February 11, 2021- State of New Mexico v. Daniel Prieto-Lozoya, No. A-1-CA-35715

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IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO	1
Opinion Number: _______________	2
Filing Date: February 11, 2021	3
No. A-1-CA-35715	4
STATE OF NEW MEXICO,	5
Plaintiff-Appellee,	6
v.	7
DANIEL PRIETO-LOZOYA,	8
Defendant-Appellant.	9
APPEAL FROM THE DISTRICT COURT OF SAN JUAN COUNTY	10
John A. Dean, Jr., District Judge	11
Hector H. Balderas, Attorney General	12
Santa Fe, NM	13
John Kloss, Assistant Attorney General	14
Laurie P. Blevins, Assistant Attorney General	15
Albuquerque, NM	16
for Appellee	17
Bennett J. Baur, Chief Public Defender	18
Allison H. Jaramillo, Assistant Appellate Defender	19
Santa Fe, NM	20
for Appellant	21
Court of Appeals of New Mexico
Filed 2/11/2021 10:19 AM

OPINION	1
ATTREP, Judge.	2
{1} 	The State charged Defendant Daniel Prieto-Lozoya with identity theft for	3
using another’s personal identifying information on documents Defendant submitted	4
to his employer during the hiring process. Among these documents was a federal	5
Employment Eligibility Verification Form (hereinafter I-9), in which the federal	6
government requires employers to verify that an employee may lawfully work in the	7
United States. In this appeal, we examine whether the Immigration Reform and	8
Control Act of 1986 (IRCA), Pub. L. No. 99-603, 100 Stat. 3359 (codified as	9
amended in scattered sections of 8 U.S.C.), preempts Defendant’s conviction for	10
identity theft under these circumstances. We conclude that the State’s use of the I-9	11
at Defendant’s trial was expressly preempted by IRCA. Because Defendant’s	12
conviction may well have been predicated on the I-9, as opposed to another	13
document relied on by the State, we reverse and remand for a new trial. We conclude	14
that Defendant’s other claims of error are without merit.	15
BACKGROUND	16
{2} 	At trial, the State presented evidence that in March 2012 Defendant applied	17
for a job in Farmington, New Mexico, with a company called Hurricane Air and	18
Swabbing Services (Hurricane). Defendant, who apparently was not authorized to	19

2
be in the United States at the time, did not apply for the job in his own name; instead,	1
Defendant used the identity of someone else, Ulysses Tafoya.	2
{3} 	Cesar Polanco, the person responsible for hiring at Hurricane during the	3
relevant time, identified Defendant at trial and testified that Defendant submitted	4
documentation to him as part of the hiring process. In particular, Defendant	5
submitted: a social security card bearing Tafoya’s name and social security number;	6
a permanent resident card bearing Tafoya’s name and date of birth, but with	7
Defendant’s image; a W-4 (a federal tax-withholding form), bearing Tafoya’s name	8
and social security number; an I-9 bearing Tafoya’s name, social security number,	9
and date of birth; and an employee signature card, signed in Tafoya’s name. During	10
Defendant’s employment with Hurricane, a number of paychecks were issued in	11
Tafoya’s name and cashed, but no witness could establish who cashed the checks.	12
{4} 	Tafoya also testified, explaining that, at some point, he was contacted by the	13
Internal Revenue Service (IRS) and informed that he owed taxes on his ostensible	14
earnings from work in Farmington. Tafoya, who was a lifelong resident of El Paso,	15
Texas, had never visited Farmington, let alone worked there. After speaking with	16
the IRS, Tafoya filed a police report in El Paso claiming that his identity had been	17
stolen. Tafoya also called Hurricane to inform the company that somebody was	18
using his name and social security number to work there. Tafoya additionally	19

3
testified that he did not authorize Defendant to use his personal identifying	1
information.	2
{5} 	Defendant was tried for one count of identity theft, in violation of NMSA	3
1978, Section 30-16-24.1 (2009); one count of altered, forged, or fictitious license,	4
in violation of NMSA 1978, Section 66-5-18(C) (2004); and eight counts of forgery,	5
in violation of NMSA 1978, Section 30-16-10(A) (2006). One of the forgery counts	6
alleged Defendant forged Tafoya’s signature on the W-4. The remaining forgery	7
counts alleged Defendant forged Tafoya’s signature on several paychecks issued in	8
Tafoya’s name. After the district court dismissed the count pertaining to the license,	9
the jury acquitted Defendant of all the forgery charges but convicted him of identity	10
theft. We reserve further discussion of the facts for our analysis.	11
DISCUSSION	12
{6} 	Defendant makes numerous arguments on appeal, asserting: (1) his conviction	13
for identity theft is preempted by IRCA; (2) insufficient evidence supports his	14
conviction; (3) his right to a speedy trial was violated; (4) he received ineffective	15
assistance of counsel; and (5) the district court abused its discretion in admitting a	16
particular exhibit. We first conclude that Defendant’s conviction for identity theft is	17
expressly preempted by IRCA and, thus, reverse his conviction on this basis.	18
Because 	we 	conclude 	that 	sufficient 	evidence 	exists 	to 	sustain 	Defendant’s	19
conviction, we remand for retrial. We additionally examine Defendant’s speedy trial	20

4
claim because, if successful, it would afford Defendant greater relief; but we affirm	1
the district court’s denial of Defendant’s speedy trial motion. We do not reach	2
Defendant’s remaining contentions because they do not affect our disposition of this	3
appeal.	4
I. 	Preemption	5
{7} 	Defendant’s core contention on appeal is that his conviction for identity theft	6
is preempted by federal law. In particular, he argues that the State’s use of the I-9 is	7
expressly preempted by IRCA. He further argues that his conviction for identity	8
theft, involving alleged misfeasance during the hiring process by a person not	9
authorized to be in this country, is a matter of federal policy and enforcement and is	10
impliedly preempted by IRCA. We first examine the appropriate standard of review	11
for Defendant’s preemption claim because Defendant did not raise this issue below.	12
We then examine federal preemption principles and IRCA and, with these in mind,	13
evaluate Defendant’s preemption arguments. We conclude that IRCA expressly	14
preempts Defendant’s conviction to the extent it was based on the I-9. Because we	15
cannot discern whether the jury relied on this preempted basis or some other, non-	16
preempted basis, we conclude fundamental error has resulted and we reverse	17
Defendant’s conviction. Finally, we conclude that Defendant’s implied preemption	18
argument is foreclosed by the United States Supreme Court’s decision in Kansas v.	19

