February 12, 2019- State of New Mexico v. Toby Vallejos, No. A-1-CA-36016

1 	IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
2 STATE OF NEW MEXICO,
3 	Plaintiff-Appellee,
4 v. 	No. A-1-CA-36016
5 TOBY VALLEJOS,
6 	Defendant-Appellant.
7 APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY
8 Stan Whitaker, District Judge
9 Hector H. Balderas, Attorney General
10 	Santa Fe, NM
11 	Elizabeth A. Ashton, Assistant Attorney General
12 Albuquerque, NM
13 	for Appellee
Patrick J. Martinez & Associates
14 Patrick J. Martinez
15 	Albuquerque, NM
16 for Appellant
17 	MEMORANDUM OPINION
18 	ZAMORA, Chief Judge.
19 	{I} 	TQby Vallejos (Defendant) was convicted of three counts criminal sexual
20 contact (CSC) of a minor in the second degree (child under 13), contrary to NMSA
21 	1978, Section 30-9-13(B) (2003). On appeal, Defendant contends that the district
22 court erred by: ( 1) allowing the State to amend the indictment after Defendant filed
Court of Appeals of New Mexico
Filed 2/12/2019 11:48 AM
Mark Reynolds

1 his notice of alibi defense; (2) quashing the subpoena issued for the victim advocate;.
2 (3) not admitting -his notice of alibi and the motion to amend the grand jury
3 indictment into evidence; ( 4) admitting the Victim's safe house interview under Rule
4 	11-801(D)(l)(b) NMRA; and, (5) denying Defendant's motion for speedy trial. We
5 affirm the district court.
6 BACKGROUND
7 	{2} 	Defendant was charged with four counts of CSC of a minor under thirteen
8 years of age. The victim identified in the indictment was Defendant's niece (Victim).
9 {3} 	When Victim was eleven years old, she first told her cousin and then her
10 mother about Defendant's sexual abuse. Victim's mother testified that Victim told
11 	her that Defendant "used to put his penis in [her] butt and hump [her]." Victim was
12 uncertain throughout the case about what age she was when the abuse occurred. A
13 	pretrial interview with Victim revealed that the dates in the indictment were not
14 accurate. One year before trial, the district court granted the State's motion to amend
15 	the charging dates in the indictment.
16 {4} 	At trial, Victim testified that she and her brother would go over to Defendant's
17 apartment at the Arbors Apartment where Defendant would babysit them. In the
18 	living room of Defendant's apartment, Defendant "would lay [her] down on the side
19 	of the couch and pull down [her] pants, and ... put his private parts in [her] behind
20 area." This occurred three times. Victim testified that these three incidents took place
2

1 within the same month. Defendant lived in two different apartments at the Arbors
2 Apartment throughout the years, and Victim testified that the incidents took place in
3 the first apartment. Victim also testified that Defendant worked maintenance for the
4 apartment complex. The Arbors Apartments' maintenance supervisor testified that
5 Defendant lived in the apartment complex from June 2006 to June 2009 and worked
6 maintenance from November 2006 to June 2009.
7 {5} 	The jury returned a verdict finding Defendant guilty of three counts of CSC
8 of a minor. This appeal followed.
9 {6} 	Because this is a memorandum opinion and the parties are familiar with the
10 facts and procedural history of the case, we reserve further discussion of the pertinent
11 	facts for our analysis.
12 DISCUSSION
13 	I.
14
15 	{7}
The District Court Did Not Err by Granting the State's Motion to Amend
the Grand Jury Indictment.
Defendant contends that the district court erred in granting the State's motion
16 to amend the charging dates in the original indictment (Original Indictment). We set
17 out the relevant facts and procedural history of the amendment.
18 {8} 	When Victim first told her mother about the sexual abuse Victim said she was
19 "like, [four]" at the time of the abuse. On September 13, 2011, Victim took part in a
20 	safe house interview. In this interview, Victim said she thought she was five or six
21 	and in about first or second grade the first time Defendant abused her.
3

1 {9} 	Defendant was indicted on July 17, 2013. The original charging dates in the
2 Original Indictment for the four charges of CSC of a minor were all on or between
3 October 29, 2003 and October 29, 2005. On January 29, 2014, Defendant filed a
4 notice of alibi defense (Notice of Alibi), stating that, Defendant "did not reside [or]
5 work at the Arbors Apartments between [October 29, 2004,] and [October 29, 2005].
6 On May 30, 2014, Victim attended a pretrial interview with defense counsel and the
7 State, in which she stated she was seven or eight when Defendant sexually abused
8 her. Further investigation by the State revealed that Defendant worked and lived at
9 the Arbors Apartments starting in the summer of 2006. As a result of Victim's
10 pretrial interview and its additional investigation, the State moved to amend the
11 	charging period in the indictment to "on or between the 1st day of May, 2006, and
12 the 31st day ofDecember, 2007" for all counts (the Motion to Amend) on November
13 	19, 2014.
14 	{to} 	The 	district court granted the 	State's motion to 	amend the 	grand jury
15 	indictment, stating that the State did not seek to add additional charges or additional
16 victims, but rather to·more accurately reflect the time period within which Victim
17 claimed the abuse occurred. In its order, the district court specified, "[t]he alleged
18 	location where the alleged abuse occurred remains the same; the alleged perpetrator
19 remains the same; the manner in which the alleged abuse occurred remains the same;
20 	and the alleged victim remains the same." The order also provided "[i]f .
4

