October 20, 2009 – State of New Mexico v. Terry Wilson, No. 28,138

IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
Opinion Number: ___________
Filing Date: October 20, 2009
NO. 28,138
STATE OF NEW MEXICO,
Plaintiff-Appellee,
v.
TERRY WILSON,
Defendant-Appellant.
APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY
Denise Barela Shepherd, District Judge
Gary K. King, Attorney General
Santa Fe, NM
Max Shepherd, Assistant Attorney General
Albuquerque, NM
for Appellee
Hugh W. Dangler, Chief Public Defender
Mary A. Barket, Assistant Appellate Defender
Santa Fe, NM
for Appellant

OPINION
SUTIN, Judge.
{1} 	Defendant appeals his convictions for trafficking a controlled substance
(cocaine) and conspiracy to traffic cocaine within a drug-free school zone. 	We
address whether there was sufficient evidence to support his conspiracy conviction
and whether he was denied his right to a speedy trial. 	To resolve this appeal, we
address a question we declined to reach in State v. Montes, 2007-NMCA-083, 142
N.M. 221, 164 P.3d 102, which is whether the term “knowingly” in NMSA 1978, §
30-31-20(C) (1990) (amended 2006), requires the State to prove knowledge of the
drug-free school zone as an essential element of distributing drugs in a drug-free
school zone. 	We conclude that knowledge is an essential element and that the
evidence was insufficient to support Defendant’s conspiracy conviction. Accordingly,
we remand for entry of judgment and resentencing on the lesser offense of conspiracy
to traffic cocaine. We reject Defendant’s speedy trial claim and affirm his conviction
for trafficking a controlled substance.
BACKGROUND
{2} 	On March 9, 2006, at 5:40 p.m., Albuquerque Police Department Detectives
Sallee and Riley were patrolling the area near Zuni Road and Louisiana Boulevard
seeking to make undercover street-level drug buys. 	They saw Defendant walking

2
southbound down Indiana Street, made eye contact with him, and pulled into the
parking lot of an apartment complex at 429 Indiana Street. Defendant asked them
what they wanted, and Detective Sallee asked “Can you get a stone? Or a [forty] even
better.” Defendant said he was on his way to “pick up down the street.” While the
detectives waited, Defendant walked southbound until he met up with another
individual, Mr. Hightower, just north of the intersection of Indiana Street and Bell
Avenue. 	After a conversation, Defendant and Mr. Hightower returned to the
detectives’ car.
{3} 	Mr. Hightower and Defendant approached the passenger side of the car and Mr.
Hightower negotiated a drug deal with the detectives. He said he had thirty dollars
worth of cocaine, but would sell it to them for twenty if they would let him “pinch a
little bit.” 	Detective Sallee explained during his testimony that “pinching” means
“we’d let him take a little piece off and smoke it together or take a piece off[] so he
could smoke it.” The detectives agreed, and Detective Riley gave Mr. Hightower and
Defendant each a twenty dollar bill. 	Detective Sallee told Detective Riley he had
given them too much money, whereupon Defendant gave his twenty back. 	Mr.
Hightower gave the cocaine to Detective Riley, and Defendant and Mr. Hightower got
into the back seat. The detectives gave the arrest signal, and the arrest team arrived
and arrested Defendant and Mr. Hightower.

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{4} 	At the time, neither detective realized or knew that the transaction might have
occurred in a drug-free school zone. 	Defendant was originally charged with
trafficking cocaine and conspiracy to traffic cocaine. 	It was only later that the
investigator at the District Attorney’s Office, utilizing a computer program designed
to determine whether a location falls within one thousand feet of a school, typed in
429 Indiana Street and realized that the transaction had occurred within a drug-free
school zone. The investigator later conducted measurements establishing that the drug
transaction occurred 893 feet from Emerson Elementary School, which was located
at the end of the street. 	When Defendant was indicted, he was charged with
trafficking cocaine while within a drug-free school zone and conspiracy to traffic
while within a drug-free school zone.
{5} 	The jury did not convict Defendant of trafficking cocaine within a drug-free
school zone. 	Instead, the jury selected the lesser, generic offense of trafficking
cocaine. It did, however, convict him of conspiracy to traffic cocaine while within a
drug-free school zone.
DISCUSSION
I. 	Sufficiency of Evidence
A. 	Trafficking In a Drug-Free School Zone
{6} 	Defendant argues that the evidence was insufficient to support his conviction

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for conspiracy to traffic drugs within a drug-free school zone because the evidence did
not establish that he was aware of or intended to traffic within a drug-free school zone.
Before reviewing the evidence in this case, we examine the statutory framework to
determine the elements that the State must prove. Trafficking a controlled substance
consists of intentionally trafficking. See § 30-31-20(B). In addition to trafficking a
controlled substance, the Legislature also created an additional offense for trafficking
drugs while within a drug-free school zone. See § 30-31-20(C). Section 30-31-20(C)
states: “A person who knowingly violates Subsection [(B)] of this section within a
drug-free school zone excluding private property residentially zoned or used primarily
as a residence is guilty of a first degree felony.” A drug-free school zone was defined
in the applicable 2005 version as “a public school or property that is used for public
school purposes and the area within one thousand feet of the school property line, but
it does not mean any post-secondary school.” 	NMSA 1978, § 30-31-2(Y) (2005)
(amended 2006, 2008, and 2009); 2005 N.M. Laws, ch. 152, § 9.
{7} 	We next examine whether the State must prove knowledge when it seeks a
conviction for selling drugs within a drug-free school zone. In Montes, 2007-NMCA-
083, ¶ 34, this Court stated, “If [the d]efendant intended to argue that knowledge or
intent of the location of transfer is an essential element of principal liability for this
enhanced crime and that the jury should have been instructed accordingly, he has not

