March 4, 2019-State of New Mexico v. Karen Vigil, No. A-1-CA-34592

1 	IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
2 	STATE OF NEW MEXICO,
3 	Plaintiff-Appellee,
4 V . 	NO. A-1-CA-34592
5 KAREN VIGIL,
6 	Defendant-Appellant.
7 APPEAL FROM THE DISTRICT COURT OF TAOS COUNTY
8 Sarah C. Backus, District Judge
9 Hector H. Balderas, Attorney General
10 	Anita Carlson, Assistant Attorney General
11 	Santa Fe, NM
12 	for Appellee
13 	Bennett J. Baur, Chief Public Defender
14 Nina Lalevic, Assistant Appellate Defender
15 	Santa Fe, NM
16 	for Appellant
17 	MEMORANDUM OPINION
18 	BOGARDUS, Judge.
19 	{t} 	Defendant Karen Vigil appeals her convictions, following a jury trial, of two
20 counts of great bodily injury by vehicle (DWI); one count of child abuse (no death
21 	or great bodily harm); one count of knowingly leaving the scene of an accident (great
22 	bodily harm); and two counts of criminal damage to property (more than $1 ,000).
23 	Defendant contends that ( 1) her convictions are not supported by sufficient evidence;
Court of Appeals of New Mexico
Filed 3/4/2019 11:38 AM
Mark Reynolds

1 (2) the district court erred by improperly instructing the jury on the child abuse
2 charge; (3) the district court abused its discretion in finding Defendant competent to
3 stand trial; (4) the district court abused its discretion in allowing an expert witness
4 to testify on retrograde extrapolation; and (5) the district court erred in failing to
5 dismiss the charges against her on speedy trial grounds. We affirm.
6 BACKGROUND
7 	{2} 	The charges against Defendant stem from a three-car accident in which
8 Defendant, her friend, Venessa Velarde, and Defendant's minor son, Antonio, were
9 traveling from Santa Fe in a minivan north on U.S. 68 through Taos Canyon at high
10 	speed. Other drivers reported having seen the minivan being driven erratically and
11 	passing other vehicles in no-passing zones. As the minivan passed another vehicle
12 just before a blind curve, the minivan and a car traveling in the opposite direction
13 	collided. Meanwhile, the driver of the car being passed veered off the road and
14 crashed into a guardrail. Ms. Velarde and the driver of the car that collided with the
15 	minivan were seriously injured, and the other drivers' vehicles were totaled.
16 	{3} 	At trial, Defendant and Ms. Velarde disputed which of them was driving the
17 	minivan when it crashed. Defendant testified that Ms. Velarde was driving and that
18 	Defendant was sitting in the back seat. According to Ms. Velarde, she was a
19 passenger at the time of the accident. Both she and Defendant testified that they had
20 been drinking alcohol in the minivan during the drive. A test of Defendant's blood-
2

1 alcohol content (BAC) conducted several hours after the accident measured her BAC
2 at .07.
3 	{4} 	Because this is a memorandum opinion and the parties are familiar with the
4 facts and the procedural history of the case, we provide additional facts only as
5 necessary to our analysis.
6 DISCUSSION
7 	I. 	Sufficient Evidence Exists to Support the Jury's Verdict
8 	{5} 	At Defendant' s trial, the jury was instructed that the State had to prove that
9 Defendant "operated a motor vehicle" to convict Defendant of the two counts of
10 great bodily injury by vehicle and of knowingly leaving the scene of an accident.
11 	{6} 	Defendant argues that the evidence the State presented is insufficient to
12 	sustain her convictions, and so the convictions must be vacated. Defendant bases her
13 	argument on her contention that the State failed to prove that she was driving the
14 	minivan when the accident occurred.
15 	{7} 	"The test for sufficiency of the evidence is whether substantial evidence of
16 either a direct or circumstantial nature exists to support a verdict of guilty beyond a
17 reasonable doubt with respect to every element essential to a conviction." State v.
18 	Montoya, 	2015-NMSC-010, ,I 52, 345 P.3d 1056 (internal quotation marks and
19 	citation omitted). "Substantial evidence is relevant evidence that a reasonable mind
20 might accept as adequate to support a conclusion." State v. Rojo, 1999-NMSC-001 ,
3

1 ~ 19, 126 N.M. 438, 971 P .2d 829. When reviewing for sufficiency of evidence, "we
2 	resolve all disputed facts in favor of the [s]tate, indulge all reasonable inferences in
3 	support of the verdict, and disregard all evidence and inferences to the contrary." Id.
4 	{8} 	The State, to meet its burden to prove that Defendant was guilty of the crimes
5 charged, 	presented 	direct evidence that Defendant was 	the 	driver th r ough the
6 testimony of Ms . Velarde. She testified that Defendant was driving the minivan
7 recklessly and dangerously in the moments leading up to the accident.
8 	{9} 	In 	addition to 	its 	direct evidence, the 	State presented 	indirect evidence
9 	supporting reasonable inferences that Defendant was the driver. For example , Ms.
10 Velarde testified to ( 1) having shattered her right-side pelvis, her right femur, and
11 	her right ankle in the accident; (2) requiring post-accident reconstructive surgery;
12 	and (3) not being able to walk unassisted until fifteen months after the accident. Ms.
13 	Velarde ' s 	serious injuries to the right side 	of her body is consistent with the
14 conclusion that 	she 	was 	sitting 	in 	the 	passenger's, 	not the 	driver' s, 	seat: 	the
15 	passenger 	side 	of the 	minivan, 	in 	Defendant's 	own 	words, 	was 	"completely
16 crushed."
17 	{ IO} 	As another example, a nurse experienced in treating accident victims and who
18 treated Ms. Velarde after the accident testified to seeing bruising apparently caused
19 	by a seatbelt on Ms . Velarde ' s right shoulder. The abrasion on Ms . Velarde' s left
20 	shoulder , in contrast, appeared not to have been caused by a seatbelt, the nurse said.
4