1 Defendant needs additional time to investigate or address the modified charging
2 dates, the appropriate remedy will be for [the district] court to allow additional time
3 to conduct such an investigation." The trial date was then set for twelve months later.
4 	{11} 	On appeal, Defendant contends that the amendment to the indictment removed
5 Defendant's ability to prepare an alibi defense at trial and thus 	substantially
6 prejudiced Defendant. Because of this, Defendant argues that the district court erred
7 by allowing the amendment to the indictment.
8 {12} 	The Rules of Criminal Procedure provide that:
9 	No variance between those allegations of a complaint, indictment,
10 	information, or any supplemental pleading which state the particulars
11 	of the offense, whether amended· or not, and the evidence offered in
12 	support thereof shall be grounds for the acquittal of the defendant unless
13 	such variance prejudices substantial rights of the defendant. The court
14 	may at any time allow the indictment or information to be amended in
15 	respect to any variance to conform to the evidence. If the court finds
16 	that the defendant has been prejudiced by an amendment, the court may
17 	postpone the trial or grant other relief as may be proper under the
18 	· circumstances.
19 Rule 5-204(C) NMRA. "We review a district court's interpretation and application
20 	of Rule 5-204 ... de novo." State v. Stevens, 2014-NMSC-011,, 49, 323 P.3d 901
21 	(internal quotation marks and citation omitted).
22 	{13} 	"The grand jury indictment is to inform the defendants of the nature of the
23 	charge so that surprise is avoided." Sanchez v. State, 1982-NMSC-012, , ;15, 97
24 N.M. 445, 640 P.2d 1325. "A criminal indictment or information need not contain
25 	exacting detail as long as the defendant is given sufficient notice of the charges."
5

1 State v. Stevens, 2014-NMSC-Oll, ,r 50, 323 P.3d 901; State v. 	Cawley, 1990-
2 NMSC-088, ,r 13, 110 N.M. 705, 799 P.2d 574 (recognizing the right of an accused
3 to be apprised of the charge against him and also recognizing that not all charging
4 documents need to establish the time or date of the offense); State v. Baldonado,
5 1998-NMCA-040, ,r,r 18, 20, 124 N.M. 745, 955 P.2d 214 (recognizing the need to
6 reconcile a defendant's "due process right to reasonable notice of the charges" and
7 the difficulty faced by the state in prosecuting criminal sexual charges committed
8 against children who cannot comprehend and recall dates and other specifics as well
9 as adults but that "[t]he predictable limitations of young witnesses should not be
10 turned into a reason to prevent prosecution of their abusers"); accord Rule 5-
11 	205(A)(l) NMRA ("It shall be unnecessary for a complaint, indictment or an
12 	information to contain the [time of the commission of the offense] unless such
13 	allegations are necessary to give the defendant notice of the crime charged"). "A
14 variance is not fatal unless the accused cannot reasonably anticipate from the
15 	indictment what the nature of the proof against him will be." State v. Marquez, 1998-
16 NMCA-010, ,r 20, 124 N.M. 409, 951 P.2d 1070. A defendant's mere assertion of
17 prejudice from an amendment to the indictment is insufficient to warrant reversal.
18 Id.
19 	{14} 	Defendant's assertion that the district court erred in permitting the State to
20 amend the indictment is not supported by our relevant case law. For instance, in
6

1 Marquez, this Court addressed the district court's grant of a mid-trial motion to
2 amend the indictment. The victim testified that she was nine years old at the date of
3 the incident. Id. 1 18. It was discovered during trial that the charging dates in the
4 indictment were one year off. Id. The district court allowed an amendment to the
5 indictment to conform to the evidence during trial but allowed the defendant the
6 opportunity to request a continuance. Id. 1 19. This Court affirmed the district court,
7 reasoning that the defendant had been aware of the nature of the charges against him,
8 knew the identity of the alleged victim, and was aware of the mistake in th~ date
9 from the beginning of the trial. Id. 1 21.
10 	{15} 	Our Supreme Court addressed a similar issue in Stevens. In Stevens, after the
11 	defense rested, the state moved to amend the charging dates in the indictment, based
12 on the 	victim's trial 	testimony. 	2014-NMSC-011, 	1 9. 	Over the 	defendant's
13 	objection, the district court allowed the amendment. Id. The defendant argued on
14 appeal that she was unfairly prejudiced by the amendment because she had relied on
15 	an alibi defense. Id. 1 53. Our Supreme Court rejected this argument, reasoning in
16 part that the defendant was on notice that the victim could not say precisely when
17 the events occurred because the indictment stated that it occurred "on or about
18 November 12, 2007[,]" and therefore never alleged precise dates. Id. 1 54 (internal
19 	quotation marks omitted). The court also reasoned that the defendant was on notice
20 	of the general time frame of the crimes: the crimes "were alleged to have occurred
7