5
clearly made that argument on appeal, and he did not make that argument below.” We
recognized that the statute contained the word “knowingly,” but did not reach the
meaning of that term. 	Id. 	Consequently, we left “for another day the question
whether the crime of distribution in a drug-free school zone requires a mental state
regarding the location of distribution.” 	Id. 	To support the defendant’s conspiracy
conviction, we reviewed the evidence to determine whether there was evidence that
the defendant intended that the transfer occur in a drug-free school zone and found
there was sufficient evidence. Id. ¶ 38.
{8} 	In this case, however, the argument concerning knowledge was preserved.
Defendant asked the court to dismiss the drug-free school zone conspiracy count,
arguing that the statutory definition required that a person must knowingly conspire
to act within a drug-free school zone. Defendant argued that there was no evidence
that he knowingly conspired to traffic within the drug-free school zone and also
argued that he had no intent to commit trafficking within a drug-free school zone. In
response, the State relied on Montes to argue that neither knowledge of the drug-free
school zone, nor intent to traffic in the zone, were required. Defendant argued that the
issue was not preserved in Montes, but that he was “raising that issue now.” The court
rejected Defendant’s argument, stating that “there isn’t an intent requirement included
in [S]ubsection [(C)] that he or the offender knowingly or intentionally trafficked in

6
a drug[-]free school zone.” 	The court expressed that the intent requirement in
Subsection B was only in reference to a person who intentionally traffics.
{9} 	Because the issue of knowledge is squarely presented here, we now consider
the issue we declined to reach in Montes. The issue concerns statutory construction
so our review is de novo. State v. McClendon, 2001-NMSC-023, ¶ 2, 130 N.M. 551,
28 P.3d 1092. 	We begin with the language of the statute to determine legislative
intent. See State v. Baca, 2005-NMCA-001, ¶ 9, 136 N.M. 667, 104 P.3d 533 (filed
2004). “If the language of the statute is clear and unambiguous, we must give effect
to that language and refrain from further statutory interpretation.” 	State v.
McWhorter, 2005-NMCA-133, ¶ 5, 138 N.M. 580, 124 P.3d 215. The statute must
be read as a whole, construing each section so as to produce a harmonious whole. See
Baca, 2005-NMCA-001, ¶ 9.
{10} 	In evaluating the element of knowing conduct, the existence of Defendant’s
requisite knowledge is an issue of fact. 	As with other questions concerning the
sufficiency of evidence, we view evidence of Defendant’s knowledge in the light most
favorable to the verdict. See State v. Cunningham, 2000-NMSC-009, ¶ 26, 128 N.M.
711, 998 P.2d 176. Then we determine “whether the evidence viewed in this manner
could justify a finding by any rational trier of fact that each element of the crime
charged has been established beyond a reasonable doubt.” 	State v. Apodaca, 118

7
N.M. 762, 766, 887 P.2d 756, 760 (1994) (internal quotation marks and citation
omitted).
{11} 	Trafficking a controlled substance, as defined in Subsection (B), only requires
that the act be intentional. 	Section 30-31-20(B) (stating that “it is unlawful to
intentionally traffic”). “Intentional” refers to general criminal intent, the requirement
that a defendant generally intend to commit the act. See UJI 14-141 NMRA (stating
that “[a] person acts intentionally when he purposely does an act which the law
declares to be a crime, even though he may not know that his act is unlawful”
(alteration omitted)). 	Under Subsection (B), commission of the first offense is a
second degree felony; subsequent offenses are punished as a first degree felony. See
§ 30-31-20(B).
{12} 	In Subsection (C), the Legislature created an enhanced offense for trafficking
drugs within a drug-free school zone. Section 30-31-20(C) provides that “[a] person
who knowingly violates Subsection [(B)] of this section within a drug-free school zone
excluding private property residentially zoned or used primarily as a residence is
guilty of a first degree felony.” (Emphasis added.) Comparing the two subsections,
Subsection (B) requires intentional conduct. 	“Intentionally” is not the same as
“knowingly.” See State v. Hargrove, 108 N.M. 233, 236, 771 P.2d 166, 169 (1989)
(stating that “intentionally” and “knowingly” are separate concepts). 	By contrast,

8
Subsection (C) incorporates Subsection (B)’s requirement of intentional conduct and
adds an additional requirement that the offense be committed “knowingly.” 	We
conclude that the Legislature’s deliberate selection of the word “knowingly” requires
specific knowledge that the offense will occur within the drug-free school zone. See
State v. Baca, 1997-NMSC-018, ¶ 5, 123 N.M. 124, 934 P.2d 1053 (equating
“knowingly” in the forgery statute with requiring knowledge); Hargrove, 108 N.M.
at 235-36, 771 P.2d at 168-69 (holding that “knowingly,” as used in the statute
prohibiting incest, includes the requirement that the offender have knowledge that the
victim is within the prohibited degree of consanguinity); Territory v. Cortez, 15 N.M.
92, 94, 103 P. 264, 264 (1909) (holding that the use of the word “knowingly” made
knowledge an element of the crime of knowingly killing or depriving owners of their
animals).
{13} 	We are to construe each section so as to produce a harmonious whole. 	See
Baca, 2005-NMCA-001, ¶ 9. 	From reading each part of Section 30-31-20, it is
apparent that the Legislature intended to create a hierarchy of criminal culpability
depending on where the drug transaction occurred and whether the offender had
specific knowledge that he was within the zone of increased culpability. See State v.
Padilla, 2008-NMSC-006, ¶ 14, 143 N.M. 310, 176 P.3d 299 (noting that the statute
prohibiting aggravated fleeing from a police officer “suggests a hierarchy of criminal

9
liability based on the aggravated nature of a defendant’s conduct”). 	The two
subsections are distinguished by the heightened knowledge requirement in Subsection
(C), and by the fact that a conviction under Subsection (C) is punished more harshly
than a first offense under Subsection (B). Cf. Santillanes v. State, 115 N.M. 215, 222,
849 P.2d 358, 365 (1993) (stating that when a crime is punishable as a felony, a higher
mens rea requirement is appropriate). By using the word “knowingly” the Legislature
included an additional knowledge requirement as a prerequisite for conviction of the
more severe offense and the imposition of its harsher punishment. 	To construe
Subsection (C) otherwise would read the word “knowingly” out of the statute, which
we will not do. See State v. Javier M., 2001-NMSC-030, ¶ 32, 131 N.M. 1, 33 P.3d
1 (stating that the appellate courts are to construe statutes so that no part is rendered
superfluous). Interpreting Subsection (C) to include a knowledge requirement gives
meaning to all of the words in the statute and produces a sensible and harmonious
whole.

