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1 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
2 STATE OF NEW MEXICO,
3 Plaintiff-Appellee,
4 v. No. 33,376
5 MARVIN ROMERO,
6 Defendant-Appellant.
7 APPEAL FROM THE DISTRICT COURT OF TAOS COUNTY 8 Jeff F. McElroy, District Judge
9 Hector H. Balderas, Attorney General 10 Olga Serafimova, Assistant Attorney General 11 Margaret McLean, Assistant Attorney General 12 Santa Fe, NM
13 for Appellee
14 Jorge A. Alvarado, Chief Public Defender 15 Tania Shahani, Assistant Appellate Defender 16 Santa Fe, NM
17 for Appellant
18 MEMORANDUM OPINION
19 SUTIN, Judge. 1 {1} A jury found Defendant Marvin Romero guilty of driving while under the
2 influence of alcohol (DWI) contrary to NMSA 1978, Section 66-8-102(C)(1) (2010).
3 Because Defendant had at least seven prior DWI convictions, he was sentenced
4 pursuant to Section 66-8-102(J) to three years of imprisonment, with one year
5 suspended for a total of two years of incarceration. Defendant seeks reversal of his
6 conviction on the grounds that: (1) expert testimony was improperly admitted, (2) the
7 district court erred in denying his motion for a directed verdict, (3) the bureau chief
8 of the toxicology division of the Scientific Laboratory Division (SLD) should not
9 have been permitted to testify regarding Defendant’s breath alcohol content because
10 SLD benefits financially from DWI convictions, (4) the district court erred in denying
11 his motion to suppress an officer’s testimony, (5) the district court erred in
12 disqualifying a Spanish-speaking juror, and (6) his right to a speedy trial was violated.
13 Defendant also seeks to have his sentence vacated and the issue of sentencing
14 remanded to the district court on the ground that the district court miscalculated
15 Defendant’s pre-sentence confinement time. We hold that Defendant has failed to
16 demonstrate any basis for reversal of his conviction or his sentence. We affirm.
17 BACKGROUND
18 {2} Defendant’s neighbor, Augustin Apodaca, testified that at around 7:00 p.m. on
19 April 22, 2011, Defendant arrived at home and spent the next three to four hours “on
2 1 a rampage” during which Defendant switched back and forth between his two
2 vehicles, doing donuts and causing gravel to fly everywhere, and ramping over wood
3 piles. In response to Defendant’s conduct, Mr. Apodaca eventually called the police.
4 Officer Elias Montoya of the New Mexico State Police testified that at 10:13 p.m. he
5 received a call from dispatch regarding an individual “doing donuts,” and after
6 traveling for half an hour, he arrived at the scene at 10:43 p.m.
7 {3} When Officer Montoya arrived at the residence, Defendant was inside his home
8 making something to eat. Officer Montoya used a voice recorder to record his
9 encounter with Defendant, and the recording was played for the jury at trial.
10 Defendant told Officer Montoya that he had been inside his home for five minutes and
11 that he had not had anything to eat or drink since he had been inside. Defendant
12 explained to Officer Montoya that he had been working out of town and that it was his
13 weekend off, he had been drinking, and he admitted that when he came in, he was
14 driving fast, had done some donuts, and kicked up some rocks. He also stated that he
15 had purchased two half pints of whiskey and that he drank them before he arrived at
16 home. Officer Montoya did not see any alcohol inside Defendant’s home.
17 {4} Officer Montoya had Defendant perform two standardized field sobriety tests,
18 informing Defendant that his reason for doing so was that he wanted to see whether
19 Defendant had been “okay to drive.” Defendant performed poorly on both field
3 1 sobriety tests. Following the field sobriety tests, Officer Montoya arrested Defendant
2 for DWI.
3 {5} Defendant’s breath-alcohol content (BAC) was tested twice at the police station.
4 The first test, taken at 1:24 a.m. revealed that Defendant had a BAC of .17g/210L. The
5 second test, taken at 1:26 a.m. revealed that Defendant had a BAC of .16g/210L.
6 {6} Dr. Rong-Jen Hwang, the Toxicology Bureau Chief of SLD testified as an
7 expert in forensic toxicology. Using a formula that has been generally accepted in the
8 field of forensic toxicology since 1932, Dr. Hwang was able to “calculate back”
9 Defendant’s BAC to 12:13 a.m., two hours after Officer Montoya was dispatched to
10 the residence. Based on his calculation, Dr. Hwang concluded that at 12:13 a.m.
11 Defendant’s BAC “was at least above a .08.”
12 {7} Based in part on the foregoing, a jury found Defendant guilty of violating
13 Section 66-8-102(C)(1) pursuant to which it is unlawful for a person to drive a motor
14 vehicle if the person has an alcohol concentration of .08 or more in his blood or breath
15 within three hours of driving as a result of having consumed alcohol before or while
16 driving.
17 {8} Defendant appeals his conviction, raising numerous claims of error as grounds
18 for reversal, and as an alternative, seeking remand for an adjustment to his sentence.
19 We conclude Defendant’s conviction was supported by sufficient evidence, including
4 1 Dr. Hwang’s admissible testimony. We further conclude that the district court did not
2 err in denying Defendant’s motion to suppress or his motion to dismiss for a violation
3 of his right to a speedy trial. Nor did the court err in excusing a prospective juror.