1 sometime in the fall of2007 when [the d]efe'ndant was going through a divorce" and
2 living in the Aztec area. Id. , 	55. The court held that "[the d]efendant was not
· 3 prejudiced by the amended date description." Id., 57.
4 {16} 	We see no reason to depart from the reasoning in Marquez and Stevens. Here,
5 Defendant was on notice of the nature of the charges in sufficient detail to prepare
6 his defense. He knew the identity of Victim, where the alleged abuse occurred, and
7 the details of the alleged abuse. He knew that the alleged crimes occurred at the
8 Arbors Apartment when he lived there and while he babysat Victim. Like Stevens,
9 the Original Indictment never alleged precise dates because it stated "on or between"
10 the various date ranges. Additionally, Defendant knew Victim could not precisely
11 	say when the abuse occurred and learned about the revised time frame at Victim's
12 pretrial interview, over one year before trial.
13 	{17} 	Furthermore, as contemplated by Rule 5-204(C), the district court allowed
14 Defendant more time to prepare for trial after it approved the amendment, thereby
15 	alleviating any prejudice resulting from the amendment. Accordingly, we hold that
16 the district court did not err in permitting the State to amend the Original Indictment.
17 II. 	The District Court Properly Quashed the Victim Advocate's Subpoena
18 	{18} 	Defendant argues that the State should have provided any recorded notes of
19 the conversation between the prosecutor, the victim advocate, and Victim that took
20 place prior to Victim's pretrial interview, and that Defendant should have been
8

1 permitted to take the prosecutor's and the victim advocate's statements concerning
2 the conversation.
3 {19} 	The pretrial interview of Victim occurred on May 30, 2014, with defense
4 counsel, the prosecutor, the victim advocate, and Victim present. In the interview,
5 defense 	counsel 	asked 	Victim to 	tell 	them 	what Defendant 	did 	and 	Victim
6 responded, "[w]hen I was around the age of seven or eight, around there, right?" The
7 victim advocate replied, "Whatever you think it is." When asked why Victim looked
8 to the victim advocate when she said her age at the time of the abuse, Victim said
9 because they talked about it together before the interview. Defense counsel asked
10 what Victim did with the victim advocate and the prosecutor before the interview.
11 	Victim said that they were writing down what age she was in each grade to determine
12 what age she would have been in second and third grade.
13 	{20} 	Following the interview, Defendant issued and served subpoenas and notices
14 	of statements seeking to interview the victim advocate and the prosecutor and to
15 	compel the production of "any and all statements, including recording and/or notes,
16 not previously disclosed, but made by [Victim] in connection with this case."
17 Defendant 	claimed 	there · was 	a 	"basically 	off-the-record 	conversation 	that
18 	apparently resulted in a wholesale change of testimony by the alleged victim[,]" that
19 "should have happened in the recorded interview" rather than in private. The district
20 court disagreed and quashed Defendant's subpoenas "except as to any documented
9

1 notes that [the victim advocate] prepared." It is undisputed that there were no notes
2 taken by the prosecutor qr the victim advocate documenting the conversation in
3 question.
4 	{21} 	Now, Defendant maintains on appeal that it was error for the district court to
5 deny his request to interview the prosecutor and the victim advocate about the
6 relevant conversation with Victim; however, Defendant's argument focuses solely
7 on the subpoena issued for the victim advocate. Thus, we need only address the
8 argument as it pertains to the victim advocate. Headley v. Morgan Mgmt. Corp.,
9 2005-NMCA-045, 14, 137 N.M. 339, 110 P.3d 1076 (declining to entertain a cursory
10 and inadequately undeveloped argument).
11 	{22} 	"A [district court's] 	denial 	of a defendant's discovery requests will be
12 reviewed according to an abuse of discretion standard." State v. Bobbin, 	1985-
13 	NMCA-089, 1 7, 103 N.M. 375, 707 P.2d 1185. Under New Mexico's criminal
14 procedure rules, parties have an affirmative responsibility to disclose information
15 	without request, including witnesses to testify at trial and their statements. See Rule
16 	5-501(A)(5) NMRA (expl~ining that the state must disclose "any statement made by
17 the witness"), Rule 5-502(A)(3) NMRA (explaining that the defense must disclose
18 the same). A "statement" is defined as "any written, stenographic, mec~anical,
19 electrical or other recording, or a transcription thereof, which is a substantially
20 verbatim recital of an oral declaration and which is recorded contemporaneously
10

1 with the making of the oral declaration." Rule 5-501(G). However, there are limits
2 to this disclosure requirement. Our Supreme Court has held that "opinion work
3 product enjoys nearly absolute immunity[,]" akin to civil discovery rules. State of
4 New Mexico ex rel. Brandenburg v. Blackmer, 2005-NMSC-008, 112, 137 N.M.
5 258, 110 P.3d 66 (internal quotation marks and citation omitted).
6 	{23} 	In Blackmer, the defendant requested disclosure of the victim advocate's notes
7 from the interview between the victim and the victim advocate. Id. 1 5. The New
8 Mexico Supreme Court was faced with the issue of whether the work product
9 doctrine applied in criminal cases and whether the victim advocates constituted a
10 part of the.prosecution team to therefore be protected by the rules of work product.
11 	See id. 12. The Court held that the work product doctrine applies in criminal actions.
12 Id. 118. The Court also held that, because the victim advocates perform many tasks
13 	similar to those of members of the prosecution team, and because the victim ·
14 advocates are employed by and work with the district attorney, the victim advocates
15 	are part of the prosecution team. Id. 1 22. Therefore, the relevant rules of attorney-
16 client confidentiality and State disclosure apply to the victim advocates. Id.
17 	{24} 	In short, Blackmer extended the attorney-client confidentiality protections
18 	afforded to prosecutors to the victim advocates. Id. Defendant does not challenge
19 this. Instead, Defendant argues that the unrecorded and undocumented statements
20 made from Victim were "material evidence that should have been recorded or
11