1 This 	evidence 	supports 	a 	reasonable 	inference 	that 	Ms. 	Velarde 	was 	in 	the
2 passenger's seat at the time of the crash, placing Defendant in the driver's seat.
3 	{II} 	Additional testimony of a witness to the accident also supports the verdict.
4 Jesse Montoya, the driver of the car that collided with the minivan, testified that he
5 saw "a big frizzy figure" in the minivan's driver's seat before the crash. When asked
6 the color of that "figure's" hair, he said he saw it after the accident when he saw the
7 figure walking away from the scene; in saying that, he implied that the driver was
8 the same person who walked away from the scene. Mr. Montoya's statements
9 support the State's case because-by Defendant's admission-Defendant was the
10 	only one of the two female passengers in the minivan to walk away from the accident
11 	scene. Mr. Montoya's testimony supports a reasonable inference that Defendant was
12 	the driver.
13 	{12} 	Nevertheless, Defendant asks this Court to consider evidence, the absence of
14 	additional evidence, and inferences that support a different result. In so doing, she
15 	relies on her own testimony that she was not the driver. She notes that Ms. Velarde
16 	has curly hair matching the description of witnesses who saw the driver, and that
17 both had post-accident injuries to their left shoulders that could have been caused by
18 	a driver's-side seatbelt. She further complains that the accident investigation was
19 	incomplete and that no witness at trial either corroborated or impeached Ms.
5

1 Velarde's testimony. In sum, Defendant asserts that there was no more evidence to
2 convict her than there was to convict Ms. Velarde.
3 	{13} 	In essence, Defendant asks us to weigh the witnesses' credibility and entertain
4 the question of whether-with the evidence presented at trial and without further
5 evidence-the jury could have reached a different conclusion. However, it is the role
6 	of the jury to gauge Defendant's credibility and Ms. Velarde's credibility and to
7 resolve the conflict in their testimony. See In re Ernesto M , Jr., 1996-NMCA-039,
8 115, 121 N.M. 562,915 P.2d 318. The jury was free, as it did, to reject Defendant's
9 version of the facts. See Rojo, 1999-NMSC-OO 1, 1 19. In contrast, we are not free to
10 concern ourselves with the contrary evidence supporting Defendant's acquittal. See
11 	id.
12 	{14} 	Rather, we ask whether there is "relevant evidence that a reasonable mind
13 	might accept as adequate to support [the] conclusion" that Defendant was driving
14 the minivan at the time of the accident. See id. Based on Ms. Velarde' s testimony
15 	that Defendant was the driver, on the nature of Ms. Velarde's injuries, on the location
16 	of the 	damage 	to 	the 	minivan, 	and 	on the 	witnesses' 	pre- 	and 	post-accident
17 observations, we conclude that sufficient evidence supports the jury's finding that
18 	Defendant was the driver.
6

1 II. 	Use 	of 	the 	Child 	Abuse 	Jury 	Instruction 	Does 	Not 	Constitute
2 	Fundamental Error
3 	{15} 	Defendant's next assertion is that the district court fundamentally erred by
4 including the phrase "knew or should have known" in the jury instruction on
5 Defendant's child abuse charge. The portion of the instruction Defendant refers to
6 reads:
7
8
9
10
11
12
13
14
15
For you to find [D]efendant guilty of child abuse which did not
result in death or great bodily harm, ... the [S]tate must prove ... [that
d]efendant acted intentionally or with reckless disregard and without
justification; To find that [Defendant] acted with reckless disregard,
you must find that [Defendant] 	knew or should have known 	[her]
conduct 	created 	a 	substantial 	and 	foreseeable 	risk, 	[D]efendant
disregarded that risk and [D]efendant was wholly indifferent to the
consequences of the conduct and to the welfare and safety of Antonio
Vigil[.]
16 (Emphasis added.) The instruction was based on UJI 14-604 NMRA (1999), the
17 	instruction in effect at the time of the trial. Neither party objected to the instruction.
18 	{16} 	Five days before Defendant's trial, our Supreme Court decided State v.
19 	Consaul, 2014-NMSC-030, 332 P.3d 850, which concerned the application of the
20 child 	abuse 	statute 	and 	its 	corresponding 	uniform jury 	instructions. 	Consaul
21 	reiterated that the culpability standard associated with the crime of child abuse is
22 recklessness. Id. ,r,r 34, 38. In Consaul, the Court expressed concern about the then-
23 	current child abuse uniform jury instructions, similar to the one used at Defendant's
24 trial. Id. ,r 39. In particular, the Court cast doubt on the "continued vitality of 'knew
7

1 or should have known' in [the] instructions," id. 140, because of the phrase's "close
2 association with principles of civil negligence and ordinary care." Id. 1 39.
3 	{17} 	In Consaul, the Supreme Court indicated that it would address "in detail" the
4 uniform jury instructions associated with the child abuse statute "in the near future."
5 Id. 	1 40. About seven months later, the Court amended UJI 14-604 in part by
6 removing "knew or should have known" from the definition of "reckless disregard"
7 and inserting in its place "more than merely negligent or careless." The Court
8 recompiled the instruction as UJI 14-612 NMRA, with an effective date of April 3,
9 2015.
10 	{18} 	Defendant now objects to the use 	of "should have 	known"-the 	since-
11 	removed phrase associated with the civil negligence culpability standard-in the
12 	child abuse jury instruction at her trial. We review for fundamental error because the
13 	issue was not preserved. See, e.g., State v. Benally, 2001-NMSC-033, 112, 131 N.M.
14 	258, 34 P.3d 1134. Under the fundamental error standard, "we seek to determine
15 	whether a reasonable juror would have been confused or misdirected by the jury
16 	instruction ... despite the fact that the juror considers the instruction straightforward
17 and perfectly comprehensible on its face." Id. (internal quotation marks and citations
18 	omitted). "Thus, juror confusion or misdirection may stem not only from instructions
19 that are facially contradictory or ambiguous, but from instructions which, through
20 omission or misstatement, fail to provide the juror with an accurate rendition of the
8