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B. 	Conspiracy to Traffic In a Drug-free School Zone
{14} 	Having defined the meaning of Subsection (C), we next examine the
requirements of conspiracy. 	“Conspiracy consists of knowingly combining with
another for the purpose of committing a felony.” NMSA 1978, § 30-28-2(A) (1979).
The agreement is the gist of conspiracy. See State v. Baca, 1997-NMSC-059, ¶ 46,
124 N.M. 333, 950 P.2d 776. 	“[C]ircumstantial evidence can be used to prove a
conspiracy.” 	State v. Hernandez, 104 N.M. 268, 278, 720 P.2d 303, 313 (Ct. App.
1986).
{15} 	To establish conspiracy, the State had to establish beyond a reasonable doubt
that Defendant and another person by words or acts agreed together to commit the
crime of trafficking drugs, and committing that crime while within a drug-free school
zone. 	UJI 14-2810 NMRA. 	And, as we have discussed, the State had to prove
beyond a reasonable doubt that Defendant, as a conspirator, had the requisite
knowledge.
C. 	The Evidence
{16} 	The evidence established that Defendant made an agreement with Mr.
Hightower, that he shared the purpose of trafficking drugs, and that he intended that
the drugs be sold. However, beyond that, one must speculate that Defendant knew
that the drugs would be sold in a drug-free school zone. 	In contrast to Montes, in

11
which there was evidence that the defendant knew that the “ultimate purchaser[] . . .
was likely waiting at [a] school[,]” there is no evidence that Defendant knew the drug
transaction would occur at or near a school. Montes, 2007-NMCA-083, ¶ 38. Even
the undercover detectives, who were likely aware of the significance of drug-free
school zones, did not realize that the case may have involved a drug-free school zone.
There exists no evidence that Defendant knew the transaction would occur within a
drug-free school zone. 	The lone fact that the school may have been visible at a
distance of 893 feet does not suffice to prove conspiracy to traffic cocaine within a
drug-free school zone beyond a reasonable doubt. See Mariano R., 1997-NMCA-018,
¶ 5 (holding that the evidence was insufficient to prove that the conspirator knew that
anyone planned to fire a shot from the vehicle and that one would have to
impermissibly speculate to uphold the verdict).
{17} 	The State does not make any argument that the evidence was sufficient to
establish knowledge that the transaction would occur in a drug-free school zone. The
State expressly concedes that there was insufficient evidence for conviction for
conspiring to traffic in a drug-free school zone, but this concession is made based only
on a theory of legal impossibility and not on the basis that the evidence was
insufficient to prove knowledge. 	According to the State, the only reason why
Defendant could not be convicted of conspiring to sell drugs in a drug-free school

12
zone was that it was legally impossible for Defendant to commit the crime of
trafficking in a drug-free school zone because Defendant conspired to sell drugs in a
private parking lot—by definition not a drug-free school zone. The defense of legal
impossibility has “perplexed our courts and has resulted in many irreconcilable
decisions, ” State v. Lopez, 100 N.M. 405, 407, 671 P.2d 653, 655 (Ct. App. 1983),
and “the modern trend in most jurisdictions is to severely limit or abolish the
impossibility defense.” 1 Paul H. Robinson, Criminal Law Defenses § 85(a), at 423,
(c) (1984) (“The modern trend, evident in most jurisdictions, is to reject both factual
and legal impossibility as defenses.”). We decline the State’s invitation to follow the
road less traveled, especially when the simpler path we choose leads to the same
conclusion that the evidence is insufficient.
{18} 	We emphasize that we decide this case based on its facts. Where distribution
in a drug-free school zone is charged, different facts could justify a different result.
But in this case the sole fact that the transaction took place 893 feet from a school,
with no other evidence, is not sufficient to establish the knowledge element of the
crime beyond a reasonable doubt.
D. 	Location of Agreement
{19} 	The jury instruction given in this case suggested that the fact that the agreement
between Defendant and Mr. Hightower was made “while within” a drug-free school

13
zone would support a conviction for conspiracy to traffic in a school zone. On appeal,
Defendant argues and the State agrees that the location where the agreement is made
is not the issue. We accept the State’s concession. See State v. Trujillo, 2002-NMSC-
005, ¶ 33, 131 N.M. 709, 42 P.3d 814; Montes, 2007-NMCA-083, ¶¶ 29, 38 (focusing
on where the transfer of drugs occurred); see also State v. Herrera, 86 N.M. 224, 226,
522 P.2d 76, 78 (1974) (stating that in construing a statute we consider the object of
the statute).
{20} 	We reverse Defendant’s conspiracy conviction. However, the question remains
whether we should remand for a new trial on this charge or whether we remand for
entry of judgment on the lesser charge of conspiracy to traffic. Under State v. Villa,
2004-NMSC-031, ¶ 9, 136 N.M. 367, 98 P.3d 1017, we may remand for entry of
judgment on the lesser charge if the jury was instructed on it. Because the jury was
instructed on conspiracy to traffic, we remand for entry of judgment and resentencing
on conspiracy to traffic.
II. 	Instructions
{21} 	Defendant 	also 	challenges 	the 	relevant 	elements 	instruction 	regarding
trafficking while within a drug-free school zone because it did not contain a
knowledge requirement as to location. Our reversal on sufficiency grounds makes it
unnecessary to address this claim, except to note that the jury instruction lacks any