4 Finally, we conclude that Defendant has failed to demonstrate error in regard to his
5 sentence.
6 DISCUSSION
7 I. The District Court Did Not Err in Admitting Dr. Hwang’s Testimony 8 Regarding Defendant’s BAC
9 {9} “We review the trial court’s evidentiary rulings for [an] abuse of discretion.”
10 State v. Christmas, 2002-NMCA-020, ¶ 8, 131 N.M. 591, 40 P.3d 1035. “An abuse
11 of discretion occurs when the ruling is clearly against the logic and effect of the facts
12 and circumstances of the case. We cannot say the trial court abused its discretion by
13 its ruling unless we can characterize it as clearly untenable or not justified by reason.”
14 Id. (internal quotation marks and citation omitted).
15 {10} The district court permitted Dr. Hwang to testify as an expert in forensic
16 toxicology regarding Defendant’s BAC level. Prior to offering an opinion in this case,
17 Dr. Hwang reviewed Defendant’s BAC results and the police report. From the police
18 report, Dr. Hwang understood that the time of the incident was 10:13 p.m., which was
19 the time that Officer Montoya was dispatched to Defendant’s residence.
5 1 {11} Using the “formula” that is generally accepted in the forensic community, Dr.
2 Hwang used Defendant’s lowest BAC result, the score of .16 taken at 1:26 a.m., to
3 “calculate back” what Defendant’s BAC was at 12:13 a.m., “two hours after the
4 incident.” Based on his calculations, Dr. Hwang concluded that at 12:13 a.m., April
5 23, 2011, Defendant’s BAC was at least .08g/210L, and was actually .17g/210L or
6 .18g/210L.
7 {12} Dr. Hwang testified that his calculations were premised on the following
8 assumptions. Dr. Hwang assumed that from “the time of the incident” at 10:13 p.m.
9 to the time that Defendant’s breath was tested Defendant had not had anything to eat
10 or drink. Dr. Hwang also assumed that Defendant was in a post-absorptive stage at
11 12:13 a.m., two hours after “the incident.” Although Dr. Hwang assumed that
12 Defendant was in a post-absorptive stage by the time Mr. Apodaca called the police,
13 he also testified that even assuming that Defendant was in a pre-absorptive stage when
14 Mr. Apodaca called the police and when Defendant’s BAC was measured, that
15 assumption would not change his conclusion that Defendant’s BAC at “around
16 midnight” was above a .08.
17 {13} Although Dr. Hwang did not explain it, the term “post-absorptive” refers to one
18 of three points on the “BAC curve.” In turn, the phrase “BAC curve” refers to the
19 scientific principle that when alcohol is consumed, it is processed by the body in three
6 1 stages, pre-absorptive, peak, and post-absorptive. See, e.g., State v. Downey, 2008-
2 NMSC-061, ¶¶ 17, 20, 145 N.M. 232, 195 P.3d 1244 (discussing the three stages of
3 the BAC curve). In other words, “when alcohol is ingested, it is absorbed by the body
4 until a peak BAC is reached, and then it is eliminated from the body by the breath,
5 sweat, liver, or kidneys.” Id. ¶ 20 (relating the testimony of a pharmacist and professor
6 emeritus at the University of New Mexico School of Medicine as to how alcohol is
7 processed by the human body).
8 {14} Dr. Hwang did not offer any opinion as to what Defendant’s BAC was at the
9 time that he was driving nor did he offer any opinion as to whether Defendant was in
10 a pre-absorptive or post-absorptive stage at 10:13 p.m. In response to defense
11 counsel’s questions on cross-examination, Dr. Hwang testified that according to
12 scientific literature, the majority of people who are involved in DWI traffic stops are
13 in the post-absorptive stage already; however, Dr. Hwang clarified that he had no way
14 of knowing whether Defendant fit within that majority, and he offered no opinion to
15 that effect.
16 {15} Defendant argues that the district court erred by allowing Dr. Hwang’s
17 testimony as to Defendant’s BAC. According to Defendant, Dr. Hwang’s testimony
18 was based on an inconclusive time-line and assumptions not supported by the record.
19 Specifically, Defendant argues that the State failed to conclusively establish what time
7 1 Defendant was actually driving and that Dr. Hwang’s opinion regarding Defendant’s
2 BAC at 12:13 a.m. was only incriminating if Defendant was driving at 9:00 p.m. or
3 later because Section 66-8-102(C)(1) prohibits a BAC of .08 or higher within three
4 hours of driving. Defendant argues further that the State failed to prove what time he
5 started or stopped drinking, and what and when he had last eaten, and that it was
6 improper for Dr. Hwang to have assumed that Defendant was in a post-absorptive
7 stage when his BAC was tested. We conclude that the evidence presented in this case
8 fully supported Dr. Hwang’s testimony, and therefore, the district court did not err in
9 allowing Dr. Hwang to testify as to Defendant’s BAC at 12:13 a.m.
10 {16} Defendant told Officer Montoya that he had consumed his alcohol before he
11 arrived at home. Based upon Mr. Apodaca’s testimony, the 10:13 p.m. dispatch call
12 that Officer Montoya received, Officer Montoya’s arrival time at Defendant’s home,
13 and Defendant’s statement to Officer Montoya that he had been inside his house for
14 five minutes, it is reasonable to infer that Defendant arrived home around 7:00 p.m.,
15 having already consumed his alcohol, and that from 7:00 p.m. until around 10:38 p.m.