1 relevant law." Id. We bear in mind in our review that "[t]he rule of fundamental error
2 applies only if there has been a miscarriage of justice, if the question of guilt is so
3 doubtful that it would shock the conscience to permit the conviction to stand, or if
4 substantial justice has not been done." State v. Orosco, 1992-NMSC-006, ,-r 12, 113
5 N.M. 780, 833 P.2d 1146.
6 	{19} 	On appeal, the parties invite us to resolve this issue by examining, among
7 other topics: (1) the integrity, in light of Cons au!, of the child abuse jury instruction
8 used at Defendant's trial, including whether the instruction's other parts make up for
9 its alleged deficiency; (2) whether the district court should have learned of Consaul
10 	and responded to it by modifying the child abuse jury instruction used at trial; and
11 	(3) the level of tolerance for UJI 14-604 our Supreme Court expressed by its Consaul
12 	language and its subsequent UH-amending actions-and, by extension, the level of
13 	tolerance for it we should now show. Further, Defendant argues that the district court
14 erred by allowing the jury to be instructed as to both intentional and negligent child
15 	abuse 	in the 	same instruction. 	In light 	of Defendant's failure 	to 	address this
16 	contention further or develop a supporting argument, we decline to review this
17 	undeveloped argument. See Corona v. Corona, 2014-NMCA-071, ,-r 28, 329 P.3d
18 	701.
19 	{20} 	We need not address Defendant's arguments regarding the effect Consaul
20 should have had on the child abuse jury instruction used at trial to resolve the issue.
9

1 We look instead to the rule of fundamental error and ask if Defendant's guilt
2 regarding child abuse is so doubtful that it would shock the conscience to let her
3 conviction stand. See Orosco, 	1992-NMSC-006, ~ 12. Under this standard, we
4 cannot conclude that use of the jury instruction amounted to fundamental error. The
5 trial record includes testimony by Ms. Velarde that she and Defendant took turns
6 doing shots from two pints of Yukon Jack whisky on the drive from Santa Fe north
7 toward Taos with Defendant's teenage son, Antonio, in the minivan. She further
8 testified that, before the accident, Defendant was driving the minivan erratically and
9 recklessly, passing cars in no-passing zones and in blind curves, speeding, driving
10 	more daringly in response to Ms. Velarde's pleas that she slow down, and not caring
11 	about the danger of her actions.
12 	{21} 	The evidence presented at trial 	is 	sufficient to satisfy the revised UJI's
13 	requirement of showing "more than merely negligent or careless" conduct. See UJI
14 	14-612. Thus, we cannot say that there has been a "miscarriage of justice" or that it
15 	would "shock the conscience to permit the conviction to stand[.]" Orosco, 1992-
16 NMSC-006, ~ 12. We conclude that the district court's use of the jury instruction on
17 	child abuse does not constitute fundamental error.
18 	III. 	District Court's Finding of Competency Was Not an Abuse of Discretion
19 	{22} 	Defendant argues that the district court abused its discretion by determining
20 that she was competent to stand trial. Defendant claims that she was unable to
10

1 rationally assist her attorney and contends that the bulk of evidence presented to the
2 district court on the matter suggested that she was not competent.
3 	{23} 	Defendant presented evidence of her incompetency to stand trial, and the State
4 presented 	countervailing 	evidence 	in 	response. 	Defendant 	submitted 	to 	three
5 forensic evaluations of her competency. The district court ordered, and Dr. Cave
6 conducted, the first. Dr. Cave concluded that Defendant was not competent. The
7 State requested a second evaluation, which Dr. Kernen conducted. Dr. Kernen found
8 Defendant competent. Lastly, Dr. Westfried, Defendant's expert, conducted a third
9 evaluation and found Defendant not competent.
10 	{24} 	At the competency hearing, the district court did not hear testimony from Dr.
11 	Cave, but did hear testimony from Dr. Westfried, Dr. Kernen, and Dr. Shwartz, who
12 works with Dr. Kernen and who reviewed Dr. Kernen's evaluation. Dr. Westfried
13 	testified 	that 	he 	reviewed 	the 	reports 	of the 	other 	experts 	and 	found 	them
14 	inconclusive. He testified that Defendant was not malingering while undergoing
15 	evaluations and that she was the driver at the time of the accident but had created a
16 	delusion that Ms. Velarde instead was the driver. Overall, Dr. Westfried believed
17 that Defendant lacked a rational perspective and hence was unable to rationally assist
18 	her attorney.
19 	{25} 	Dr. Kernen and Dr. Shwartz testified to the contrary. Dr. Kernen testified that,
20 	in her opinion, Defendant did not have a delusional disorder and was malingering
11

1 by feigning a multiple personality disorder. Dr. Kernen believed that Defendant was
2 competent to stand trial. Dr. Shwartz testified that she concurred with Dr. Kernen's
3 findings of malingering and competency.
4 	{26} 	At the end of the competency hearing, the district court found that Defendant
5 did not overcome the presumption that she was competent to stand trial. The court
6 determined that Defendant failed to show by a preponderance of the evidence that
7 she was incapable of assisting in her own defense, a finding that would have
8 qualified her as incompetent to stand trial. See State v. Rotherham, 1996-NMSC-
9 048, 1 13, 122 N.M. 246, 923 P.2d 1131 ("An accused must have the capacity to
10 assist in his own defense and to comprehend the reasons for punishment."). The
11 	district court reached its conclusion largely by finding Dr. Kernen's and Dr.
12 	Shwartz's testing more reliable than Dr. Westfried's.
13 	{27} 	We review district court determinations of competency to stand trial for abuse
14 	of discretion, State v. Linares, 2017-NMSC-014, 123, 393 P.3d 691, which occurs
15 	when a ruling is "against logic" and "clearly untenable or not justified by reason."
16 Id. 	1 24 (internal quotation marks and citation omitted). "Where an abuse 	of
17 discretion is claimed by appellant, appellant bears a heavy burden, in view of the
18 	long-standing rule that the reviewing court will not overturn the action of the trial
19 	court absent a patent abuse of manifest error in the exercise of discretion." Spingola
20 	v. Spingola, 1978-NMSC-045, 119, 91 N.M. 737, 580 P.2d 958. On this review,
12