1 documented." We are not persuaded. Defendant has cited to no relevant authority
2 for this proposition. And, as indicated in Blackmer, undocumented statements, such
3 as those at issue here, do not fall within Rule 5-501 's disclosure requirements. See
4 Rule 5-501(G) (defining "statement" as a writing or other recording); Blackmer,
5 2005-NMSC-008, 124 (noting that "an undocumented statement is not within the
6 definition" of Rule 5-501(G)). Accordingly, we hold that the district court did not
7 abuse its discretion in quashing Defendant's subpoenas issued to the prosecutor and
8 the victim advocate.
9 III.
10
11
12 	{25}
The 	District 	Court Did 	Not 	Abuse 	Its 	Discretion 	by 	Denying 	the
Admission of Defendant's Notice of Alibi and the State's Motion to
Amend into Evidence
At trial, Defendant sought to introduce the Notice of Alibi and the Motion to
13 	Amend in an effort to demonstrate that the State amended the charging dates to
14 overcome 	Defendant's 	alibi 	defense 	and 	to 	challenge 	Victim's 	credibility.
15 	Specifically, Defendant moved to admit the following portion of the State's Motion
16 to Amend as an opposing party's statement, pursuant to Rule 11-801(D)(2)(a), (b):
17
18
19
20
21
22
23
24
25
The original indictment charged [Defendant] with crimes occurring
between October 29, 2003[,] when [Victim] was four years old and
October 29, 2005 [,] when she was six years old. [Victim] said the abuse
occurred in the Arbors Apartments. On January 29, 2014, [Defendant's]
attorneys filed a notice of alibi stating that [Defendant] did not live at
the Arbors Apartments during the charging period but moved there in
2006.
In order to further investigate the alibi defense, the prosecutor spoke to
the witness [Victim] regarding when and where the abuse happened.
12

1
2
3
4
5
6
7
8
9
10
[Victim] was not exactly sure how old she was when the abuse took
place but she recalls that she was no older than 8 years old and was
maybe in the second or third grade. [Victim] stated her cousin . . .,
[Defendant's] granddaughter, was in either kindergarten or first grade
at Bel Air elementary school when the abuse took place. During her
pretrial 	interview, · [Victim] 	reiterated the 	statements made 	to 	the
prosecutor and also 	stated she was 	sure the 	abuse took place 	in
[Defendant's] 	first 	apartment at the 	Arbors. 	Thereafter, 	the 	State
changed the indictment to charge [Defendant] with crimes occurring
between May 1, 2006 and December 31, 2007.
11 	Defendant first argued that the Motion to Amend should be admitted as a statement
12 	by a party opponent under Rule 11-801(D)(2)(a), (b). Defendant also asserted that
13 	the part of the statement discussing the Notice of Alibi and change in the charging
14 period was admissible by judicial notice under Rule 11-201 NMRA. The district
15 	court rejected the argument that it was a statement by a party opponent. The district
16 court took judicial notice of the dates of the Original Indictment and the amended
17 indictment, as well as the change in the charging dates, but did not take judicial
18 notice of the Notice of Alibi, believing it .to be confusing to the jury. Before the jury
19 	left for deliberations, the district court stated:
20
21
22
23
24
25
26
Before we send you in, folks, the [c]ourt recognizes that there was an
indictment filed in this case, July 18th of 2013, with date ranges for
October 29th of 2003, to ·October 29th of 2005. That indictment was
amended on February 19th of2015 to reflect a different date range. The
date ranges were then May 1st, 2006, to December 31st of 2007. You
may or may not accept this notice of fact as conclusive in terms ofyout
deliberation.
27 	{26} 	Now on appeal, Defendant maintains that the district court erred by not
28 	admitting the Motion to Amend as a statement of a party opponent and the Notice of
13
\.

1 Alibi as a judicially noticed fact. 1 We review a district court's admission of evidence
2 for an abuse of discretion. State v. Jaramillo, 2012-NMCA-029,, 17,272 P.3d 682.
3 A court abuses its discretion when it makes an evidentiary ruling that "is clearly
4 against the logic and effect of the facts and circumstances of the case" and "clearly
5 untenable or not justified by reason." State v. Samora, 2016-NMSC-031,, 37, 387
6 P.3d 230 (internal quotation marks and citation omitted).
7 A. 	The District Court Did Not Err in Determining the State's Motion to
8 	Amend is Not a Statement of a Party Opponent
9 	{27} 	Rule 11-801(D)(2)(a) excludes admissions by a party opponent from the
10 hearsay rule provided that "[t]he statement is offered against an opposing party and
11 	. . . was made by the party in an individual or representative capacity[.]" Rule 11-
12 	801(D)(2)(b) likewise exempts statements offered against an opposing party in
13 	which "the party [has] manifested that it adopted or believed [it] to be true.
14 	{28} 	Defendant argues that since the State is a party opponent, the language in the
15 	State's Motion to Amend regarding the original indictment dates, the alibi defense,
16 and amended charging dates should have been admitted. The State responds that
1Defendant also argues the district court erred in failing to instruct the jury
about the judicially noticed facts. As a preliminary matter, we need not reach this
jury instruction argument. Besides his contention, Defendant has not developed his
argument, cited to any legal authority, or directed us to any evidence in the record
to support his contention, and we therefore decline to address the matter further. See
Headley, 2005-NMCA-045,, 15 (declining to entertain a cursory and inadequately
undeveloped argument).
14