16 Defendant drove his trucks in a “rampage” manner causing gravel to fly everywhere.
17 Further, based upon Defendant’s statement to Officer Montoya that he had not had
18 anything to eat or drink since he had been inside his home and when the officers
19 arrived, he was making something to eat, a reasonable inference is that Defendant had
8 1 not eaten anything since at least 10:38 p.m. Finally, although Dr. Hwang stated that
2 he assumed Defendant was in a post-absorptive stage when his BAC was measured
3 at the police station, he also testified that even were he to assume that Defendant was
4 in a pre-absorptive stage, his conclusion that Defendant’s BAC was at least .08 at
5 around midnight would be the same. In light of Dr. Hwang’s testimony that whether
6 Defendant was in a pre-absorptive or post-absorptive stage at the police station, his
7 conclusion regarding Defendant’s BAC at around midnight would be the same renders
8 the propriety of his assumption one way or the other irrelevant in the context of this
9 case.
10 {17} Defendant analogizes this case to Downey, 2008-NMSC-061, ¶¶ 1, 33-34, and
11 claims that here, as in Downey, reversal is warranted because the expert did not have
12 the facts necessary to plot Defendant’s placement on the BAC curve, and therefore,
13 he could not determine whether Defendant was under the influence of intoxicating
14 liquor when he was driving.
15 {18} In Downey, the defendant caused a fatal collision at approximately 7:00 p.m.
16 Id. ¶ 2. Six hours later, at approximately 1:00 a.m., the defendant’s blood was drawn
17 revealing a BAC of .04. Id. ¶ 10. In the interim between the time of the collision and
18 the time of the blood draw, the defendant left the scene of the collision for
19 approximately ten minutes, and when he returned to the scene, he was observed
9 1 walking alongside the roadway and sitting in his truck. Id. ¶ 36. He was not in the
2 custody or control of the police, nor was he under their supervision until
3 approximately 10:00 p.m. Id. Although there was no evidence of when the defendant
4 had started or stopped drinking, the expert assumed that the defendant had stopped
5 drinking prior to the collision and had not consumed any alcohol after the collision.
6 Id. ¶¶ 31, 34. Based on these assumptions, the expert assumed that the defendant was
7 in a post-absorptive stage when his BAC was tested, and the expert used a relation-
8 back calculation to conclude that the defendant’s BAC at the time of the collision was
9 between .075 to .11. Id. ¶ 31. Our Supreme Court held that the expert’s assumption
10 as to when the defendant had consumed alcohol was not supported by facts in the
11 record, and his conclusion regarding the defendant’s BAC at the time of the collision
12 was, therefore, “nothing more than mere conjecture[.]” Id. ¶ 34. Accordingly, the
13 court vacated the defendant’s conviction and remanded for a new trial. Id. ¶ 1. In so
14 doing, however, our Supreme Court distinguished the facts in Downey from those of
15 State v. Hughey, 2007-NMSC-036, ¶¶ 10, 15, 142 N.M. 83, 163 P.3d 470, in which
16 the Court determined that the district court had improperly excluded expert testimony.
17 Downey, 2008-NMSC-061, ¶ 37.
18 {19} In Hughey, the defendant told the police the time at which she had stopped
19 drinking. 2007-NMSC-036, ¶ 15. Based on the assumption that the defendant had
10 1 stopped drinking at the stated time, the Court concluded that the expert could
2 reasonably infer when the defendant had reached her peak BAC and thereby estimate
3 her BAC at the time that the defendant was driving. See Downey, 2008-NMSC-061,
4 ¶ 37 (discussing Hughey, 2007-NMSC-036, ¶ 15). The Hughey Court concluded that
5 insofar as the expert’s testimony was based upon reasonable inferences drawn from
6 the evidence, the question whether the defendant was guilty of driving under the
7 influence was a matter to be resolved by the jury. 2007-NMSC-036, ¶ 15.
8 {20} As discussed earlier, Defendant told Officer Montoya that he drank two half
9 pints of whiskey before he arrived home, and Mr. Apodaca testified that Defendant
10 arrived home at approximately 7:00 p.m. This and other evidence that was known to
11 Dr. Hwang permitted him to draw reasonable inferences about when Defendant
12 consumed alcohol in relationship to when he drove his vehicles after returning home.
13 Thus, the facts in the present case more closely resemble the facts in Hughey than
14 those in Downey, and Hughey supports the district court’s decision to admit Dr.
15 Hwang’s testimony. Furthermore, the present case comes within the view expressed
16 in State v. Day, 2008-NMSC-007, ¶ 24, 143 N.M. 359, 176 P.3d 1091, that the
17 circumstances, “viewed in the light most favorable to the verdict, [the expert’s
18 testimony] . . . could well have informed the jury’s verdict that [the d]efendant’s BAC
19 was 0.08 or higher at the [critical time].” In sum, we cannot conclude that the district
11 1 court abused its discretion in admitting Dr. Hwang’s opinion as to Defendant’s BAC
2 at 12:13 a.m.
