April 13, 2020- State of New Mexico v. Joshua D. Romero, No. A-1-CA-37592

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IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO	1
STATE OF NEW MEXICO,	2
Plaintiff-Appellee,	3
v. 	No. A-1-CA-37592	4
JOSHUA D. ROMERO,	5
Defendant-Appellant.	6
APPEAL FROM THE DISTRICT COURT OF CURRY COUNTY	7
Fred T. Van Soelen, District Judge	8
Hector H. Balderas, Attorney General	9
Maris Veidemanis, Assistant Attorney General	10
Santa Fe, NM	11
for Appellee	12
Bennett J. Baur, Chief Public Defender	13
Gregory B. Dawkins, Assistant Appellate Defender	14
Santa Fe, NM	15
for Appellant	16
MEMORANDUM OPINION	17
MEDINA, Judge.	18
{1} 	Defendant 	Joshua 	Romero 	appeals 	his 	convictions 	for 	first-degree	19
kidnapping, in violation of NMSA 1978, Section 30-4-1(A) (2003); two counts of	20
felony aggravated battery against a household member, in violation of NMSA 1978,	21
Section 30-3-16(C) (2018); interference with communications, in violation of	22
Court of Appeals of New Mexico
Filed 4/13/2020 10:44 AM

2
NMSA 1978, Section 30-12-1 (1979); misdemeanor aggravated battery against a	1
household member, in violation of Section 30-3-16(B); resisting, evading, or	2
obstructing an officer, in violation of NMSA 1978, Section 30-22-1(B) (1981); and	3
intimidation of a witness, in violation of NMSA 1978, Section 30-24-3(A)(2) (1997).	4
Defendant raises four issues. First, he argues that the evidence was insufficient to	5
support his kidnapping conviction. Second, he claims that his convictions for felony	6
and misdemeanor aggravated battery against a household member violate double	7
jeopardy. Third, he contends his right to a speedy trial was violated. Fourth, he	8
argues that the district court abused its discretion in allowing the State to cross-	9
examine him about his “jail calls.” We affirm.	10
BACKGROUND	11
{2} 	Around 2:00 a.m., Victim awoke to banging on her front door and heard	12
Defendant—her boyfriend at the time—screaming her name. Victim thought	13
Defendant might be hurt so she opened the door, at which point Defendant began	14
punching her in the face and telling her she was going to die. Defendant then	15
demanded Victim’s phone because he “didn’t need anything to . . . interfere with	16
him killing [Victim].” Although she knew her phone was underneath a pillow in her	17
bedroom, she didn’t want Defendant to find her phone because she knew she would	18
need it to call for help. Defendant pushed Victim through the house as Victim	19
pretended to look for her phone. Victim tried to flee from Defendant and ran toward	20

3
the front door. However, just as she had one foot out the door Defendant grabbed	1
Victim by her hair, pulled her back into the house, and slammed her on the floor—	2
knocking the air out of her.	3
{3} 	Defendant got on top of Victim and began hitting and kicking her in the face	4
and ribs, telling her she was going to die and that she “messed up by trying to leave	5
the house.” Defendant then pulled Victim up by her hair and pushed her through her	6
house to her bedroom. Once there, Defendant pushed Victim on her bed and told her	7
she had thirty seconds to get her phone. Defendant pushed Victim back down each	8
time she tried getting off the bed. Unbeknownst to Defendant, Victim reached under	9
her pillow and held down the power button and automatically called 911. While	10
Victim was holding the power button on the phone, Defendant retrieved some pens	11
from the nightstand, and began stabbing Victim in her face.	12
{4} 	Victim was unable to speak with the 911 operator. However the 911 operator	13
returned Victim’s phone call causing it to vibrate. Defendant heard Victim’s phone	14
vibrating, grabbed it and threw it at Victim’s face. Defendant then threw the phone	15
on the floor and “stomped” on it. Defendant then left the room with the phone to	16
hide it and threatened to kill Victim if she tried to leave. As soon as Defendant left	17
the room, Victim tried to run out the back door. However, Defendant grabbed Victim	18
by her hair, pulled her back into the room and told her she could not leave and that	19

