April 2, 2019- State of New Mexico v. Patrick Robert Oliphant, No. A-1-CA-35841

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IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

Court of Appeals of New Mexico
Filed 4/2/2019 9:36 AM

STATE OF NEW MEXICO, |

Plaintiff-Appellee, Mark Reynolds
v. No. A-1-CA-35841
PATRICK ROBERT OLIPHANT,

Defendant-Appellant.

APPEAL FROM THE DISTRICT COURT OF EDDY COUNTY
Lisa B. Riley, District Judge

Hector H. Balderas, Attorney General

Anita Carlson, Assistant Attorney General

Santa Fe, NM

for Appellee

The Law Offices of Scott M. Davidson, PH.D., Esq.
Scott M. Davidson

Albuquerque, NM

for Appellant

MEMORANDUM OPINION
(43 Defendant Patrick Robert Oliphant was convicted of five counts of criminal
sexual penetration of a minor (CSPM) in violation of NMSA 1978, Section 30-9-
11(D)(1) (2009), two counts of second-degree criminal sexual contact of a minor
(CSCM) (unclothed) in violation of NMSA 1978, Section 30-9-13(B)(1) (2003), and

two counts of third-degree CSCM (clothed) in violation of Section 30-9-13(C)(1).

1 Defendant appeals his convictions, raising the following issues: improper admission
2 of his extrajudicial confession, sufficiency of the evidence, speedy trial, due process,·
3 and double jeopardy. We affirm.
4 BACKGROUND
5 {2} 	Defendant's convictions stem from his sexual abuse of Victim while they
6 lived in the same house. In February 2012, when Victim was four years old, she, her
7 mother (Mother), her father, and her younger sister moved into a house with her
8 maternal grandfather and Mother's former step-brother, Defendant. Initially, Victim
9 and her immediate family lived upstairs along with her grandfather, while Defendant
10 	lived downstairs. In July 2012 Victim and her immediate family moved downstairs,
11 	and Defendant moved upstairs.
12 	{3} 	Defendant moved out of the house in either February or March 2013, later
13 	moving to Michigan. In May 2013 he informed the police that he had sexually
14 abused Victim on nine to ten separate occasions from June to September 2012,
15 	providing 	specific 	details 	of each 	instance 	of abuse. 	Defendant 	admitted to
16 	inappropriately touching Victim's clothed and unclothed breasts and genital area.
17 Defendant informed the officers that he performed cunnilingus on Victim once and,
18 	on multiple occasions, had rubbed his finger and penis on Victim's vulva and briefly
19 	inserted his finger and penis. While Victim remained clothed for most of these
20 instances of sexual abuse, Defendant explained that he removed Victim's underwear
2

1 on one occasion. Defendant stated these acts took place upstairs, in either his
2 bedroom or the living room, when he babysat Victim as well as when the other
3 family members were in the house. Defendant noted that on two occasions Victim
4 was watching television, and that on one of those occasions she did not respond or
5 "change what she was doing at all," while he sexually abused her. Defendant
6 recounted one occasion when he inappropriately touched Victim after reading a book
7 to her on his bed. Defendant was charged with six counts of CSPM and three counts
8 of criminal CSCM (unclothed).
9 {4} 	At Defendant's trial, Mother testified that in the summer of 2012 she would
10 often leave Victim and Victim's sister with Defendant while she went to the store or
11 	ran errands. She testified that although Defendant was not available to babysit
12 Victim while he was in high school, he was able to do so during the summer. Mother
13 	testified that she sometimes left both her daughters with Defendant, "but usually just
14 	[Victim]." Mother explained that Defendant continued to watch Victim after Victim
15 	started preschool in either August or September 2012 when Defendant started
16 college. Mother noted that when Defendant babysat Victim, they played computer
17 games and watched television in the upstairs living room, and read books together
18 	in either Defendant's room or the upstairs living room.
19 	{5} 	Mother further testified that while Victim enjoyed staying with Defendant
20 when they first moved to the house, her behavior changed toward the end of 2012.
3

1 Mother explained that, "[t]owards the end of the year, when I would like go to the
2 store or something and I would ask [Defendant] to watch [Victim], she wouldn't
3 want to stay with him anymore. She would rather have gone with me, which is weird,
4 because she absolutely despises grocery shopping."
5 {6} 	When discussing whether she noticed "any odd behavior" between Defendant
6 and Victim, Mother recounted an incident when they were all watching television
7 upstairs. As they were watching television, Defendant was lying on the couch on his
8 back with Victim lying on top of him on her back. When Victim got up, Defendant
9 "readjusted himself and it appeared that he had an erection at the time[.]" When
10 asked whether Victim ever complained about any of her body parts hurting, Mother
11 	explained. that Victim told her "it hurt when she [peed]," and that Mother used diaper
12 rash ointment on Victim as a result. While Mother initially believed Victim's pain
13 	to be attributable to Victim possibly not cleaning herself properly after using the
14 restroom, she noted that Victim was "potty-trained" when she was three years old.
15 	{7} 	Victim also testified about the abuse that occurred three years prior when she
16 was four years old. She testified that Defendant touched her "private parts," namely
17 her breasts, buttocks, and genital area with his hand. When asked if Defendant
18 touched her skin or her clothes, Victim responded, "Clothes." Following Victim's
19 testimony, the State admitted a recording of Defendant's May 2013 confession into
20 evidence.
4

