under the fourth factor). 14 In response, Defendant contends that this Court errs by acknowledging that the 15 delay in this case is presumptively prejudi cial, yet concluding that Defendant’s right 16 to a speedy trial has not been violated. [M IO 12] Defendant asserts that this Court 17 is affording too much weight to the fourth factor because th e prejudice was minimum. 1811 [Id. 13] Defendant also maintains that th e State failed to rebut the presumption of 1 prejudice. [Id.] We remind counsel that a finding of presumptive prejudice no longer 2 creates a presumption that the spee dy trial right has been violated. Garza , 2009- 3 NMSC-038, ¶ 21. Instead, it now functi ons as a “triggering mechanism” for a 4 consideration of the additional Barker factors. Id . Furthermore, Defendant’s failure 5 to produce evidence of how he suffered actual prejudice greatly reduced the State’s 6 burden of persuasion on that issue. See State v. Urban , 2004-NMSC-007, ¶ 18, 135 7 N.M. 279, 87 P.3d 1061. In order for a Defe ndant to prevail without a showing of 8 prejudice, the remaining Barker factors must weigh heavily in his favor, Garza , 2009- 9 NMSC-038, ¶¶ 39, 40, and such is not the case here. Although none of the four 10 factors weighs heavily in either side’s favor under our analysis, we conclude that the 11 reasons for the State’s delay in analyz ing the DNA evidence and preparing the child 12 witness to testify, the late or mitigated assertion of Defendant’s constitutional right to 13 a speedy trial, and most importantly the l ack of any actual impairment of Defendant’s 14 ability to make a defense caused by the delay, are sufficient to outweigh the 15 presumption of prejudice that arises from the length of the delay. 16 CONCLUSION 17 We therefore affirm the district court’s conclusion that Defendant’s 1812 constitutional right to a speedy trial was not violated in this case. 1 IT IS SO ORDERED. 2

___________________________________ 3 RODERICK T. KENNEDY, Judge 4 WE CONCUR : 5

___________________________ 6 JONATHAN B. SUTIN, Judge 7

___________________________ 8 LINDA M. VANZI, Judge 9