1 while the State is a party opponent, Victim is not, and the statements were made by
2 Victim. Because Victim was not a party opponent, nor was she acting as an agent of
3 the State, the State argues, the out-of-court statements in the Motion to Amend
4 should not be admissible pursuant to Rule 11-801(D)(2)(a), (b).
5 	{29} 	We agree with the State. The State's Motion to Amend, containing Victim's
6 statements, does not fall within the hearsay exemption in Rule 11-801(D)(2) because
7 Victim is not a party opponent. See State v. Leyba, 2012-NMSC-037,, 22,289 P.3d
8 	1215 (holding that the victim's diary did not fall into the Rule 11-801(D) party
9 opponent exemption to hearsay because the victim was not a party opponent).
10 Accordingly, we conclude that the district court did not abuse its discretion by
11 	denying Defendant's request to admit the State's Motion to Amend as a statement
12 	of a party opponent.
13 	B.
14
15 	{30}
The District Court Did Not Err by Refusing to Take Judicial Notice of
Defendant's Notice of Alibi
"A court may take judicial notice of adjudicative facts that are not subject to
16 reasonable dispute. Such facts must be matters of common and general knowledge
17 which are well established and authoritatively settled." State v. Erikson K., 2002-
18 NMCA-058, , 	24, 	132 N.M. 258, 46 P.3d 1258 (alteration, omissions, i,ntemal
19 	quotation marks, and citation omitted)); accord Rule 11-201(A). Adjudicative facts
20 are facts "not subject to reasonable dispute[,]" including facts that are capable of
15

1 being "accurately and readily determined from sources whose accuracy cannot
2 reasonably be questioned[.]" Rule l l-20l(B)(2).
3 	{31} 	Defendant argued at trial that the Notice of Alibi was intended to inform the
4 jury that Defendant gave notice to the State that Defendant did not reside at the
5 Arbors Apartments during the dates contained in the Original Indictment. Defendant
6 thus sought judicial notice not just of the fact that he filed a Notice of Alibi but also
7 of the dates of his alibi. As the State argued at trial, Defendant had the burden of
8 proving his alibi, and he could have provided witnesses and testimony about where
9 he lived prior to the charging time at the Arbors Apartments. Defendant cites to· no
10 rule or other legal authority to support his proposition that judicial notice can be used
11 	as a vehicle to substitute pretrial pleadings for the production of an alibi defense.
12 The theory of judicial notice is a way for a court to accept facts "not subject to
13 	reasonable dispute" that "can be accurately and readily determined from sources
14 whose accuracy cannot reasonably be questioned[.]" Rulel 1-201(B)(2). Defendant's
15 Notice of Alibi does not meet the requirements. Cf City of Aztec v. Gurule, 2010-
16 NMSC-006, 19, 147 N.M. 693,228 P.3d 477 (taking judicial notice of a municipal
17 ordinance); State v; 	Yanez, 	1976-NMCA-073, 1 9, 89 N.M. 397, 553 P.2d 252
18 	(taking judicial notice of the fact that morphine is an opium derivative). We therefore
19 affirm the district court's denial of admission of the Notice of Alibi as a judicially
20 noticed fact.
16

1 IV.
2
3 	{32}
The District Court Did Not Abuse Its Discretion by Admitting Victim's
Safe House Interview as a Prior Consistent Statement
One of Defendant's theories at trial was that Victim changed her story about
4 her age at the time of the abuse to defeat Defendant's alibi. Based on Defendant's
5 suggestion that improper influence caused Victim to fabricate her age during the
6 incidents as a result of the alibi notice, the State sought to admit the safe house
7 interview as a prior consistent statement at trial. Over Defendant's objection, the
8 district court admitted the tape as a prior consistent statement.
9 	{33} 	We review evidentiary decisions by the district court for abuse of discretion.
10 State v. Sarracino, 1998-NMSC-022, 120, 125 N.M. 511,964 P.2d 72. Under Rule
11 	11-801 (D )(1 )(b), a prior consistent _statement is not considered hearsay and is
12 admissible to "rebut an express or implied charge that the declarant recently
13 	fabricated it or acted from a recent improper influence or motive in so testifying."
14 The prior consistent statement must have been made before the alleged motive to
15 	fabricate occurred and must be consistent with the statement made in court. State v.
16 	Casaus, 1996-NMCA-031, 118, 121 N.M. 481,913 P.2d 669. To determine whether
17 the testimony at trial is consistent with the prior statement, "the primary inquiry is
18 whether the [prior statement] and trial testimony were substantially similar as to all
19 material facts presented." State v. Salazar, 1997-NMSC-044, 167, 123 N.M. 778,
20 945 P .2d 996. "Our Supreme Court has decided that prior statements which vary
17

