{ "id": 4240653, "name": "STATE OF NEW MEXICO, Plaintiff-Appellant, v. NODEE LUJAN, Defendant-Appellee", "name_abbreviation": "State v. Lujan", "decision_date": "2015-02-18", "docket_number": "Docket No. 33,349", "first_page": "493", "last_page": "501", "citations": [ { "type": "official", "cite": "2015-NMCA-032" } ], "court": { "name_abbreviation": "N.M. Ct. App.", "id": 9025, "name": "Court of Appeals of New Mexico" }, "jurisdiction": { "id": 52, "name_long": "New Mexico", "name": "N.M." }, "cites_to": [ { "cite": "327 P.3d 1129", "category": "reporters:state_regional", "reporter": "P.3d", "opinion_index": 0 }, { "cite": "2014-NMCA-069", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 4239490 ], "pin_cites": [ { "page": "\u00b6 56" } ], "opinion_index": 0, "case_paths": [ "/nm-app/6/0232-01" ] }, { "cite": "111 N.M. 422", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 715096 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/111/0422-01" ] }, { "cite": "1991-NMSC-016", "category": "reporters:neutral", "reporter": "NMSC", "weight": 3, "pin_cites": [ { "page": "\u00b6 32" }, { "page": "\u00b6 32" }, { "page": "\u00b6 18" } ], "opinion_index": 0 }, { "cite": "2008-NMSC-062", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 4242786 ], "weight": 3, "pin_cites": [ { "page": "\u00b6 33" } ], "opinion_index": 0, "case_paths": [ "/nm/145/0242-01" ] }, { "cite": "113 N.M. 192", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 723214 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/113/0192-01" ] }, { "cite": "1991-NMCA-134", "category": "reporters:neutral", "reporter": "NMCA", "weight": 2, "pin_cites": [ { "page": "\u00b6 5" }, { "page": "\u00b6 5" } ], "opinion_index": 0 }, { "cite": "111 N.M. 145", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 715045 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/111/0145-01" ] }, { "cite": "1990-NMSC-085", "category": "reporters:neutral", "reporter": "NMSC", "weight": 2, "pin_cites": [ { "page": "\u00b6 7" }, { "page": "\u00b6 7" } ], "opinion_index": 0 }, { "cite": "489 F.3d 201", "category": "reporters:federal", "reporter": "F.3d", "case_ids": [ 3484153 ], "year": 2007, "pin_cites": [ { "page": "210-12" } ], "opinion_index": 0, "case_paths": [ "/f3d/489/0201-01" ] }, { "cite": "2009-NMCA-092", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 4244809 ], "weight": 3, "pin_cites": [ { "page": "\u00b6 32" } ], "opinion_index": 0, "case_paths": [ "/nm/146/0873-01" ] }, { "cite": "104 N.M. 241", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1595014 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/104/0241-01" ] }, { "cite": "1986-NMCA-044", "category": "reporters:neutral", "reporter": "NMCA", "pin_cites": [ { "page": "\u00b6 12" } ], "opinion_index": 0 }, { "cite": "2010-NMCA-044", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 4247862 ], "weight": 3, "pin_cites": [ { "page": "\u00b6 38" } ], "opinion_index": 0, "case_paths": [ "/nm/148/0253-01" ] }, { "cite": "505 U.S. 647", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 1480837 ], "year": 1992, "pin_cites": [ { "parenthetical": "\"}T]o trigger a speedy trial analysis, an accused must allege that the interval between accusation and trial has crossed the threshold dividing ordinary from 'presumptively prejudicial' delay}.]\" (Emphasis added)" } ], "opinion_index": 0, "case_paths": [ "/us/505/0647-01" ] }, { "cite": "2007-NMCA-107", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 3693161 ], "weight": 3, "pin_cites": [ { "page": "\u00b6 7" } ], "opinion_index": 0, "case_paths": [ "/nm/142/0377-01" ] }, { "cite": "1999-NMSC-038", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 106481 ], "weight": 3, "pin_cites": [ { "page": "\u00b6 57" } ], "opinion_index": 0, "case_paths": [ "/nm/128/0192-01" ] }, { "cite": "2011-NMCA-074", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 4250449 ], "weight": 4, "pin_cites": [ { "page": "\u00b6 17" }, { "page": "\u00b6\u00b6 16-17" } ], "opinion_index": 0, "case_paths": [ "/nm/150/0415-01" ] }, { "cite": "2001-NMCA-062", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 352468 ], "weight": 5, "pin_cites": [ { "page": "\u00b6 12" }, { "page": "\u00b6 11" }, { "page": "\u00b6\u00b6 10, 12" } ], "opinion_index": 0, "case_paths": [ "/nm/130/0651-01" ] }, { "cite": "327 P.3d 