1 "[ w]e view the evidence in the light most favorable to the district court's decision,
2 resolve all conflicts and indulge all permissible inferences to uphold that decision,
3 and disregard all evidence and inferences to the contrary." Linares, 2017-NMSC-
4 014, ,r 24.
5 	{28} 	That is, we disregard the findings and conclusions in the reports and testimony
6 on Defendant's competency to stand trial that do not support the district court's
7 finding of competency. We are left with the testimony of Dr. Kernen, an expert in
8 forensic neuropsychology, and Dr. Shwartz, an expert in forensic psychology and
9 neuropsychology, who stated plainly that Defendant was competent to stand trial,
10 	and who laid out cogent reasons for that conclusion.
11 	{29} 	The district court, in its fact-finding role on this issue, had the choice to accept
12 	Dr. Kernen's and Dr. Shwartz's testimony and to reject Dr. Westfried's. See State v.
13 	Jason F., 1998-NMSC-010, ,r 29, 125 N.M. 111, 957 P.2d 1145 (noting that court,
14 	as fact-finder at competency hearing, is not required to credit testimony of experts).
15 	The court so chose. Defendant articulates no reason that the choice was illogical or
16 	clearly untenable, and having reviewed the record, we see none. We conclude that
17 	the district court did not abuse its discretion by determining that Defendant was
18 	competent to stand trial.
13

1 IV.
2
3 	{30}
Admission of Expert Witness's Testimony on Retrograde Extrapolation
Was Not an Abuse of Discretion
Defendant 	contends 	that 	the 	district 	court 	erred 	by 	admitting 	the 	trial
4 testimony of Gerasimos Razatos, asserting that the State's "sole purpose" in calling
5 Mr. Razatos was for him to testify on retrograde extrapolation, which calculates an
6 individual's prior BAC level on the basis of a subsequently administered BAC test.
7 Defendant further claims that she objected to Mr. Razatos' retrograde extrapolation
8 testimony because it was not relevant and because he was not qualified to testify on
9 retrograde 	extrapolation. 	Defendant 	argues 	that 	admitting 	this 	testimony 	was
10 prejudicial because it invited the jury to improperly speculate as to her BAC at the
11 	time of the accident. The State counters that the court did not abuse its discretion in
12 this way because Mr. Razatos had extensive qualifications and experience in the
13 	field 	of 	blood-alcohol 	analysis, 	the 	general 	field 	encompassing 	retrograde
14 	extrapolation. 	The 	State 	contends that 	shortcomings, 	if any, 	in Mr. 	Razatos'
15 	qualifications affect the weight of his testimony, not its admissibility.
16 	{31} 	The State called Mr. Razatos, a thirteen-year employee of the Department of
17 Health's Toxicology Bureau, to testify about Defendant's BAC because it was he
18 	who 	certified 	the 	test 	result. 	Mr. 	Razatos 	testified 	on 	his 	qualifications, 	his
19 experience 	as 	a test reviewer, 	and the 	factors 	he 	considered when reviewing
20 Defendant's BAC test.
14

1 {32} 	Defendant raised no objection to Mr. Razatos' expert testimony until the State
2 asked Mr. Razatos to explain retrograde extrapolation. At that point, Defendant
3 objected, not based on relevancy, but based solely on Mr. Razatos' qualifications to
4 perform retrograde extrapolation. The court allowed defense counsel to question Mr.
5 Razatos 	regarding 	his 	specific 	training 	on 	and 	experience 	with 	retrograde
6 extrapolation. Mr. Razatos testified that his expertise in blood-alcohol analysis
7 included retrograde extrapolation, although he had not been formally tested on it.
8 The court ruled, over Defendant's objection, that Mr. Razatos was qualified as an
9 expert in the field of blood-alcohol analysis.
10 	{33} 	Once the court found that Mr. Razatos was qualified in the field of blood-
11 	alcohol analysis, he testified generally about the theory of retrograde extrapolation
12 	but emphasized that he did not perform a retrograde extrapolation in this case
13 	because he lacked the data necessary to do so. Mr. Razatos offered no opinion on
14 Defendant's BAC at the time of the accident.
15 	{34} 	We review the district court's admission of expert testimony under an abuse
16 	of discretion standard. "The rule in this [s]tate has consistently been that the
17 	admission of expert testimony or other scientific evidence is peculiarly within the
18 	sound discretion of the trial court and will not be reversed absent a showing of abuse
19 	of that discretion." State v. Alberico, 1993-NMSC-047, ,r 58, 116 N.M. 156, 861
20 P .2d 192. "The trial judge has wide discretion to determine whether a witness is
15

1 qualified to give testimony as an expert, and no set criteria can be laid down to test
2 an expert's qualifications." State v. McDonald, 1998-NMSC-034, ,r 19, 126 N.M.
3 44, 966 P.2d 752 (alteration, internal quotation marks, and citations omitted). "An
4 abuse of discretion occurs when the ruling is clearly against the logic and effect of
5 the facts and circumstances of the case. We cannot say the trial court abused its
6 discretion by its ruling unless we can characterize [the ruling] as clearly untenable
7 or not justified by reason." Rojo, 1999-NMSC-001, ,r 41 (internal quotation marks
8 and citation omitted).
9 	{35} 	We see no abuse of discretion here. Mr. Razatos had extensive experience and
10 training in blood-alcohol analysis. The fact that he had not been specifically tested
11 	in retrograde extrapolation goes to the weight of his testimony on the subject, but
12 	does 	not 	preclude 	its 	admissibility. 	See 	McDonald, 	1998-NMSC-034, 	,r 21
13 	(observing that a jury is free to weigh every aspect of an expert's qualifications and
14 	free to disregard an expert's testimony entirely).
15 	{36} 	Defendant argues next that she was prejudiced by Mr. Razatos' 	general
16 	discussion of retrograde extrapolation because it invited jury speculation, which we
17 interpret as an argument that the testimony does not assist the trier of fact to
18 	understand the evidence or to determine a fact in issue pursuant to Rule 11-702
19 NMRA. Defendant refers to a question the jury asked-"In general how much
20 alcohol is metabolize[d] per hour by someone [Defendant's height and weight]?"-
16