1 slightly from testimony at trial are admissible as non-hearsay under Rule 11-
2 801(D)(l)(b)." State v. Nichols, 2006-NMCA-017, 20, 139 N.M. 72, 128 P.3d 500.
3 	{34} 	On appeal, Defendant argues only that the interview contained inconsistent
4 statements concerning the age of Victim at the time of the incidents, and, as such,
5 the interview was not consistent with her testimony and should have been excluded.
6 Victim's safe house interview was substantially similar to her trial testimony. In the
7 safe house interview, Victim said she was in first or second grade; at trial, Victim
8 said she was in second or third grade. In the interview, Victim said the abuse
9 occurred at Defendant's first apartment at Arbors Apartments in the living room on
10 the couch. At trial, Victim testified to the same location of the abuse. She also
11 	remained consistent with who was there, who her abuser was, and the details of the
12 abuse. 	While there are 	some inconsistencies between the 	interview and trial
13 	testimony with respect to Victim's age, Victim maintained that she was not certain
14 	of her age at the time of the abuse, but nevertheless was fairly consistent about her
15 	grade. Under the ·circumstances, we think the prior interview is similar enough to
16 Victim's trial testimony "to pass abuse of discretion muster and thus to be admissible
17 under Rule 11-801(D)(l)(b)." Nichols, 2006-NMCA-017, 125; see id. (hold1ng that
18 	district court did not abuse its discretion in admitting prior statement whe~e there
19 were inconsistencies between the statements and trial testimony regarding the type
18

1 of abuse because court viewed the statements broadly given the defendant's charge
2 of fabrication).
3 V. 	Defendant's Constitutional Right to a Speedy Trial Was Not Violated
4 {35} 	Defendant asserts that the district court erroneously denied Defendant's
5 motion to dismiss for violation of his right to a speedy trial. The Sixth Amendment
6 of the United States Constitution, 	as 	applied to the states by the Fourteenth
7 Amendment, provides that "[i]n all criminal prosecutions, the accused shall enjoy
8 the right to a speedy and public trial[.]" State v. Garza, 2009-NMSC-038, ,-r 10, 146
9 N.M. 499, 212 P.3d 387 (internal quotation marks and citation omitted). The New
10 Mexico Constitution offers similar protection and provides that "[i]n all criminal
11 	prosecutions, the accused shall have the right to ... a speedy public trial." N.M.
12 Const. art. II,§ 14. While we recognize the "societal interest in bringing an accused
13 	to trial[,]" we are tasked with looking closely at each claimed speedy trial violation.
14 	Garza, 2009-NMSC-038, ,-r,-r 12-13. "The heart of the right to a speedy trial is
15 	preventing prejudice to the accused." Id ,-i 12. Thus, there must be more than simply
16 a delay in bringing the case to trial. State_ v. Ochoa, 2017-NMSC-031, ,-r 4, 406 P .3d
17 505.
18 	{36} 	The speedy trial analysis is fluid and "specifically rejects inflexible, lbright-
19 line approaches." Garza, 2009-NMSC-038, ,-r 13. Instead, when reviewing a speedy
20 trial claim, we weigh and balance four factors from Barker v. Wingo, 407 U.S. 514
19

1 (1972): "(1) the length of delay, (2) the reasons for the delay, (3) the defendant's
2 assertion of his right, and (4) the actual prejudice to the defendant that, on balance,
3 determines whether a defendant's right to a speedy trial has been violated." Garza,
4 2009-NMSC-038, 113 (internal quotation marks and citation omitted). This Court
5 defers to the district court's factual findings, but independently reviews the weighing
6 and balancing of the Barker factors de novo to determine whether a defendant's
7 constitutional right to a speedy trial was violated. State v. Spearman, 2012-NMSC-
8 023, 1 19, 283 P.3d 272.
9 A. 	Length of Delay
10 {37} 	"The length of the delay is a two-fold inquiry. Initially, we determine whether
11 	the delay is presumptively prejudicial. If it is presumptively prejudicial, we balance
12 the length of the delay against the remaining three factors to assess whether the
13 	constitution has been violated." State v. Laney, 2003-NMCA-144, 1 11, 134 N.M.
14 648, 81 P.3d 591; see Ochoa, 2017-NMSC-031, 112 (describing the length of delay
15 	as both the threshold question in the speedy trial analysis and one factor to be
16 weighed with the other three Barker factors). 	Whether the length of delay is
17 presumptively prejudicial depends on the complexity of the case. See Spearman,
18 	2012-NMSC-023, 1 21. A one-year delay is presumptively prejudicial in ·simple
19 cases, fifteen months in an intermediate case, and eighteen months in a complex
20 case. Id.
20