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element addressing intent or knowledge as to location and therefore is fundamentally
flawed. 	See 	State v. Castro, 2002-NMCA-093, ¶ 2, 132 N.M. 646, 53 P.3d 413
(stating that “[f]undamental rights of an accused . . . are implicated where the jury . . .
[has not] been instructed on an essential element of [the] crime” (second alteration in
original) (internal quotation marks and citation omitted)).
III. 	Speedy Trial
{22} 	To determine whether a defendant’s constitutional right to a speedy trial has
been violated, we apply the four-factor balancing test set forth in Barker v. Wingo, 407
U.S. 514, 530 (1972). 	State v. Garza, 2009-NMSC-038, ¶ 13, 146 N.M. 499, 212
P.3d 387. 	The factors are the length of the delay, the reason for the delay, the
defendant’s assertion of his right, and prejudice to the defendant. Barker, 407 U.S.
at 530. We give deference to the district court’s factual findings. State v. Maddox,
2008-NMSC-062, ¶ 8, 145 N.M. 242, 195 P.3d 1254. 	We review de novo the
weighing and balancing of the Barker factors and ultimately whether a defendant’s
speedy trial right was violated. 	Maddox, 2008-NMSC-062, ¶ 8; State v. O’Neal,
2009-NMCA-020, ¶ 14, 145 N.M. 604, 203 P.3d 135 (filed 2008).
{23} 	Thus, while deferential to the district court’s fact finding, we independently
balance the Barker factors. 	Zurla v. State, 109 N.M. 640, 642, 789 P.2d 588, 590
(1990). We analyze right-violation claims on a case-by-case basis and examine all

15
four factors in order to weigh the conduct of the prosecution and the defense, with no
one factor as talismanic. State v. Urban, 2004-NMSC-007, ¶ 11, 135 N.M. 279, 87
P.3d 1061; see also Garza, 2009-NMSC-038, ¶¶ 11, 13 (stating that “the substance
of the speedy trial right is defined only through an analysis of the peculiar facts and
circumstances of each case” and recognizing that “Barker’s formulation necessarily
compels courts to approach speedy trial cases on an ad hoc basis” (internal quotation
marks and citation omitted)).
A. 	Length of Delay
{24} 	Under the length-of-delay factor, we first decide whether the delay is
presumptively prejudicial. 	Garza, 2009-NMSC-038, ¶¶ 21-24. 	A presumptively
prejudicial delay is a triggering mechanism that requires further inquiry into each of
the four Barker factors. 	Id. ¶ 21. 	In analyzing presumptive prejudice, the district
court characterized this as a case of intermediate complexity “based on the facts and
circumstances and the fact that there were two codefendants.” Although we generally
give deference to a district court’s characterization of a case’s complexity, see State
v. Plouse, 2003-NMCA-048, ¶ 42, 133 N.M. 495, 64 P.3d 522, we disagree with the
court’s determination here. 	Simple cases “require less investigation and tend to
involve primarily police officer testimony.” State v. LeFebre, 2001-NMCA-009, ¶ 11,
130 N.M. 130, 19 P.3d 825. “Cases of intermediate complexity, on the other hand,

16
seem to involve numerous or relatively difficult criminal charges and evidentiary
issues, numerous witnesses, expert testimony, and scientific evidence.” 	State v.
Laney, 2003-NMCA-144, ¶ 14, 134 N.M. 648, 81 P.3d 591. 	Although this case
involved a codefendant, nothing in the record indicates that this circumstance caused
any significant complexity. 	The case involved what appears to have been a not
unusual police sting, a discrete event, and the only witnesses of which we are aware
from the record were two detectives and an investigator from the District Attorney’s
Office. In its brief in chief, the State concedes that this was a simple case. However,
after reviewing a late-filed transcript of the hearing on Defendant’s motion to dismiss,
the State argues in a sur-reply that the case was of intermediate complexity, although
the State acknowledges that “[t]his case did not present unusually difficult criminal
charges or evidentiary issues.” We are not persuaded that this is a case of intermediate
complexity, and we conclude that it falls in the simple-case category.
{25} 	Defendant’s motion to dismiss for a speedy trial violation was filed on July 13,
2007. At that time, the applicable guideline for a presumption of prejudice in a simple
case was nine months. 	See Maddox, 2008-NMSC-062, ¶ 9; see also Garza, 2009-
NMSC-038, ¶¶ 44, 48, 50 (changing the applicable guideline from nine months to one
year for cases in which the defendant’s motion to dismiss for a speedy trial violation
was initiated on or after August 13, 2007). Defendant’s motion predated August 13,

17
2007; therefore, in the present case, a nine-month period of delay is presumptively
prejudicial.
{26} 	“In determining the weight to be given to the length of delay, we consider the
extent to which the delay stretches beyond the bare minimum needed to trigger
judicial examination of the claim.” State v. Stock, 2006-NMCA-140, ¶ 13, 140 N.M.
676, 147 P.3d 885 (internal quotation marks and citation omitted); see also Garza,
2009-NMSC-038, ¶ 24 (considering the extent to which the delay crossed over the
“bare minimum needed to trigger judicial examination of the claim” (internal
quotation marks and citation omitted)).
{27} 	In this case, Defendant was arrested on March 9, 2006, and he was released on
his own recognizance on March 22, 2006. On April 26, 2006, he was arrested on an
outstanding felony warrant, and on May 9 and May 11, 2006, he was separately
indicted on two different residential burglary/larceny charges. Defendant was indicted
in the present case on May 30, 2006, and a statement of joinder with Mr. Hightower’s
case was filed. Defendant was arraigned in this case on June 9, 2006. In his motion
to dismiss for violation of his speedy trial right, filed July 13, 2007, Defendant
measured delay from his indictment on May 30, 2006. Defendant did not argue in the
district court and does not take a definite position on appeal that his right attached
when he was arrested.