4
he was going to kill her. Defendant put Victim on the bed, got on top of her, and	1
began telling her how stupid she was.	2
{5} 	Defendant began choking Victim with his hands, telling her they were “going	3
to play a game” and that “two minutes [without] air would [cause] brain damage and	4
four minutes [without air] would leave [Victim] . . . brain dead.” Victim passed out	5
twice while being choked. After Victim regained consciousness the second time,	6
Defendant threatened Victim that he would kill her the next time he strangled her.	7
Defendant then grabbed a laptop charger cord from the side of her bed and began	8
choking 	her 	with 	the 	cord. 	Victim 	passed 	out 	again. 	When 	she 	regained	9
consciousness, Defendant warned Victim not to tell anyone about the incident and	10
told her to go to sleep. Defendant laid down next to Victim and eventually fell asleep,	11
at which point Victim escaped.	12
DISCUSSION	13
I. 	Sufficiency of the Evidence	14
{6} 	Defendant 	argues 	that 	there 	was 	insufficient 	evidence 	to 	support 	his	15
kidnapping conviction because his restraint of Victim was incidental to the batteries.	16
“The test for sufficiency of the evidence is whether substantial evidence of either a	17
direct or circumstantial nature exists to support a verdict of guilty beyond a	18
reasonable doubt with respect to every element essential to a conviction.” State v.	19
Montoya, 2015-NMSC-010, ¶ 52, 345 P.3d 1056 (internal quotation marks and	20

5
citation omitted). “[S]ubstantial evidence means such relevant evidence as a	1
reasonable mind might accept as adequate to support a conclusion[.]” State v.	2
Salgado, 1999-NMSC-008, ¶ 25, 126 N.M. 691, 974 P.2d 661 (internal quotation	3
marks and citation omitted). We “view the evidence in the light most favorable to	4
the guilty verdict, indulging all reasonable inferences and resolving all conflicts in	5
the evidence in favor of the verdict.” State v. Cunningham, 2000-NMSC-009, ¶ 26,	6
128 N.M. 711, 998 P.2d 176. To determine whether substantial evidence exists, we	7
measure the evidence against the instructions submitted to the jury. State v. Smith,	8
1986-NMCA-089, ¶ 7, 104 N.M. 729, 726 P.2d 883 (“Jury instructions become the	9
law of the case against which the sufficiency of the evidence is to be measured.”).	10
{7} 	We limit our sufficiency review to the element of restraint, as it is the only	11
element of kidnapping challenged on appeal. In State v. Trujillo, this Court held that	12
movement or restraint that is incidental to the commission of a different crime may	13
not also be punished as kidnapping. 2012-NMCA-112, ¶¶ 6-8, 289 P.3d 238.	14
Whether the restraint is incidental presents a fact question that is to be evaluated	15
based on the totality of the circumstances. Id. ¶¶ 42-43.	16
This inquiry includes consideration of [(1)] whether the restraint was	17
longer or greater than necessary to commit the other crime, [(2)]	18
whether the restraint decreased the defendant’s risk of detection or the	19
difficulty associated with committing the crime, and [(3)] whether the	20
restraint increased the risk of harm or the severity of the assault beyond	21
that inherent to the underlying crime.	22