1 {38} 	The 	district 	court determined, 	and we 	agree, 	that this 	case 	is 	one 	of
2 intermediate complexity based on the number and type of charges in this case, the
3 number 	of witnesses 	including 	several 	civilian and 	child witnesses, 	and the
4 challenges posed by Defendant's alibi defense. Defendant argues that the case is
5 "not one of complexity," but fails to develop this argument, provide supporting legal
6 authority, or provide any evidence in the record to support his assertion. We
7 therefore reject this argument and defer to the district court's determination that this
8 case is one of intermediate complexity. See State v. Vigil-Giron, 2014-NMCA-069,
9 160, 327 P.3d 1129 ("[A]ppellate courts will not consider an issue if no authority is
10 cited in support of the issue and that, given no cited authority, we assume no such
11 	authority exists."); State v. Fuentes, 2010-NMCA-027, 129, 147 N.M. 761,228 P.3d
12 	1181 (noting that we will "not review unclear or undeveloped arguments [that]
13 	require us to guess at what a part[y's] arguments might be").
14 {39} 	Defendant's right to a speedy trial attached when he was indicted on July 17,
15 	2013. See State v. Moreno, 2010-NMCA-044, 1 10, 148 N.M. 253, 233 P.3d 782
16 (noting that speedy trial right attaches at indictment). The trial docket call was not
17 until February 29, 2016, or approximately thirty-one months later. This exceeds the
18 	fifteen-month threshold articulated in Garza by an additional sixteen months. Thus,
19 this presumptively prejudicial delay triggers further inquiry into the Barker factors.
20 See Garza, 2009-NMSC-038, 121.
21

1 {40} 	Not only is the length of delay the triggering mechanism for further inquiry
2 into the Barker factors, it is also an independent factor to consider in determining
3 whether a speedy trial violation has occurred. See Ochoa, 2017-NMSC-03 l, ,r 12
4 (describing the "length of delay, [as] both the threshold question in the speedy trial
5 analysis and [one] factor to be weighed with the other three Barker factors"); Garza,
6 2009-NMSC-03 8, ,r 23 ( directing courts to consider the length of delay as one of the
7 four factors in the Barker analysis). In weighing the length of the delay, "we consider
8 the extent to which the delay stretches beyond the bare minimum needed to trigger
9 judicial examination of the claim." Spearman, 2012-NMSC-023, ,r 23 	(internal
10 	quotation marks and citation omitted). "[T]he greater the delay the more heavily it
11 	will potentially weigh against the [s]tate." 	Garza, 	2009-NMSC-038, ,r 24. The
12 	sixteen-month delay beyond the triggering date weighs heavily against the State. See
13 	State v. Talamante, 2003-NMCA-135, ,r,r 11, 21, 134 N.M. 539, 80 P.3d 476 (finding
14 	delay of approximately thirty months weighed heavily against the state in an
15 	intermediate to complex case).
16 B. 	Reasons for Delay
17 	{41} 	New Mexico courts have recognized three types of delay that are weighed
18 	differently-deliberate, negligent or administrative, and neutral. See Ochoa, 201 7-
19 NMSC-031, ,r 18. Deliberate or intentional delay will weigh heavily against the
20 State, negligent or administrative delay will weigh against the State, but not heavily,
22

1 and non-negligent, valid delay will not count against either party. See Garza, 2009-
2 NMSC-038, 1125-27.
3 {42} 	The district court identified the following periods of delay: (1) from the date
4 of indictment, July 17, 2013, until the first pre-trial conference set for November 5,
5 2013; (2) from the date of the first pre-trial conference, November 5, 2013, to August
6 12, 2014, the date of a second pre-trial conference; (3) from the date of the second
7 pre-trial conference, August 12, 2014, to the February 3, 2015 docket call; (4) from
8 the February 3, 2015, docket call to the scheduling conference on March 3, 2015;
9 and (5) from the March 3, 2015, scheduling conference to trial on March 14, 2016.
10 Defendant does not address these time frames in his briefing and instead baldly
11 	asserts "that more time should have been weighed against the State." Given the lack
12 	of any developed argument here, we see no reason to depart from the district court's
13 	well-reasoned determinations as to each time period, which we discuss briefly
14 below.
15 	{43} 	The first three periods of delay, or approximately eighteen months, are
16 weighed neutrally, as they were either consented to by Defendant or were a period
17 of normal progression toward trial. See State v. Taylor, 2015-NMCA-012, 111, 343
18 	P.3d 199 (weighing neutrally a period of delay when the case "was progressing in a
19 normal fashion"). However, the fourth period of delay, from the cancelled February
20 3, 2015, docket call to the scheduling conference on March 3, 2015, was due to the
23

1 implementation of a local rule and judge reassignment. This period of approximately
2 one month weighed slightly against the State. See Garza, 2009-NMSC-038,, 26
3 (holding that delay caused by negligent or administrative delay weighs slightly
4 against the State).
5 {44} 	The last period of delay is the approximately twelve-month period from the
6 March 3, 2015, scheduling conference to the March 14, 2016, jury trial date. The
7 delay in setting the matter for trial was due to the congested court docket, but such
8 a delay was not extraordinary or protracted. See State v. 	Valencia, 2010-NMCA-
9 005,, 17, 147 N.M. 432, 224 P.3d 659 ("A more neutral reason such as negligence
10 or administrative delay, including overcrowded dockets, is weighed 'less heavily,'
11 	and the weight to be assigned depends on the length of the delay, such as whether it
12 	is extraordinary or protracted."). In that twelve-month time frame, both parties
13 	continued to work the case towards trial. Taylor, 2015-NMCA-012,, 11. Therefore,
14 this twelve-month period of delay weighed against the State.
15 	{45} 	Based on the foregoing, we hold that for the total thirty-one-month delay,
16 	approximately eighteen months is weighed neutrally, 	as 	the Defendant either
17 consented to the delay or the case was progressing normally towards trial. See
18 Moreno, 	20_10-NMCA-044, 	, 	13 	(concluding 	that 	"the 	case 	proceeded 	with
19 customary promptness and delay cannot be held against either party"). We also hold
20 that the thirteen months of the delay due to the rescheduling of the docket call and
24