1145", "category": "reporters:state_regional", "reporter": "P.3d", "opinion_index": 0 }, { "cite": "2014-NMCA-070", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 4239453 ], "pin_cites": [ { "page": "\u00b6 6" } ], "opinion_index": 0, "case_paths": [ "/nm-app/6/0250-01" ] }, { "cite": "328 P.3d 1188", "category": "reporters:state_regional", "reporter": "P.3d", "weight": 2, "opinion_index": 0 }, { "cite": "2014-NMCERT-006", "category": "reporters:neutral", "reporter": "NMCERT", "weight": 2, "opinion_index": 0 }, { "cite": "327 P.3d 1102", "category": "reporters:state_regional", "reporter": "P.3d", "opinion_index": 0 }, { "cite": "2014-NMCA-065", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 4240075 ], "weight": 3, "pin_cites": [ { "page": "\u00b6 6" }, { "page": "\u00b6 8" }, { "page": "\u00b6 9" } ], "opinion_index": 0, "case_paths": [ "/nm-app/6/0205-01" ] }, { "cite": "301 P.3d 370", "category": "reporters:state_regional", "reporter": "P.3d", "opinion_index": 0 }, { "cite": "2013-NMSC-015", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 4335142 ], "pin_cites": [ { "page": "\u00b6 41" } ], "opinion_index": 0, "case_paths": [ "/nm-app/4/0080-01" ] }, { "cite": "2004-NMSC-007", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 1427956 ], "weight": 4, "pin_cites": [ { "page": "\u00b6 13" }, { "page": "\u00b6 20" } ], "opinion_index": 0, "case_paths": [ "/nm/135/0279-01" ] }, { "cite": "2009-NMCA-074", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 4243104 ], "weight": 4, "pin_cites": [ { "page": "\u00b6 9" }, { "page": "\u00b6 9" } ], "opinion_index": 0, "case_paths": [ "/nm/146/0594-01" ] }, { "cite": "283 P.3d 272", "category": "reporters:state_regional", "reporter": "P.3d", "opinion_index": 0 }, { "cite": "2012-NMSC-023", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 4189768 ], "weight": 14, "pin_cites": [ { "page": "\u00b6 17" }, { "page": "\u00b6 21" }, { "page": "\u00b6 21" }, { "page": "\u00b6 21" }, { "page": "\u00b6 25" }, { "page": "\u00b6 25" }, { "parenthetical": "internal quotation marks and citations omitted" }, { "page": "\u00b6\u00b6 19, 30" }, { "page": "\u00b6 39" }, { "page": "\u00b6 19" }, { "page": "\u00b6 37" }, { "page": "\u00b6 19" }, { "page": "\u00b6 17" } ], "opinion_index": 0, "case_paths": [ "/nm-app/2/0264-01" ] }, { "cite": "407 U.S. 514", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 9139028 ], "year": 1972, "opinion_index": 0, "case_paths": [ "/us/407/0514-01" ] }, { "cite": "2009-NMSC-038", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 4243125 ], "weight": 20, "pin_cites": [ { "page": "\u00b6 11" }, { "page": "\u00b6\u00b6 9, 13" }, { "page": "\u00b6\u00b6 13, 32, 35" }, { "page": "\u00b6 21" }, { "page": "\u00b6 21" }, { "page": "\u00b6 24" }, { "page": "\u00b6 25" }, { "page": "\u00b6\u00b6 31-32" }, { "page": "\u00b6 32" }, { "page": "\u00b6 12" }, { "page": "\u00b6\u00b6 47-48" }, { "page": "\u00b6 35" }, { "page": "\u00b6 22" }, { "page": "\u00b6\u00b6 13, 35" }, { "page": "\u00b6 25" } ], "opinion_index": 0, "case_paths": [ "/nm/146/0499-01" ] } ], "analysis": { "cardinality": 979, "char_count": 24967, "ocr_confidence": 0.784, "pagerank": { "raw": 6.325641987950219e-08, "percentile": 0.3888454500629187 }, "sha256": "19e64cdac4aee7fc5bbfd562ca0bd0d7ae567345cbf145f34a1d6e1feb2bf81e", "simhash": "1:991dfab80b2fdcca", "word_count": 4019 }, "last_updated": "2023-07-14T17:10:55.229683+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "TIMOTHY L. GARCIA, Judge", "MICHAEL E. VIGIL, Chief Judge", "MICHAEL D. BUSTAMANTE, Judge" ], "parties": [ "STATE OF NEW MEXICO, Plaintiff-Appellant, v. NODEE LUJAN, Defendant-Appellee." ], "opinions": [ { "text": "OPINION\nGARCIA, Judge.\nDefendant Nodee Lujan was charged with two counts of criminal sexual contact of a minor in the fourth degree. See NMSA 1978, \u00a7 30-9-13(A),(D)(1) (2004). The State appeals the district court\u2019s order that dismissed Defendant\u2019s charges based upon a violation of Defendant\u2019s right to a speedy trial under the United States and New Mexico Constitutions. We affirm.\nBACKGROUND\nOn March 16, 2012, the State arrested and filed a criminal complaint against Defendant for two counts of criminal sexual contact of a minor in the fourth degree. Defendant was released on March 22, 2012, and his trial was set for October 16, 2012.