July 18, 2019- State of New Mexico v. Eric Hurbina, No. A-1-CA-35791

1 	IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
2 STATE OF NEW MEXICO,
3 	Plaintiff-Appellant,
4 v. 	No. A-1-CA-35791
5 ERIC HURBINA,
6 	Defendant-Appellee.
7 APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY
8 David N. Williams, District Judge
9 Hector H. Balderas, Attorney General
10 Maris Veidemanis, Assistant Attorney General
11 	Santa Fe, NM
12 for Appellant
13 	L. Helen Bennett, P.C.
14 L. Helen Bennett
15 	Albuquerque, NM
16 	for Appellee
17 	MEMORANDUM OPINION
18 	M. ZAMORA, Chief Judge.
19 	{I} 	Defendant was charged with one count of sexual exploitation of children
20 (possession) and one count of sexual exploitation of children (distribution), contrary
21 	to NMSA 1978, Section 30-6A-3(A), (B) (2007, amended 2016), respectively.
22 Concluding that Defendant's right to a speedy trial was violated, the district court
Court of Appeals of New Mexico
Filed 7/18/2019 8:35 AM

1 entered an order granting Defendant's motion to dismiss the case. The State appeals,
2 pursuant to NMSA 1978, Section 39-3-3(B)(l) (1972). After a thorough review of
3 the briefs, record proper, the relevant case law, and the well-reasoned district court
4 order, 1 we adopt the legal reasoning of the district court's final order dated July 26,
5 2016 and only briefly explain. We need not recite the facts of this case, sin_ce they
6 are set forth in detail in the district court's thorough order. Because this is a
7 memorandum opinion, familiarity with these facts is also assumed.
8 {2} 	"In analyzing [speedy trial] factors, we defer to the district court's factual
9 findings that are supported by substantial evidence[.]" State v. Flores, 2015-NMCA-
10 	081, , 	4, 355 P.3d 81. "[B]ut we independently review the record to determine
11 	whether a defendant was denied his [or her] speedy trial right and we weigh and
12 balance the Barker factors de novo." Id.
13 	{3} 	The State first argues that the district court erred in concluding that this case
14 is an "intermediate case" rather than a "complex case," because it involves thirty-six
15 	initial counts, forensic experts, nineteen reports written by seven different witnesses,
16 and at least four state expert witnesses, requiring three or more days for trial. "We
17 defer to the district court's finding of complexity," State v. Ochoa, 2017-NMSC-
18 	031, , 	15, 406 P.3d 505, as "[t]he question of the complexity of a case is best
1We note that the district court's twenty-six page order addressing the speedy
trial issue was exceptionally detailed and thorough, which greatly enhanced this
Court's ability to efficiently resolve the issues on appeal.
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1 answered by a trial court familiar with the factual circumstances, the contested issues
2 and available evidence, the local judicial machinery, and reasonable expectations for
3 the discharge 	of law enforcement and prosecutorial responsibilities." 	State 	v.
4 Manzanares, 1996-NMSC-028, 1 9, 121 N.M. 798, 918 P.2d 714. In raising this
5 issue, however, the State does not contest the district court's conclusion that;thirty-
6 six months and twenty days elapsed between Defendant's arrest and trial setting,
7 thereby triggering the balancing of the factors found in Barker v. Wingo, 4Q7 U.S.
8 514, 530 (1972). Thus, the State's argument in this regard reflects an effort only to
9 elongate the presumptively prejudicial timeframe 	from 	fifteen 	months for 	an
10 	intermediate case to eighteen months for a complex case. Even under the State's
11 	scenario, the length of delay remains twice as long as the presumptively prejudicial
12 delay. In any event, and under our standard of review, we have no basis to reverse
13 	the district court's determination of intermediate complexity. Moreover, we agree
14 with the district court's conclusion that this factor weighs heavily against the State.
15 	See State v. Vigil-Giron, 2014-NMCA-069, 1119-20, 65,327 P.3d 1129 (concluding
16 that the length of delay in a complex case weighed heavily against the state where it
17 was twice as long as the length of delay considered to be presumptively prejudicial).