1 We note that our Supreme Court determined in earlier cases that the right was	17
triggered by and the length of delay was measured from the defendant’s arrest. See	18
State v. Coffin, 1999-NMSC-038, ¶ 56, 128 N.M. 192, 991 P.2d 477; Salandre v.	19
State, 111 N.M. 422, 425, 806 P.2d 562, 565 (1991), holding modified on other	20
grounds by Garza, 2009-NMSC-038; Zurla, 109 N.M. at 642, 789 P.2d at 590.	21
18
{28} 	We therefore measure the total lapse of time from Defendant’s indictment on
May 30, 2006, to the beginning of his trial on August 6, 2007. See Maddox, 2008-
NMSC-062, ¶ 10 (calculating the length of delay from the point “when the defendant
becomes an accused, that is, by a filing of a formal indictment or information or arrest
and holding to answer” (internal quotation marks and citation omitted)); Urban, 2004-
NMSC-007, ¶ 12 (measuring the time from indictment because the defendant “was not
held to answer for [the] charges until the time of his indictment”). 1
{29} 	“[T]he greater the delay the more heavily it will potentially weigh against the
State.” 	Garza, 2009-NMSC-038, ¶ 24. 	In this case, the extent to which the delay
exceeded the bare minimum was just over five months. 	We cannot say that the
extended time of five months in this case was extraordinary, protracted, or otherwise
a delay that requires us to weigh the length of delay factor against the State more than
slightly. Cf. id. ¶¶ 26-27, 30 (referring in the context of the reasons for delay that a
more 	neutral 	reason 	such 	as 	negligence 	and 	administrative 	delay, 	including
overcrowded dockets, is weighed “less heavily,” and the weight to be assigned
depends on the length of delay, such as whether it is extraordinary or protracted).

19
B. 	Reasons for Delay
1. 	Standards to Analyze This Factor
{30} 	To analyze the Barker reasons-for-delay factor, we first turn to Garza and
Maddox. Garza quotes Barker’s statement that “[c]losely related to length of delay
is the reason the government assigns to justify the delay” and then quotes Maddox’s
statement that “[t]he reasons for a period of the delay may either heighten or temper
the prejudice to the defendant caused by the length of the delay.” 	Garza, 2009-
NMSC-038, ¶ 25 (internal quotation marks and citation omitted). Thus, the Court in
Garza concentrated on assessing the government’s justification for the length of delay.
See id. ¶¶ 25-30 (discussing the weight to be assigned for lapses of time based on the
government’s actions or failures to act toward bringing a defendant to trial).
{31} 	In its analysis of the reasons for delay, Garza repeats the three different types
of delay identified in Barker and repeats Barker’s view that “different weights should
be assigned to different reasons.” Garza, 2009-NMSC-038, ¶ 25 (internal quotation
marks and citation omitted). 	The types are (1) deliberate or intentional delay, (2)
negligent or administrative delay, and (3) delay for which there is a valid reason. Id.
¶¶ 25-27. 	The first type, deliberate delay, is to be “weighted heavily against the
government.” Id. ¶ 25 (internal quotation marks and citation omitted). The second
type, negligent or administrative delay, is to be “weighted less heavily but

20
nevertheless 	should 	be 	considered” 	and 	is 	assigned 	a 	weight 	based 	on 	its
protractedness. 	Id. ¶ 26 (internal quotation marks and citation omitted). As to the
third type, delay for a valid reason, the appellate court is ultimately to “balance the
reasonableness of the manner in which the State has moved a case toward trial against
the costs of going forward with a trial whose probative accuracy the passage of time
has begun by degrees to throw into question.” Id. ¶ 27 (internal quotation marks and
citation omitted).
{32} 	The Court in Garza prescribed the following measuring scale: “Because the
delay was negligent, the extent to which it weighs against the State depends on the
length of the delay.” Id. ¶ 30. To evaluate the length of the delay, the Court did not
look solely at the full lapse of time from attachment of the right to a speedy trial it had
just evaluated. 	The Court also looked at the extent to which the delay extended
beyond the threshold to trigger the speedy trial inquiry—whether that particular delay
was extraordinary or protracted. Id. Because the delay extended only slightly beyond
the threshold to trigger the speedy trial inquiry, the Court held that the full amount of
delay due to negligence was “not extraordinary.” 	Id. 	Then the Court stated,
“[a]ccordingly, because the delay was negligent but not protracted, this factor weighs
only slightly in [the d]efendant’s favor,” a phrase that we read to also mean slightly
against the State. Id.

21
{33} 	Because the parties in the present case were involved in plea negotiations
during the period between arraignment and trial, we consider the impact of such
negotiations on the delay. 	Garza does not specifically address the delay caused by
plea negotiations. 	But Maddox does. 	In Maddox, there were intermittent plea
negotiations during the total period of delay. 	2008-NMSC-062, ¶ 24. 	The Court
opened its discussion with the statement that “[g]enerally, there is no rule attributing
delay resulting from attempted plea negotiations to a specific party and absent some
act of bad faith or some prejudice to the defendant, plea negotiations are themselves
not a factor to be held against either party.” Id. (internal quotation marks and citation
omitted). 	The Court nevertheless set the following specific standards: 	“[P]lea
negotiations are not an excuse for a delay in the prosecution of a case” and
“unsuccessful plea negotiations do not constitute a valid reason for suspending the
defendant’s right to a speedy trial.” Id. ¶ 25. The Court further stated that “the State
is not excused in its burden to timely try a defendant while waiting for defense counsel
to respond to a plea offer” and that “the State must affirmatively seek to move the case
to trial, even while plea negotiations are pending.” 	Id. ¶ 26. The Court in Maddox
indicated that it would “weigh unreasonable periods of delay against the State,” but
that the time during which a defendant does not timely respond to plea offers will
weigh “only slightly against the State.” Id. Taking these various Maddox standards