6
State v. Garcia, 2019-NMCA-056, ¶ 19, 450 P.3d 418. The question is “whether the	1
restraint or movement increases the culpability of the defendant over and above his	2
culpability for the other crime.” Trujillo, 2012-NMCA-112, ¶ 38.	3
{8} 	Here, the restraint underlying Defendant’s kidnapping conviction was his	4
initial act of “grabbing [Victim] by the hair and dragging her into the house and/or	5
holding her down on the bed[,]” whereas the conduct underlying Defendant’s three	6
battery convictions were his acts of: (1) choking Victim with his hands, (2) choking	7
Victim with the laptop cord, and (3) punching and kicking Victim. Relying on	8
Trujillo, Defendant claims the restraint underlying his kidnapping conviction was	9
incidental to the batteries because the restraint took place during the commission of	10
the batteries, in the same general location, and did not substantially elevate the risk	11
of harm to Victim. We are not persuaded by Defendant’s reliance on Trujillo for	12
several reasons.	13
{9} 	First, Defendant’s restraint of Victim was “longer or greater than necessary to	14
commit the [battery charges.]” Garcia, 2019-NMCA-056, ¶ 19. Unlike Trujillo,	15
where the incident lasted two to four minutes, 2012-NMCA-112 ¶ 3, Victim testified	16
that Defendant confined her in the house for about an hour—much longer than	17
necessary to commit the batteries. See Garcia, 2019-NMCA-056, ¶ 20 (concluding	18
the victim’s confinement in a shed was “slightly longer than necessary to commit	19

7
the sexual assault, as [the d]efendant took time to close the shed door and utter a	1
menacing statement to [the v]ictim”).	2
{10} 	Second, Defendant’s pulling of Victim back into the house undoubtedly	3
“decreased [his] risk of detection or the difficulty associated with committing the	4
crime,” id. ¶ 19, as it prevented her from escaping and alerting authorities. Cf.	5
Trujillo, 2012-NMCA-112, ¶ 42 (noting that “if the [v]ictim had been restrained and	6
under restraint moved outside his home, we would have a more complicated and	7
closer question”). Lastly, Defendant’s act of pulling Victim back into the house	8
“increased the risk of harm or the severity of the assault beyond that inherent to the	9
[battery charges.]” Garcia, 2019-NMCA-056, ¶ 19. When Victim first tried to	10
escape, Defendant pulled her back into the house by her hair and slammed her on	11
the floor with such force it knocked the air out of her. Unlike the “momentary grab	12
in the middle of a fight” which did not appear to otherwise harm the victim in	13
Trujillo, Defendant’s attack went well beyond that inherent in the subsequent	14
batteries. Cf. 2012-NMCA-112, ¶¶ 3, 6, 39 (concluding that the “brief restraint . . .	15
was not an effort to increase the harm to [the v]ictim”).	16
{11} 	Given the foregoing, we conclude Defendant’s conduct underlying his	17
kidnapping conviction increased his culpability “over and above his culpability for	18
the [battery charges].” Id. ¶ 38; see Garcia, 2019-NMCA-056, ¶ 23 (noting that	19
“[t]his case, unlike Trujillo . . . , presents a more nuanced set of facts in which [the	20

8
d]efendant not only restrained [the v]ictim during the sexual assault, but also	1
thwarted her attempt to escape” and concluding that “there is sufficient evidence of	2
restraint and confinement, independent from the restraint used during the sexual	3
assault, to support [the d]efendant’s kidnapping conviction” (emphasis added)).	4
{12} 	Finally, to the extent Defendant points out, the crimes all occurred in Victim’s	5
house, this fact, alone, is not dispositive. See Trujillo, 2012-NMCA-112, ¶ 43	6
(“[W]hether the restraint or movement is incidental depends on the facts of each	7
case, in light of the totality of surrounding circumstances. This characterization is as	8
much a consideration of the relation between the restraint and the other crime as it	9
is a measure of the precise distance moved or place held.” (alteration, internal	10
quotation marks, and citation omitted)). In light of the totality of the surrounding	11
circumstances, we conclude sufficient evidence supported Defendant’s kidnapping	12
conviction.	13
II. 	Double Jeopardy	14
{13} 	Defendant claims his convictions for misdemeanor battery and two counts of	15
aggravated battery against a household member violate double jeopardy. We	16
disagree. Double jeopardy protects against multiple punishments for the same	17
offense. Swafford v. State, 1991-NMSC-043, ¶¶ 7-8, 112 N.M. 3, 810 P.2d 1223.	18
Appellate courts “generally review double jeopardy claims de novo.” State v.	19
Rodriguez, 2006-NMSC-018, ¶ 3, 139 N.M. 450, 134 P.3d 737. “However, where	20