5
Garcia (Garcia II), ___ U.S. ___, 140 S. Ct. 791 (2020), the Court’s most recent	1
examination of IRCA’s preemptive effect.1
2
A. 	Preservation and Standard of Review	3
{8} 	Defendant acknowledges that he did not raise his preemption challenge in	4
district court. He nevertheless assumes federal preemption is a jurisdictional issue	5
that may be raised at any time, and the State agrees with this assumption. See Rule	6
12-321(B)(1) NMRA (“Subject matter jurisdiction of the trial or appellate court may	7
be raised at any time.”). Neither party, however, cites any authority for the	8
proposition that a state court loses jurisdiction when a federal law preempts the	9
application of a state criminal law. And in New Mexico, our Supreme Court has	10
indicated that the question is not as clear as the parties assume. See, e.g., Gonzales	11
v. Surgidev Corp., 1995-NMSC-036, ¶¶ 10-17, 120 N.M. 133, 899 P.2d 576	12
(discussing, 	in 	a 	civil 	context, 	the 	difference 	between 	“choice-of-forum	13
preemption,” which deprives a state court of subject matter jurisdiction, and “choice-	14
of-law preemption,” which does not); cf. State v. Orosco, 1992-NMSC-006, ¶ 7, 113	15
1Defendant relied heavily on State v. Garcia (Garcia I), 401 P.3d 588 (Kan.
2017), rev’d and remanded by Garcia II, 140 S. Ct. 791, in support of his contentions
that his identity theft conviction is both expressly and impliedly preempted. Because
Garcia I 	was pending before the United States Supreme Court at the time
Defendant’s appeal was submitted and Garcia I raised preemption issues similar to
those advanced by Defendant, we stayed this matter. Upon issuance of the Supreme
Court’s decision in Garcia II, we ordered supplemental briefing from the parties to
update their arguments in light of Garcia II. We have duly considered Garcia II and
the parties’ supplemental briefing in our resolution of this appeal.

6
N.M. 780, 833 P.2d 1146 (“[T]he term ‘jurisdictional error’ should be confined to	1
instances in which the court was not competent to act and . . . it is inappropriate to	2
equate jurisdictional error with other instances in which an error may be raised for	3
the first time on appeal.”). In the absence of briefing from the parties on this matter,	4
we decline to decide this question today. See, e.g., Elane Photography, LLC v.	5
Willock, 2013-NMSC-040, ¶ 70, 309 P.3d 53 (stating that “[i]t is of no benefit either	6
to the parties or to future litigants for [a c]ourt to promulgate case law based on [its]	7
own speculation rather than the parties’ carefully considered arguments”).	8
{9} 	We instead exercise our discretion to review Defendant’s preemption claim	9
for fundamental error. See Rule 12-321(B)(2)(c) (providing that an appellate court,	10
in its discretion, may consider issues of fundamental error for the first time on	11
appeal); 	State 	v. 	Samora, 	2013-NMSC-038, 	¶ 	5, 	307 	P.3d 	328 	(reviewing	12
unpreserved constitutional claim for fundamental error); see also Corcoran v.	13
Sullivan, 112 F.3d 836, 837 (7th Cir. 1997) (“Any claim of federal preemption of a	14
state statute is a federal constitutional claim because the basis of such preemption is	15
the supremacy clause[.]”); Fuentes-Espinoza v. People, 2017 CO 98, ¶ 19, 408 P.3d	16
445 (exercising discretion to review an unpreserved preemption claim where “doing	17
so would best serve the goals of efficiency and judicial economy”).	18

7
B. 	Preemption Principles	1
{10} 	The Supremacy Clause of the United States Constitution provides that the	2
United States Constitution, federal statutes, and treaties are “the supreme Law of the	3
Land.” U.S. Const. art. VI, cl. 2; see also Garcia II, 140 S. Ct. at 801. This clause	4
grants Congress the power to preempt the application or exercise of state law in	5
particular areas and under particular circumstances. See Arizona v. United States,	6
567 U.S. 387, 399 (2012). Congress may do so expressly or impliedly. Id. Express	7
preemption occurs when Congress “withdraw[s] specified powers from the [s]tates	8
by enacting a statute containing an express preemption provision.” Id. Implied	9
preemption may take one of two forms: field preemption, when federal interests,	10
regulation, or activity occupy an entire field, leaving no room for states to act; or	11
conflict preemption, when a state law conflicts with a federal law. See id. A state	12
law not appearing on its face to be preempted may in fact be preempted as applied	13
to a particular situation. See United States v. Supreme Court of N.M., 839 F.3d 888,	14
907 (10th Cir. 2016).	15
{11} 	New Mexico’s identity theft statute, under which Defendant was convicted,	16
prohibits “obtaining, recording or transferring personal identifying information of	17
another person without the authorization or consent of that person and with the intent	18

8
to defraud that person or another[.]”2 Section 30-16-24.1(A). Defendant does not	1
make a facial challenge to the identity theft statute. He instead makes an as-applied	2
challenge under the circumstances of this case, contending that his identity theft	3
conviction is expressly and impliedly preempted by IRCA.	4
C. 	IRCA	5
{12} 	IRCA has been described “as a comprehensive framework for combating the	6
employment of illegal aliens.”3 Arizona, 567 U.S. at 404 (internal quotation marks	7
and citation omitted). IRCA makes it unlawful for an employer to knowingly hire an	8
“unauthorized alien,” i.e., a non-citizen or non-national who is not authorized to	9
work in the United States. 8 U.S.C. §§ 1101(a)(3), 1324a(1)(A), (h)(3). To enforce	10
this prohibition, IRCA created an “employment verification system” requiring	11
employers to attest under penalty of perjury on the I-9, or other designated form, that	12
an employee is not an unauthorized alien. § 1324a(b)(1)(A); 8 C.F.R. § 274a.2(a)(2)	13
(2020) (creating the I-9). The employer makes the attestation after reviewing	14
approved documents submitted by the employee, evidencing the employee’s identity	15
and authorization to work in the United States. § 1324a(b)(1)(A)(i), (ii); see also §	16
1324a(b)(1)(B)-(D) (listing approved documents, such as a resident alien card or a	17
2“Personal identifying information” consists of a “person’s name, . . . social
security number, [or] date of birth,” among other things. Section 30-16-24.1(C)(2).
3We use the term “alien” in this opinion because that is the term Congress uses
to describe “any person not a citizen or national of the United States.” 8 U.S.C.
§ 1101(a)(3).

9
social security card along with an identification card). IRCA allows employers to	1
copy and retain documents provided by employees, but only “for the purpose of	2
complying with the [employment verification system].” § 1324a(b)(4).	3
{13} 	Critical to Defendant’s appeal, IRCA strictly limits how the I-9 and, more	4
broadly, the employment verification system as a whole may be used. Specifically,	5
§ 1324a(b)(5), titled “Limitation on use of attestation form,” provides that the I-9	6
“and any information contained in or appended to such form, may not be used for	7
purposes other than for enforcement of this chapter” and certain enumerated federal	8
criminal statutes. Furthermore, IRCA provides that the employment verification	9
“system may not be used for law enforcement purposes,” other than for the	10
enumerated exceptions just listed. § 1324a(d)(2)(F); see also § 1324a(d)(2)(C)	11
(“Any personal information utilized by the [employment verification] system may	12
not be made available to [g]overnment agencies, employers, and other persons	13
except to the extent necessary to verify that an individual is not an unauthorized	14
alien.”).	15
D. 	Express Preemption	16
{14} 	We turn now to Defendant’s express preemption argument. Because we	17
review this issue for fundamental error, we first examine whether there was error	18
and, if so, we then examine whether that error was fundamental. State v. Silva, 2008-	19
NMSC-051, ¶ 11, 144 N.M. 815, 192 P.3d 1192.	20