\nOn August 16, 2012, Defendant notified the State that he took and passed a polygraph test and that he intended to use the test results at trial. On September 24,2012, the State filed a motion to compel Defendant to take another polygraph examination, which the district court denied. On October 4,2012, twelve days before the trial was to begin, the State notified Defendant\u2019s counsel that the victim had also taken and passed a polygraph test. Defendant objected to the State\u2019s motion to admit the results of the victim\u2019s polygraph examination on the basis of late disclosure. See Rule 11-707(D) NMRA (\u201cA party who wishes to use polygraph evidence at trial must provide written notice no less than thirty (30) days before trial or within such other time as the district court may direct.\u201d). The State moved to continue the trial. The district court denied the State\u2019s continuance motion, and it scheduled a hearing to resolve the State\u2019s motion to admit the victim\u2019s polygraph results for the day of trial.\nOn October 15, 2012, the day before the trial was to begin, the State dismissed the charges against Defendant. It refiled identical charges eight days later. Defendant pleaded not guilty to the refiled charges at his May 2013 arraignment. Trial on the refiled charges was set for October 15, 2013, one year after his first trial had been scheduled to begin.\nOn July 11, 2013, five months before trial, Defendant moved to dismiss the charges against him on speedy trial grounds. After holding an evidentiary hearing on the motion on October 8, 2013, the district court granted the motion and dismissed the case.\nOn appeal, the State concedes that the delay presumptively prejudiced Defendant and that \u201cthe reasons for the delay should be attributed to the State.\u201d However, it argues that the district court should not have weighed the delay heavily against the State \u201cbecause Defendant caused some of the delay and much of the delay was beyond the control of either party.\u201d The State also contends thatDefendant did not assert his speedy trial right and that any prejudice he suffered was not \u201cundue.\u201d\nDISCUSSION\nA. General Principles and Standard of Review\nThe Sixth Amendment of the United States Constitution provides that \u201c[i]n all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial[.]\u201d U.S. Const, amend. VI. The New Mexico Constitution affords a similar right: \u201cIn all criminal prosecutions, the accused shall have the right to ... a speedy public trial.\u201d N.M. Const, art. II, \u00a7 14. \u201cThough speed is an important attribute of the right,\u201d the right \u201cdoes not preclude the rights of public justice\u201d \u2014 \u201cif either party is forced to trial without a fair opportunity for preparation, justice is sacrificed to speed.\u201d State v. Garza, 2009-NMSC-038, \u00b6 11, 146 N.M. 499, 212 P.3d 387 (alteration, internal quotations marks, and citations omitted). We therefore analyze \u201cthe peculiar facts and circumstances of each case.\u201d Id.\nIn determining whether a defendant\u2019s speedy trial right was denied, our Supreme Court has adopted the balancing test that the United States Supreme Court created in Barker v. Wingo, 407 U.S. 514 (1972). Garza, 2009-NMSC-038, \u00b6\u00b6 9, 13. Under the Barker framework, we weigh \u201cthe conduct of both the prosecution and the defendant\u201d under the guidance of four factors: (1) the length of the delay, (2) the reasons for the delay, (3) the timeliness and manner in which the defendant asserted his speedy trial right, and (4) the particular prejudice that the defendant actually suffered. Garza, 2009-NMSC-038, \u00b6\u00b6 13, 32, 35. \u201cEach of these factors is weighed either in favor of or against the State or the defendant, and then balanced to determine if a defendant\u2019s right to a speedy trial was violated.\u201d State v. Spearman, 2012-NMSC-023, \u00b6 17, 283 P.3d 272. Because none of these factors is \u201ctalismanic[,j\u201d we analyze speedy trial claims on a case-by-case basis. State v. Palacio, 2009-NMCA-074, \u00b6 9, 146 N.M. 594, 212 P.3d 1148.