1 {8} 	Defendant was convicted of five counts of CSPM, two counts of CSCM
2 (clothed), and two counts ofCSCM (unclothed), one of which was a lesser-included
3 offense for a sixth charged count of CSPM. This appeal followed. We reserve our
4 discussion of the procedural history for our speedy trial analysis.
5 I. 	DISCUSSION
6 	{9} 	Defendant raises 	the 	following 	points 	on appeal: 	(1) the 	district 	court
7 improperly admitted his extrajudicial confession as it relates to his convictions for
8 CSPM and CSCM (unclothed); (2) the State violated Defendant's right to a speedy
9 trial; (3) the State violated Defendant's due process and double jeopardy rights .by
10 prosecuting 	him 	under 	"multiple 	carbon-copy 	counts" 	with 	identical 	jury
11 	instructions for different counts. We address each argument in tum.
12 A. 	Admission of Extrajudicial Confession
13 	{10} 	Defendant first argues the district court erred in admitting his extrajudicial
14 confession. In particular, Defendant contends the State failed to establish either the
15 trustworthiness 	of his 	confession or the corpus delicti 	of CSPM and CSCM
16 (unclothed), such that the district court's admission of his confession violated New
17 Mexico's modified trustworthiness doctrine.
18 	{11} 	"The corpus delicti rule provides that unless the corpus delicti of the offense
19 charged has been otherwise established, a conviction cannot be sustained solely on
20 the extrajudicial confessions or admissions of the accused." State v. Weisser, 2007-
5

1 NMCA-015, 110, 141 N.M. 93, 150 P.3d 1043 (alteration, internal quotation marks,
2 and citation omitted), abrogated in part on other grounds by State v. Bregar, 2017-
3 NMCA-028, 149, 390 P.3d 212. "The term 'corpus delicti,' which literally means
4 	'body of the crime,' refers to the evidence needed to establish that the charged crime
5 was actually committed." Id. The existence of the corpus delicti of an offense is
6 demonstrated by a factual showing that (1) "a harm or injury occurred" and (2) "the
7 harm 	or injury was 	caused by 	a criminal 	act"-the 	perpetrator's 	identity 	is
8 immaterial. Id. "[T]he corpus delicti rule has traditionally governed the admissibility
9 of extrajudicial confessions." State v. Hardy, 2012-NMCA-005, 17, 268 P.3d 1278
10 (emphasis, internal quotation marks, and citation omitted). It functions as both a rule
11 	of evidence and a rule of substantive criminal law. Id. (internal quotation marks and
12 citation omitted). As a rule of evidence "it bars the admission of an extrajudicial
13 	confession until a predicate showing is made that the crime charged was committed
14 by someone." Id. 	As a rule of substantive criminal law, the corpus delicti rule
15 	"requires a conviction based on a confession to be supported by the requisite degree
16 	of proof of the corpus delicti." Id. ( emphasis, internal quotation marks, and citation
17 omitted).
18 	{12} 	Under the modified trustworthiness doctrine adopted by our Supreme Court,
19 "an extrajudicial statement may be used to establish the corpus delicti where the
20 statement is shown to be trustworthy and where there is some independent evidence
6

1 to confirm the existence of the alleged loss or injury." Weisser, 2007-NMCA-015,
2 ~ 18; see State v. 	Wilson, 2011-NMSC-001, ~ 15, 149 N.M. 273, 248 P.3d 315
3 (adopting the rule announced in State v. Paris, 1966-NMSC-039, ~, 9, 10, 76 N.M.
4 291,414 P.2d 512, and clarified in Weisser), overruled on other grounds by State v.
5 	Tollardo, 2012-NMSC-008, ~ 37, 275 P.3d 110. Our rule "require[s] that at least
6 some evidence independent of a defendant's confession actually touch upon the
7 corpus delicti." Weisser, 2007-NMCA-015, ~ 18. To the extent Defendant "contends
8 that the undisputed facts do not establish the corpus delicti of the crime as a matter
9 oflaw, our standard of review is de novo." Wilson, 2011-NMSC-001, ~ 17 (emphasis
10 omitted). "[W]here the determination of the corpus delicti rests on disputed facts,
11 	we will defer to the district court's findings of fact, provided that such findings are
12 supported by substantial evidence." Weisser, 2007-NMCA-015, ~ 7. The corpus
13 	delicti of CSPM in this case is established by proving that (1) the minor engaged in
14 cunnilingus, fellatio, or anal intercourse, or the minor's genital or anal openings were
15 penetrated, and (2) that this harm was caused by someone's criminal agency. See
16 	§ 30-9-1 l(A), 	(D)(l); 	cf 	Weisser, 	2007-NMCA-015, 	~ 10 	(explaining 	the
17 components of a crime's corpus delicti). The corpus delicti ofCSCM (unclothed) in
18 this case is "established by evidence proving that (1) the minor's intimate parts were
19 touched by someone[,] and (2) that this harm was caused by someone's criminal
20 agency." See§ 30-9-13(A); Weisser, 2007-NMCA-015, ~ 26.
7