10
1. 	The Use of the I-9 Was Expressly Preempted and Thus Constituted	1
Error	2
{15} 	Defendant’s 	express 	preemption 	argument 	is 	straightforward: 	(1)	3
§ 1324a(b)(5) prohibits the use of the I-9 except for the few enumerated purposes;	4
(2) the State introduced the I-9 to prove the identity theft charge, a non-enumerated	5
purpose; and (3) therefore Defendant’s identity theft conviction is preempted by	6
§ 1324a(b)(5).4 For the reasons that follow, we conclude that the State’s use of the	7
4We limit our preemption analysis to the State’s use of the I-9 and the W-4,
and we do not address the State’s use of the social security or permanent resident
cards or the federal employment verification system more generally. We do so for
several reasons. First, the parties’ briefing focuses on the I-9 and the W-4 and makes
no contentions about the use of the other documents. Second, it is not apparent from
the record whether the social security and permanent resident cards were submitted
to Hurricane solely as part of the employment verification process under IRCA or
whether they served some other purpose—a fact that very well could impact our
analysis. See, e.g., Puente Arizona v. Arpaio, No. CV-14-01356-PHX, 2017 WL
1133012, at *8 (order) (D. Ariz. Mar. 27, 2017) (holding that § 1324a(b)(5) preempts
the use of any documents or information submitted to an employer solely as part of
the federal employment verification system but does not preempt the use of such
documents “if they were also submitted for a purpose independent of the federal
employment verification system”). Third, to the extent Defendant does raise an
argument about the use of the federal employment verification system more
generally, we observe that it was Defendant who inquired into matters about this
system—questioning various witnesses about the I-9 verification process and
Immigration and Naturalization Service audits pertaining to Hurricane’s hiring
process. It is well-settled that invited error cannot provide the basis for fundamental
error. See State v. Handa, 1995-NMCA-042, ¶ 35, 120 N.M. 38, 897 P.2d 225
(“[T]he doctrine of fundamental error has no application in cases where the
defendant, by his own actions, invites error.”). We consequently limit our analysis.
We do, however, express concern that, at retrial, the State’s use of documents
submitted solely in connection with the I-9 or evidence pertaining to the federal
employment verification system in general might cause the same preemption
problems we address today; and we caution the State accordingly. See, e.g., Garcia

11
I-9 was prohibited by § 1324a(b)(5) and Defendant’s identity theft conviction was	1
preempted to the extent it was based on the I-9.	2
{16} 	“Because the question of whether state law has been preempted by federal	3
legislation depends upon whether Congress intended such a result, the purpose of	4
Congress is the ultimate touchstone.” State v. Herrera, 2014-NMCA-003, ¶ 7, 315	5
P.3d 311 (alteration, internal quotation marks, and citation omitted). Where, as here,	6
“the statute contains an express pre-emption clause, the task of statutory construction	7
must in the first instance focus on the plain wording of the clause, which necessarily	8
contains the best evidence of Congress’ pre-emptive intent.”5 CSX Transp., Inc. v.	9
Easterwood, 	507 	U.S. 	658, 	664 	(1993). 	Turning 	then 	to 	the 	language 	of	10
§ 1324a(b)(5), we think Congress’ intent is clear. This provision provides that an I-9	11
“may not be used for purposes other than for enforcement of this chapter” and certain	12
enumerated federal criminal statutes. § 1324a(b)(5); 	see also 	§ 1324a(d)(2)(F)	13
(prohibiting the use of the federal employment verification system, of which the I-9	14
II, 140 S. Ct. at 803 (observing that § 1324a(d)(2)(F) “prohibits use of the federal
employment 	verification 	system 	for 	law 	enforcement 	purposes 	other 	than
enforcement of IRCA and [a] handful of federal statutes mentioned in § 1324a(b)(5)”
(internal quotation marks and citation omitted)); Puente Arizona, No. CV-14-01356-
PHX, 2017 WL 1133012, at *8 (“Congress clearly and manifestly intended to
prohibit the use of the Form I-9, documents attached to the Form I-9, and documents
submitted as part of the I-9 employment verification process, whether attached to
the form or not, for state law enforcement purposes.”).
5Both parties treat § 1324a(b)(5) as an express preemption clause, and we do
the same.

12
is an integral part, for any law enforcement purpose, other than for these same	1
enumerated exceptions). The State’s prosecution of Defendant for identity theft	2
plainly does not fall within the exceptions enumerated in § 1324a(b)(5). From this,	3
it is evident that Congress intended to forbid the State from using the I-9 in state	4
prosecutions like Defendant’s.	5
{17} 	Case law throughout the country is in line with this conclusion. We are aware	6
of no case holding that use of an I-9 as evidence in a state criminal prosecution is	7
permissible. In fact, in many of the cases discussing the matter, the prosecution either	8
disclaimed reliance on the I-9 if IRCA was invoked before trial or conceded on	9
appeal that it was error to introduce the I-9 at trial. See, e.g., Garcia II, 140 S. Ct. at	10
798, 800 (providing that, under § 1324a(b)(5), “I-9 forms and any information	11
contained in or appended to such forms may not be used for purposes other than for	12
enforcement of [this chapter] or other listed federal statutes” and observing that the	13
state in response to the defendants’ preemption challenges under § 1324a(b)(5)	14
dismissed the charges based on the I-9’s and agreed not to rely on the I-9’s at trial	15
(alteration, internal quotation marks, and citation omitted)); State v. Hernandez-	16
Manrique, No. 110,950, 2016 WL 5853078, at **1, 3 (Kan. Ct. App. Sept. 30, 2016)	17
(per curiam) (non-precedential) (observing that the court “has found the IRCA	18
prohibits a state from prosecuting a defendant for putting false information on an I-9	19
or other federal employment eligibility form” and that the state amended its criminal	20

13
complaint to omit any reliance on the I-9 (internal quotation marks and citation	1
omitted)); State v. Reynua, 807 N.W.2d 473, 479-80 (Minn. Ct. App. 2011) (holding	2
that IRCA bars the use of the I-9 in state prosecutions and noting that the state	3
conceded on appeal that it was reversible error to admit the I-9 into evidence); see	4
also, e.g., People v. Zarco, 2014 IL App (1st) 123463-U, ¶ 19 (order) (Ill. App. Ct.	5
May 22, 2014) (holding that the defendant’s forgery charge based on the I-9 was	6
preempted by IRCA); Puente Arizona, No. CV-14-01356-PHX, 2017 WL 1133012,	7
at *8 (holding that, under IRCA, the prosecution is “preempted from (a) employing	8
or relying on (b) any documents or information (c) submitted to an employer solely	9
as part of the federal employment verification process (d) for any investigative or	10
prosecutorial purpose under the Arizona identify theft and forgery statutes”).	11
{18} 	In an attempt to avoid IRCA’s preemptive effect here, the State argues: (1)	12
§ 1324a(b)(5) applies only to employers, not employees; and (2) even if its use of	13
the I-9 was preempted by IRCA, reversal is not warranted because the jury could	14
have relied on the W-4 in support of Defendant’s identity theft conviction, the use	15
of which is not preempted. We address the State’s first argument here and examine	16
its second argument within the context of our fundamental error analysis below.	17
{19} 	The 	State 	argues 	that 	IRCA’s 	preemption 	provision 	“precludes 	state	18
legislation establishing criminal sanctions against employers based on an I-9, but not	19
ones against employees.” This contention is belied by United States Supreme Court	20