9
factual issues are intertwined with the double jeopardy analysis, we review the	1
[district] 	court’s 	fact 	determinations 	under 	a 	deferential 	substantial 	evidence	2
standard of review.” Id.	3
{14} 	“Multiple punishment problems can arise from both ‘double-description’	4
claims, in which a single act results in multiple charges under different criminal	5
statutes, and ‘unit-of-prosecution’ claims, in which an individual is convicted of	6
multiple violations of the same criminal statute.” State v. Bernal, 2006-NMSC-050,	7
¶ 7, 140 N.M. 644, 146 P.3d 289. Regardless of how we characterize Defendant’s	8
double jeopardy challenge—which involves two felony convictions under Section	9
30-3-16(C) 	and 	one 	misdemeanor 	conviction 	under 	Section 	30-3-16(B)—the	10
outcome turns on whether Defendant’s conduct underlying both offenses is unitary	11
and requires us to conduct “a substantially similar analysis” under the double-	12
description and unit-of-prosecution inquiries. Bernal, 2006-NMSC-050, ¶ 16 (noting	13
that double-description cases have adopted Herron v. State, 1991-NMSC-012, 111	14
N.M. 357, 805 P.2d 624, factors from the unit-of-prosecution cases for purposes of	15
determining whether a defendant’s conduct was unitary).	16
{15} 	“In each case, we attempt to determine, based upon the specific facts of each	17
case, whether a defendant’s activity is better characterized as one unitary act, or	18
multiple, distinct acts, consistent with legislative intent.” Bernal, 2006-NMSC-050,	19
¶ 16. “Conduct is non-unitary if sufficient indicia of distinctness separate the illegal	20

10
acts.” State v. Armendariz, 2006-NMCA-152, ¶ 7, 140 N.M. 712, 148 P.3d 798	1
(internal quotation marks and citation omitted). In conducting our analysis, we look	2
to factors adopted by our Supreme Court in Herron, 1991-NMSC-012, ¶ 15. In	3
particular, we examine the “(1) temporal proximity of the acts; (2) location of the	4
victim during each act; (3) existence of an intervening act; (4) sequencing of the acts;	5
(5) the defendant’s intent as evidenced by his conduct and utterances; and (6) the	6
number of victims.” State v. Garcia, 2009-NMCA-107, ¶ 10, 147 N.M. 150, 217	7
P.3d 1048 (citing Herron, 1991-NMSC-012, ¶ 15).	8
{16} 	Defendant was convicted of one count of felony aggravated battery against a	9
household member for choking Victim with his hands and another count for choking	10
Victim with the laptop cord. Defendant was convicted of misdemeanor aggravated	11
battery against a household member for “punching and/or kicking [Victim].”	12
Defendant argues there was insufficient indicia of distinctness separating the battery	13
convictions because the batteries “occurred at the same time, to achieve the same	14
result, and in the same place.” We disagree.	15
{17} 	First, in regard to Defendant’s misdemeanor conviction, Victim testified that	16
Defendant began punching her in the face as soon as she opened the front door. He	17
also hit and kicked Victim in her face and ribs after she first tried to escape. Both of	18
these acts occurred at the beginning of the approximately one-hour long attack and	19
before Defendant pushed Victim to her bedroom. Further separating this conduct	20