1 {13} 	Consistent with the rule in Weisser, we first determine whether Defendant's
2 extrajudicial confession was shown to be trustworthy. 2007-NMCA-015, 127.
3 "[T]he evidence used to establish the trustworthiness of [the d]efendant' s statements
4 must actually concern the content of his statements, not merely the circumstances
5 surrounding them." Id. 	,-r 30. In ruling on the admissibility of the recording of
6 Defendant's confession in this case, the district court stated:
7 	The corroboration that I am relying on in this decision are that there's
8 	already been testimony by the child's mother that these things happened
9 	while he was babysitting, that they-he was always upstairs with her,
10 	that this happened mostly during the-or, I'm sorry, that he babysat her
11 	mostly during the summer because that's when he was available due to
12 	his school schedule, and the statements made during-in his extra-
13 	judicial statement, his confession, were that it happened while he was
14 	babysitting, it happened while he was upstairs with her, happened
15 	mostly during the summer months, which would correlate with [what]
16 	the mom said about when he was mostly keeping her.
17 {14} 	In addition to the facts relied upon by the district court, our review of the
18 record 	reveals 	facts 	further 	establishing 	the 	trustworthiness 	of 	Defendant's
19 confession. 	See . Wilson, 	20 l 1-NMSC-001, ,-r 20 (explaining that in evaluating
20 whether 	there 	was 	sufficient 	evidence 	confirming 	the 	trustworthiness 	of 	a
21 	defendant's confession, an appellate court is not confined to the facts relied upon by
22 the district court, but "performs its own review of the record and supplements the
23 	[district] court's findings as needed"). Victim's testimony confirmed the existence
24 	of certain criminal acts Defendant admitted to in his taped confession, namely that
25 	he touched her clothed breasts and genital area with his hand. We note that while
8

l 	Defendant highlights 	certain 	inconsistencies 	between Victim's 	testimony 	and
2 Defendant's confession, "the mere fact that there was testimony or evidence calling
3 the trustworthiness ofDefendant's admission into question does not negate that there
4 was also corroborating evidence." State v. Owelicio, 2011-NMCA-091, 131, 150
5 N.M. 528, 263 P.3d 305. "Instead, the existence of contradictory evidence merely
6 raises a credibility issue to be resolved by the fact[-]finder." Id. Upon consideration
7 of the district court's factual findings along with Victim's testimony, we conclude
8 that Defendant's confession was sufficiently corroborated. 	See 	Weisser, 	2007-
9 NMCA-015, 115 ("[P]roof of any corroborating circumstances is adequate which
10 	goes to fortify the truth of the confession or tends to prove facts embraced in the
11 	confession." (internal quotation marks and citations omitted)).
12 {15} 	Second, we consider whether the State provided some independent evidence
13 	confirming the existence of the alleged injuries. See id. 125. Defendant argues that
14 while there was evidence corroborating his convictions for CSCM (clothed), no such
15 	evidence was presented relating to CSCM (unclothed) or CSPM. In response, the
16 	State contends that the modified trustworthiness doctrine adopted by our Supreme
17 Court focuses on the trustworthiness of the defendant's admission and confession-
18 requiring [that] only ... some evidence independent of a defendant's confession
19 actually touch upon the corpus delicti." (emphasis added). See id. 	118. While
20 Defendant suggests we adopt a per se rule that each confessed act of sexual abuse
9

1 must be independently corroborated, he cites no New Mexico authority to support
2 his 	argument. 	Indeed, 	our 	Supreme 	Court 	recognized 	that 	the 	quantum 	of
3 independent evidence needed to establish an alleged loss or injury in a given case
4 depends on the facts and circumstances in each case. See Paris, 1966-NMSC-039,
5 1 8 (discussing the diversity of views among various jurisdictions regarding the
6 quantum of independent evidence necessary to establish the corpus delicti, and
7 concluding that "it would be imprudent to say that one particular hair-splitting
8 formula has the support of a majority[, and that t]his is particularly true when we
9 consider that each case must tum on its own facts and circumstances" (citation
10 omitted)).
11 	{16} 	Before considering whether the State provided independent evidence of the
12 alleged injuries, as required by Weisser, we again note Defendant does not contest
13 	the State's presentation of some evidence confirming the alleged injuries involved
14 in the two counts of CSCM (clothed). At issue are the five counts of CSPM and two
15 	counts of CSCM (unclothed). We recognize that in Weisser we concluded changes
16 in the victim's behavior, "i.e., her nightmares and withdrawal from strangers," were
17 insufficient on their own to establish independent proof of the alleged harm involved
18 	in CSCM. 2007-NMCA-015, 1132, 36. We explained that "[i]n the absence of
19 physical evidence of the abuse, we believe that the circumstantial evidence used to
20 independently prove the loss or injury must be more than a small number of
10