14
precedent. The Court in Arizona observed that “Congress made a deliberate choice	1
not to impose criminal penalties on aliens who seek, or engage in, unauthorized	2
employment” and held that a state law criminalizing such conduct was preempted	3
by IRCA. 567 U.S. at 405. This conclusion was underscored in Garcia II, where the	4
Court plainly stated that it is not a federal crime for an alien to work without	5
authorization, and state laws criminalizing such conduct are preempted. 140 S. Ct.	6
at 798. What is more, the State’s argument is refuted by the plain language of	7
§ 1324a(b)(5), which “broadly restricts any use of an I-9, information contained in	8
an I-9, and any documents appended to an I-9.” Garcia II, 140 S. Ct. at 802	9
(describing § 1324a(b)(5) as “far more than a preemption provision” because it	10
applies not just to states but to the federal government and all private actors); see	11
also Crooks v. Harrelson, 282 U.S. 55, 60 (1930) (providing that a court may depart	12
from “the literal terms of a statute only under rare and exceptional circumstances”).	13
Further, none of the cases we have reviewed mention even the possibility that	14
§ 1324a(b)(5) is restricted to employers, as the State suggests. The State does not	15
cite any state or federal court case law imposing such a limitation on § 1324a(b)(5),	16
nor do the administrative law decisions the State cites support such a limitation. See	17
State v. Vigil-Giron, 2014-NMCA-069, ¶ 60, 327 P.3d 1129 (noting, where no	18
authority is cited in support of an issue, appellate courts will not consider the issue	19

15
and will assume no such authority exists). In short, the State’s argument against the	1
applicability of § 1324a(b)(5) in this case is without merit.	2
{20} 	Congress’ intent being clear, we conclude that the State’s use of the I-9 in	3
support of Defendant’s identity theft conviction was prohibited by IRCA and	4
constituted error and that Defendant’s identity theft conviction was preempted to the	5
extent it was based on the I-9.	6
2. 	The Use of the I-9 Constituted Fundamental Error	7
{21} 	We consider next whether this error is fundamental, requiring reversal of	8
Defendant’s conviction. See Silva, 2008-NMSC-051, ¶ 11. As noted, the State	9
contends that reversal is not warranted because the W-4 supported Defendant’s	10
conviction and its use is not preempted by IRCA. Defendant, in contrast, contends	11
that reversal is required because the I-9 was the sole basis for his conviction. We	12
first briefly acknowledge that, under Garcia II, the use of a W-4, or other similar	13
tax-withholding form, is not preempted by IRCA. We next examine principles of	14
fundamental error in this context—i.e., where one possible basis for a conviction is	15
preempted and the other is not. Finally, determining that we cannot discern the basis	16
for the jury’s verdict, we hold that Defendant’s conviction constitutes fundamental	17
error and we reverse and remand for a new trial.	18

16
a. 	The Use of the W-4	1
{22} 	Under Garcia II, it is clear that the State’s use of the W-4 at Defendant’s trial	2
was not preempted by IRCA. Garcia II involved three consolidated cases in which	3
the prosecutions proceeded on the theory that the defendants, all unauthorized aliens,	4
committed identity theft when using stolen social security numbers on W-4’s (and	5
equivalent state tax-withholding forms) submitted to their employers. Garcia II, 140	6
S. Ct. at 799-800. All three defendants were convicted of identity theft, but their	7
convictions were overturned by the Kansas Supreme Court on preemption grounds.	8
Id. at 797. The Kansas court adopted an expansive view of the preemption provision	9
in § 1324a(b)(5). Even though the I-9’s were not admitted at trial, the Kansas court	10
reasoned that because the stolen social security numbers used on the tax-withholding	11
forms were “contained in” the I-9’s, IRCA prohibited the prosecutions from relying	12
on the tax-withholding forms as the bases for the convictions. Garcia I, 401 P.3d at	13
599; see also § 1324a(b)(5) (prohibiting the use of the I-9 “and any information	14
contained in or appended to such form”).	15
{23} 	The United States Supreme Court disagreed with this interpretation of	16
§ 1324a(b)(5), concluding that “the mere fact that an I-9 contains an item of	17
information, such as a name or address, does not mean that information ‘contained	18
in’ the I-9 is used whenever that name or address is later employed.” Garcia II, 140	19
S. Ct. at 803. The Court also explained that tax-withholding forms, such as the W-4,	20

17
are “fundamentally unrelated” to the I-9 and the federal employment verification	1
system and observed that “using another person’s [s]ocial [s]ecurity number on tax	2
forms threatens harm that has no connection with immigration law.” Id. at 805; see	3
also id. (observing that “[s]ubmitting W-4’s and K-4’s helped respondents get jobs,	4
but this did not in any way assist them in showing that they were authorized to work	5
in this country”). The Supreme Court thus limited the reach of § 1324a(b)(5)’s	6
“contained in” clause, making clear that the use of documents other than the I-9,	7
such as the W-4, did not run afoul of § 1324a(b)(5), notwithstanding the fact that the	8
W-4 contained information also found in the I-9. Garcia II, 140 S. Ct. at 804. The	9
Court, however, did nothing to modify the clear prohibition in § 1324a(b)(5) against	10
the use of the I-9 itself. See Garcia II, 140 S. Ct. at 802 (observing that § 1324a(b)(5)	11
is “far more than a preemption provision” because it “broadly restricts any use of an	12
I-9” by states, the federal government, and all private actors). Given Garcia II, we	13
conclude that the State’s use of the W-4 in this case was not prohibited or preempted	14
by IRCA.	15
b. 	Fundamental Error in This Context	16
{24} 	Whether, as the State suggests, the fact that the W-4 was not preempted means	17
the State’s use of the I-9 was not fundamental error is another matter.6 “Fundamental	18
6With little explanation, the State contends the admission of the I-9 was non-
constitutional 	harmless 	error. 	As 	stated, 	we 	review 	Defendant’s 	unpreserved
preemption challenge for fundamental, not harmless, error.