2 We note that in State v. Marquez, 2001-NMCA-062, ¶ 18, 130 N.M. 651, 29	16
P.3d 1052, this Court stated that we do not weigh the period of plea negotiations	17
against either party. 	See State v. Eskridge, 1997-NMCA-106, ¶ 15, 124 N.M. 227,	18
947 P.2d 502 (stating that “plea negotiations are themselves not a factor to be held	19
against either party”). To the extent those holdings are inconsistent with the specific	20
standards set forth in Maddox, the cases may be marginalized.	21
22
into consideration, we read Maddox to require the delay from plea negotiations to be
weighed against the State when there exist measurable periods of negotiation.2 How
heavily the delay is to be weighed depends on the length of that delay and the amount
of delay caused by a defendant in failing to timely respond to a plea offer.
{34} 	Of course, there may exist periods of time during a case where it moves “toward
trial with customary promptness.” 	Id. ¶ 27. 	That period of time is to be weighed
“neutrally between the parties.” 	Id. Along the same line, Garza quotes Doggett v.
United States, 505 U.S. 647, 656-57 (1992), as saying, “Our speedy trial standards
recognize that pretrial delay is often both inevitable and wholly justifiable” and refers
to Doggett’s view that there are “acceptable and unacceptable reasons for delaying a
criminal prosecution.” Garza, 2009-NMSC-038, ¶¶ 26-27 (internal quotation marks
and citations omitted). 	Combining Maddox and Garza, it seems clear that certain
periods of time during a case which the State can demonstrate are “inevitable” or
periods during which the case is moved “toward trial with customary promptness” are
not to be weighed against the State.
2. 	The Time Lapses Segmented

23
{35} 	Following Defendant’s June 9, 2006, arraignment, after two pretrial settings in
September and October, the district court set November 6, 2006, for a guilty plea and
pretrial conference. It appears that it was at some point early in this time frame that
Mr. Hightower’s and Defendant’s cases were joined. A stipulated extension of time
to March 9, 2007, was filed December 1, 2006, and was granted on December 4, 2006.
On February 6, 2007, the court set a motions deadline for February 23, 2007, and trial
for March 5, 2007. On February 21, 2007, the State requested a Supreme Court time
extension continuing the March 5, 2007, trial date to September 9, 2007.
{36} 	During the period of May 30, 2006, to about February 21, 2007, the parties
were engaged in plea negotiations on three charges, one related to the present case and
two related to other crimes for which Defendant had been separately indicted. The
State’s February 21, 2007, petition to the Supreme Court for an extension of time
appears to have emanated from several circumstances, namely, while Defendant
accepted pleas in his other criminal cases he rejected an offered plea in the present
case, Mr. Hightower was requesting a trial continuance, and a prosecution witness was
unavailable. Defendant objected to this extension request. On February 28, 2007, the
Supreme Court granted an extension to September 9, 2007. 	Noting that pretrial
interviews were “ongoing,” the district court continued the March 5, 2007, trial setting
and noticed trial for April 30, 2007, preceded by an April 17 docket call and an April

24
20 motions deadline.
{37} 	On April 26, 2007, the court noticed a pretrial conference for May 21, 2007,
and, based on a motion filed by Mr. Hightower, the court on May 22, 2007, noticed
trial for August 6, 2007. It appears that the extensions and the April 30 and August
6, 2007, trial settings were primarily to accommodate Mr. Hightower. On July 13,
2007, Defendant filed his motion to dismiss for violation of his speedy trial right. The
district court heard this motion on August 2, 2007, and determined that the cases
against Defendant and Mr. Hightower should be severed. 	A severance order was
entered on August 7, 2007. 	Defendant was tried and on August 9, 2007, he was
convicted.
3. 	Evaluation of Lapses of Time
{38} 	The record is not as clear as we would like in regard to the demarcation of the
events and conduct causing or contributing to lapses of time. The period from the
May 30, 2006, indictment to the June 9, 2006, arraignment was negligible. We note
that Defendant was released on his own recognizance on March 22, 2006, and then
arrested on an outstanding felony warrant on April 26, 2006. We do not weigh this
short period against the State. There was a substantial period at the beginning that
included plea negotiations in this case, as well as in Defendant’s other felony cases.
The negotiations were successful in his other cases, but not in the present case. This

25
was a period of just over eight months from Defendant’s June 9, 2006, arraignment
until February 21, 2007. A portion of this time was included in the December 1, 2006,
stipulated extension of time to March 9, 2007, and appears also to have included some
delay based on the joinder of Mr. Hightower’s case. 	For want of well-explained,
particularized reasons other than plea negotiations behind the almost six-month lapse
of time up to December 1, 2006, we weigh that time slightly against the State. We do
not weigh the over three months of the stipulated extension from December 1, 2006,
to March 9, 2007, against the State.
{39} 	The trial was reset from March 5, 2007, to April 30, 2007, but that setting was
continued so Mr. Hightower could obtain new counsel. The April 30, 2007, setting
was vacated, apparently also due to issues related to Mr. Hightower’s counsel, and on
May 22, 2007, trial was reset for August 6, 2007. 	In the hearing on Defendant’s
motion to dismiss, Defendant accused Mr. Hightower of “playing games with the
court system.” On appeal, Defendant refers to Mr. Hightower’s need for new counsel
as “misbehavior” and argues that the delay it caused should count against the State
because the State refused to sever the cases so that Defendant’s case could move
forward. The record, however, does not reflect that Defendant filed any motion to
sever. 	The record reflects only that on August 2, 2007, during the hearing on
Defendant’s motion to dismiss, the court determined that severance was necessary so