1 behavioral 	symptoms 	susceptible 	to 	different 	inferences." 	Id. 	134. 	Weisser,
2 however, cited with approval to the Massachusetts Court of Appeals decision in
3 	Commonwealth v. Villalta-Duarte, 774 N.E.2d 1144 (Mass. App. Ct. 2002), as an
4 example of a case in which sufficient circumstantial evidence existed to prove a
5 young child had been abused when the child cried hysterically when brought to the
6 defendant's apartment, developed an intractable diaper rash, and had scratches on
7 her face.
8 {17} 	In this case, as in Villalta-Duarte, the State presented more than a small
9 number of behavioral symptoms. In addition to Mother's testimony that Victim's
10 behavior changed toward the end of 2012 such that she no longer wanted to stay with
11 	Defendant while Mother ran errands, the State presented testimony from Victim that
12 Defendant touched her private parts (or "pee-pee" and "chi-chis") over her clothes,
13 	as well as testimony from Mother that Defendant appeared to develop an erection
14 when Victim lied down on him, that Victim complained that "it hurt when she
15 	[peed,]" and that Mother treated her with a diaper rash ointment. Although this
16 evidence could arguably be explained by something other than sexual abuse, this
17 Court later abrogated the "susceptible to multiple inferences" principle relied on in
18 	Weisser. See Bregar, 2017-NMCA-028, ~ 49. Instead, "our task on appeal involves
19 first drawing every reasonable inference in favor of the jury's verdict, and then
20 evaluating whether the evidence, so viewed, supports the verdict." Id (alterations,
11

1 emphasis, omission, internal quotation marks, and citation omitted). In light of this
2 standard, we conclude the State provided adequate proof of the alleged injury to .
3 Victim. See Weisser, 2007-NMCA-015, 'if 35. Accordingly, the district court did not
4 err in admitting Defendant's confession.
5 B. 	Speedy Trial
6 {18} 	Defendant next contends that his right to a speedy trial was violated. "In a
7 criminal prosecution, the accused is constitutionally entitled to a speedy trial." State
8 v. 	([astro, 2017-NMSC-027, 'if 15, 402 P.3d 688. "The right to a speedy trial is
9 unique in that it balances two separate interests: (1) preventing prejudice to the
10 accused, and (2) protecting societal interests in bringing the accused to trial." Id
11 	"Whether a defendant has been deprived of the right requires a case-by-case
12 analysis." State v. Dorais, 2016-NMCA-049, 'if 20, 370 P.3d 771. When analyzing a
13 	speedy trial claim, we assess "the four factors presented by the United States
14 	Supreme Court in Barker [v. 	Wingo, 407 U.S. 514 (1972)] and adopted by New
15 	Mexico courts: (1) the length of delay in bringing the case to trial, (2) the reason for
16 the delay, (3) the defendant's assertion of the right, and (4) the prejudice to the
17 defendant." Castro, 2017-NMSC-027, 'if 16 (alterations, internal quotation marks,
18 	and citation omitted). "Each of these factors is weighed either in favor of or against
19 the state or the defendant, and then balanced to determine if a defendant's right to a
20 speedy trial was violated." State v. Brown, 2017-NMCA-046, 'if 13, 396 P.3d 171
12

1 (alteration, internal quotation marks, and citation omitted). "The factors have no
2 talismanic qualities, and none of them are a necessary or sufficient condition to the
3 finding of a violation of the right to a speedy trial." Id. ( alterations, internal quotation
4 marks, and citation omitted). "Rather they are related factors and must be considered
5 together with such other circumstances as may be relevant." Id. (internal quotation
6 marks and citation omitted). "In our review of a speedy trial ruling, this Court must
7 give deference to the district court's factual findings, but we review the weighing
8 and the balancing of the Barker factors de novo." Id. (internal quotation marks and
9 citations omitted).
10 	1. 	Length of Delay
11 	{19} 	"The 'length of delay' factor ... acts as a threshold triggering mechanism
12 used to determine whether the delay is 'presumptively prejudicial' so as to continue
13 	with a full speedy trial analysis." Id. ,-r 14 (citation omitted). "If the delay crosses the
14 	'presumptively prejudicial' threshold, a speedy trial analysis is warranted." Id. "A
15 	delay is presumptively prejudicial if the delay exceeds twelve months for a simple
16 case, fifteen months for a case of intermediate complexity, and eighteen months for
17 a complex case." Id. (alterations, internal quotation marks, and citation omitted).
18 Defendant disputes the district court's finding that this was a complex case. The
19 district court based its finding on Victim's young age, the issue regarding · her
20 competency, and the State's reliance on an out-of-state witness for purposes of trial.
13