18
error consists of error that goes to: (1) the foundation of a defendant’s rights, (2) the	1
foundation of the case, or (3) a right essential to the defense of an accused, which no	2
court could or ought to permit him to waive.” Campos v. Bravo, 2007-NMSC-021,	3
¶ 18, 141 N.M. 801, 161 P.3d 846 (internal quotation marks and citation omitted).	4
Under the doctrine of fundamental error, “a conviction will only be reversed if the	5
defendant’s guilt is so questionable that upholding a conviction would shock the	6
conscience, or where, notwithstanding the apparent culpability of the defendant,	7
substantial justice has not been served.” Id. (internal quotation marks and citation	8
omitted). “Substantial justice has not been served when a fundamental unfairness	9
within the system has undermined judicial integrity.” Id.	10
{25} 	Our Supreme Court has held that “[i]t is fundamental error to convict a	11
defendant of a crime that does not exist.” State v. Maestas, 2007-NMSC-001, ¶ 9,	12
140 N.M. 836, 149 P.3d 933. By virtue of the Supremacy Clause, a “state statute	13
(more precisely, so much of it as is preempted) is wiped out as effectively as if it had	14
been repealed; and the defendant can no more be convicted under it, consistent with	15
due process, than he could be convicted under a repealed statute.” Corcoran, 112	16
F.3d at 838; see also, e.g., Rini v. United Van Lines, Inc., 104 F.3d 502, 504 (1st Cir.	17
1997) (“[A] state statute is void to the extent it is in conflict with a federal statute.”);	18
cf. Zarco, 2014 WL 2168875, ¶ 21 (concluding that a plea agreement to a preempted	19
forgery charge is void because the charge is unenforceable or illegal). As a	20

19
consequence, upholding a conviction under a state statute that is preempted, or more	1
precisely, to the extent it is preempted, would be fundamental error. See Campos,	2
2007-NMSC-021, ¶ 19 (concluding that it would be fundamental error to uphold a	3
conviction that is a legal nullity); cf. State v. Arrendondo, 2012-NMSC-013, ¶ 20,	4
278 P.3d 517 (noting that our appellate courts have a “responsibility to question sua	5
sponte a conviction for a nonexistent crime, because otherwise fundamental error	6
would not be corrected”).	7
{26} 	In this case, one possible basis for Defendant’s conviction (the use of Tafoya’s	8
identity on the I-9) is preempted and thus is legally inadequate, while another	9
possible basis (the use of Tafoya’s identity on the W-4) is not. In such circumstances,	10
reversal is required if it is not possible to tell on which ground the jury based its	11
verdict. See Campos, 2007-NMSC-021, ¶ 19 (holding that fundamental error occurs	12
if a conviction could be based on either of two alternatives, one of which is legally	13
inadequate, even if ample evidence supports the legally adequate alternative); State	14
v. Olguin, 1995-NMSC-077, ¶ 2, 120 N.M. 740, 906 P.2d 731 (holding that where a	15
general verdict is returned, a conviction must be reversed if the jury was presented	16
with a legally inadequate basis for conviction); see also Williams v. North Carolina,	17
317 U.S. 287, 292 (1942) (“[T]he verdict of the jury for all we know may have been	18
rendered on that [unconstitutional] ground alone, since it did not specify the basis	19
on which it rested. . . . To say that a general verdict of guilty should be upheld though	20

20
we cannot know that it did not rest on the invalid constitutional ground on which the	1
case was submitted to the jury, would be to countenance a procedure which would	2
cause a serious impairment of constitutional rights.”); cf. State v. Crain, 1997-	3
NMCA-101, ¶ 22, 124 N.M. 84, 946 P.2d 1095 (holding that courts will set aside a	4
conviction where the verdict does not state the alternative on which the jury relied	5
and where one of the alternatives would violate the defendant’s double jeopardy	6
rights).	7
c. 	The Basis for Defendant’s Conviction	8
{27} 	We therefore must determine whether we can discern the basis for the jury’s	9
verdict. Unlike the other charges against Defendant, the criminal information and	10
jury instruction for identity theft did not specify the document or documents that	11
served as the basis for this offense. And although the State opined, during its opening	12
statement, that Defendant used Tafoya’s personal identifying information “to get a	13
job” at Hurricane, the State never tied this theory to any specific document.7 Polanco	14
7 The State did shift gears in closing argument, focusing on the W-4 and
arguing, 	without 	any 	basis 	in 	the 	evidence, 	that 	Defendant 	used 	Tafoya’s
information to “defraud” the American taxpayers by claiming more dependents than
he should have. Given the lack of evidence in the record concerning the number of
dependents Defendant actually was entitled to claim, this argument only could have
served to confuse the jury. Moreover, the State abandons this argument on appeal.
The State now argues that “Defendant used stolen documents in order to deceive
Hurricane’s hiring manager into believing that Defendant was legally authorized to
work.” But the State at trial was not this specific, telling the jury only that Defendant
used Tafoya’s identity “to get a job” at Hurricane. Had the State’s theory indeed
been that Defendant intended to deceive Hurricane into believing he was “legally

21
testified that, at the outset of Defendant’s employment with Hurricane, Defendant	1
submitted a packet of five documents: a social security card, a permanent resident	2
card, the W-4, the I-9, and an employee signature card. The State, however, did not	3
identify which of these documents supported its theory of identity theft or explain to	4
the jury the importance of any of these documents. Given this record, we are unable	5
to discern whether the I-9 served as the basis for Defendant’s identity theft	6
conviction. And the parties’ arguments on appeal do not clarify the matter.	7
{28} 	Defendant contends that the I-9 was the sole basis for the identity theft	8
conviction and that reversal is required. In support, Defendant argues that his	9
acquittal on the charge of forging the W-4 proves the jury did not rely on that form	10
in reaching its identity theft verdict and, thus, his conviction was based solely on the	11
I-9. It, however, is axiomatic that a jury may arrive at seemingly inconsistent results	12
on different charges and that such an occurrence does not invalidate a conviction.	13
See State v. Roper, 2001-NMCA-093, ¶ 24, 131 N.M. 189, 34 P.3d 133 (“We have	14
frequently said that our business is to review the verdicts of conviction, and not	15
concern ourselves with any alleged acquittals, and thus we do not entertain	16
contentions alleging that the verdicts are irreconcilable.”). In other words, we will	17
authorized to work,” we would be hard pressed to determine that anything other than
the I-9 served as the basis for Defendant’s identity theft conviction. See Garcia II,
140 S. Ct. at 797-98, 805 (explaining how I-9 evidences “authorization to work” and
that a W-4 does not assist in showing authorization to work).

22
not infer from an acquittal on a different count that the jury must have reached a	1
particular conclusion about the charge that resulted in a conviction. 	See id.	2
Moreover, Defendant ignores the fact that the W-4 could have supported the State’s	3
theory presented during opening statements. As noted, Defendant submitted the	4
W-4, along with other employment-related documents, to Hurricane during the	5
hiring process. According to the United States Supreme Court, tax-withholding	6
documents, such as the W-4, may play some role in assisting an individual in	7
obtaining employment. See Garcia II, 140 S. Ct. at 805 (“Submitting W-4’s and	8
K-4’s helped respondents get jobs[.]”).	9
{29} 	In contrast to Defendant, the State largely ignores the possibility that the I-9	10
might have served as a basis for Defendant’s conviction and, as noted, contends that	11
reversal is not warranted because the jury could have relied on the W-4. But, simply	12
stated, the State’s contention that the jury could have relied on the W-4 does nothing	13
to forestall a finding of fundamental error, when we are unable to determine that the	14
jury in fact relied only on the W-4. See, e.g., Campos, 2007-NMSC-021, ¶ 19.	15
{30} 	In sum, notwithstanding the parties’ arguments, we cannot discern whether	16
the basis for Defendant’s identity theft conviction was the I-9, the W-4, or something	17
else. Because we cannot say that the jury did not convict Defendant on a federally	18
preempted basis, we conclude that substantial justice has not been served and	19
fundamental error has resulted. See id. ¶ 21 (“Since we have no idea whether [the	20