3 II. The District Court Properly Denied Defendant’s Motion for a Directed 4 Verdict
5 {21} “We review denials of directed verdicts by asking whether sufficient evidence
6 was adduced to support the underlying charge.” State v. Johnson, 2010-NMSC-016,
7 ¶ 57, 148 N.M. 50, 229 P.3d 523 (internal quotation marks and citation omitted). In
8 reviewing the sufficiency of the evidence, we consider “whether substantial evidence
9 of either a direct or circumstantial nature exists to support a verdict of guilt beyond
10 a reasonable doubt” when the evidence is viewed as a whole and all reasonable
11 inferences in favor of the jury’s verdict are indulged. Id. (internal quotation marks and
12 citation omitted).
13 {22} In order to prove that Defendant was guilty of the crime charged, the State was
14 required to establish beyond a reasonable doubt that within three hours of operating
15 a motor vehicle, Defendant had an alcohol concentration of .08 g/210L or more as a
16 result of having consumed alcohol before or while driving. See § 66-8-102(C)(1).
17 Based on the premise that the district court erred in admitting Dr. Hwang’s testimony,
18 Defendant argues that the court should have granted his motion for a directed verdict
19 on the ground that there was no evidence that Defendant’s BAC was at or above .08
20 within the relevant time period.
12 1 {23} The unmistakable propriety of the jury’s verdict in this case is confirmed by the
2 testimony of the expert which, contrary to what Defendant contends, was properly
3 admitted by the district court. Moreover, even were we to have held that Dr. Hwang’s
4 testimony was inadmissible, we would affirm Defendant’s conviction based on other
5 evidence presented at trial. From the evidence at trial, the jury could reasonably have
6 concluded that Defendant consumed his alcohol before 7:00 p.m. and that he drove
7 from 7:00 p.m. until approximately 10:38 p.m. Within three hours of the 10:38 p.m.
8 driving time, Defendant’s BAC was measured twice, revealing that at 1:24 a.m. his
9 BAC was .17 and that at 1:26 a.m. his BAC was .16. Based on the foregoing, even
10 without considering Dr. Hwang’s testimony, we would conclude that the jury’s verdict
11 was supported by sufficient evidence.
12 III. Allowing Dr. Hwang to Testify Did Not Violate Defendant’s Right to Due 13 Process
14 {24} Defendant argues that the district court violated his due process rights by
15 allowing Dr. Hwang to testify because a person convicted of DWI is statutorily
16 required to pay an $85 fee, and all fees collected are statutorily designated as
17 “funding” for SLD. See NMSA 1978, § 31-12-7(A) (2010) (assessing the $85 fee);
18 NMSA 1978, § 31-12-9 (1991) (providing that all fees collected pursuant to Section
19 31-12-7(A) are appropriated for payment to the SLD “for costs related to chemical and
20 other tests and analyses”). Defendant contends that as a result of this statutory scheme,
13 1 Dr. Hwang was a “contingency fee witness” and that the court therefore violated
2 Defendant’s due process rights by allowing Dr. Hwang to testify. We review due
3 process claims de novo. State v. Tafoya, 2010-NMCA-010, ¶ 7, 147 N.M. 602, 227
4 P.3d 92.
5 {25} Defendant’s attempt to characterize Dr. Hwang as a contingency fee witness
6 based solely on the legislative scheme discussed here is not persuasive. Dr. Hwang
7 testified that the $85 fee was a legislative matter that had nothing to do with him,
8 personally. There is no evidence that Dr. Hwang personally profited from Defendant’s
9 conviction in this case. To the extent that Defendant’s due process argument derives
10 from the notion that Dr. Hwang was motivated by self-interest to provide false or
11 misleading testimony in order to assure Defendant’s conviction and thereby add to the
12 payment of fees to SLD, the matter was to be addressed through cross-examination
13 and not by excluding Dr. Hwang’s testimony. See State v. Brown, 1984-NMSC-014,
14 ¶ 14, 100 N.M. 726, 676 P.2d 253 (“Matters affecting the witness’s bias or motive to
15 testify falsely are to be attacked through cross-examination, rather than the exclusion
14 1 of a witness.”). Defendant’s citation to inapplicable, non-binding authorities1 does not
2 persuasively demonstrate a due process violation.
3 IV. The District Court Properly Denied Defendant’s Motion to Suppress
4 {26} At trial, Defendant argued that Officer Montoya made an illegal warrantless
5 entry into Defendant’s home, and therefore, statements and evidence that were
6 collected after the entry should be suppressed. The district court denied the
7 suppression motion on the ground that Defendant voluntarily admitted Officer
8 Montoya into his home. On appeal, Defendant argues, pursuant to State v. Franklin,
9 1967-NMSC-151, ¶ 9, 78 N.M. 127, 428 P.2d 982, and State v. Boyer, 1985-NMCA-
10 029, ¶¶ 17-24, 103 N.M. 655, 712 P.2d 1, that the district court erred in denying his
11 motion to suppress. See Franklin, 1967-NMSC-151, ¶ 9 (“[G]enerally . . . appointed
12 counsel should set forth contentions urged by a [defendant] whether or not counsel
13 feels they have merit[.]”); Boyer, 1985-NMCA-029, ¶ 17 (same).