11
from the conduct underlying the felony battery convictions was, among other things,	1
Defendant’s acts of: stabbing Victim with the pens, hitting Victim with the phone,	2
and hiding the phone in another room. These intervening acts, coupled with the	3
change in location and separation of time, constitute sufficient indicia of distinctness	4
separating Defendant’s misdemeanor conviction from his felony convictions. Cf.	5
State v. Wilson, 1993-NMCA-074, ¶ 9, 117 N.M. 11, 868 P.2d 656 (holding that the	6
defendant’s acts of forcing the victim to engage in fellatio were separate and distinct	7
because the defendant moved the victim to another room and an intervening event	8
took place between the two acts).	9
{18} 	Turning to Defendant’s felony convictions, Victim testified Defendant first	10
choked her with his hands, telling her they were “going to play a game” where	11
Defendant would choke Victim in an attempt to cause her brain damage. Defendant	12
caused Victim to pass out twice. When Victim regained consciousness the second	13
time, Defendant told her he would let her change clothes and fix her hair and makeup	14
so she would look “half-way decent” when they found her body because he was	15
going to kill her the next time he choked her. When Victim declined to do so and	16
begged for her life, Defendant told Victim he was going to put her in his trunk and	17
bury her where no one would find her. He also told Victim he would not make the	18
mistake of leaving any witnesses, and that if he was going to go back to prison, it	19
would be for murder, not domestic violence. It was not until after making these	20

12
threats that Defendant got the laptop cord from the side of the bed and strangled	1
Victim with it.	2
{19} 	Although the strangulations took place in the same location, no single factor	3
is determinative. See Herron, 1991-NMSC-012, ¶ 15 (stating, in relevant part, that	4
“none of these factors alone is a panacea”). Defendant’s threats and act of retrieving	5
and using another object to perpetrate the choking constituted intervening acts, as	6
well as evidence of Defendant’s change in intent to kill Victim with the cord (as	7
opposed to his earlier intent to cause brain damage with his hands). And while it is	8
unclear how much time passed between the strangulations, there was at least enough	9
time for Defendant to make his threats and retrieve the laptop cord. In light of the	10
forgoing, 	sufficient 	indicia 	of 	distinctness 	separated 	the 	conduct 	underlying	11
Defendant’s two felony convictions.	12
{20} 	We are not persuaded by Defendant’s reliance on Garcia, or State v. Mares,	13
1991-NMCA-052, 112 N .M. 193, 812 P.2d 1341. Garcia, involved a fight between	14
two inmates in the same cell and the batteries occurred close in time and without	15
intervening events or the use of a different weapon. See 2009-NMCA-107, ¶¶ 2-4,	16
13-15. In the present, as discussed above, Defendant’s batteries of Victim were	17
separated from each other by intervening acts, time, space, and/or an evidence of	18
change in intent. And unlike Mares, where this Court perceived no distinct break in	19
the battery upon the victim and no qualitative difference between the defendant’s	20

13
acts of force given the victim’s vague testimony, Victim’s testimony was sufficiently	1
detailed to demonstrate the existence of sufficient indicia of distinctness underlying	2
each of the batteries. See 1991-NMCA-052, ¶¶ 2-4, 26-27. Consequently, we	3
conclude Defendant’s convictions for misdemeanor and aggravated battery against	4
a household member do not violate double jeopardy. See Armendariz, 2006-NMCA-	5
152, ¶ 6 (“If the conduct is non-unitary, multiple punishments do not violate the	6
Double Jeopardy Clause, and our analysis ends.”).	7
III. 	Speedy Trial	8
{21} 	Defendant contends his constitutional right to a speedy trial was violated.	9
“The right of the accused to a speedy trial is guaranteed by both the Sixth	10
Amendment of the United States Constitution and Article II, Section 14 of the New	11
Mexico Constitution.” State v. Spearman, 2012-NMSC-023, ¶ 16, 283 P.3d 272.	12
When determining whether a defendant has been deprived of the right to a speedy	13
trial, we examine the four factors identified in Barker v. Wingo, 407 U.S. 514, 530	14
(1972): “(1) the length of delay in bringing the case to trial, (2) the reasons for the	15
delay, (3) the defendant’s assertion of the right to a speedy trial, and (4) the prejudice	16
to the defendant caused by the delay.” State v. Serros, 2016-NMSC-008, ¶ 5, 366	17
P.3d 1121. “In analyzing these factors, we defer to the district court’s factual	18
findings concerning each factor as long as they are supported by substantial	19
evidence, we independently review the record to determine whether a defendant was	20