1 We note that generally "we defer to the district court's finding on the question of
2 complexity when that finding is supported by substantial evidence." State v. Thomas,
3 2016-NMSC-024, ,r 11, 376 P.3d 184 (alterations, omissions, internal quotation
4 marks, and citation omitted). Here, the district court's finding is supported by the
5 number of charges, the nature of the allegations, and the difficult evidentiary issues,
6 including Victim's competency to testify. See id. 	We thus conclude this was a
7 complex case, for which a delay of more than eighteen months is considered
8 presumptively prejudicial. Brown, 2017-NMCA-046, ,r 14.
·9 	{20} 	Defendant was arrested in this case on June 13, 2013, and was brought to trial
10 on July 21, 2015. This approximately twenty-five month length of delay exceeded
11 	the presumptively prejudicial threshold for complex cases by approximately seven
12 months. We therefore weigh this factor slightly against the State. See State v. Ochoa,
13 	2017-NMSC-031, ,r,r 16-17, 406 P.3d 505 (weighing a length of delay six months
14 past the presumptively prejudicial threshold for a complex case "only slightly
15 	against the [s]tate").
16 2. 	Reasons for Delay
17 	{21} 	"Closely related to the length of delay is the reason the [state] assigns to justify
18 the delay." Brown, 2017-NMCA-046, ,r 18 (alteration, internal quotation marks, and
19 citation omitted). "The reasons for a period of the delay may either heighten or
20 temper the prejudice to the defendant caused by the length of the delay." State v.
14

1 Garza, 2009-NMSC-038, ,-f 25, 146 N.M. 499, 212 P.3d 387 (internal quotation
2 marks and citation omitted). New Mexico recognizes four types 	of delay: (1)
3 "intentional delay" is the state's "deliberate attempt to delay prosecution of the case
4 in order to hamper the defense ... [and] weighs heavily against the state"; (2)
5 "negligent or administrative delay," while weighing "more lightly against the state,"
6 weighs more heavily against the state as the length of delay increases; (3) "[delay]
7 justified for valid reasons" is weighed neutrally; and (4) "delay caused by the
8 defense" 	is 	weighed 	against 	the 	defendant. 	Brown, 	2017-NMCA-046, 	,-f 18
9 (alteration, internal quotation marks, and citations omitted). "The complicated
10 circumstances of this case require that we analyze each period of delay separately."
(
11 	Id.
12 	{22} 	Following Defendant's arrest, the State on July 9, 2013, filed a demand for
13 	alibi or entrapment defense, a list of witnesses, the State's disclosure, and a demand
14 for Defendant's disclosure. Although it does not appear in the record, both parties
15 	agree that Defendant filed a motion for a forensic evaluation on June 27, 2013, which
16 was resolved on December 20, 2013. The case was proceeding normally toward trial
17 from June· 13, 2013 to June 27, 2013, a total delay of fourteen days, and we therefore
18 weigh this period neutrally. See id. ,-f 19 (weighing as neutral the period of delay
19 during which "the case was proceeding normally toward trial"). As Defendant
20 conceded below, the delay from June 27, 2013, to December 20, 2013, was
15

1 attributable to his motion for a forensic evaluation. In the absence of evidence
2 demonstrating either that the State failed to bring Defendant to trial in a timely
3 manner 	from 	June 	27, 	2013 	to 	December 20, 	2013, 	or that the 	delay 	was
4 unreasonable, "solely attributable to [defense] counsel[,]" or unnecessary, we weigh
5 this period of five months and twenty-three days against Defendant. See State v.
6 Stock, 2006-NMCA-140, ,r,r 19-22, 29, 140 N.M. 676, 147 P.3d 885 (recognizing
7 that, as a general proposition; delays resulting from competency evaluations are "for
8 the defendant's benefit and the defendant [is] responsible for them" for speedy trial
9 purposes, but declining to weigh against the defendant the "extraordinary delay"
10 there involved, resulting from both the defense counsel's prolonged failure to send
11 	the evaluation report to the state or to the court, and the state's "failure to monitor
12 the case and ensure that steps were being taken to bring [the d]efendant to trial in a
13 	timely manner"); see generally State v. Steinmetz, 2014-NMCA-070, ,r 47, 327 P.3d
14 	1145 (weighing "the delay caused by the necessity of resolving [the d]efendant's
15 motions" against the defendant).
16 	{23} 	Following the resolution of Defendant's motion for a forensic evaluation, the
17 case proceeded normally toward trial. 	On January 7, 	2014, the 	district court
18 	scheduled a pretrial hearing for March 3, 2014, and a jury trial for March 11, 2014.
19 On February 11, 2014, however, Defendant filed an unopposed motion to continue
20 both settings, citing the shortage of attorneys on staff and the need for additional
16