\nBefore applying the balancing test, we first assess whether the length of the delay was \u201cpresumptively prejudicial,\u201d depending on the complexity of the case. See Spearman, 2012-NMSC-023, \u00b6 21; see also Garza, 2009-NMSC-038, \u00b6 21 (\u201c[A] \u2018presumptively prejudicial\u2019 length of delay is simply a triggering mechanism, requiring further inquiry into the Barker factors.\u201d). \u201cA delay of trial of one year is presumptively prejudicial in simple cases, fifteen months in intermediate cases, and eighteen months in complex cases.\u201d Spearman, 2012-NMSC-023, \u00b6 21. The State concedes that the length of the delay was presumptively prejudicial. We agree with the State\u2019s concession. See State v. Urban, 2004-NMSC-007, \u00b6 13, 135 N.M. 279, 87 P.3d 1061 (agreeing with the state\u2019s concession that a sufficient lapse of time is presumptively prejudicial). We therefore proceed to inquire further into the Barker factors. See Garza, 2009-NMSC-038, \u00b6 21.\nAlthough we defer to the district court\u2019s factual findings concerning each factor, we independently review the record to determine whether a defendant was denied his speedy trial right, and we weigh and balance the Barker factors de novo. Spearman, 2012-NMSC-023, \u00b6 19 ; Palacio, 2009-NMCA-074, \u00b6 9; see also State v. Collier, 2013-NMSC-015, \u00b6 41, 301 P.3d 370 (stating that the Barker factors are \u201cfactually based\u201d).\nB. Discussion and Weighing of the Factors\n1. Length of Delay\nIn determining what weight to give the length of any delay, we consider the extent to which the delay stretched beyond the presumptively prejudicial period. State v. Ochoa, 2014-NMCA-065, \u00b6 6, 327 P.3d 1102, cert. granted, 2014-NMCERT-006, 328 P.3d 1188. \u201c[T]he greater the delay},] the more heavily it will potentially weigh against the [s]tate.\u201d Garza, 2009-NMSC-038, \u00b6 24. A delay that \u201cscarcely crosses the bare minimum needed to trigger judicial examination of the claim\u201d will \u201cnot weigh heavily in [a defendant\u2019s favor.\u201d Id. \u00b6\u00b6 23-24 (internal quotation marks and citation omitted); compare State v. Steinmetz, 2014-NMCA-070, \u00b6 6, 327 P.3d 1145 (concluding that a delay of twenty-eight months beyond the presumptive threshold weighed \u201cmoderately\u201d against the State in a case of intermediate complexity), cert. denied, 2014-NMCERT-006, 328 P.3d 1188, with Urban, 2004-NMSC-007, \u00b6 20, (concluding that an eighteen-month delay beyond the presumptive threshold weighed heavily against the State in a simple case); State v. Marquez, 2001-NMCA-062, \u00b6 12, 130 N.M. 651, 29 P.3d 1052 (concluding that a nine-month delay beyond the presumptive threshold weighed heavily against the State in a simple case), and State v. Montoya, 2011-NMCA-074, \u00b6 17, 150 N.M. 415, 259 P.3d 820 (concluding that a six-month delay beyond the presumptive threshold weighed slightly against the State in a case of intermediate complexity).\nThe district court found that this was a simple case, because \u201c[t]he only contested issue ... is the credibility of the witnesses},]\u201d and \u201cthe issues regarding the competing polygraph test results [would] have been resolved pretrial}.]\u201d The State disagrees. It argues that the case was \u201cmore complicated\u201d because it \u201cinvolved minor children\u201d and the results of Defendant\u2019s and the victim\u2019s polygraph tests \u201cwere at odds with each other.\u201d We defer to the district court\u2019s finding that this was a simple case because it was in the best position to make that determination. See State v. Coffin, 1999-NMSC-038, \u00b6 57, 128 N.M. 192, 991 P.2d 477; State v. Johnson, 2007-NMCA-107, \u00b6 7, 142 N.M. 377, 165 P.3d 1153.\nThe State and Defendant disagree on how we should calculate the length of time that Defendant\u2019s trial was delayed. Both agree that Defendant\u2019s speedy trial right accrued on March 16, 2012 \u2014 the day that the State filed its first criminal complaint and arrested him. However, the State argues that the delay should be calculated at sixteen months because we should stop counting the delay on the date that Defendant filed his motion to dismiss. Defendant argues that the delay was nineteen months because we should stop counting the delay on the date that the charges were dismissed. We generally agree with Defendant. Under these circumstances, where Defendant\u2019s trial was set for October 15, 2013, the district