26
that Defendant’s trial could “definitely go one way or the other.” 	Trial began on
August 7 and concluded on August 9, 2007.
{40} 	We are faced with a five-month delay from March 9, 2007 (the final date of the
stipulated extension), to August 7, 2007, occasioned principally by Mr. Hightower’s
continuance requests. This Court has not previously had the opportunity to consider
how a delay caused by a codefendant should be evaluated in a speedy trial analysis.
{41} 	This issue presents a tension between the individuals’ rights to a speedy trial
and the prosecution’s interest in conserving trial resources by avoiding multiple trials.
See State v. Littlefield, 457 So. 2d 558, 559 (Fla. Dist. Ct. App. 1984) (stating that “the
trial court can deal with the specific situation and balance the interests of the state in
avoiding multiple trials against the interest of the defendant in receiving a speedy
trial”). 	Our research indicates different approaches to the problem. 	Federal cases
decided under the Federal Speedy Trial Act of 1974, 18 U.S.C. §§ 3161-74 (1975, as
amended through 2008), apply the general rule that continuances granted to a
codefendant are attributable to the defendant, as well. 	See, e.g., United States v.
Noriega, 746 F. Supp. 1548, 1559 (S.D. Fla. 1990) (stating that “whatever stops the
[s]peedy [t]rial clock for one defendant stops the clock for all codefendants, subject
. . . to the requirement that the delay be reasonable”). Federal cases have considered
reasonable delays to ensure that a codefendant has counsel as excludable from the

27
defendant’s period of delay. See United States v. Westbrook, 119 F.3d 1176, 1187-88
(5th Cir. 1997) (holding that an approximate five-month delay caused by the
codefendant’s continuance to allow trial counsel to prepare and for preparation of
transcripts from the first trial was reasonable and did not establish a speedy trial
violation); United States v. Davenport, 935 F.2d 1223, 1236 (11th Cir. 1991) (holding
that a seven-month continuance caused by the codefendants’ need for additional time
to prepare for trial and for the unavailability of defense counsel was a reasonable
delay, attributable to the defendant); United States v. Fogarty, 692 F.2d 542, 546 (8th
Cir. 1982) (stating that the continuance caused by, in part, one codefendant’s
counsel’s trial conflict was excludable from the period of delay). Our search of the
federal approach produced only one case in which a court, faced with more than one
year of delay caused by a continuance for a codefendant, noted “rather extreme
circumstances” and held that the delay was not reasonable and resulted in a speedy
trial violation as to the defendant. United States v. Jones, 56 F.3d 581, 584-85 (5th
Cir. 1995).
{42} 	Another approach, taken in Kentucky, is that where a delay is caused by a
codefendant, it is not the fault of the state or the defendant, and therefore is not
weighed against either. See Bratcher v. Commonwealth, 151 S.W.3d 332, 344 (Ky.
2004) (reasoning that the delay was caused by the codefendant, not the defendant or

28
the state, and therefore should not be charged to either). Other authority holds that
delays caused by codefendants are weighed against the state, because the state chose
to join the codefendants. 	See Ruffin v. United States, 524 A.2d 685, 688-89 (D.C.
1987) (per curiam) (stating that the government bears some burden for the delay
caused by a codefendant’s continuances where the government chose to join
defendants, but in light of the policy considerations favoring joinder, the delay was
not weighed heavily against the government); Marks v. State, 578 A.2d 828, 835 (Md.
Ct. Spec. App. 1990) (recognizing that delay caused by continuance requested by a
codefendant was chargeable to the state because the state elected to try the defendant
and codefendant jointly). 	On the other hand, some cases have held that such
continuances are chargeable to the defendant if he did not object. 	See Turner v.
United States, 443 A.2d 542, 546 (D.C. 1982) (stating that in the absence of an
objection to a codefendant’s request for continuance, the defendant’s assent would be
inferred, and the delay would be chargeable to the defendant); State v. Shelton, 281
S.E.2d 684, 689-90 (N.C. Ct. App. 1981) (stating that the delay caused by a
continuance to allow a codefendant a mental examination was chargeable to the
defendant because he did not object).
{43} 	We do not select and set in stone any particular approach. For the purposes of
our discussion, we will assume without deciding that reasonable delays caused by

29
codefendants will weigh against the State. In this case, we see no basis on which to
weigh delays caused by Mr. Hightower heavily against the State. 	We are not
persuaded by Defendant’s argument that the State should have severed the cases once
Mr. Hightower’s continuance requests surfaced. Defendant places full blame on the
State for not severing the cases earlier than August 2, 2007, but Defendant does not
demonstrate that he moved for severance at any point. The district court’s approach,
which was to decide in August to sever when it became apparent that the delay caused
by Mr. Hightower would continue, was an appropriate balance of the interests of
Defendant and the State. See State v. White, 83 N.M. 354, 355, 491 P.2d 1165, 1166
(Ct. App. 1971) (determining that whether a defendant is entitled to a separate trial is
a matter to be resolved by the sound discretion of the court); see also Rule 5-203(C)
NMRA (requiring a defendant to demonstrate prejudice to obtain severance). On this
record, we disagree with Defendant’s characterization of the case as one in which the
State refused to sever the cases. Had Defendant actually moved for severance, this
argument might be more persuasive. But with no request by Defendant, the necessity
for a severance did not become apparent until August. Rather, the delay was caused
primarily by Mr. Hightower. 	We weigh the approximate five-month delay from
March 9 to August 7, 2007, only slightly against the State.
{44} 	To summarize the lapse of time evaluation, there were three major segments:

30
approximately six months, from June 9 to December 1, 2006, weighed only slightly
against the State; approximately three months, from December 1, 2006, to March 9,
2007, not weighed against the State; and approximately five months, from March 9
to August 7, 2007, weighed only slightly against the State. Eleven of the fourteen
months are weighed against the State, albeit only slightly, primarily because of the
absence of well-explained, particularized reasons for delay given by the State other
than plea negotations, and because of the extended time spent attending to Mr.
Hightower’s activities. See Garza, 2009-NMSC-038, ¶¶ 25-30 (indicating that under
the reasons for delay factor the court analyzes “the reason the government assigns to
justify the delay” and concentrating on assessing those justifications). The slightness
of weight attributed for these eleven months is appropriate because there exists
nothing to indicate particularized fault on the State’s part, because some of the delay
can be attributed to Defendant’s failure to move for a severance, and because a portion
of the eleven months must presumably be attributed to reasonable lapses of time
inherent in the trial process. See id. ¶ 27 (discussing delay for a valid reason); State
v. Valencia, 2009-NMCA-___, ¶¶ 18, 20, 24, __ N.M. __, __ P.3d __ (No. 28,140,
Oct. 2, 2009) (discussing inevitable delay and periods during which a case moves
toward trial with customary promptness). 	The remaining three months are not
weighed against the State because Defendant agreed to the delay.