1 time to prepare. On February 13, 2014, the district court granted Defendant's motion
2 for continuance, rescheduling the pretrial hearing for May 27, 2014, and the jury
3 trial for June 3, 2014. We weigh the period from December 20, 2013 to March 11,
4 2014, a total delay of two months and nineteen days, neutrally, as the case was
5 moving normally toward trial. See Brown, 2017-NMCA-046,, 19. The delay of two
6 months and twenty-three days from March 11, 2014 to June 3, 2014, was caused by
7 defense counsel's need for additional time to prepare for trial. As a result, we weigh
8 this period against Defendant. See State v. Deans, 2019-NMCA-015,, 10, _P.3d
9 _ 	("[A]ny 	delay 	caused 	by 	the 	defendant 	generally 	weighs 	against 	the
10 defendant."). But see Ochoa, 2017-NMSC-031, , 22 (concluding that a period of
11 	delay caused by defense counsel's need to adequately prepare for trial after three
12 postponements of interviews with the state's witnesses was a "legitimate reason for
13 	[the d]efendant to seek to postpone" trial and thus does ~ot weigh against him).
14 {24} 	On May 27, 2014, the district court ·granted the State's in-court motion to
15 	continue, rescheduling the date of trial for July 15, 2014. The State's motion was
16 based on its inability to bring an out-of-state witness to New Mexico in a timely
17 fashion. We therefore conclude the delay of one month and twelve days from June
18 3, 2014 to July 15, 2014, is administrative delay to be weighed against the State. Cf
19 State v. Flores, 2015-NMCA-081, , 	13, 355 P.3d 81 (concluding that a period of
17

1 delay caused by the prosecutor's scheduling conflict was administrative delay to be
2 weighed against the state).
3 	{25} 	On June 9, 2014, Defendant filed a motion to determine Victim's competency
4 to testify. Consequently, the district court vacated the trial setting and scheduled a
5 motion hearing for August 21, 2014. We therefore weigh the period of delay from
6 July 15, 2014 to August 21, 2014, a total delay of one month and six days, against
7 Defendant. See Stock, 2006-NMCA-140, 1119-22, 29; see also Steinmetz, 2014-
8 NMCA-070, 147. On August 6, 2014, the State filed a motion to continue the motion
9 hearing because of a scheduling conflict. The district court granted the State's
10 motion and rescheduled the hearing for August 29, 2014. We weigh the delay of
11 	eight days from August 21, 2014 to August 29, 2014, as administrative delay against
12 the State. See Flores, 2015-NMCA-081, 113 (concluding that a period of delay
13 	caused by the prosecutor's scheduling conflict was administrative delay to be
14 weighed against the state).
15 	{26} 	Following the August 29, 2014 competency hearing, the district court found
16 Victim was not competent to testify. On September 4, 2014, the State filed a motion
17 to reconsider, and the district court scheduled a motion hearing for October 17, 2014.
18 On November 20, 2014, the district court granted the State's motion, finding Victim
19 competent to testify. The district court then scheduled a jury trial for September 30,
20 2015. We weigh the delay of two months and twenty-two days from August 29, 2014
18

1 to November 20, 2014, as administrative delay against the State. See State v. Samora,
2 2016-NMSC-03 l, ,r,r 15, 17, 387 P.3d 230 (holding that a period of delay which
3 included time necessary to resolve the state's motions was administrative delay to
4 be weighed against the state); State v. Suskiewich, 2016-NMCA-004, ,r,r 12, 16,363
5 P.3d 1247 (holding that a period of delay which included the state's motion to
6 reconsider was administrative delay to be weighed against the state); Flores, 2015-
7 NMCA-081, ,r,r 25-26 (same).
8 {27} 	The case was proceeding normally toward trial when on May 21, 2015,
9 Defendant filed a motion to dismiss on speedy trial grounds. At the hearing on
.10 Defendant's speedy trial motion, the district court determined that although there
11 	was no 	speedy trial violation, 	they were "getting very, 	very close 	to 	one."
12 Accordingly, the district court rescheduled the jury trial for July 21, 2015. As the
13 	case was proceeding normally toward trial from November 20, 2014 to July 21,
14 2015, we weigh this delay of eight months and one day neutrally. See Brown, 201 7-
15 	NMCA-046, ,r 19.
16 	{28} 	In sum, we weigh approximately eleven months neutrally, nearly ten months
17 against Defendant, and approximately four months against the State. Accordingly,
18 this factor does not weigh in Defendant's favor.
19