court heard Defendant\u2019s motion to dismiss on October 8, 2013, and the order dismissing the charges was entered on October 30, 2013, we conclude that the calculation of the delay extends to either the date that the charges were dismissed or the date the trial was scheduled to begin. See Marquez, 2001-NMCA-062, \u00b6 11 (concluding that the length of delay includes the entire time during which criminal charges were pending against the defendant); see also Doggett v. United States, 505 U.S. 647, 651 - 52 (1992) (\u201c}T]o trigger a speedy trial analysis, an accused must allege that the interval between accusation and trial has crossed the threshold dividing ordinary from \u2018presumptively prejudicial\u2019 delay}.]\u201d (Emphasis added)). We therefore conclude that the length of the delay was at least nineteen months \u2014 March 16,2012 (the date of arrest and filing of charges) to October 15, 2013 (the trial setting).\nA nineteen-month delay extends seven months beyond the twelve-month presumptive threshold for simple cases. See Spearman, 2012-NMSC-023, \u00b6 21. This delay weighs in Defendant\u2019s favor at least slightly. See Id. \u00b6 24 (noting that even though a one-to-four-month delay beyond the presumptive minimum does weigh against the state, it will not weigh heavily against the state); State v. Moreno, 2010-NMCA-044, \u00b6 38, 148 N.M. 253, 233 P.3d 782 (concluding that, in a complex case, a seven-month delay beyond the presumptive threshold \u201cweigh[ed] against the state and in [the defendant's favor[,]\u201d but the Court did not say how heavily); Marquez, 2001-NMCA-062, \u00b6\u00b6 10, 12 (concluding that, in a simple case, a nine-month delay beyond the presumptive threshold weighed heavily against the state, and that even if the delay was seven months beyond the presumptive period as the state argued, the delay was \u201csignificantly well beyond\u201d the threshold); Montoya, 2011-NMCA-074, \u00b6\u00b6 16-17 (concluding that, in a case of intermediate complexity, a six-month delay beyond the presumptive threshold weighed slightly against the state).\n2. Reasons for Delay\nWe assign different weight to different types of delay. See Spearman, 2012-NMSC-023, \u00b6 25. There are three types: \u201c(1) deliberate or intentional delay; (2) negligent or administrative delay; and (3) delay for which there is a valid reason.\u201d Ochoa, 2014-NMCA-065, \u00b6 8. \u201cDeliberate delay is to be weighted heavily against the government.\u201d Id. \u00b6 9 (internal quotations marks and citation omitted). Negligent or administrative delay weighs against the State, though not heavily. Spearman, 2012-NMSC-023, \u00b6 25. \u201c[A] valid reason, such as a missing witness, should serve to justify appropriate delay.\u201d Id. (internal quotation marks and citations omitted).\nThe district court found that\n[t]he State dismissed the case due to the rulings by the trial court to not continue the trial, to not compel. . . Defendant to take a second polygraph test[,] and the adverse position the State was in because of its late filed motions. These reasons are not valid reasons to dismiss a case. The State should have taken the case to trial in the posture it was in.\nThese circumstances may be viewed adversely against the State. See Garza, 2009-NMSC-038, \u00b6 25 (stressing the point that \u201cofficial bad faith in causing delay will be weighed heavily against the government\u201d (internal quotation marks and citation omitted)). The district court also found that the other delays the State asserts were caused by Defendant and the district court were \u201cforeseeable, if not inherent, and in any event could have been avoided had the case gone to trial as originally scheduled.\u201d The court did not enter any findings about the State\u2019s bare assertion that it needed more time for discovery in the first case due to Defendant\u2019s submission of an untimely witness list. We are unable to evaluate this claim because we do not have the record of the first case before us, and the State does not explain why it needed more time for discovery. See Romero v. U.S. Life Ins. Co. of Dallas, 1986-NMCA-044, \u00b6 12, 104 N.M. 241, 719 P.2d 819 (stating that, without the record of facts from a related case, part of which apparently formed the basis for the district court\u2019s decision, \u201cno question is presented to this [C]ourt for review\u201d); State v. Ortiz, 2009-NMCA-092, \u00b6 32, 146 N.M. 873, 215 P.3d 811 (declining to review an undeveloped argument on appeal). Thus, we defer to the district court\u2019s factual determinations and findings, Spearman, 2012-NMSC-023, \u00b6\u00b6 19, 30, and conclude that the primary reason for the delay weighs heavily against the State because it was deliberate. See Ochoa, 2014-NMCA-065, \u00b6 9.