1 as 	evidence 	of 	speculation 	and 	asserts 	that 	the 	jury 	engaged 	in 	its 	own
2 "pseudoscience" to convict her. Defendant cites State v. Downey, 2008-NMSC-061,
3 ,r 28, 145 N.M. 232, 195 P.3d 1244, for the proposition that expert testimony on
4 retrograde extrapolation is unreliable and inadmissible when it is "predicated on
5 factual assumptions unsupported by the evidence adduced at trial[.]" Unlike the
6 expert in Downey, the expert in this case made clear that he did not have the relevant
7 information to calculate Defendant's BAC, and he reached no conclusion regarding
8 Defendant's BAC at the time of the accident. Because no retrograde extrapolation
9 was done by the expert here, Downey does not apply.
10 	{37} 	Defendant offers no evidence, beyond the jury's question, to support her claim
11 	that the jury's verdict is based on improper speculation. Defendant fails to direct us
12 	to any evidence that the jury's question was put to Mr. Razatos or any witness during
13 	the trial. The jury was instructed at the start of trial that it could submit a question to
14 the court, but also that if a question was not asked, not to give it any further
15 	consideration. See UJI 13-112 NMRA. At the end of trial, the jury was specifically
16 	instructed that its verdict should not be based on "speculation, guess or conjecture."
17 We presume that the jury followed the instructions given. See State v. Sellers, 1994-
18 	NMCA-053, ,r 28, 117 N.M. 644, 875 P.2d 400 ("There is a presumption that the
19 jury follows the instructions they are given.").
17

1 {38} 	The jury had ample evidence, without engaging in speculation based on
2 retrograde extrapolation, to conclude that Defendant was driving under the influence
3 	of alcohol at the time of the accident. Ms. Velarde testified that she and Defendant
4 shared two pints of Yukon Jack whisky between Santa Fe and the crash site in Taos
5 Canyon. Other witnesses testified that Defendant was driving fast, erratically, and
6 dangerously and was passing cars hazardously on the narrow two-lane road. The
7 Department of Health' s Toxicology Bureau employee who performed the blood-
8 alcohol test testified that Defendant's BAC was .07 when the sample was taken.
9 Based on the general nature of the testimony and the instructions given by the district
10 court, we hold that the district court did not abuse its discretion by allowing Mr.
11 	Razatos' testimony.
12 	V. 	Defendant's Right to a Speedy Trial Was Not Violated
13 	{39} 	Defendant asserts that the district court erred by denying her motion to dismiss
14 because her right to a speedy trial was violated. There was a delay of approximately
15 	forty months between the filing of the underlying criminal information and the final
16 trial setting. Defendant contends that the delay is prejudicial because her case was
17 	of intermediate complexity, and for such cases, any delay beyond fifteen months is
18 	presumptively prejudicial. See State v. 	Garza, 2009-NMSC-038, 'If 48, 146 N.M.
19 499,212 P.3d 387 (adopting fifteen months of delay as the guideline beyond which
20 	intermediate cases may become presumptively prejudicial). The State concedes that
18

1 the delay exceeded the fifteen-month presumptively prejudicial period, but contends
2 that Defendant's right to a speedy trial was not violated because most of the delay
3 was attributable to her. After careful review of the record, we conclude that the delay
4 in this case did not violate Defendant's right to a speedy trial.
5 	{40} 	The accused in New Mexico have a fundamental right to a speedy trial
6 guaranteed by both the Sixth Amendment of the United States Constitution and
7 Article II, Section 14 of the New Mexico Constitution. Garza, 2009-NMSC-038,
8 , 	10. 	Our 	courts 	have 	not 	interpreted New 	Mexico's 	speedy 	trial 	guarantee
9 differently from the Sixth Amendment guarantee, and thus we view them as co-
10 extensive. State v. Spearman, 2012-NMSC-023,, 16 n.1, 283 P.3d 272. We do not
11 	apply an inflexible, bright-line approach to speedy trial analyses; rather, we analyze
12 the specific facts and circumstances of each case to determine whether an accused
13 	person's speedy trial right has been violated. Garza, 2009-NMSC-038, ,, 11, 14.
14 	{41} 	To determine whether a criminal defendant's speedy trial right was violated,
15 	we analyze the four factors established in Barker v. Wingo, 407 U.S. 514, 530-32
16 (1972):
17
18
19
20
21
Under the Barker framework, courts weigh the conduct of both the
prosecution and the defendant under the guidance of four factors: (1)
the length of the delay; (2) the reasons for the delay; (3) the timeliness
and manner in which the defendant asserted his speedy trial right; and
(4) the particular prejudice that the defendant actually suffered.
19

1 State v. Smith, 2016-NMSC-007, ,r 58, 367 P.3d 420 (internal quotation marks and
2 citation omitted). None of these factors alone is "a necessary or sufficient condition
3 to the finding of a deprivation of the right of speedy trial[;] ... they are related
4 factors and must be considered together with such other circumstances as may be
5 relevant." Barker, 407 U.S. at 533. "In analyzing these factors, we defer to the
6 district court's factual findings that are supported by substantial evidence, but we
7 independently review the record to determine whether a defendant was denied his
8 speedy trial right and we weigh and balance the Barker factors de novo." State v.
9 Flores, 2015-NMCA-081, ,r 4,355 P.3d 81.
10 	A. 	Length of Delay
11 	{42} 	The length of delay is both "a triggering mechanism requiring further inquiry
12 	into the Barker factors" and also one of the four factors in the Barker analysis.
13 	Spearman, 2012-NMSC-023, ,r 20 (internal quotation marks and citation omitted).
14 "Whether or not the threshold for further inquiry is met depends upon whether the
15 	delay is considered presumptively prejudicial." State v. Gallegos, 2016-NMCA-076,
16 ,r 6, 387 P.3d 296. Here, the district court did not determine the complexity of this
17 	case, leaving us free to do so. See State v. O 'Neal, 2009-NMCA-020, ,r 16, 145 N.M.
18 	604, 	203 	P.3d 	135. This case 	involved six felony 	counts, 	approximately ten
19 	witnesses, expert testimony, and it was set for a three-day trial. These factors support
20 the conclusion that the case was intermediately complex. See State v. 	Montoya,
20

