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 Please see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions.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 from 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. 32,787 4 WILLIAM B. ELLIOTT, 5 Defendant-Appellant. 6 APPEAL FROM THE DISTRICT COURT OF DOÑA ANA COUNTY 7 Fernando R. Macias, District Judge 8 Hector H. Balderas, Attorney General 9 Paula E. Ganz, Assistant Attorney General 10 Santa Fe, NM 11 for Appellee 12 Jorge A. Alvarado, Chief Public Defender 13 Will O’Connell, Assistant Appellate Defender 14 Santa Fe, NM 15 for Appellant 16 MEMORANDUM OPINION 17 VANZI, Judge. 182 {1} Defendant appeals from his convicti on for breaking and entering on grounds 1 that (1) he was deprived of a fair trial when the district court refused his requested jury 2 instruction on the lesser included offense of criminal damage to property, (2) he was 3 denied his right to a speedy trial, and (3) he was subjected to unfair pre-indictment 4 delay. We affirm in all respects. 5 BACKGROUND 6 {2} It is undisputed that at around 2:30 a. m. on February 17, 2010, Defendant and 7 a companion—both intoxicated—knocked at the door of a ground-floor unit at the 8 Casa Bandera Apartments in Las Cruces. The residence was presently occupied by 9 Anthony Torrez and Jasper Walker, who liv ed there, and Chon Miranda and LeAnn 10 Ulibarri, who were visiting. None knew Defendant or his companion. 11 {3} It is also beyond dispute that, after a short conversation between Defendant and 12 Torrez, Defendant kicked in the door and entered the apartment. Ulibarri began to 13 scream as Torrez, Walker, and Miranda—all bull riders— approached Defendant and 14 “hit him like a tidal wave[,]” causing a vi cious brawl to spill out into the breezeway 15 of the apartment complex. The melee lasted for several minutes and was broken up 16 when a neighbor called the police. Defendant was subsequently charged with and 17 convicted of breaking and entering. 183 {4} The only apparent points of factual dispute are (1) whyDefendant broke down 1 the door and, (2) whether Defendant stum bled or stepped into the apartment. 2 Defendant testified that someone inside, presumably Torrez, slammed the door on his 3 elbow, trapping him. Defendant then pushed and kicked against the door to free his 4 arm, which came loose as the door swung ope n. Defendant claimed that it was his 5 momentum that carried him into the apartment and led to the fight. 6 {5} Torrez, Walker, Ulibarri, and Miranda all testified to the effect that Defendant, 7 enraged, pressed up against the door to prevent Torrez from cl osing it. Torrez used 8 “all [his] might” to close the door and then engaged the deadbolt. Seconds later, the 9 “whole door was hit down”—its frame broken off completely. Defendant stepped into 10 the apartment, and the fight ensued. According to all of the apartment’s occupants and 11 a detective who investigatedthe scene, Defendant’s arm was not trapped in the door 12 when it was kicked down. We include further factual information as necessary in 13 connection with each issue raised. 14 DISCUSSION 15 Defendant’s Requested Jury Instruction 16 {6} Defendant asserts that he was entitled toa lesser included offense instruction 17 on criminal damage to property pursuant toRule 5-611(D) NMRA (“If so instructed, 18 the jury may find the defendant guilty of an offense necessarily included in the offense 194 charged.”), the common law, and the United States and New Mexico constitutions. We 1 apply a single analysis to Defendant’s c ontentions because Rule 5-611(D) tracks the 2 common law, see State v. Munoz , 2004-NMCA-103, ¶ 9, 136 N.M. 235, 96 P.3d 796, 3 and because Defendant has not developed any specifi c constitutional argument. See 4 Headley v. Morgan Mgmt. Corp. , 2005-NMCA-045, ¶ 15, 137 N.M. 339, 110 P.3d 5 1076 (“We will not review unclear arguments, or guess at what [those] arguments 6 might be.”). As Defendant ha s raised a mixed question of law and fact, we view the 7 evidence in the light most favorable to th e granting of the requested instruction and 8 then apply a de novo st andard of review. State v. Ramirez , 2008-NMCA-165, ¶ 4, 145 9 N.M. 367, 198 P.3d 866. 10 {7} At trial, the district court summarilyrefused to grant Defendant’s requested 11 instruction because criminal damage to property is “certainly” not a lesser included 12 offense to breaking and entering. Although the district court’s reasoning was 13 apparently erroneous, see State v. Rubio , 1999-NMCA-018, ¶ 17, 126 N.M. 579, 973 14 P.2d 256 (assuming that “under appropriate fact patterns, criminal damage to property 15 could be a lesser[]included offense of breaking and entering”), we will uphold its 16 decision if it is right for any reason, State v. Allen , 2014-NMCA-111, ¶ 6, 336 P.3d 17 1007, cert. denied , 2014-NMCERT-010, 339 P.3d 425. 