\n3. Assertion of the Right\nA defendant\u2019s failure to demand a speedy trial does not \u201cforever waive[] his right}]\u201d because this right is \u201cfundamental in nature.\u201d Garza, 2009-NMSC-038, \u00b6\u00b6 31-32 (internal quotation marks and citation omitted). In determining the weight to assign to a defendant\u2019s assertion of his speedy trial right, we \u201cassess the timing of the defendant\u2019s assertion and the manner in which the right was asserted.\u201d Id. \u00b6 32. We consider \u201cwhether a defendant was denied needed access to speedy trial over his objection or whether the issue was raised on appeal as [an] afterthought.\u201d Id. The effect of a defendant\u2019s assertion of his speedy trial right may be mitigated where his actions resulted in delay. Id.\nThe district court found that Defendant had not formally asserted his speedy trial right until he filed his motion to dismiss in July 2013. It weighed this factor slightly against the State, because it found that Defendant had not acquiesced to the delay. The State, citing a Fifth Circuit Court of Appeals case, argues that Defendant\u2019s filing of a motion to dismiss should be weighed \u201cstrongly\u201d against Defendant because it was \u201can assertion of the remedy\u201d and not an assertion of the right. See United States v. Frye, 489 F.3d 201, 210-12 (5th Cir. 2007) (concluding that the assertion-of-the-right factor did not \u201cweigh against the government\u201d because the defendant\u2019s motions for dismissal amounted to an assertion of the remedy rather than an assertion of his speedy trial right and because the motions did not manifest a \u201cdesire to be tried promptly\u201d). New Mexico courts, however, have concluded that a motion to dismiss based on speedy trial grounds is an assertion of the right that is weighed against the government, although it is generally not weighed heavily. See, e.g., Work v. State, 1990-NMSC-085, \u00b6 7, 111 N.M. 145, 803 P.2d 234 (agreeing with the Court of Appeals that the defendant timely asserted his right to a speedy trial and \u201cweighing] this factor in his favor\u201d where the defendant filed a speedy trial motion seven months after the indictment and five weeks before trial was scheduled to begin); State v. Johnson, 1991-NMCA-134, \u00b6 5, 113 N.M. 192, 824 P.2d 332 (concluding that the \u201c[defendant asserted his right to a speedy trial by filing a motion to dismiss for delay\u201d and that \u201c[t]his factor . . . weighed in favor of [the] defendant, but not heavily\u201d).\nHere, Defendant asserted his speedy trial right by filing his motion to dismiss about nine months after the State refiled the charges against him and about five months before he was scheduled to go to trial. He filed his motion well before trial was set to begin, not \u201con appeal as [an] afterthought[,]\u201d and he did not otherwise act in a manner that caused delay. See Garza, 2009-NMSC-038, \u00b6 32. Therefore, we conclude that his motion amounted to an appropriate assertion of the right and the district court properly weighed the assertion factor slightly against the State. See Work, 1990-NMSC-085, \u00b6 7; Johnson, 1991-NMCA-134, \u00b6 5.\n4. Prejudice\nThe \u201cheart\u201d of the speedy trial right \u201cis preventing prejudice to the accused.\u201d Garza, 2009-NMSC-038, \u00b6 12. We analyze prejudice against a defendant under three interests: (1) preventing oppressive pretrial incarceration, (2) minimizing anxiety and concern of the accused, and (3) limiting the possibility that the defense will be impaired. Id. \u00b6 35. We are mindful that \u201csome degree of . . . anxiety is inherent for every defendant. . . awaiting trial.