1 2011-NMCA-074, 116, 150 N.M. 415, 259 P.3d 820 (concluding that a case with
2 four "somewhat difficult" charges and nine witnesses, including a forensic scientist,
3 was intermediately complex); see also State v. Laney, 2003-NMCA-144, 114, 134
4 N.M. 648, 81 P.3d 591 (noting that intermediately complex cases are characterized
5 by 	numerous 	witnesses, 	expert 	testimony, 	and 	scientific 	evidence). 	For 	an
6 intermediately complex case, a delay of longer than fifteen months is presumptively
7 prejudicial. Garza, 2009-NMSC-038, 148.
8 	{43} 	Although the crash occurred on August 11, 2010, Defendant was not charged
9 until April 13, 2011, when the State filed a criminal information against her for two
10 	counts of great bodily injury, one count of child abuse, and one count of leaving the
11 	scene of an accident. Later, on April 19, 2012, a grand jury indicted Defendant on
12 the two counts of criminal damage to property, and the cases were joined on May
13 	14, 2012.
14 	{44} 	Our appellate courts have yet to address a speedy trial issue with two separate
15 	dates 	of attachment, and we need not do 	so here. 	With clarity in mind, and
16 concluding that Defendant's right to speedy trial was not violated regardless of our
17 	approach to the question, we treat all of Defendant's charges as if they were part of
18 	the initial set of charges. Accordingly, we assume that Defendant's right to a speedy
19 trial attached on the date of her initial charges, April 13, 2011. See State v. Ross,
20 	1999-NMCA-134, 1113-15, 128 N.M. 222,991 P.2d 507 (holding that, in a felony
21

1 prosecution, an indictment or information must be filed to trigger a defendant's
2 speedy trial right). Defendant's trial started on August 26, 2014. The time from
3 attachment 	of her speedy trial 	right to trial was more than forty 	months, 	or
4 approximately twenty-five 	months 	beyond the 	fifteen-month 	threshold 	for 	an
5 intermediately complex case. Because the delay was presumptively prejudicial, we
6 continue to a full Barker analysis.
7 	{45} 	This 	forty-month 	delay, 	more than twice 	as 	long 	as 	the presumptively
8 prejudicial delay period, weighs heavily against the State and in Defendant's favor.
9 See State v. Taylor, 2015-NMCA-012, ,r 9,343 P.3d 199 (holding that a twenty-four-
10 	month delay in a simple case weighed heavily against the state); see also State v.
11 	Brown, 2017-NMCA-046, ,r 17, 396 P.3d 171 (weighing forty-two-month delay in
12 	a complex case, which was approximately twice as long as the presumptively
13 	prejudicial delay, heavily against the state).
14 B. 	Reasons for Delay
15 	{46} 	The reasons assigned to justify delay in a particular case may lessen or
16 	increase the prejudice to the defendant caused by the delay. Garza, 2009-NMSC-
l 7 03 8, ,r 25. We attribute three types of delay to the state and one type to the defendant.
18 Brown, 	2017-NMCA-046, 	,r 18. 	The 	first 	type, 	intentional 	delay, 	which 	is 	a
19 "deliberate attempt to 	delay prosecution 	of the 	case 	in 	order to 	hamper the
20 defense[,]" is weighed heavily against the state. Id. The second type, negligent or
22

1 administrative delay, is weighed against the state, but more lightly than intentional
2 delay. Id. The weight assessed against the state for negligent or administrative delay,
3 however, 	increases as the 	length 	of that delay 	increases. 	Id. 	The third type,
4 appropriate delay, which is delay justified by valid reasons, such as a missing
5 witness, is neutral and does not weigh against the state. Id. Finally, delay caused by
6 the defense generally weighs against the defendant. Id.
7 	{47} 	Because speedy trial analysis depends on the facts and circumstances of each
8 case, we review the pertinent facts of this case "to allocate to each side the reasons
9 for the delay and determine the weight we should assign the reasons for the delay."
10 	Gallegos, 2016-NMCA-076, ~ 10. We proceed by analyzing the periods of delay
11 	separately.
12 	1. 	Seven-Month Delay from 	Filing Criminal Information to First Trial
13 	Continuance
14 	{48} 	For purposes of this appeal, Defendant's speedy trial right attached when the
15 	State filed its criminal information on April 13, 2011. On May 10, 2011, the State
16 	filed its request for scheduling order, motion for discovery, demand for notice of
17 	alibi, request to interview witnesses, and notice of intent to call witnesses. Trial was
18 	set to begin on November 28, 2011.
19 	{49} 	We weigh this approximately seven-month delay neutrally because the case
20 was proceeding normally. See Taylor, 2015-NMCA-012, ~ 11 (weighing neutrally a
21 	delay during which the case was "progressing in a normal fashion"); see also Garza,
23

1 2009-NMSC-038, 127 	(recognizing that some pretrial 	delay 	1s 	inevitable 	and
2 justifiable).
3 2. 	Six-Month Delay for Plea Negotiations and for Joinder
4 	{50} 	The State moved to continue the trial because the parties were engaged in plea
5 negotiations and because discovery was not finished. Defendant concurred in the
6 motion. On January 25, 2012, the State requested a new trial setting and the case was
7 reset for trial on April 9, 2012. The two cases were then joined and trial was
8 rescheduled for June 11, 2012. On May 21, 2012, Defendant filed a motion to
9 determine competency to stand trial, and so the June 11, 2012 trial setting was
10 vacated. We weigh this six-month delay neutrally because the case was still within
11 	the presumptive reasonable time for an intermediately complex case, the case was
12 progressing, and j oinder of the two cases caused slight additional pretrial delay. See
13 	Taylor, 2015-NMCA-012, 111; see also Garza, 2009-NMSC-038, 127.
14 	3. 	Twenty-Three-Month Delay to Determine Competency to Stand Trial
15 	{51} 	After the June 	2012 trial 	setting was vacated, the issue 	of Defendant's
16 competency was not resolved until April 1, 2014, when the district court determined
17 	Defendant was competent. Trial was then set to commence on August 26, 2014.
18 	{52} 	Generally, delays necessary to determine competency are not weighed against
19 the state because "the state cannot try an incompetent defendant." State v. Stock,
20 	2006-NMCA-140, 119 , 140 N.M. 676, 147 P.3d 885. If a delay is for the defendant's
24