1 16 Defendant cites one case in support of his due process argument, State v. 17 Glosson, 462 So. 2d 1082 (Fla. 1985). The Glosson court held that a trial court may 18 dismiss criminal charges on due process grounds “where an informant stands to gain 19 a contingent fee conditioned on cooperation and testimony in the criminal prosecution 20 when that testimony is critical to a successful prosecution.” Id. at 1085. Defendant 21 also cites an advisory opinion of the New Mexico State Bar Ethics Committee for the 22 proposition that contingency fee payments to expert witnesses should be prohibited 18 so as to preclude the presentation of expert testimony that is motivated by self-interest. 19 These authorities are not persuasive in the context of this case, and they do not 20 warrant further consideration.
15 1 {27} “In reviewing a trial court’s denial of a motion to suppress, [the appellate
2 courts] observe the distinction between factual determinations which are subject to a
3 substantial evidence standard of review and application of law to the facts, which is
4 subject to de novo review.” State v. Hubble, 2009-NMSC-014, ¶ 5, 146 N.M. 70, 206
5 P.3d 579 (alteration, internal quotation marks, and citation omitted). “An officer’s
6 warrantless entry into a person’s home is the exact type of intrusion against which the
7 language of the Fourth Amendment to the United States Constitution and Article II,
8 Section 10 of the New Mexico Constitution is directed.” State v. Moran, 2008-
9 NMCA-160, ¶ 7, 145 N.M. 297, 197 P.3d 1079 (internal quotation marks and citation
10 omitted). One exception to the warrant requirement is consent. State v. Gutierrez,
11 2005-NMCA-015, ¶ 11, 136 N.M. 779, 105 P.3d 332.
12 {28} The district court’s finding that Defendant voluntarily admitted Officer
13 Montoya into his home is supported by evidence in the record. Officer Montoya
14 testified that he entered Defendant’s home only after Defendant invited him in. Officer
15 Montoya’s testimony in that regard was supported by the audio recording of his
16 encounter with Defendant in which Defendant audibly invited Officer Montoya to
17 “come on inside.” In light of Defendant’s invitation to Officer Montoya, the consent
18 exception to the warrant requirement applies in these circumstances. The district court
19 properly denied Defendant’s motion to suppress.
16 1 V. Excluding the Spanish-Speaking Juror Was Not Reversible Error
2 {29} Defendant argues that the district court committed reversible error by excluding
3 a monolingual, Spanish-speaking, potential juror without making every reasonable
4 effort to accommodate the juror. Defendant also argues that improperly excluding the
5 Spanish-speaking juror is per se reversible error since the district court overruled a
6 timely objection, citing State v. Samora, 2013-NMSC-038, ¶ 18, 307 P.3d 328. We
7 agree with the State that Defendant invited the alleged error, and we do not reach the
8 merits of Defendant’s argument.
9 {30} We review constitutional claims de novo. See State v. Pacheco, 2007-NMSC-
10 009, ¶ 12, 141 N.M. 340, 155 P.3d 745. In State v. Rico, 2002-NMSC-022, ¶ 11, 132
11 N.M. 570, 52 P.3d 942, the New Mexico Supreme Court held that Article VII, Section
12 3 of the New Mexico Constitution “requires that a trial court make every reasonable
13 effort to accommodate a potential juror for whom language difficulties present a
14 barrier to participation in court proceedings.” The Court listed several factors to weigh
15 when considering what “constitutes sufficiently reasonable efforts” and stated that “a
16 trial court shall not excuse a juror [who needs an interpreter ] absent a showing that
17 accommodating that juror will create a substantial burden[.]” Id. ¶ 12. The Court held
18 specifically that “the [trial] court is under a constitutional obligation to continue the
19 trial for a reasonable time if the continuance will be effective in securing an
17 1 interpreter.” Id. ¶ 16. In Samora, our Supreme Court expounded on its holding in
2 Rico, stating that “[w]hen Article VII, Section 3 is violated and the objection properly
3 preserved, an appellate court is required to reverse what would have been an otherwise
4 valid conviction.” Samora, 2013-NMSC-038, ¶ 15.
5 {31} Defendant emphasizes the dearth of evidence in the record regarding the district
6 court’s efforts to secure an interpreter for the potential juror and cites the lack of proof
7 of the court’s effort as ground for reversible error. Defendant states there is no
8 evidence that the district court contacted surrounding counties to secure an interpreter
9 or considered a continuance until an interpreter was available. However, Defendant
10 is responsible for the lack of evidence in the record regarding what the district court
11 actually did or considered in order to secure an interpreter. After the court informed
12 counsel of the potential juror’s excusal and Defendant timely objected, the following
13 colloquy took place.
14 Court: Would you like the court to make a record with the court 15 administrators as to what steps we took to try to make accommodations 16 for [the potential juror’s] language, or do you accept the court’s 17 representation that we did make every effort to get an interpreter here 18 this morning?
19 Defense Counsel: I accept the court’s representation, but I’m sure the 20 court understands my objection as well.
21 Court: I do.
18 1 {32} Thus, the court asked Defendant explicitly if Defendant wanted the court’s
2 efforts to secure an interpreter on the record and Defendant declined. Defendant
3 therefore contributed to the condition of which he now complains, namely absence
4 from the record of proof of the court’s efforts to secure an interpreter. We decline to
5 reach the merits of this argument because Defendant invited the error of which he now
6 complains. See State v. Young, 1994-NMCA-061, ¶ 5, 117 N.M. 688, 875 P.2d 1119
7 (“[T]o allow a defendant to invite error and to subsequently complain about that very
8 error would subvert the orderly and equitable administration of justice.”).