1 3. 	Assertion of the Right
2 	{29} 	"The timeliness and vigor with which the right to a speedy trial is asserted
3 may be considered as an indication of whether a defendant was denied the right to a
4 speedy trial over his objection or whether the issue was raised on appeal as an
5 afterthought." Id. , 29 (alterations, internal quotation marks, and citation omitted).
6 As a result, "appellate courts assess the timing of the defendant's assertion and the
7 manner in which the right was asserted." Id. (alteration, internal quotation marks,
8 and citation omitted). "We accord weight to the frequency 	and force 	of the
9 defendant's objections to the delay and analyze the defendant's actions with regard
10 to the delay." Id. (alteration, internal quotation marks, and citation omitted).
11 	{30} 	The district court found Defendant had "repeatedly asserted his right." While
12 the record supports this finding, we must still determine the weight to be assigned
13 	under this factor. Defendant first asserted his speedy trial right on December 27,
14 2013, in conjunction with his counsel's initial entry of appearance. "Such pro forma
15 	motions are generally afforded relatively little weight in this analysis." State v.
16 	Urban, 2004-NMSC-007,, 16, 135 N.M. 279, 87 P.3d 1061. His next two assertions
17 occurred at hearings on May 27, 2014 and August 18, 2014. These assertions,
18 	however, occurred immediately prior to and during the delay caused by Defendant's
19 motion to determine Victim's competency ~o testify and are given little weight. See
20 Flores, 2015-NMCA-081,, 31 ("Although we accord weight to the frequency and
20

1 force of the defendant's objections to the delay, the force of a defendant's assertions
2 is 	mitigated 	where 	he 	filed 	motions 	that 	were 	bound 	to 	slow 	down 	the
3 proceedings[.]" (alteration, internal quotation marks, and citation omitted)). We
4 accord Defendant's third assertion, made at a hearing on September 8, 2014, after
5 the State filed its motion to reconsider, appropriate weight. See Garza, 2009-NMSC-
6 038, ~ 32 (explaining that "we accord weight to the frequency and force of the
7 defendant's objections to the delay" (internal quotation marks and citation omitted)).
-
8 His final assertion was his motion to dismiss on speedy trial grounds. As Defendant
9 filed this motion approximately four months prior to the scheduled trial setting, and
10 he requested dismissal rather than a prompt trial, we accord Defendant little weight
11 	for this assertion. See State v. Ortiz-Burciaga, 1999-NMCA-146, ~ 35, 128 N.M.
12 382, 993 P.2d 96 (holding that we do not give a defendant "much weight" for an
13 assertion made in a motion for dismissal rather than for a prompt trial); cf State v.
14 Moreno, 2010-NMCA-044, ~ 35, 148 N.M. 253, 233 P.3d 782 (concluding that we
15 	weigh the "assertion of the right" factor slightly in the defendant's favor when one
16 	of the defendant's two assertions was made two and one-half months before the
17 	scheduled trial setting). We therefore conclude that this factor weighs only slightly
18 	in Defendant's favor.
21

1 4. 	Prejudice
2 	{31} 	"The heart of the speedy trial right is preventing prejudice to the accused."
3 Brown, 2017-NMCA-046,, 33 (internal quotation marks and citation omitted). "The
4 United States Supreme Court has identified three interests under which we analyze
5 prejudice to the defendant: (i) to prevent oppressive pretrial incarceration; (ii) to
6 minimize anxiety and concern of the accused; and (iii) to limit the possibility that
7 the defense will be impaired." Garza, 2009-NMSC-038, , 	35 (internal quotation
8 marks and citation omitted). "Generally, the defendant has the burden of proof to
9 show 'particularized prejudice.'" Brown, 2017-NMCA-046,, 33 (internal quotation
10 marks and citation· omitted). "Because some degree of oppression and anxiety is
11 	inherent for every defendant who is jailed awaiting trial, the defendant bears the
12 burden to establish that the pretrial incarceration or the anxiety suffered by the
13 	defendant is undue." Id. (alteration, internal quotation marks, and citation omitted).
14 	{32} 	Defendant argues he "suffered anxiety for eighteen months while nine serious
15 	felony charges hung over 'his head[.]" However, Defendant offers no evidence
16 	suggesting his anxiety was undue. As Defendant has failed to make a particularized
17 showing of prejudice, we do not accord Defendant weight under this factor.
18 	5. 	Balancing the Barker Factors
19 	{33} 	In sum, the length of delay weighs slightly in Defendant's favor, the reasons
20 for delay do not weigh in Defendant's favor, Defendant's assertion of his right
22

1 weighs slightly in his favor, and Defendant has failed to show prejudice. As a result,
2 we conclude Defendant's right to a speedy trial was not violated. See Garza, 2009-
3 NMSC-03 8, , 40 (concluding the defendant's right to a speedy trial was not violated
4 when he "failed to show prejudice, and the other factors did not weigh heavily in
5 [his] favor"); State v. Gallegos, 2016-NMCA-076, , 32, 387 P.3d 296 ("[E]ven in
6 the absence of a showing of particularized prejudice, the state violates a defendant's
7 constitutional right to a speedy trial when the defendant demonstrates that the length
8 of delay and the reasons for the delay weigh heavily in the defendant's favor and the
9 defendant has asserted his right and not acquiesced to the delay." (alterations,
10 	internal quotation marks, and citation omitted)).
11 	C. 	Due Process and Jury Instructions
12 {34} 	Defendant next argues the State violated his due process right by prosecuting
13 	him under "multiple carbon-copy counts." In particular, Defendant appeals the
14 district court's denial of his mid-trial motion to dismiss the charges against him
15 	based on the lack of distinguishing facts or circumstances between the various
16 charges. We review the district court's ruling de novo. See State v. Dominguez, 2008-
17 NMCA-029, , 5, 	143 N.M. 549, 	178 P.3d 834 ("We analyze the dismissal of
18 criminal charges on due process grounds under a de novo standard[.]" (internal
19 quotation marks and citation omitted)).
23