1 benefit, it would be unfair to hold it against the state. Id.; see also State v. Mendoza,
2 	1989-NMSC-032, 18 , 108 N.M. 446, 774 P.2d 440 ("[A] competency examination
3 is clearly on behalf of the accused and in no way infringes on that person's speedy
4 trial rights."). However, the state may share responsibility for the delay if the state
5 does nothing to move the case forward during this period because "[i]t is ultimately
6 the state's duty to make sure that defendants are brought to trial in a timely manner."
7 Stock, 2006-NMCA-140, 125.
8 	{53} 	Here, while the issue of Defendant's competency was being determined, the
9 State attempted to move the case forward by filing multiple requests for settings for
10 the competency hearing, as well as requests for expedited hearings on other disputed
11 	issues, such as disclosure of testing data, as those issues arose. The State did cause
12 	approximately three months 	of delay 	by 	failing to timely provide its experts'
13 	evaluation data to Defendant's competency expert. Except for this three-month
14 	delay, there is no evidence that the State failed to satisfy its responsibility to keep
15 	the case moving forward. Upon review of the facts and circumstances regarding the
16 competency issue delay, we weigh three months of the delay against the State, and
17 the remaining twenty months of delay against Defendant.
18 	4. 	Four-Month 	Delay 	After 	Competency 	Issue 	Resolved 	Until 	Trial
19 	Commenced
20 	{54} 	The State moved for a new trial setting one week after the competency
21 	determination. On April 8, 2014, the district court set a new trial date of August 26,
25

1 2014, and the parties prepared for trial on that date. Although the case had been
2 pending for some time, given the State's prompt request for a new trial and the
3 court's quick response, we cannot say that the four-month delay was inappropriate.
4 Rather, it is administrative delay, which we weigh lightly against the State.
5 	{55} 	Based on the foregoing, of the forty months of total delay, we hold that
6 approximately thirteen months weigh neutrally because the case was progressing
7 normally towards trial. See Taylor, 2015-NMCA-012, , 	11 (weighing neutrally a
8 delay during which the case was "progressing in a normal fashion"). We hold that
9 the twenty months of delay attributable to the competency issue weighs against
10 	Defendant, see Mendoza, 1989-NMSC-032,, 8 ("[A] competency examination is
11 	clearly on behalf of the accused and in no way infringes on that person's speedy trial
12 rights."), and also hold that the seven months of delay due to the delay in providing
13 	expert 	materials 	and 	trial 	scheduling 	weighed 	lightly 	against 	the 	State 	as
14 	administrative 	delay. 	See 	Garza, 	2009-NMSC-038, 	,, 26, 	29 	(stating 	that
15 	administrative delays are weighed against the state and the degree of weight is
16 closely related to the length of the delay).
17 	C. 	Assertion of the Right
18 	{56} 	A defendant does not waive his or her fundamental speedy trial right by failing
19 to assert it. Gallegos, 2016-NMCA-076, , 23. "[T]he timeliness and vigor with
20 which the right [to a speedy trial] is asserted may be considered as an indication of
26

1 whether a defendant was denied needed access to speedy trial over the defendant's
2 objection or whether the 	issue was raised on appeal 	as 	an afterthought." 	Id.
3 (alteration, internal quotation marks, and citation omitted). "[P]ro forma motions are
4 generally afforded relatively little weight in this analysis." State v. 	Urban , 2004-
5 NMSC-007, 116 , 135 N.M. 279, 87 P.3d 1061.
6 	{57} 	Defendant raised her right to a speedy trial three times: once in each of her
7 answers to the charges filed on April 13, 2011 and April 19, 2012, and once by her
8 dismissal motion six days before the August 26, 2014 trial. Her first two assertions
9 were part of her initial pleadings in which her counsel entered an appearance, denied
10 the charges, and asked for discovery materials. These assertions were pro forma and
11 	are assigned minimal weight. See State v. Marquez, 2001-NMCA-062, 1 21 , 130
12 N.M. 651 , 29 P.3d 1052 (assigning little weight to an assertion in the form ofan
13 	entry of appearance, request for discovery, and demand for speedy trial).
14 	{58} 	Defendant did not raise the speedy trial issue again until six days before trial,
15 	when she did so in the form of a motion to dismiss on speedy trial grounds. This
16 	assertion is sufficient to weigh this factor in Defendant's favor. See id. 122 . Because
17 the motion was filed so close to trial, however, we weigh it less in Defendant's favor
18 	than had it been filed earlier. See Gallegos, 2016-NMCA-076, 125; see also State
19 	v. Moreno , 2010-NMCA-044, 135 , 148 N.M. 253, 233 P.3d 782 (concluding that
20 the assertion factor weighed only slightly in the defendant' s favor when he asserted
27

1 his right once pro forma and once in a motion to dismiss two and one-half months
2 before trial).
3 	{59} 	Defendant's assertions of her right to a speedy trial were neither repeated nor
4 insistent. She made two perfunctory assertions, and a third assertion, on the eve of
5 trial. Moreover, Defendant's competency issue caused much of the delay, which
6 undercuts her assertions of her right. See State v. Steinmetz, 2014-NMCA-070, ,r 62,
7 327 P.3d 1145 (concluding that the defendant's multiple assertions of his speedy
8 trial right were undermined by "his own delay-causing actions"). We determine that,
9 under the circumstances, Defendant's speedy trial assertions weigh only slightly
10 against the State.
11 	D. 	Prejudice to Defendant
12 	{60} 	Preventing prejudice to those accused is "[t]he heart of the right to a speedy
13 	trial." 	Garza, 	2009-NMSC-038, ,r 12. The speedy trial right is intended "(i) to
14 prevent oppressive pretrial incarceration; (ii) to minimize anxiety and concern of the
15 	accused; and (iii) to limit the possibility that the defense will be impaired." Id. ,i 35
16 	(internal quotation marks and citation omitted). It is the defendant's burden to "make
17 a particularized showing of prejudice to demonstrate a violation of any of the three
18 	interests." State v. Samora, 2016-NMSC-031, 121,387 P.3d 230. Generally, "a
19 defendant must show particularized prejudice of the kind against which the speedy
20 trial right is intended to protect." Garza, 2009-NMSC-038, ,r 39. "[W]e weigh this
28