31
C. 	Assertion of the Right
{45} 	“Generally, we assess the timing of the defendant’s assertion and the manner
in which the right was asserted. Thus, we accord weight to the ‘frequency and force’
of the defendant’s objections to the delay.” Garza, 2009-NMSC-038, ¶ 32 (citations
omitted). 	“We also analyze the defendant’s actions with regard to the delay.” 	Id.
“[T]he timeliness and vigor with which the right is asserted may be considered as an
indication of whether a defendant was denied needed access to speedy trial over his
objection.” Id.
{46} 	Together with his entry of appearance and request for discovery, Defendant
added a pro forma motion for speedy trial on June 16, 2006, seven days after he was
arraigned. This was his only request for a speedy trial that preceded his motion to
dismiss filed July 13, 2007, about three weeks before the August 6, 2007, trial setting.
We weigh this factor slightly in Defendant’s favor. 	See id. ¶ 34 (holding that the
defendant’s single assertion and motion to dismiss filed shortly before trial weighed
slightly in the defendant’s favor, where it was “tucked within the waiver of
arraignment and not guilty plea . . . [and] was not especially vigorous nor was it
mitigated, however, by any apparent acquiescence [by the defendant] to the delay”);
Maddox, 2008-NMSC-062, ¶¶ 29-31 (stating that a pro forma demand is generally
entitled to relatively little weight, that the defendant’s assertion under the Interstate

32
Agreement on Detainers weighed minimally in his favor, and the defendant’s attempt
to assert the right by a motion to dismiss filed five days before trial was “not timely”
and weighed slightly in his favor); Coffin, 1999-NMSC-038, ¶ 67 (stating that a
second request for a speedy trial, filed two weeks before trial, was not sufficient to
weigh the factor in the defendant’s favor).
D. 	Prejudice
{47} 	We consider three interests relevant to the prejudice-factor analysis: 	(1) to
prevent oppressive pretrial incarceration, (2) to minimize the accused’s anxiety and
concern, and (3) to limit the possibility of an impairment to the defense. 	Garza,
2009-NMSC-038, ¶ 35. Defendant has the burden to demonstrate and substantiate
prejudice. Id. ¶¶ 35-37. We weigh the first two interests in the defendant’s favor only
where the incarceration or the anxiety suffered is undue. Id. ¶ 35.
{48} 	Defendant has made no particularized showing to substantiate prejudice from
undue pretrial incarceration or undue anxiety. We will not speculate as to the impact
of his pretrial incarceration or the degree of anxiety he suffered. Id. Some degree of
oppression and anxiety is inherent for every defendant who is jailed while awaiting
trial. Id. Defendant has not demonstrated that any anxiety and concern he suffered
was at all different from the anxiety and concern inherent in being incarcerated, or
having been in considerable contact with the criminal justice system over several

33
years.
{49} 	Further, Defendant offered no reason why or how his defense was impaired,
except to argue that he lost the opportunity to serve concurrent sentences and that he
experienced anxiety and concern. See Urban, 2004-NMSC-007, ¶ 19 (stating that the
loss of the opportunity to serve concurrent sentences can be cognizable prejudice).
We are not persuaded that Defendant was prejudiced to any degree sufficient to give
this interest any weight in his favor. Whether his defense might have been impaired
to any degree is speculative. See Maddox, 2008-NMSC-062, ¶ 35 (determining that
the defendant did not suffer undue prejudice from a claimed lost opportunity to serve
his sentences concurrently “because it is speculative as to how the district court may
choose to exercise its discretion in sentencing”). 	We do not weigh this factor in
Defendant’s favor.

34
E. 	Balancing the Four Factors
{50} 	The approximate five-month delay beyond the presumptive nine-month period
is not compelling and weighs only slightly against the State. 	The reasons-for-the-
delay factor weighs only slightly against the State. Defendant’s assertion of the right
is entitled to relatively little weight favoring Defendant, and he has not shown tangible
or particularized prejudice cognizable under the prejudice factor. 	There exists no
evidence of deliberate, extraordinary, or protracted delay on the part of the State. See
Garza, 2009-NMCA-038, ¶¶ 24, 26, 30 (discussing the consequences of extraordinary
or protracted delay). 	Defendant’s failure to make an affirmative showing of
particularized prejudice precludes any chance of success on his speedy trial motion
where, as here, the first and second factors weigh only slightly against the State and
the assertion-of-right factor weighs only slightly in Defendant’s favor. Thus, when we
balance all of the required factors, we conclude that Defendant’s right to a speedy trial
has not been violated.
CONCLUSION
{51} 	We affirm Defendant’s conviction for trafficking a controlled substance. We
reverse his conviction for conspiracy to traffic within a drug-free school zone and
remand for entry of judgment on conspiracy to traffic cocaine and resentencing.

35
{52} 	IT IS SO ORDERED.
__________________________________
JONATHAN B. SUTIN, Judge
WE CONCUR:
________________________________
CYNTHIA A. FRY, Chief Judge
________________________________
RODERICK T. KENNEDY, Judge