9 VI. Defendant’s Right to a Speedy Trial Was Not Violated
10 {33} Defendant filed a motion in the district court seeking dismissal of the charge
11 against him on the ground that his right to a speedy trial was violated. The district
12 court denied the motion. On appeal, Defendant reasserts his claim that dismissal was
13 warranted on speedy trial grounds.
14 {34} Determining whether a defendant’s speedy trial right has been violated requires
15 a review of the particular circumstances of each case including consideration of the
16 conduct of the prosecution, that of the defendant, and “the harm to the defendant from
17 the delay.” State v. Garza, 2009-NMSC-038, ¶ 13, 146 N.M. 499, 212 P.3d 387. Our
18 analysis in this regard is guided by considering four factors: “(1) the length of delay[;]
19 (2) the reasons for the delay[;] (3) the defendant’s assertion of his right[;] and (4) the
19 1 actual prejudice to the defendant that, on balance, determines whether a defendant’s
2 right to speedy trial has been violated.” Id. (internal quotation marks and citation
3 omitted). On appeal from an order denying a motion to dismiss for a violation of a
4 defendant’s right to a speedy trial, “we give deference to the district court’s factual
5 findings, but we review the [speedy trial] factors de novo.” State v. Spearman, 2012-
6 NMSC-023, ¶ 19, 283 P.3d 272 (alteration, internal quotation marks, and citation
7 omitted).
8 1. The Length of the Delay
9 {35} “The length of delay serves two purposes under the speedy trial analysis.” Id.
10 ¶ 20. On one hand, it triggers an analysis of the speedy trial factors, and on the other
11 hand, it is, itself, a speedy trial factor to be weighed in the balance. Id.
12 {36} Defendant was arrested and charged with DWI on April 22, 2011. On May 17,
13 2011, the charge against him was dismissed pending further investigation. The State
14 reinstated the charges on October 24, 2011. Defendant’s trial began on July 10, 2013.
15 {37} In his argument, Defendant assumes that the length of the delay is measured
16 from the time of his arrest to the time of his trial; however, when a charge is dismissed
17 in good faith and later re-filed, the interim delay is not included in a speedy trial
18 analysis. State v. Hill, 2005-NMCA-143, ¶¶ 11-12, 138 N.M. 693, 125 P.3d 1175.
19 Nothing in the record proper or in the arguments on appeal indicate that the dismissal
20 1 and re-filing of the charge against Defendant was done in bad faith. Accordingly, in
2 our speedy trial analysis we consider the relevant period of delay to have occurred
3 between October 24, 2011, when the charge was re-filed and the commencement of
4 trial, July 10, 2013, a period of approximately twenty months.
5 {38} The district court concluded that this was a simple case. See State v. Plouse,
6 2003-NMCA-048, ¶ 42, 133 N.M. 495, 64 P.3d 522 (“We give due deference to the
7 district court’s findings as to the level of complexity.”), abrogated on other grounds
8 by Garza, 2009-NMSC-038. In a simple case, a delay of one year is considered
9 presumptively prejudicial. Garza, 2009-NMSC-038, ¶ 48. Thus, the approximate
10 twenty-month delay in this case requires an examination of the remaining speedy trial
11 factors.
12 {39} In terms of the weight given to the length of the delay, “the greater the delay[,]
13 the more heavily it will potentially weigh against the [prosecution].” Id. ¶ 24. In State
14 v. Montoya, this Court held that a delay of six months beyond the triggering date in
15 an intermediate case weighed only slightly against the prosecution. 2011-NMCA-074,
16 ¶ 17, 150 N.M. 415, 259 P.3d 820. In contrast, in Garza, our Supreme Court
17 recognized that a delay of five or more years weighed heavily in the defendant’s favor.
18 2009-NMSC-038, ¶ 24. Here, the delay of approximately twenty months, eight
19 months beyond the triggering date, being slightly longer than the six-month delay in
21 1 Montoya, but significantly shorter than the five to six years recognized in Garza,
2 weighs moderately against the State and in Defendant’s favor. See, e.g, State v.
3 Steinmetz, 2014-NMCA-070, ¶¶ 5-6, 327 P.3d 1145 (holding that a delay of twenty-
4 eight months beyond the date of presumptive prejudice in an intermediate case
5 weighed moderately against the prosecution).
6 2. The Reasons for the Delay
7 {40} “Closely related to [the] length of delay is the reason the government assigns
8 to justify the delay.” Garza, 2009-NMSC-038, ¶ 25 (internal quotation marks and
9 citation omitted). Negligent or administrative delay, caused, for example, by
10 overcrowded courts, the reassignment of judges, or governmental negligence weighs
11 against the prosecution, but not heavily. Id. ¶¶ 26, 29.