14
denied his speedy trial right, and we weigh and balance the Barker factors de novo.”	1
State v. Montoya, 2015-NMCA-056, ¶ 12, 348 P.3d 1057.	2
{22} 	“The first factor, the length of delay, has a dual function: it acts as a triggering	3
mechanism for considering the four Barker factors if the delay crosses the threshold	4
of being presumptively prejudicial, and it is an independent factor to consider in	5
evaluating whether a speedy trial violation has occurred.” Serros, 2016-NMSC-008,	6
¶ 22 (internal quotation marks and citation omitted). Our Supreme Court has	7
established 	benchmarks 	for presumptively prejudicial 	delay 	according 	to 	the	8
complexity of a case: twelve months for a simple case, fifteen months for a case of	9
intermediate complexity, and eighteen months for a complex case. State v. Garza,	10
2009-NMSC-038, ¶¶ 47-48, 146 N.M. 499, 212 P.3d 387. The weight we assign this	11
factor varies with the length of the delay: “[a]s the delay lengthens, it weighs	12
increasingly in favor of the accused.” State v. Ochoa, 2017-NMSC-031, ¶ 14, 406	13
P.3d 505.	14
{23} 	Defendant’s speedy trial right attached when he was arrested on July 16, 2016.	15
See State v. Fierro, 2014-NMCA-004, ¶ 8, 315 P.3d 319 (“The speedy trial right	16
attaches when the defendant becomes an accused, that is, by a filing of a formal	17
indictment or information or arrest and holding to answer.” (internal quotation marks	18
and 	citation 	omitted)). 	Defendant’s 	jury 	trial 	began 	on 	April 	27, 	2018—	19
approximately twenty-one months after he was arrested.	20

15
{24} 	The parties agree that this was a simple case, and the district court accepted	1
this concession despite noting it was more “involved” because it required “a lot” of	2
witnesses. Given the State’s concession, and given that the determination of the	3
case’s complexity (i.e., simple versus intermediate) does not change the outcome,	4
we accept the State’s concession that this is a simple case. See State v. White, 1994-	5
NMCA-084, ¶ 2, 118 N.M. 225, 880 P.2d 322 (accepting parties’ contention that the	6
case was simple). Accordingly, the twenty-one month delay in this simple case	7
triggers a consideration of the four Barker factors. See Garza, 2009-NMSC-038,	8
¶ 48.	9
{25} 	The district court did not make any findings in terms of the weight given to	10
the length of delay. Defendant argues the length of delay should weigh “somewhat	11
heavily” against the State, because the delay exceeded the presumptive prejudicial	12
delay by nine months. Defendant relies on Zurla v. State, in which our Supreme	13
Court found a total delay of seventeen months in a simple case involving a single	14
count of misdemeanor shoplifting weighed “somewhat heavily” against the state.	15
1990-NMSC-011, ¶¶ 1, 11, 109 N.M. 640, 789 P.2d 588, holding modified on other	16
grounds by Garza, 2009-NMSC-038, ¶¶ 16, 22. The present case, however, involved	17
seven felony and misdemeanor counts and “a lot” of witnesses, thus requiring	18
significantly more time to prepare for trial. We are therefore unpersuaded that the	19
delay in Defendant’s case should weigh “somewhat heavily” against the State.	20