1 {35} 	"Procedural due process under the Fourteenth Amendment to the United
2 States Constitution requires the [s]tate to provide reasonable notice of charges
3 against a person and a fair opportunity to defend." Id. (internal quotation marks and
4 citation omitted). "Procedural due process also requires that criminal charges
5 provide criminal defendants with the ability to protect themselves from double
6 jeopardy." Id. 	(internal quotation marks and citation omitted). "This Court has
7 recognized that the failure to describe the offenses in an indictment with some
8 particularity violates due process where there are allegations that several similar
9 incidents took place and the defendant cannot tell from the charging document which
10 events he is being prosecuted for." Id. 	,-r 10. "Although we have allowed some
11 	leeway in the charging period where child victims are unable to recall dates with
12 specificity, we have never held that the [s]tate may move forward with a prosecution
13 	of supposedly distinct offenses based on no distinguishing facts or circumstances at
14 all, simply because the victim is a child." Id. 	(citations omitted) "When a child
15 	cannot remember specific dates, a defendant may still have adequate notice if the
16 child or other witnesses are able to provide facts sufficient to identify distinct
17 incidents of abuse." Id. ( emphasis added).
18 	{36} 	Victim testified that Defendant touched her clothed breasts, and genital area.
19 In his 	extrajudicial confession, 	Defendant gave detailed accounts 	of separate
20 incidents 	of CSCM (clothed), 	CSCM (unclothed), 	and 	CSPM, 	including the
24

1 distinguishing facts of the separate sexual acts he committed, where they occurred
2 in the house, and when they happened. Defendant's admissions, along with Victim's
3 testimony, were sufficient to provide Defendant with adequate notice concerning the
4 counts of CSPM and CSCM. For the same reasons, we conclude the evidence was
5 sufficient to protect Defendant against double jeopardy. See State v. Salazar, 2006-
6 NMCA-066, ,-r 31, 139 N.M. 603, 136 P.3d 1013 ("[I]fthere was sufficient evidence
7 from which the jury could have found that each act was in some sense distinct from
8 the other, then the conduct was not unitary.").
9 	{37} 	Ancillary to his due process argument, Defendant argues that the State's
10 submission of "carbon-copy" jury instructions for the multiple counts of CSPM, as
11 	well as the multiple counts 	of CSCM (unclothed) and CSCM (clothed) was
12 	impermissibly confusing, thereby leaving it to the jury to sort out a basis for
13 	conviction. We review preserved assertions of error in jury instructions for reversible
14 error. See State v. Benally, 2001-NMSC-033, ,-r 12, 131 N.M. 258, 34 P.3d 1134 ("If
15 	the error has been preserved we review the instructions for reversible error."). We
16 review assertions of error in jury instructions "to determine whether a reasonable
17 juror would have been confused or misdirected by the jury instruction." Id. (internal
18 	quotation marks and citation omitted). "[J]uror confusion or misdirection may stem
19 not only from instructions that are facially contradictory or ambiguous, but from
25

1 instructions which, through omission or misstatement, fail to provide the juror with/
2 an accurate rendition of the relevant law." Id.
3 {38} 	Relying on State v. Nichols, 2016-NMSC-001, 363 P.3d 1187, Defendant
4 argues the State improperly "le[ft] it to the jury to sort out to find a basis for
5 conviction." In Nichols, the state presented the jury with two different theories, but
6 did not explain the difference between them. Id. 	136. As our Supreme Court
7 explained, "[t]he [s]tate cannot offer a confusing array of evidence, submit several
8 vague jury instructions on various potential theories, and leave to the jury the
9 responsibility of putting it all together to find a basis for a conviction." Id. As we
10 have concluded above, the evidence presented at trial, 	including Defendant's
11 	admissions, provided the jury sufficient evidence from which it could find distinct
12 acts ofCSPM and CSCM. Moreover, the State explained in dosing argument which
13 	conduct was associated with the CSPM and CSCM counts. We conclude that a
14 reasonable juror would not have been confused by the jury instructions and the
15 	instructions were therefore not given in error. See Salazar, 2006-NMCA-066, 131
16 ("[T]here was sufficient evidence presented to the jury from which it could have
17 found two separate incidents of criminal sexual penetration. The fact that each
18 	incident was instructed identically does not change this conclusion.").
19 II. 	CONCLUSION
20 	{39} 	The judgment and sentence are affirmed.
26

1
{40} IT IS SO ORDERED.
Julie . Vargas
JULIE J. VARGAS, Judge
WE CONCUR:
4 5
JENNIFER L. ATTREP, Judge
6
7|
Barna Lumera
BRIANA H. ZAMORA, Judge
27
2 3