18 {8} The purpose of providing a lesser included offense instruction at a defendant’s 19 request is 205 to protect the defendant from the possibility that jurors who are not 1 convinced of his guilt of the charged offense would nonetheless convict 2 him of the offense because they are convinced that he committed a crime 3 (the lesser[]included offense) and believe that he should be punished but 4 are presented with an all-or-nothi ng choice between convicting of the 5 charged offense or acquittal. 6 State v. Andrade , 1998-NMCA-031, ¶ 11, 124 N.M. 690, 954 P.2d 755. Thus, the 7 instruction should be granted if 8 (1) the defendant could not have co mmitted the greater offense in the 9 manner described in the charging doc ument without also committing the 10 lesser offense . . . ; (2) the eviden ce adduced at trial is sufficient to 11 sustain a conviction on the lesser o ffense; and (3) the elements that 12 distinguish the lesser and greater offe nses are sufficiently in dispute such 13 that a jury rationally could acquit on the greater offense and convict on 14 the lesser. 15 State v. Meadors , 1995-NMSC-073, ¶ 12, 121 N.M. 38, 908 P.2d 731. The State 16 appears to concede that the first two elements of the Meadorstest are met, leaving 17 only the third element—whether “a jury rationally could acquit on the greater offense 18 and convict on the lesser”—in dispute. Id. 19 {9} The jury was instructed, in relevant part , that breaking and entering is a general 20 intent crime that requires: (1) that Defendant entered the dwelling without permission; 21 and (2) that the entry was obtained by th e breaking of the front door. This language 22 accurately tracks the statute and its uniform jury instruction. See NMSA 1978, § 30- 23 14-8 (1981); UJI 14-1410 NMRA. The elements of criminal damage to property are: 24 (1) intentional damage to the property of another; (2) without permission. See NMSA 256 1978, § 30-15-1 (1963); UJI 14-1501 NMRA. Thus, “[a]n unauthorized entry is the 1 distinguishing element of the two crimes.” Rubio , 1999-NMCA-018, ¶ 17. For these 2 reasons, we frame the question as whether, viewing the evidence in the light most 3 favorable to Defendant, a jury could rationally find that Defendant did not commit an 4 unauthorized entry. 5 {10} Even accepting Defendant’s version of events, which requires ignoring the 6 testimony of five witnesses, as well as a photograph of the damaged door frame and 7 strike plate that was exhibited for the jury, Defendant’s conduct meets the element that 8 distinguishes breaking and entering from criminal damage to property. In other words, 9 Defendant still committed an unauthorized entry. His motive is irrelevant. The 10 physical “entering” and “breaking” elements that Defendant’s version of the facts 11 implicates are “bodily move ments, to which the general intent instruction clearly 12 applies.” State v. Contreras , 2007-NMCA-119, ¶ 17, 142 N.M. 518, 167 P.3d 966. In 13 this context, “[g]eneral intent is only the intention to make the bodily movement 14 which constitutes the act which the crime requires.” Id. ¶ 16 (internal quotation marks 15 and citation omitted). According to Defendant’s version of events at trial, the bodily 16 movement that caused Defendant to break the door and enter the apartment was the 17 kicking of the door. Since it is undisputedthat Defendant purposely kicked the door 18 and gained entry by doing so, there is no reas onable view of the evidence that criminal 191 While Defendant’s testimony about his reasons for kicking the door may have 17 supported an instruction on an affirmative defense, see, e.g. , UJI 14-5181 NMRA 18 (self-defense), we are not pres ented with that issue here. 19 7 damage to property was the highest degree of crime committed and, therefore, there 1 was no error in refusing the instruction. Rubio , 1999-NMCA-018, ¶ 17. 1 2 Speedy Trial 3 {11} Defendant was arrested on the day of th e incident, February 17, 2010, and then 4 indicted on February 25, 2010. Defendant requested two continuances in 2010 and 5 was eventually re-indicted in November of that year. New trial dates were set and 6 vacated on three occasions after the sec ond indictment. Trial was finally held on 7 February 2, 2012, nearly two years after the day of the incident. 8 {12} Delays that exceed one yearfor simple cases trigger the speedy trial analysis. 9 State v. Garza , 2009-NMSC-038, ¶¶ 21, 48-49, 146 N.M. 499, 212 P.3d 387. The 10 State does not dispute that this is a simple case and that the analysis is triggered here. 11 In evaluating a speedy trial claim, the Court must consider: “(1) the length of the 12 delay, (2) the reasons given fo r the delay, (3) the defendant ’s assertion of the right to 13 a speedy trial, and (4) prejudice to the defendant.” State v. Lopez , 2009-NMCA14 127, ¶ 20, 147 N.M. 364, 223 P.3d 361. “[W]e independently evaluate the four factors 15 to ensure that no speedy trial violation has occurred while giving deference to the trial 168 court’s findings.” State v. Talamante , 2003-NMCA-135, ¶ 3, 134 N.M. 539, 80 P.3d 1 476 (alteration, internal quotati on marks, and citation omitted). 