16
{26} 	The State, on the other hand, argues that the length of delay should only weigh	1
slightly against the State. The State relies on State v. Montoya, in which this Court	2
found the total length of delay of twenty-one months “was not so long or protracted	3
as to weigh more than slightly against the [s]tate.” 2011-NMCA-074, ¶ 17, 150 N.M.	4
415, 259 P.3d 820. However, the length of delay in Montoya was only six months	5
beyond the presumptive period for an intermediate case, id. ¶¶ 16-17, whereas the	6
length of delay in this case was nine months past the presumptive period for a simple	7
case. We conclude the length of delay should weigh moderately against the State.	8
See State v. Suskiewich, 2016-NMCA-004, ¶ 8, 363 P.3d 1247 (weighing nine-month	9
delay beyond the presumptive period moderately against the state). Compare	10
Montoya, 	2011-NMCA-074, 	¶ 	17 	(weighing 	six-month 	delay 	beyond 	the	11
presumptive period moderately to slightly against the state), with Montoya, 2015-	12
NMCA-056, ¶ 15, (weighing twelve-month delay beyond the presumptive period	13
“moderately to heavily” against the state).	14
{27} 	Although we typically analyze the prejudice factor last, we turn to this factor	15
next because it is dispositive. The final Barker factor is “[t]he heart of the speedy	16
trial right” State v. Lujan, 2015-NMCA-032, ¶ 20, 345 P.3d 1103 (internal quotation	17
marks and citation omitted), and requires us to look at the prejudice suffered by the	18
defendant as a result of the delay. See Ochoa, 2017-NMSC-031, ¶ 48. This analysis	19
focuses on three main interests sought to be protected by the speedy trial right: “[(1)]	20

17
preventing oppressive pretrial incarceration, [(2)] minimizing anxiety and concern	1
of the accused, and [(3)] limiting the possibility that the defense will be impaired.”	2
Id.	3
{28} 	“As to the first two types of prejudice, some degree of oppression and anxiety	4
is inherent for every defendant who is jailed while awaiting trial. Therefore we weigh	5
this factor in the defendant’s favor only where the pretrial incarceration or the	6
anxiety suffered is undue.” Garza, 2009-NMSC-038, ¶ 35 (alterations, internal	7
quotation marks, and citation omitted). “The third type of prejudice is the most	8
serious.” Id. ¶ 36 (internal quotation marks and citation omitted). Generally, it is a	9
defendant’s burden to “make a particularized showing of prejudice to demonstrate a	10
violation of any of the three interests.” State v. Samora, 2016-NMSC-031, ¶ 21, 387	11
P.3d 230.	12
{29} 	Regarding the first two types of prejudice, it is undisputed Defendant spent	13
the entire period incarcerated. Defendant claims he “lost valuable time with his	14
daughters” and “further lost relationships with family and friends, his job, home[,]	15
and all of his personal belongings.” Defendant, however, fails to support these	16
assertions with any evidence in the record. Although we may presume some	17
prejudice from Defendant’s incarceration, 	see 	Ochoa, 2017-NMSC-031, ¶ 57	18
(presuming some prejudice by reason only of the defendant’s two-year, continuous	19
incarceration), “absent affirmative proof, we can only speculate as to the specific	20