\u201d State v. Maddox, 2008-NMSC-062, \u00b6 33, 145 N.M. 242, 195 P.3d 1254 (alterations, internal quotations marks, and citation omitted), abrogated on other grounds by Garza, 2009-NMSC-038, \u00b6\u00b6 47-48. \u201cTherefore, we weigh this factor in the defendant\u2019s favor only where . . . the anxiety suffered is undue.\u201d Garza, 2009-NMSC-038, \u00b6 35. A defendant is not required to show that he experienced \u201cgreater anxiety and concern than that attending most criminal prosecutions.\u201d Salandre v. State, 1991-NMSC-016, \u00b6 32, 111 N.M. 422, 806 P.2d 562, holding modified on other grounds by Garza, 2009-NMSC-038, \u00b6 22. \u201cThe operative question is whether the anxiety and concern, once proved, has continued for an unacceptably long period.\u201d Id. \u201cIt is for the court to determine whether the emotional trauma suffered by the accused is substantial and to incorporate that factor into the balancing calculus.\u201d Id. The evidence must also establish that the alleged prejudice occurred as a result of the delay in trial beyond the presumptively prejudicial threshold as opposed to the earlier prejudice arising from the original indictment. See Spearman, 2012-NMSC-023, \u00b6 39.\nThe district court found that Defendant suffered prejudice because he \u201clived under a cloud of anxiety, suspicion^] and hostility from the beginning of the case up to the date of the hearing [on his motion to dismiss]\u201d; \u201c[a]fter the case was dismissed and refilled,... Defendant\u2019s girlfriend ended her long[-]term relationship with . . . Defendant because he had become unbearable to live with[]\u201d; and \u201cDefendant testified [that] he became unbearable mainly due to the continued stress of the criminal proceedings against him.\u201d\nD efendant testified that at the time he was arrested, he had been serving on the Gallup Fire Department for twenty years and had risen to the level of Lieutenant. As part of his duties he was a CPR instructor; taught at the fire academy and the U.S. Department of Defense; and worked with children through the Police Athletic League, the Boys and Girls Club, and in local schools teaching fire prevention. He testified that after he was arrested in March 2012, Albuquerque and Gallup newspapers published articles about the allegations against him, and his supervisor told a news reporter during a television interview that Defendant was \u201ca black eye to the . -. . department.\u201d Defendant was demoted to general \u201cfirefighter\u201d status, resulting in a dramatic decrease in pay, and he was stripped of all of his supervisory and teaching duties. He testified that his department restricted him from having any contact with females, regardless of their age, even to the extent that he was not permitted to perform CPR on females during emergency medical calls. His supervisors began writing him up for numerous minor infractions and indirectly suggested that he retire to \u201csave [his] retirement\u201d before he was fired. As a result, Defendant retired early, causing him to receive a lower pension than he would have received had he retired a few years later, as he had previously intended.\nDefendant testified that he and his girlfriend of seven years and her children \u2014 his \u201cfamily\u201d \u2014 were ostracized at work and in the community and that most of his friends who had children stopped communicating with him. After the State refiled the charges against him in October 2012, Defendant\u2019s family left him and moved to Silver City. He later tried to reconcile his relationship with his family, and he moved to Silver City to be closer to them. However, he could not secure employment in Silver City due to the pending charges. His family left him a second time due to his inability to find work and the stress of \u201cbeing charged again.\u201d He testified that between the time of his arrest and the time of the hearing on his motion to dismiss, his weight dropped from 280 pounds to 189 pounds and that this nearly 100-pound weight loss was due to stress and not being able to eat or sleep.\nThe State did not present any evidence to show that Defendant had not suffered these forms of prejudice, other than confirming that his retirement was \u201cvoluntary,\u201d that Defendant had been arrested once before in 2008 for domestic battery, and that one of the reasons that his family left him was because of his behavior in response to his stress around the pending charges.