18 	{4} 	. 	Second, the State argues that the district court erred in classifying the
19 nineteen-month period between February 5, 2015 and September 12, 2016 (the first
20 possible reset trial date), as administrative delay and weighing it against the State,
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1 albeit slightly. The State argues that the district court should have weig~ed the
2 administrative delay from the congested docket neutrally, given the time it ~ook to
3 resolve Defendant's various pre-trial motions in the State's favor. The distriGt court
4 ruled that the delay during this period resulted from a congested docket and
5 overcrowded courts, not pending motions filed by Defendant. The district court's
6 conclusion properly considered the State's diligence in preparing for trial and in
7 requesting hearings and an earlier trial setting. We conclude that the district ~ourt's
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8 overall conclusion that the reasons for delay do not weigh heavily against the State
9 is supported by substantial evidence, but we determine that there is no basis in the
10 record to conclude that the period of time should be neutrally weighed. Even if we
11 	accept the State's calculation that only four months of the delay should weighHghtly
12 against the State, and the remainder weighs neutrally or ·against Defendant, under
13 	our case law the outcome is the same in that this factor still weighs slightly against
14 the State. See State v. Garza, 2009-NMSC-038, ,r,r 26, 29, 146 N.M. 499, 212 P.3d
15 	387 (holding that delays caused by administrative burdens such as an under.staffed
16 prosecutor's office and congested dockets weigh against the state); accord Flores,
17 2015-NMCA-081, ,r,r 13, 30. But see State v. Steinmetz, 2014-NMCA-070, ,r 47,327
18 P.3d 1145 (concluding that where the defendant asked to vacate a hearing but did
19 not attempt to reschedule a hearing on his outstanding motions, that period of time
20 would weigh against the defendant). In this circumstance, and again under our
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1 standard of review, we have no basis to determine the district court's findings are
2 erroneous, improper, or otherwise must be corrected in a manner that changes the
3 outcome of this factor or Defendant's speedy trial claim.
4 	{5} 	Third, the State argues that the district court should not have found that the
5 "assertion of the right" factor should weigh in Defendant's favor "as much as it did"
6 because the assertions were pro forma and Defendant otherwise contributed to the
7 delay. The district court concluded, "after the matter was reassigned to Judge
8 Argyres, Defendant objected to the October 2016 trial setting and asserted his right
9 to a speedy trial 	frequently and forcefully." 	The court found that Defendant
10 conceded that the delay caused by his motion to dismiss on double jeopardy grounds
11 	would count against him for speedy trial purposes, but also concluded there was no
12 basis for finding that Defendant caused or acquiesced in "further delay," thus finding
13 	that this factor weighs in Defendant's favor. This finding is supported by substantial
14 evidence in the record, and we have no basis to conclude differently than did the
15 	district court.
16 {6} 	Fourth, the State argues that the district court should not have weighed the
17 fourth factor "slightly in Defendant's favor," because the "claimed prejudice·cannot
18 	be considered 	'particularized,' 	because it was expected and not partic~lar to
19 Defendant." The district court noted that Defendant's mother and girlfriend testified
20 about 	the 	impact 	of the 	charges 	and the 	delay 	on 	Defendant. 	Specifically,
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1 Defendant's therapist wrote a letter stating that she has being doing "intensive work
2 in addressing the stress, depression, and anxiety [Defendant] has suffered as aresult
3 	of his legal issues being delayed," and that she has witnessed, "increased symptoms
4 of anxiety, depression, and [P]ost [T]raumatic [S]tress [D]isorder, which ha[ d] been
5 exacerbated by his unresolved legal issues" including "increased symptoms of poor
6 sleep, 	black 	and 	white 	thinking, 	perseveration, 	exaggerated 	startle 	response,
7 nightmares, hyper vigilance, increased irritability and decreased pleasure as a result
8 of the increased stress of his unresolved legal status." Moreover, the State "did not
9 present evidence, nor did it demonstrate during cross-examination, that Defendant
10 did not suffer these types of prejudice." The information is supported by evidence in
11 	the record. The district court correctly focused on "whether the anxiety and concern,
12 once proved, has continued for an unacceptably long period." Salandre v: State,
13 	1991-NMSC-016,, 32, 111 N.M. 422, 806 P.2d 562. We agree that it has, having
14 continued for twice the time of what is presumptively prejudicial, and thus, agree
15 	this factor should weigh slightly in Defendant's favor.
16 {7} 	Finally, the State argues that the district court erred in balancing the factors,
17 but rests primarily on the premise that Defendant did not make a showing of
18 particularized prejudice. Because we have previously concluded that Defendant
19 made a proper showing of particularized prejudice, we reject this argument.:Unlike
20 the defendant in Steinmetz, on which the State relies, the finding that Defendant has
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1 not "largely caused or contributed to almost all of the delay" in this case is supported
2 by substantial evidence in this case. The district court weighed the factors as follows:
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The length of the delay is this case weighs heavily in Defendant's favor.
While most of the delay is due to administrative delay caused by
overburdened courts, it still weighs [lightly] in Defendant's favor as
does Defendant's assertion of his right to a speedy trial. Finally the
prejudice factor also weighs [slightly] in Defendant's favor. As all four
factors 	weigh in his favor, the [c]ourt concludes that Defendant's
speedy trial right was violated.
10 For the reasons stated herein, based upon our independent review of the record and
11 	weighing of the factors, and based substantially upon the reasons set forth in the
12 district court order correctly interpreting and applying the pertinent law to the facts
13 	of this case, we affirm and hold that Defendant's appeal is not well-taken.
14 	CONCLUSION
15 	{8} 	We therefore affirm the district court's order granting Defendant's motion to
16 dismiss on speedy trial grounds.
17 {9}
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IT IS SO ORDERED.
24 	KRISTINA BOGARDUS, Judge
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