18
circumstances of his incarceration,” and “[i]n the absence of such proof, this factor	1
does not tip the scale in [the d]efendant’s favor.” Id. ¶¶ 60, 64. As to the third type	2
of prejudice, Defendant concedes that his defense was “not appreciably impaired by	3
the 	delay.” 	Consequently, 	Defendant 	fails 	to 	demonstrate 	any 	particularized	4
prejudice that he suffered as a result of the delay in this case. See Suskiewich, 2016-	5
NMCA-004, ¶¶ 2, 30 (determining that the defendant failed to make a particularized	6
showing of prejudice despite being incarcerated for more than twenty-four months	7
before trial).	8
{30} 	As Defendant fails to show actual prejudice, the three other Barker factors	9
must weigh heavily against the State in order to establish a speedy trial violation.	10
See Samora, 2016-NMSC-031, ¶ 23 (“To find a speedy trial violation without a	11
showing of actual prejudice, the Court must find that the three other Barker factors	12
weigh heavily against the [s]tate.”). Given that the first Barker factor—the length of	13
the delay—does not weigh more than moderately against the State, we need not	14
consider the remaining Barker factors. We, therefore, conclude that Defendant’s	15
right to a speedy trial was not violated and affirm the district court’s denial of	16
Defendant’s speedy trial motion.	17
IV. 	Evidence of Defendant’s Calls From Jail	18
{31} 	Defendant’s final argument concerns the State’s questioning of Defendant at	19
trial about calls he made to Victim from jail. Specifically, Defendant contends the	20

19
district court abused its discretion in allowing the State to question Defendant about	1
the content of his conversations with Victim because it violated the parties’ pretrial	2
agreement. See State v. Dickert, 2012-NMCA-004, ¶ 44, 268 P.3d 515 (“We review	3
claims that a trial court erred in admitting evidence for abuse of discretion.” (internal	4
quotation 	marks 	and 	citation 	omitted)). 	For 	reasons 	we 	explain, 	we 	reject	5
Defendant’s argument.	6
{32} 	Prior to trial, the parties agreed that the State would not seek to introduce the	7
contents of telephone calls made between Defendant and Victim while Defendant	8
was in jail. When Defendant took the stand, the State asked him, “How many times	9
have you attempted to contact [Victim] over the last couple of years and tried to tell	10
her to not testify?” Defense counsel objected to the question before Defendant could	11
answer on the basis that Defendant’s jail calls were overly prejudicial, and the State’s	12
question violated the pre-trial agreement. The district court told the State to get a yes	13
or no answer to its question and move on. The State then asked Defendant, “Have	14
you made any attempts or anybody that you know made any attempts to contact	15
[Victim] since this incident?” When Defendant admitted he had called Victim, the	16
State asked how many times, to which Defendant replied “four or five times.” The	17
State then moved on to another subject.	18
{33} 	Having considered Defendant’s claim in light of the record, we fail to see how	19
the State’s questioning was improper. The State never mentioned any jail calls or	20

20
their content. Moreover, aside from arguing that his conviction for intimidation of a	1
witness should be reversed because “[t]his evidence was the only evidence that could	2
have given rise to the [conviction,]” Defendant fails to explain how it constituted	3
reversible error. See State v. Jett, 1991-NMSC-011, ¶ 8, 111 N.M. 309, 805 P.2d 78	4
(“An evidentiary ruling within the discretion of the court will constitute reversible	5
error only upon a showing of an abuse of discretion, and a demonstration that the	6
error was prejudicial rather than harmless[.]” (citations omitted)). Contrary to	7
Defendant’s assertion, this was not the only evidence supporting the charge of	8
intimidation of a witness: Victim testified that when she regained consciousness	9
after being choked with the laptop cord, Defendant told her that “it wouldn’t be good	10
for [her]” if she tried to tell anyone about the incident, and Defendant “would make	11
sure [Victim] never felt safe again” if he went to jail. Therefore, we decline to	12
address Defendant’s argument any further. See Dickert, 2012-NMCA-004, ¶ 46	13
(declining to address the defendant’s argument that the district court erred in	14
admitting certain photographic evidence at trial when the defendant failed to identify	15
the remedy he sought and made no attempt to prove that the admission prejudiced	16
him or constituted reversible error).	17
CONCLUSION	18
{34} 	For the foregoing reasons, we affirm.	19

21
{35} 	IT IS SO ORDERED.	1
______________________________	2
JACQUELINE R. MEDINA, Judge	3
WE CONCUR:	4
___________________________	5
LINDA M. VANZI, Judge	6
___________________________	7
BRIANA H. ZAMORA, Judge	8