2 1. Length of Delay 3 {13} “[T]he right to a speedy trial attach es when the defendant becomes the 4 ‘accused’ which occurs with a formal i ndictment or information or arrest.” Id. ¶ 4. 5 Defendant asserts on appeal that we s hould measure the length of delay beginning 6 with Defendant’s arrest on February 17, 2010. The State counters that the delay 7 should be measured from the date of the second indictment, November 23, 2010. 8 {14} We have previously identified two circ umstances when a cas e is dismissed and 9 then re-indicted where we will look to the initial arrest, information, or indictment as 10 the starting point for speedy trial purposes: (1 ) where the State and the district court 11 essentially treat the two cases as a single case, see id. ¶ 9, or (2) where the State acts 12 in bad faith in dismissing and ref iling charges against the defendant. See State v. 13 Fierro , 2014-NMCA-004, ¶ 13, 315 P.3d 319. 14 {15} As in Talamante , the State and the district court here essentially treated the 15 separate indictments against Defendant as a single case. The grand jury indicted 16 Defendant for the second time on the same day that identical charges were dismissed. 17 The same prosecutor and same defense attorney litigated the second case. In its 18 request for jury setting, the State characterized both cases against Defendant as one 19 “really old” case. Here, as in Talamante , “the charges against Defendant were never 209 dismissed or discharged in any real sens e, thus his speedy trial rights continued to 1 apply.” 2003-NMCA-135, ¶ 8. “The fact that the first indictment was dismissed is of 2 no consequence because the second indictment was returned on the same day charging 3 the identical offenses set forth in the first indictment.” Id. Therefore, Defendant’s right 4 to a speedy trial attached on February 17, 2010. 5 {16} Defendant was not tried until February 2, 2012. “In determining the weight to 6 be given to the length of delay, we consider the extent to which the delay stretches 7 beyond the bare minimum needed to trigger judicial examination of the claim.” State 8 v. Stock , 2006-NMCA-140, ¶ 13, 140 N.M. 676, 147 P.3d 885 (internal quotation 9 marks and citation omitted). Here, the overall delay of nearly two years in a simple 10 case, which should have been completed in half that time, weighs against the State. 11 See Garza , 2009-NMSC-038, ¶ 48. 12 2. Reasons for Delay 13 {17} “Closely related to length of delay is the reason the government assigns to 14 justify the delay.” Id. ¶ 25 (internal quotation marks and citation omitted). These 15 reasons “may either heighten or temper the prejudice to the defendant caused by the 16 length of the delay.” Id. (internal quotation marks and citation omitted). There are 17 three types of delay, each carrying a different weight. Id. Prosecutorial bad faith will 18 be weighed heavily against the State; neg ligent or administrative delays will weigh 1910 less heavily; and appropriate delays for valid reasons, such as a missing witness, are 1 justified. Id. ¶¶ 25-27. 2 {18} The record on appeal indicates that Defendant contributed to delay early in the 3 case. Defendant requested to continue and vacate the first two trial settings, which 4 would have occurred within a year. Defendant also requested to be re-indicted nine 5 months after the initial indictment and shortlybefore trial so that he could testify to 6 the grand jury. When the State, in good faith, supported Defendant’s request, 7 dismissing all charges and re-indicting him, Defendant elected not to testify after all. 8 “[D]elay occasioned by the accused will weigh heavily against him.” State v. Harvey , 9 1973-NMCA-080, ¶ 7, 85 N.M. 214, 510 P.2d 1085. We find that a total of nine 10 months—from February 17, 2010, until November 23, 2010—were occasioned by 11 Defendant and cannot be attributed to the State. 12 {19} After the second indictment, trial was set for May 18, 2011. The State requested 13 and was granted a continuance the day prior to trial because the prosecutor was 14 scheduled to attend a conflicti ng jury trial. The district court then twice delayed the 15 trial because “the court had other priority trials[.]” As there is no indication that the 16 State, at any point, “held back in its prosecution . . . to gain some impermissible 17 advantage[,]” we attribute the periodof delay from Nove mber 23, 2010, until 18 February 2, 2012, to negligent or administrative delay, which is “weighed more lightly 19 than a deliberate intent to harm the accused’s defense[.]” Garza , 2009-NMSC- 2011 038, ¶¶ 25-26 (internal quotation marks and c itations omitted). Thus, of the two years 1 it took to bring this case to trial, fourteenmonths are attributable to negligent or 2 administrative delay. 