1 factor in the defendant's favor only where the pretrial incarceration or the anxiety
2 suffered is undue." Samora, 20 l 6-NMSC-031, ,r 21 (internal quotation marks and
3 citation omitted).
4 	{61} 	Defendant was not incarcerated while her case was pending. Although she
5 was subject to conditions of release, she was not subject to "undue and oppressive"
6 pretrial incarceration, which the right to a speedy trial is intended to prevent. Garza,
7 2009-NMSC-03 8, ,r 12 (internal quotation marks and citation omitted). Defendant
8 testified that her conditions of release interfered with her ability to find a job and her
9 desire to visit a sick friend who lived out of state. Yet Defendant did not identify any
10 	specific job opportunity she lost as a result of those conditions, nor did she provide
11 	evidence that she sought or was denied the court's permission to leave the state.
12 	Defendant therefore failed to show that she was unduly prejudiced by her conditions
13 	of release while her trial was pending.
14 	{62} 	Defendant also described the anxiety she suffered pending trial. She testified
15 	that she was emotionally stressed and exhausted by the process and that her
16 preexisting mental health issues worsened while awaiting trial. However, Defendant
17 did not introduce any evidence beyond her own assertions establishing that her
18 	anxiety was 	extreme. Without such evidence, 	we 	cannot conclude Defendant
19 	suffered 	prejudice 	due 	to 	the 	delay. 	See 	Gallegos, 	2016-NMCA-076, 	,r 29
20 (concluding that the defendant did not suffer prejudice based on undue anxiety when
29

I his assertions were not explained in detail and were not supported by affidavits,
2 testimony, or documentation).
3 	{63} 	Defendant asserts that the pretrial delay caused her to lose touch with her son,
4 Antonio, who may have been a witness in her defense. One risk of excessive delay
5 is that a defendant's defense may be impaired if witnesses disappear and evidence is
6 lost. Garza, 2009-NMSC-038, ,r 36. Defendant is required to show with particularity
7 what the favorable evidence would have been in order to establish prejudice. See id.
8 (reasoning 	that 	a 	defendant 	must 	"state 	with 	particularity 	what 	exculpatory
9 testimony would have been offered" to assist with defense (alteration, internal
10 quotation marks, and citation omitted)). Here, Defendant does not describe the
11 	testimony Antonio would have given, and she conceded at a pretrial hearing that she
12 was unsure what Antonio might say. It appears that, on the day of the accident,
13 	Antonio made statements both that would have supported Defendant's claim that she
14 	was 	not the 	driver 	and 	that would have 	contradicted 	her 	defense. 	Although
15 	Defendant 	claims 	prejudice, 	Antonio's 	unavailability 	may 	have 	strengthened
16 Defendant's defense because he could have undercut her claim that she was not the
17 	driver. We conclude, therefore, that Defendant did not make the required showing
18 	of particularized prejudice based on the loss of this witness. See State v. Deans, _-
19 NMCA-_, ,I 26, _ 	P.3d _ 	(No. A-1-CA-35000, Dec. 13, 2018) (holding that
30

1 a clarification of law during the pendency of the defendant's trial benefitted the
2 defendant's defense and tempered prejudice from delay).
3 	{64} 	Accordingly, we assign no weight to this factor, as Defendant has failed to
4 make a particularized showing of prejudice to demonstrate a violation of any of the
5 three interests.
6 E. 	Balancing
7 	{65} 	"[T]he weighing and balancing of the Barker factors is a difficult and sensitive
8 process." Gallegos, 2016-NMCA-076, ,r 32. "The heart of the right to a speedy trial
9 is preventing prejudice to the accused." Garza, 2009-NMSC-038, ,r 12. Even if a
10 	defendant cannot make the requisite showing of prejudice, a defendant can show that
11 	his or her right to a speedy trial was violated by showing that "the length of the delay
12 	and the reasons for the delay weigh heavily in [the] defendant's favor and [the]
13 	defendant has asserted [the] right and not acquiesced to the delay[.]" Id. ,I 3 9.
14 	{66} 	Here, Defendant failed to make a showing of particularized prejudice, but the
15 	length of delay, forty months total and twenty-five months past the presumptively
16 prejudicial period, weighs heavily in Defendant's favor. 	Defendant adequately
17 asserted her speedy trial right. We must, then, determine whether the reasons for
18 	delay weigh heavily in favor of Defendant.
19 	{67} 	Of the forty months of total delay in this case, we weigh approximately
20 thirteen months neutrally, twenty months against Defendant, and seven months
31

1 against the State. This was an intermediately complex case, with a presumptively
2 prejudicial period of fifteen months. Therefore, the question becomes whether the
3 State's seven-month administrative delay weighs heavily against it where Defendant
4 made no particularized showing of prejudice.
5 	{68} 	We find no authority to support holding that Defendant's speedy trial right
6 was violated without a presumptive showing of particularized prejudice when the
7 State' s portion of the delay was administrative and was less than the presumptively
8 prejudicial period. Defendant has not directed us to any and we could not find any
9 New Mexico cases to support such a holding. Compare Gallegos, 2016-NMCA-076,
10 ~ 34 (holding that a fourteen-month and three-week negligent and administrative
11 	delay, which exceeded presumptively prejudicial period by a few months, did not
12 	support a finding of a speedy trial right violation without a showing of particularized
13 	prejudice), with Taylor, 2015-NMCA-012, ~~ 11-12, 16-17 (concluding that, in a
14 	simple 	case, a nineteen-month administrative/negligent delay weighed heavily
15 	against the state and holding that there was a speedy trial right violation even in the
16 	absence of particularized showing of prejudice). While we acknowledge the State' s
17 obligation to bring Defendant to trial, and that the right to a speedy trial is a
18 	fundamental constitutional right, we do not weigh the seven-month administrative
19 	delay here heavily against the State. Considering the above factors together, we
32

1 conclude that the Barker factors support the district court's denial of Defendant's
2 motion to dismiss on speedy trial grounds.
3 CONCLUSION
4 	{69} 	We affirm Defendant's convictions.
5 	{70} 	IT IS SO ORDERED.
8 WE CONCUR:
9,9,-.~
10 J. MILES HANISEE, Judge
33