23
defendant] was convicted of a valid crime, substantial justice was not served at [the	1
defendant’s] trial; fundamental error results.”). We therefore reverse Defendant’s	2
conviction and remand for a new trial, at which the I-9 will play no role. See id.	3
(vacating the defendant’s conviction but remanding for a new trial “should the [s]tate	4
elect to retry [the defendant] using a valid predicate”); see also State v. Downey,	5
2008-NMSC-061, ¶ 40, 145 N.M. 232, 195 P.3d 1244 (relying on Campos and	6
providing the same remedy where the conviction “may have rested on an invalid	7
legal basis”).	8
E. 	Implied Preemption	9
{31} 	We briefly address Defendant’s implied preemption argument because, given	10
its breadth, retrial would appear to be barred if Defendant were successful on this	11
claim. Relying principally on a concurrence in Garcia I, Defendant asserts that	12
IRCA prohibits the State from prosecuting him, an unauthorized alien, “for identity	13
theft based on false documentation supplied to Hurricane during the hiring process”	14
because Congress has occupied the field of the employment of aliens and state	15
enforcement of its laws in this context would obstruct congressional policy.	16
{32} 	To the extent Defendant’s implied preemption argument is based, as was his	17
express preemption argument, on the use of the I-9, we deem it unnecessary to	18
analyze such a claim since we already have determined that the use of the I-9 was	19
expressly preempted. To the extent Defendant’s implied preemption argument is	20

24
based on other false documentation supplied to Hurricane, such as the W-4, the	1
Supreme Court’s holding in Garcia II squarely addressed and rejected such an	2
argument. In brief, Garcia II held that “IRCA certainly does not bar all state	3
regulation regarding the use of false documents when an unauthorized alien seeks	4
employment. Nor does IRCA exclude a [s]tate from the entire field of employment	5
verification.” 140 S. Ct. at 805 (emphases added) (omission, internal quotation	6
marks, and citations omitted); see also id. at 806 (rejecting the contention that “the	7
initiation of any legal action against an unauthorized alien for using a false identity	8
in applying for employment should rest exclusively within the prosecutorial	9
discretion of federal authorities”). For these same reasons, we likewise reject	10
Defendant’s argument that IRCA impliedly preempted the State from prosecuting	11
him for identity theft based on false documentation supplied to Hurricane.	12
II. 	Sufficiency of the Evidence	13
{33} 	Defendant challenges the sufficiency of the evidence to support his identity	14
theft conviction. We address this issue because if Defendant prevailed, he would be	15
entitled to greater relief—his conviction would be reversed and retrial would be	16
barred. See State v. Verdugo, 2007-NMCA-095, ¶ 1, 142 N.M. 267, 164 P.3d 966	17
(“[B]ecause [the d]efendant would be entitled to dismissal of the charges if the	18
evidence is insufficient to support them, we address [the d]efendant’s challenge to	19
the sufficiency of the evidence issue.”). In conducting our review, we view the	20

25
evidence in the light most favorable to the state to determine whether substantial	1
evidence exists to support a verdict of guilty beyond a reasonable doubt with respect	2
to every element essential to a conviction. See State v. Montoya, 2015-NMSC-010,	3
¶¶ 52-53, 345 P.3d 1056.	4
{34} 	The jury in this case was instructed on the elements of identity theft in	5
accordance with the statutory language. See State v. Jackson, 2018-NMCA-066,	6
¶ 22, 429 P.3d 674 (“Jury instructions become the law of the case against which the	7
sufficiency of the evidence is to be measured.” (internal quotation marks and citation	8
omitted)). In relevant part, the jury had to find that Defendant “willfully obtain[ed],	9
record[ed,] or transfer[red] personal identifying information of . . . Tafoya or another	10
person . . . with the intent to defraud . . . Tafoya, or another.” See § 30-16-24.1(A).	11
In New Mexico, an “intent to defraud” has been equated with an intent to deceive or	12
cheat. See State v. Rodarte, 2011-NMCA-067, ¶ 11, 149 N.M. 819, 255 P.3d 397	13
(construing, for the crime of fraudulent refusal to return leased property, “intent to	14
defraud” as meaning “intent to cheat or deceive” (alteration, internal quotation	15
marks, and citation omitted)); see also, e.g., UJI 14-1640 NMRA comm. cmt.	16
(providing, for the crime of fraud, that “ ‘[f]raudulent intent’ and ‘fraudulently’ are	17
frequently defined as ‘with intent to defraud’ or ‘with intent to cheat or deceive’ ”).	18
{35} 	In support of his sufficiency argument, Defendant challenges only one	19
element—intent to defraud—and we limit our discussion accordingly. In particular,	20

26
Defendant contends that the State did not prove he intended to deceive or cheat	1
Tafoya or another (that being Hurricane). Because we conclude sufficient evidence	2
supports an intent to defraud Hurricane, we need not and do not address Defendant’s	3
alternative contention that the State failed to prove an intent to defraud Tafoya. See	4
Olguin, 1995-NMSC-077, ¶ 2 (holding that “due process does not require a guilty	5
verdict to be set aside if an alternative basis of conviction is only factually inadequate	6
to support a conviction”).	7
{36} 	As for his argument pertaining to Hurricane, Defendant contends as an initial	8
matter that the State did not argue at trial that he intended to defraud Hurricane and,	9
as a result, the State cannot now rely on this theory on appeal. While there is legal	10
support for Defendant’s contention that the State cannot change its theory of the case	11
in support of an affirmance on appeal, see State v. Figueroa, 2020-NMCA-007, ¶ 15,	12
457 P.3d 983 (“An appellate court cannot affirm a criminal conviction on the basis	13
of a theory not presented to the jury.” (alteration, internal quotation marks, and	14
citation omitted)), cert. denied, 2019-NMCERT-___, (S-1-SC-37904, Nov. 19,	15
2019), the State, as already discussed, presented this employment-related theory to	16
the jury. In particular, the State told the jury in opening statements that Defendant	17
used Tafoya’s personal identifying information in order to get a job at Hurricane.	18
{37} 	Turning then to the substance of Defendant’s sufficiency challenge, we	19
conclude it is without merit. As discussed in our fundamental error analysis,	20

27
evidence in the form of the W-4 was presented at trial, which supported the State’s	1
theory that Defendant intended to deceive Hurricane to obtain a job. See Garcia II,	2
140 S. Ct. at 805. Defendant does not argue otherwise; he instead advances only a	3
legal argument why such a theory is insufficient to support his identity theft	4
conviction.	5
{38} 	Relying on a case from the Kansas Court of Appeals, City of Liberal v.	6
Vargas, 24 P.3d 155 (Kan. Ct. App. 2001), Defendant asserts that using a stolen	7
identity to obtain employment is legally insufficient to support an identity theft	8
conviction in the absence of an intent to steal money from the employer or to be	9
compensated for services not actually rendered. See id. at 157. Although Vargas	10
contains language supporting Defendant’s argument, it is inapposite for a number of	11
reasons. First, at the time Vargas was decided, Kansas defined identity theft as an	12
“ ‘intent to defraud for economic benefit,’ ” id. at 156 (quoting Kan. Stat. Ann. § 21-	13
4018 (repealed July 1, 2011)), and, consequently, the question before that court was	14
whether securing employment qualified as an “economic benefit.”8 Vargas, 24 P.3d	15
at 156. Second, the cited language is dicta; Vargas’s actual holding that insufficient	16
evidence supported the defendant’s conviction for identity theft was based on the	17
fact that there was no evidence the defendant had appropriated a real person’s	18
8Such a requirement is notably absent from the New Mexico identity theft
statute. See § 30-16-24.1(A) (requiring, in general, an “intent to defraud”).