1 the trial date weighed against the State as administrative delay. See Garza, 2009-
2 NMSC-038, ,r,r 26, 29 (stating that the administrative delays are weighed against the
3 state and the degree of weight is closely related to the length of the delay).
4 C. 	Assertion of the Right
5 	{46} 	Under the third Barker factor, "we assess the timing of the defendant's
6 assertion and the manner in which the right was asserted." Garza, 2009-NMSC-038,
7 ,r 32. "We accord weight to the frequency and force of the defendant's objections to
8 the delay and analyze the defendant's actions with regard to the delay." Spearman,
9 2012-NMSC-023, ,r 31 (alterations, internal quotation marks, and citation omitted).
10 	{47} 	Defendant made a pro forma assertion of his right to a speedy trial with the
11 	entry of appearance of his counsel on August 13, 2013. Defendant then· consented to
12 the continuance of several pre-trial conferences and did not make another speedy
13 	trial demand until September 1, 2015, over twenty-four months after he was indicted.
14 This demand was followed by his certificate of readiness and his motion to dismiss
15 	on speedy trial grounds, both filed in November 2015.
16 	{48} 	Although Defendant sufficiently asserted his right to a speedy trial, his
17 assertions were not forceful or vigorous such that this factor would weigh heavily in
18 his favor. See State v. Tortolito, 1997-NMCA-128, ,r 17, 124 N.M. 368, 9~0 P.2d
19 	811 	(holding that the third Barker 	factor did not weigh significantly :in the
'
20 defendant's 	favor 	when 	"[he] 	did 	not 	specifically 	invoke 	a 	ruling 	on 	his
25

1 constitutional right to a speedy trial until he moved to dismiss the case almost one
2 year after he was arrested"). Defendant's first assertion was standard pro forma
3 assertions ofhis right. See State v. Urban, 2004-NMSC-007, 116, 135 N.M. 279, 87
4 P.3d 1061 ("[P]ro forma motions are generally afforded relatively little weight in
5 this analysis."). His next two demands were over twenty-four months later and were
6 made after he had consented to several continuances. Accordingly, this factor weighs
7 only slightly in Defendant's favor.
8 D. 	Prejudice
9 	{49} 	Lastly, "[t]he heart of the right to a speedy trial is preventing prejudice to the
10 accused." Garza, 2009-NMSC-038, 1 12. Prejudice to the accused is analyzed in
11 	light 	of three 	interests: 	(1) 	preventing 	oppressive 	pretrial 	incarceration; 	(2)
12 minimizing the anxiety and concern of the accused; and (3) limiting the possibility
13 	that the defense will be impaired. See id. 135. "[G]enerally a defendant must show
14 particularized prejudice of the kind against which the speedy trial right is intended
15 	to protect." Id. 139. We consider whether Defendant "offered some actual evidence
16 in the form of affidavits, testimony, or documentation in support of the allegations"
17 of prejudice in the form of pretrial incarceration, undue anxiety and concern, or
18 	impairment to the defense, which was caused by the delay in bringing the case to
19 trial. See Spearman, 2012-NMSC-023, 139.
26

1 {50} 	Defendant has not met his burden. At the hearing on his speedy trial motion,
2 Defendant argued that he suffered undue anxiety and concern from his conditions of
3 release. But Defendant failed to show that he suffered any undue anxiety or concern
4 beyond what anyone accused of a crime would suffer. See State v. Parrish, 2011-
5 NMCA-033, ,r 33, 149 N.M. 506,252 P.3d 730 (holding that the defendant's alleged
6 prejudice of undue anxiety due to travel restrictions, restrictions on owning a
7 firearm, and concern for his job were "similar to the disruptions that any accused
8 person might suffer and does not demonstrate particularized prejudice"). On appeal,
9 Defendant advances only a vague argument that he suffered prejudice from the
10 "deterioration of testimony" and the loss of his alibi defense due to the length of
11 	delay between the indictment, the date of the pretrial interview, and the amendment.
12 Defendant's generalized statements, without more, do not support a particularized
13 	showing of prejudice. See Ochoa, 2017-NMSC-03 l, ,r 53 ("[M]ere allegations are
14 	insufficient to prove prejudice.").
15 	E. 	Balancing Test
16 	{51} 	Barker instructs us to consider all four factors together along with other
17 relevant circumstances. Barker, 407 U.S. at 533. Although the length of delay
18 	weighs heavily against the State, the reasons for the delay on balance do not weigh
19 	strongly in Defendant's favor. And the assertion of the right weighs only slightly in
20 Defendant's favor. Finally, Defendant has not established particularized prejudice.
27

1 Considering these factors in totality, we conclude that the Barker factors support the
2 district court's denial of Defendant's motion to dismiss on speedy trial grounds.
3 CONCLUSION
4 	{52} 	For the aforementioned reasons, Defendant's convictions are affirmed.
5 {53} 	IT IS SO ORDERED.
6
7
8 WE CONCUR:
9 	~~/17r10 JENI?E 	L.ATTREP, Judge
11 	~~~12 KRISINABOG~,Judge
M. MONICA ZAMO 	·er Judge
28