12 {41} Here, the district court concluded that the first fourteen-month period of delay
13 was attributed to a variety of issues that were “essential[ly] systemic and caused by
14 the courts.” Accordingly, in weighing the reasons-for-the-delay factor, the court
15 weighed this fourteen-month period “slightly against the State.” Defendant’s argument
16 reflects his agreement with the court’s conclusion that this period of delay was
17 administrative and should be weighed against the State. The district court concluded
18 that the remaining delay, a period of approximately six months, was caused by
19 Defendant’s request for a continuance of a February 2013 trial date and subsequent
22 1 scheduling issues as a result of that continuance. Defendant attempts to parse the
2 reasons for the delay within that six-month period in order to cause the reasons-for-
3 the-delay factor to weigh more heavily against the State. Under the circumstances of
4 this case, we agree with the district court’s conclusion that the final six months of
5 delay was attributed to Defendant.
6 3. The Assertion of the Right
7 {42} Defendant asserted his right to a speedy trial twice; first when his counsel
8 entered an appearance and again when new counsel entered an appearance. These pro
9 forma assertions were neither frequent nor forceful, therefore, the assertion-of-the-
10 right factor weighs only slightly in Defendant’s favor. See id. ¶ 34 (weighing the
11 assertion-of-the-right factor slightly in the defendant’s favor because the right was not
12 vigorously asserted); State v. Fierro, 2012-NMCA-054, ¶ 53, 278 P.3d 541 (stating
13 that pro forma assertions of the right to a speedy trial that accompany entries of
14 appearance are afforded “relatively little weight” (internal quotation marks and
15 citation omitted)).
16 4. Prejudice
17 {43} The right to a speedy trial is intended to guard against three forms of prejudice:
18 oppressive pretrial incarceration, undue anxiety and concern of the accused, and
19 impairment to the defense. Garza, 2009-NMSC-038, ¶ 35. In seeking to establish a
23 1 speedy trial violation, it is incumbent upon the defendant to demonstrate and to
2 provide evidence of a causal link between the delay and any alleged prejudice as a
3 result of the delay. Spearman, 2012-NMSC-023, ¶ 39.
4 {44} Defendant argues that he suffered two forms of prejudice as a result of the delay
5 in bringing his case to trial: compromised liberty as a result of having to wear a
6 “SCRAM bracelet,” as well as stress, anxiety, and concern. Defendant fails to provide
7 citations to the record proper to support his assertion that evidence was presented to
8 support his claims of prejudice. See Rule 12-213(A)(4) NMRA (requiring an appellant
9 to cite the record in support of each argument). Further because Defendant fails to
10 attack the district court’s findings in regard to prejudice, the court’s findings are
11 conclusive. See id. (stating that where the appellant does not set forth “a specific
12 attack on any finding, [the unattacked] finding shall be deemed conclusive”).
13 {45} The district court’s conclusive findings in regard to the prejudice claimed by
14 Defendant were, in relevant part, that Defendant’s movements were not monitored or
15 restricted and that by wearing the “SCRAM unit,”2 Defendant was spared from regular
16 drug or alcohol tests in person several times a week. For the eleven months leading
17 up to the court’s speedy trial order, issued on July 5, 2013, Defendant did not have to
2 18 SCRAM is an acronym that stands for “Secure Continuous Remote Alcohol 19 Monitoring.” The SCRAM unit that Defendant wore was an ankle bracelet that 20 monitored Defendant’s alcohol consumption.
24 1 wear the SCRAM unit, and he had “essentially no restrictions on his activity[.]” As
2 to Defendant’s claims of anxiety or hardship as a consequence of the delay in bringing
3 his case to trial, the district court found “no anxiety and hardship that is not a normal
4 and expected consequence of a pending criminal action.” The court found that
5 although Defendant had not been employed since June or July 2012, his lack of
6 employment and the related adverse effects thereof were “primarily due to economic
7 factors or [to] Defendant’s numerous previous DWI convictions.” Finally, as to the
8 anxiety that Defendant suffered as a result of the fact that his neighbor was a witness
9 for the State, the court found that circumstance to be “not extraordinary or unusual in
10 this type of case.” In sum, the court found that Defendant failed to make a
11 particularized showing of prejudice as a result of the delay in bringing his case to trial.
12 5. Balancing the Factors
13 {46} To summarize, we conclude that the length of the delay weighs moderately in
14 Defendant’s favor, that the reasons-for-the-delay factor weighs slightly against the
15 State as a result of the fourteen-month administratively caused delay, and that the
16 assertion-of-the-right factor weighs only slightly in Defendant’s favor. We also
17 conclude that Defendant has failed to demonstrate prejudice as a result of the delay
18 in bringing his case to trial. Without a showing of prejudice and with the other three
25 1 factors not weighing sufficiently heavy in Defendant’s favor, Defendant has failed to
2 demonstrate that the alleged speedy trial violation warrants reversal of his conviction.