28
identity. 	Id. 	at 157. Finally, the Kansas Court of Appeals has subsequently	1
disavowed the foregoing dicta in Vargas, holding that evidence of a defendant’s use	2
of another’s personal identifying information to obtain a job is sufficient to support	3
a conviction for identity theft in Kansas. See State v. Meza, 165 P.3d 298, 301 (Kan.	4
Ct. App. 2007). Several other courts in jurisdictions with identity theft statutes	5
similar to that of Kansas have come to like conclusions. See, e.g., People v. Campos,	6
2015 COA 47, ¶¶ 7, 15-19, 351 P.3d 553 (discussing cases and affirming conviction	7
because “employment is a ‘thing of value’ under [Colorado’s] identity theft	8
statute”); People v. Montoya, 868 N.E.2d 389, 394-95 (Ill. App. Ct. 2007) (affirming	9
conviction because the defendant “ ‘fraudulently obtained’ both money and services	10
as a result of her unauthorized use of [another person’s] name and social security	11
number” to obtain a job); State v. Ramirez, 2001 WI App 158, ¶ 7, 246 Wis. 2d 802,	12
633 N.W.2d 656 (affirming conviction because the “economic benefits that flowed	13
from . . . employment . . . were things of value within the meaning of” Wisconsin’s	14
identity theft statute).	15
{39} 	For these reasons, we reject Defendant’s sufficiency argument dependent	16
upon Vargas. Defendant having made no other argument that the evidence adduced	17
at trial was insufficient to establish his intent to deceive Hurricane, we conclude	18
sufficient evidence supports his conviction for identity theft and retrial is not barred.	19

29
III. 	Speedy Trial	1
{40} 	We review Defendant’s claim that the district court erred in denying his	2
motion to dismiss on speedy trial grounds because retrial would be prohibited were	3
Defendant to prevail on this issue. See State v. Flores, 2015-NMCA-081, ¶ 37, 355	4
P.3d 81 (reversing convictions because of a speedy trial violation and remanding	5
with instructions to dismiss the charges). “The right of the accused to a speedy trial	6
is guaranteed by both the Sixth Amendment of the United States Constitution and	7
Article II, Section 14 of the New Mexico Constitution.”9 Spearman, 2012-NMSC-	8
023, ¶ 16. In determining whether a defendant has been deprived of the right to	9
a speedy trial, we analyze the four factors set out by the United States Supreme Court	10
in Barker v. Wingo, 407 U.S. 514 (1972): “(1) the length of delay in bringing the	11
case to trial, (2) the reasons for the delay, (3) the defendant’s assertion of the right	12
to a speedy trial, and (4) the prejudice to the defendant caused by the delay.” State	13
v. Serros, 2016-NMSC-008, ¶ 5, 366 P.3d 1121. In analyzing the Barker factors,	14
“we give deference to the district court’s factual findings, but we review the	15
weighing and the balancing of the Barker factors de novo.” Spearman, 2012-NMSC-	16
023, ¶ 19 (alterations, internal quotation marks, and citation omitted).	17
9 Defendant raises his speedy trial claim under both the federal and New
Mexico Constitutions. But because he does not assert that New Mexico’s speedy
trial guarantee should be interpreted any differently from the Sixth Amendment’s
guarantee, and our courts have not done so in the past, we treat both protections as
the same here. State v. Spearman, 2012-NMSC-023, ¶ 16 n.1, 283 P.3d 272.

30
A. 	Length of Delay	1
{41} 	“The first factor, length of delay, is both the threshold question in the speedy	2
trial analysis and a factor to be weighed with the other three Barker factors.” State	3
v. Ochoa, 2017-NMSC-031, ¶ 12, 406 P.3d 505. We agree with the parties that this	4
was a simple case and that the total length of delay from the date of arrest (in April	5
2014) to trial (in October 2015) was just over eighteen months—six months beyond	6
the twelve-month presumptively prejudicial period. See, e.g., State v. Garza, 2009-	7
NMSC-038, ¶¶ 2, 23, 146 N.M. 499, 212 P.3d 387 (deeming twelve months of delay	8
in a simple case the threshold at which further inquiry into the Barker factors is	9
warranted). We agree with the State that this relatively short period of delay weighs	10
slightly, not heavily, against it. See State v. Wilson, 2010-NMCA-018, ¶ 29, 147	11
N.M. 706, 228 P.3d 490 (“We cannot say that the extended time of five months . . .	12
requires us to weigh the length of delay factor against the [s]tate more than	13
slightly.”).	14
B. 	Reasons for Delay	15
{42} 	“Closely related to length of delay is the reason the government assigns to	16
justify the delay[,]” with “different weights [being] assigned to different reasons for	17
the delay.” Garza, 2009-NMSC-038, ¶ 25 (internal quotation marks and citation	18
omitted). Turning to the first period of delay, we observe that Defendant did not file	19
any demand for a speedy trial until eleven months after his arrest. The State	20

31
contends, both below and now on appeal, that during this period, the parties agreed	1
the trial in this case would be delayed until an older criminal case against Defendant	2
was resolved. Defendant takes the contrary view that no such agreement existed.	3
After hearing argument from counsel at the hearing on Defendant’s speedy trial	4
motion and considering the record, the district court could reasonably have found	5
the existence of such an agreement. In light of this, we do not weigh this eleven-	6
month delay against the State.10 See State v. Moreno, 2010-NMCA-044, ¶ 28, 148	7
N.M. 253, 233 P.3d 782 (agreeing “with the general principle that where a defendant	8
causes or contributes to the delay, or consents to the delay, he may not complain of	9
a denial of the right to a speedy trial” (alteration, internal quotation marks, and	10
citation omitted)).	11
{43} 	The rest of the delay was occasioned by the State’s requested continuances of	12
trial settings in March 2015, June 2015, July 2015, and September 2015—all of	13
which 	Defendant 	opposed. 	The 	first 	motion 	to 	continue 	was 	based 	on 	the	14
unavailability of Tafoya, whose attendance the State did not secure because of the	15
apparent agreement to try Defendant’s older case first, which was set for trial the	16
same day. The second motion also was based on the unavailability of Tafoya, who	17
could not attend due to lack of childcare. The third motion was based on the	18
10Even if there was no agreement, and, consequently, some or all of this period
of 	delay 	weighed 	against 	the 	State, 	Defendant’s 	speedy 	trial 	claim 	would
nevertheless still fail under the remainder of the Barker factors.