\nWe defer to the district court\u2019s factual findings regarding whether Defendant suffered prejudice from the delay, see Spearman, 2012-NMSC-023, \u00b6 19, and we conclude that the prejudice was not only \u201cactual\u201d and \u201cparticularized],]\u201d but that it was \u201csubstantial[,]\u201d \u201cundue},]\u201d see Garza, 2009-NMSC-038, \u00b6\u00b6 13, 35, and it \u201ccontinued for an unacceptably long period[,]\u201d see Salandre, 1991-NMSC-016, \u00b6 32. Although some of the harm occurred while the first case was pending, it continued and was unnecessarily prolonged seven to twelve months by the State\u2019s deliberate delay when it dismissed and refiled the case. Defendant suffered additional prejudice after the charges were refiled: his family left him \u2014 twice, and he was unable to secure a job. The personal hardship and anxiety-type of prejudice to be protected against is separate and distinct from the loss of liberty caused by incarceration or the possible prejudice to an accused\u2019s defense. See Spearman, 2012-NMSC-023, \u00b6 37; see also Salandre, 1991-NMSC-016, \u00b6 18 (stating that the speedy trial right \u201cprotects against interference with a defendant\u2019s liberty, disruption of employment, curtailment of associations, subjection to obloquy, and creation of undue anxiety\u201d); State v. Vigil-Giron, 2014-NMCA-069, \u00b6 56, 327 P.3d 1129 (stating that \u201canxiety, loss of employment, continued inability to find work, and . . . public humiliation\u201d suffered by the defendant \u201care forms of prejudice that the speedy trial right is intended to curtail\u201d).\nThus, the evidence presented to the district court identified the types of serious disruptions and other severe hardships that can be weighed heavily in Defendant\u2019s favor. We will not substitute the State\u2019s view of the severity of Defendant\u2019s personal hardships and anxiety level for that of the district court. See Spearman, 2012-NMSC-023, \u00b6 19. Taking into account the additional delay arising from the State\u2019s intentional dismissal and refiling of the charges to avoid the October 2012 trial setting, the overall anxiety and personal hardship suffered by Defendant in this case was much more severe. See Garza, 2009-NMSC-038, \u00b6 25 (\u201cThe reasons for a period of the delay may either heighten or temper the prejudice to the defendant caused by the length of the delay.\u201d (internal quotation marks and citation omitted)). Under these circumstances, we agree with the district court that the prejudice factor weighed heavily in Defendant\u2019s favor.\nC. Balancing the Factors\nThe length of delay weighs at least slightly or even more heavily in Defendant\u2019s favor. The assertion of the right is weighed slightly in favor of Defendant. The reasons for the delay and the undue prejudice suffered weigh heavily in Defendant\u2019s favor. None of these Barker factors weigh in the State\u2019s favor. Therefore, on balance, we conclude that the Barker factors weigh sufficiently in Defendant\u2019s favor and the district court appropriately dismissed Defendant\u2019s charges on speedy trial grounds. See Spearman, 2012-NMSC-023, \u00b6 17.\nCONCLUSION\nWe affirm the district court\u2019s order dismissing this case with prejudice.\nIT IS SO ORDERED.\nTIMOTHY L. GARCIA, Judge\nWE CONCUR:\nMICHAEL E. VIGIL, Chief Judge\nMICHAEL D. BUSTAMANTE, Judge", "type": "majority", "author": "GARCIA, Judge." } ], "attorneys": [ "Hector H. Balderas, Attorney General Santa Fe, NM Ralph E. Trujillo, Assistant Attorney General Albuquerque, NM for Appellant", "Jorge A. Alvarado, Chief Public Defender Kathleen T. Baldridge, Assistant Appellate Defender Santa Fe, NM for Appellee" ], "corrections": "", "head_matter": "IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO\nOpinion Number: 2015-NMCA-032\nFiling Date: February 18, 2015\nDocket No. 33,349\nSTATE OF NEW MEXICO, Plaintiff-Appellant, v. NODEE LUJAN, Defendant-Appellee.\nHector H. Balderas, Attorney General Santa Fe, NM Ralph E. Trujillo, Assistant Attorney General Albuquerque, NM for Appellant\nJorge A. Alvarado, Chief Public Defender Kathleen T. Baldridge, Assistant Appellate Defender Santa Fe, NM for Appellee" }, "file_name": "0493-01", "first_page_order": 509, "last_page_order": 517 }