3 3. Assertion of the Right 4 {20} “The defendant’s a ssertion of his speedy trial right . . . is entitled to strong 5 evidentiary weight in determining whether the defendant is bei ng deprived of the 6 right. We emphasize that failure to assert the right will make it difficult for a 7 defendant to prove that he was denied a speedy trial.” Barker v. Wingo , 407 U.S. 514, 8 531-32 (1972). We thus “accord weight to the frequency and force of the defendant’s 9 objections to the delay[,]” and “analyze the defendant’s actions with regard to the 10 delay.” Garza , 2009-NMSC-038, ¶ 32 (internal quotation marks and citation omitted). 11 {21} The record shows that Defendant assertedhis right to a speedy trial immediately 12 upon the filing of the second indictment in November 2010 and again on the morning 13 of trial. As discussed above, the cas e was re-filed to accommodate Defendant’s 14 request to testify to the grand jury. Defendant then declined to testify. We therefore 15 afford little weight to the November2010 assertion, which re-initiated the 16 proceedings. See id. (stating that the force of the defendant’s assertion is mitigated 17 when the defendant is engaging in procedur al maneuvers or fili ng motions that are 18 bound to slow the proceedings). 1912 {22} Nothing in the record indicates that Defendant asserted his speedy trial right 1 during the period of delay occasioned by the State’s negligence. This leaves only 2 Defendant’s assertion on the morning of trial. An assertion at this late stage of 3 proceedings may be timely, but it “is not entitled to much weight.” State v. White , 4 1994-NMCA-084, ¶ 6, 118 N.M. 225, 880 P.2d 322. 5 4. Prejudice to Defendant 6 {23} We analyze prejudice to the accused in li ght of three interests: (1) preventing 7 oppressive pretrial incarceration, (2) mini mizing anxiety and concern of the accused, 8 and (3) limiting the possibility thatthe defense will be impaired. Garza , 2009-NMSC9 038, ¶ 35. On appeal, Defendant only vaguely refers to “anxiety and concern” over his 10 awareness of pending charges. Citing Salandre v. State , 1991-NMSC-016, 111 N.M. 11 422, 806 P.2d 562, he asserts that “the State must show th ere has been no anxiety and 12 concern.” Defendant has conflated the significance of “presumptive prejudice” and 13 “actual prejudice.” The former is simply the term that has been assigned to the 14 threshold, mechanical inquiry that triggers the speedy trial analysis. Garza , 2009- 15 NMSC-038 , ¶ 21. Establishing “presumptive prejudice”—that is, establishing that the 16 State took longer than a year to bring a si mple case to trial—does not shift the burden 17 to the State to prove the absence of actual prejudice. See id. ¶ 35 (stating that the 18 defendant bears the burden of proof on this issue). “[W]ithout a particularized 19 showing of prejudice, we will not speculate as to the . . . degree of anxiety a defendant 2013 suffers.” Id. The burden-shifting principles that Defendant cites to the contrary were 1 expressly modified in Garza

. Id. ¶¶ 19-22. 2 5. Balancing Test 3 {24} Since Defendant has not made a particul arized showing of actual prejudice, his 4 claim must fail unless the other factor s “weigh heavily” against the government. See 5 id. ¶¶ 38-40. They do not. The weight of the fourteen month delay that is attributable 6 to the State’s negligence is mitigated by Defendant’s apparent acquiescence to that 7 delay. Defendant did not a ssert his right during the entire period and took no position 8 on the State’s last-minute motion to continue the May 18, 2011 trial setting. While 9 proceedings in this case were unfortunate ly and unnecessarily slow, in the face of 10 Defendant’s acquiescence and in the absen ce of any showing of actual prejudice, we 11 cannot say that Defendant’s constitutional right to speedy trial was violated. 12 Unfair Pre-indictment Delay 13 {25} Defendant’s final and relate d argument is that he is entitled to reversal because 14 he was subjected to unfair pre-indictment delay. Our Supreme Court has adopted a 15 two-part test for this issue. Gonzales v. State , 1991-NMSC-015, ¶ 6, 111 N.M. 363, 16 805 P.2d 630. First, a defendant must prove prejudice to his defense as a result of the 17 delay and, second, he must prove that the State intentionally caused the delay to gain 18 a tactical advantage. Id. Defendant’s brief on appeal makes no attempt to establish or 19 even acknowledge either step of the anal ysis. We accordingly reject this claim. See 2014 id. ¶¶ 8, 10-11 (discussing a defe ndant’s burden to make a prima facie showing as to 1 both elements). 2 CONCLUSION 3 {26} We affirm the district court in all respects. 4 {27} IT IS SO ORDERED. 5

__________________________________ 6 LINDA M. VANZI, Judge 7

WE CONCUR: 8

_________________________________ 9 JAMES J. WECHSLER, Judge 10

_________________________________ 11 M. MONICA ZAMORA, Judge 12