32
unavailability of the investigating officer. And the final motion was based on, among	1
other things, the likelihood the case would not go to trial because it was scheduled	2
as a back-up case. All the continuances, then, were a result of the unavailability of	3
witnesses or negligent or administrative delay and, consequently, do not weigh	4
heavily against the State, if at all. See Garza, 2009-NMSC-038, ¶¶ 26-28 (noting	5
that a missing witness is a valid, neutral reason for delay, while negligence on the	6
part of the state is not weighed heavily when the delay is not protracted).	7
{44} 	In sum, only a few months of the delay, none of which the State caused	8
intentionally or in bad faith, can be attributed to the State. We accordingly weigh	9
this factor only slightly against the State. See id. ¶ 30 (“[B]ecause the delay was	10
negligent but not protracted, this factor weighs only slightly in [the d]efendant’s	11
favor.”).	12
C. 	Assertion of the Right	13
{45} 	As for the assertion of the right, “we assess the timing of the defendant’s	14
assertion and the manner in which the right was asserted.” Id. ¶ 32. Defendant filed	15
a request for a speedy trial in March 2015, shortly after the first continuance was	16
granted. He also opposed all the State’s requested continuances and filed his motion	17
to dismiss for violation of his right to a speedy trial one week before trial. From this,	18
it appears Defendant made a genuine attempt to have the case tried, at least from	19
March 2015 onward. But the strength of Defendant’s assertion is somewhat	20

33
dampened by the fact that Defendant did not assert his speedy trial right until nearly	1
one year after being arrested. In light of this, we weigh this factor in Defendant’s	2
favor, although not heavily. See State v. Brown, 2017-NMCA-046, ¶ 32, 396 P.3d	3
171 (determining that, where the defendant made numerous assertions but also	4
contributed to some of the delay, the fourth Barker factor weighed in the defendant’s	5
favor but not strongly); see also Spearman, 2012-NMSC-023, ¶¶ 32-33 (determining	6
that, where the defendant asserted his right in an early motion, opposed at least one	7
requested continuance, and filed a motion to dismiss, “[the d]efendant did not	8
aggressively 	assert 	the right, 	[although] he 	did 	not 	acquiesce 	to 	the delay”	9
(alterations and internal quotation marks omitted)).	10
D. 	Prejudice	11
{46} 	We turn next to the last Barker factor, prejudice to Defendant caused by the	12
delay. See Garza, 2009-NMSC-038, ¶ 12 (“The heart of the right to a speedy trial is	13
preventing prejudice to the accused.”). “Ordinarily, a defendant bears the burden of	14
proof on this factor by showing ‘particularized prejudice’ when claiming a speedy	15
trial violation.” Serros, 2016-NMSC-008, ¶ 86. To determine if Defendant was	16
prejudiced, we consider whether there was (1) undue and oppressive pretrial	17
incarceration; (2) anxiety and concern of the accused; and (3) impairment of the	18
defense. See Garza, 2009-NMSC-038, ¶ 12.	19

34
{47} 	For several reasons, we conclude Defendant suffered little, if any, prejudice.	1
First, although Defendant was in custody for fifteen months between his arrest and	2
his release three months prior to trial, he was in custody on other charges at the time	3
of his arrest in this case and continued to be held on those charges during the vast	4
majority of his pretrial incarceration in this case. Given this, Defendant has not	5
demonstrated oppressive pretrial incarceration. See State v. Urban, 2004-NMSC-	6
007, ¶ 17, 135 N.M. 279, 87 P.3d 1061 (holding that the defendant did not suffer	7
oppressive pretrial incarceration because he was incarcerated on other charges	8
during the relevant time period).	9
{48} 	Second, at the hearing on his motion to dismiss, Defendant testified generally	10
that it had been “hard” for him to “keep going” with his life because he was unable	11
to get a job. Such non-specific testimony is insufficient to distinguish Defendant’s	12
anxiety, concern, and disruption of life from that befalling any individual awaiting	13
trial on criminal charges. See Garza, 2009-NMSC-038, ¶ 35 (“[W]e weigh this factor	14
in the defendant’s favor only where . . . the anxiety suffered is undue.”).	15
{49} 	Third, although Defendant testified that he had been unable to contact two	16
potential alibi witnesses while he was incarcerated, he did not explain why his	17
attorney could not contact the potential witnesses, or whether the delay caused him	18
to lose contact with these witnesses. Moreover, Defendant admitted that the	19
testimony of these witnesses was cumulative of the testimony offered by other,	20

35
available 	defense 	witnesses. 	Under 	the 	circumstances, 	Defendant 	failed 	to	1
demonstrate an impairment to his defense. See id. ¶ 36 (“[T]he defendant must state	2
with particularity what exculpatory testimony would have been offered, and the	3
defendant 	must 	also 	present 	evidence 	that 	the 	delay 	caused 	the 	witness’s	4
unavailability.” (alterations, internal quotation marks, and citation omitted)).	5
E. 	Balancing the Factors	6
{50} 	In weighing the speedy trial factors, we recognize no single consideration is	7
dispositive. See, e.g., Barker, 407 U.S. at 533 (explaining “they are related factors	8
and must be considered together with such other circumstances as may be relevant”).	9
Here, Defendant did not suffer the type of prejudice required by Garza, and the other	10
three Barker factors simply do not weigh heavily enough in Defendant’s favor to	11
warrant dismissal of the case. See Garza, 2009-NMSC-038, ¶ 39 (“[A] defendant	12
must show particularized prejudice [unless] the length of delay and the reasons for	13
the delay weigh heavily in [the] defendant’s favor and [the] defendant has asserted	14
his right and not acquiesced to the delay[.]”). We affirm the denial of Defendant’s	15
motion to dismiss for violation of his right to a speedy trial.	16
IV. 	Remaining Claims	17
{51} 	Defendant raises two additional claims on appeal: (1) he received ineffective	18
assistance of counsel when his attorney did not move to suppress the social security	19
and permanent resident cards seized during a search of his residence, and (2) the	20

36
district court abused its discretion by admitting a certain exhibit evidencing	1
Defendant’s address. Were Defendant to prevail on either of these issues, he would	2
be entitled to no more relief than he already has received. Because of this, we need	3
not and do not address these issues. See, e.g., State v. Sena, 2020-NMSC-011, ¶ 4,	4
470 P.3d 227 (“Because we remand for a new trial, it is not necessary, and we decline	5
to address, whether the district court erred in [its admission of certain evidence].”);	6
State v. Stanley, 2001-NMSC-037, ¶ 44, 131 N.M. 368, 37 P.3d 85 (“In light of the	7
reversal of the [other] issues, we do not review [the d]efendant’s ineffective	8
assistance of counsel claim[.]”).	9
CONCLUSION	10
{52} 	We 	reverse 	Defendant’s 	conviction 	for 	identity 	theft 	and 	remand 	for	11
proceedings consistent with this opinion.	12
{53} 	IT IS SO ORDERED.	13
______________________________	14
JENNIFER L. ATTREP, Judge	15
WE CONCUR:	16
___________________________________	17
KRISTINA BOGARDUS, Judge	18
____________________________________	19
SHAMMARA H. HENDERSON, Judge	20