3 VII. Defendant Was Not Entitled to Presentence Confinement Credit
4 {47} Defendant argues that the district court erred in sentencing him because the
5 court failed to include presentence confinement credit for the time Defendant spent
6 in jail and the time he spent wearing the SCRAM unit. We review whether a defendant
7 qualifies for presentence confinement credit de novo. See State v. Guillen, 2001-
8 NMCA-079, ¶¶ 6, 9, 130 N.M. 803, 32 P.3d 812 (analyzing presentence confinement
9 credit for time spent wearing an electronic ankle monitor as a matter of statutory
10 interpretation). NMSA 1978, Section 31-20-12 (1977) provides that a defendant “held
11 in official confinement on suspicion or charges of the commission of a felony shall,
12 upon conviction of that or a lesser included offense, be given credit for the period
13 spent in presentence confinement against any sentence finally imposed for that
14 offense.” In State v. Fellhauer, this Court held that time spent outside of jail qualifies
15 as official confinement if
16 (1) a court has entered an order releasing the defendant from a facility 17 but has imposed limitations on the defendant’s freedom of movement, or 18 the defendant is in the actual or constructive custody of state or local law 19 enforcement or correctional officers; and (2) the defendant is punishable 20 for a crime of escape if there is an unauthorized departure from the place 21 of confinement or other non-compliance with the court’s order.
22 1997-NMCA-064, ¶ 17, 123 N.M. 476, 943 P.2d 123 (emphasis omitted).
26 1 {48} The district court found that the first prong of the Fellhauer test was not met
2 because Defendant’s freedom of movement was not actually limited or restricted by
3 the SCRAM unit. Defendant rebuts the court’s conclusion, arguing that he was
4 required to obtain permission before leaving his home, that his employer was required
5 to submit Defendant’s work schedule, and that Defendant was required to “check in”
6 with the Human Resources Development Association (HRDA) multiple times a week,
7 and that these conditions sufficiently impinged his freedom of movement under the
8 first prong of the Fellhauer test. The State responds that the only actual restriction on
9 Defendant’s movement was that he was not allowed to leave the State of New Mexico
10 without prior approval and that that condition alone does not satisfy the first prong of
11 the Fellhauer test.
12 {49} We hold that Defendant’s freedom of movement was not limited to a sufficient
13 degree to qualify as official confinement under Fellhauer. The record shows that the
14 only restriction on Defendant’s freedom of movement was that he was not allowed to
15 leave the State of New Mexico without prior permission of the court. In Fellhauer, the
16 defendant was under house arrest and was not allowed to leave Bernalillo County
17 without court permission. Id. ¶ 2. Thus, the conditions in Fellhauer were more
18 stringent than the ones imposed on Defendant in this case, yet this Court held that the
19 conditions in Fellhauer did not qualify as official confinement. Id. ¶¶ 19-20. We
27 1 cannot hold that Defendant is entitled to presentence credit under conditions more lax
2 than those in Fellhauer.
3 {50} Defendant compares his circumstances to that of the defendant in Guillen,
4 where that defendant was subject to electronic monitoring. 2001-NMCA-079, ¶¶ 2-3.
5 However, the fact that the defendant in Guillen was subject to electronic monitoring
6 did not affect this Court’s analysis. Rather, we stated that “the critical question” was
7 whether the condition that the defendant “remain at his home at all times except to
8 attend alcohol counseling, work, or religious services” sufficiently limited the
9 defendant’s freedom of movement to meet the first part of the Fellhauer test. Guillen,
10 2001-NMCA-079, ¶ 8 (internal quotation marks omitted). Defendant here was not
11 subject to similar restrictions. Defendant nevertheless argues that he was required to
12 obtain permission before leaving his home. That statement mischaracterizes the
13 testimony at trial. Defendant was required to call and inform HRDA when he left or
14 returned home in order to ensure the SCRAM unit was functioning properly. He was
15 not required to obtain permission to come and go; he was only required to inform
16 HRDA when he was coming or going. The SCRAM unit’s purpose was not to monitor
17 and constrain Defendant’s whereabouts, but to monitor Defendant’s alcohol
18 consumption, and Defendant needed to inform HRDA when he left and returned home
19 in order to ensure that the unit’s readings were electronically sent to HRDA. Unlike
28 1 the defendant in Guillen, these conditions did not impose limitations on Defendant’s
2 freedom of movement. As such, we hold Defendant is not entitled to presentence
3 confinement credit for time spent wearing the SCRAM unit.
4 {51} Defendant also asserts, without a statement of preservation, without citation to
5 the record or to any authority, and without developing an argument, that he is entitled
6 to presentence confinement credit for two and a half weeks spent under house arrest
7 and fourteen days credit for time actually spent in the Taos Detention Center. See Rule
8 12-213(A)(4) (stating that, as to each argument, the appellant must provide a
9 statement of preservation, citations to the record proper, and citations to relevant
10 authorities). Because Defendant has failed to develop his argument and failed to
11 comply with Rule 12-213(A)(4), we decline to consider this issue. See State v.
12 Stephenson, 2015-NMCA-038, ¶ 24, 346 P.3d 409 (stating that this Court will not
13 address undeveloped arguments that are not supported by authority), cert. granted,
14 2015-NMCERT-001, ___ P.3d ___; State v. Lopez, 2009-NMCA-127, ¶ 14, 147 N.M.
15 364, 223 P.3d 361 (stating that the appellate court may decline to address an argument
16 on appeal as to which the appellant has failed to comply with Rule 12-213).
17 CONCLUSION
18 {52} We affirm.
19 {53} IT IS SO ORDERED.
29 1 __________________________________ 2 JONATHAN B. SUTIN, Judge
3 WE CONCUR:
4 _______________________________ 5 TIMOTHY L. GARCIA, Judge
6 _______________________________ 7 J. MILES HANISEE, Judge