{ "id": 106534, "name": "STATE of New Mexico, Plaintiff-Appellee, v. Pedro ORTIZ-BURCIAGA, Defendant-Appellant", "name_abbreviation": "State v. Ortiz-Burciaga", "decision_date": "1999-09-10", "docket_number": "No. 19591", "first_page": "382", "last_page": "390", "citations": [ { "type": "official", "cite": "128 N.M. 382" }, { "type": "parallel", "cite": "993 P.2d 96" }, { "type": "parallel", "cite": "1999-NMCA-146" } ], "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": "109 N.M. 640", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1590332 ], "weight": 2, "year": 1990, "pin_cites": [ { "page": "644" }, { "page": "592" } ], "opinion_index": 0, "case_paths": [ "/nm/109/0640-01" ] }, { "cite": "118 N.M. 225", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1563500 ], "weight": 2, "pin_cites": [ { "page": "227" }, { "page": "324" } ], "opinion_index": 0, "case_paths": [ "/nm/118/0225-01" ] }, { "cite": "124 N.M. 368", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 17993 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/124/0368-01" ] }, { "cite": "1997-NMCA-128", "category": "reporters:neutral", "reporter": "NMCA", "pin_cites": [ { "page": "\u00b6 17" } ], "opinion_index": 0 }, { "cite": "111 N.M. 145", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 715045 ], "weight": 2, "year": 1990, "pin_cites": [ { "page": "147" }, { "page": "236" } ], "opinion_index": 0, "case_paths": [ "/nm/111/0145-01" ] }, { "cite": "121 N.M. 798", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1566673 ], "weight": 5, "opinion_index": 0, "case_paths": [ "/nm/121/0798-01" ] }, { "cite": "1996-NMSC-028", "category": "reporters:neutral", "reporter": "NMSC", "weight": 2, "pin_cites": [ { "page": "\u00b6 8" }, { "page": "\u00b6 9" } ], "opinion_index": 0 }, { "cite": "1999-NMSC-001", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 827383 ], "weight": 3, "pin_cites": [ { "page": "\u00b6 49" } ], "opinion_index": 0, "case_paths": [ "/nm/126/0438-01" ] }, { "cite": "407 U.S. 514", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 9139028 ], "weight": 3, "year": 1972, "pin_cites": [ { "page": "530" } ], "opinion_index": 0, "case_paths": [ "/us/407/0514-01" ] }, { "cite": "120 N.M. 596", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1558995 ], "weight": 2, "pin_cites": [ { "page": "600" }, { "page": "49" } ], "opinion_index": 0, "case_paths": [ "/nm/120/0596-01" ] }, { "cite": "115 N.M. 123", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 725491 ], "weight": 4, "pin_cites": [ { "page": "126" }, { "page": "1380" } ], "opinion_index": 0, "case_paths": [ "/nm/115/0123-01" ] }, { "cite": "102 N.M. 801", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1580187 ], "weight": 2, "pin_cites": [ { "page": "803" }, { "page": "402" } ], "opinion_index": 0, "case_paths": [ "/nm/102/0801-01" ] }, { "cite": "103 N.M. 655", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 711335 ], "weight": 2, "pin_cites": [ { "page": "659" }, { "page": "5" } ], "opinion_index": 0, "case_paths": [ "/nm/103/0655-01" ] }, { "cite": "78 N.M. 127", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5324373 ], "weight": 2, "year": 1967, "pin_cites": [ { "page": "129", "parenthetical": "advising counsel to advance arguments desired by client even if the merits of those arguments are questionable" }, { "page": "984", "parenthetical": "advising counsel to advance arguments desired by client even if the merits of those arguments are questionable" } ], "opinion_index": 0, "case_paths": [ "/nm/78/0127-01" ] }, { "cite": "1998-NMCA-172", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 827443 ], "weight": 3, "pin_cites": [ { "page": "\u00b6 14" } ], "opinion_index": 0, "case_paths": [ "/nm/126/0366-01" ] }, { "cite": "111 N-M. 716", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 715100 ], "weight": 2, "year": 1991, "pin_cites": [ { "page": "718-19" }, { "page": "632-33" } ], "opinion_index": 0, "case_paths": [ "/nm/111/0716-01" ] }, { "cite": "87 N.M. 323", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2834558 ], "weight": 2, "pin_cites": [ { "page": "325" }, { "page": "914" } ], "opinion_index": 0, "case_paths": [ "/nm/87/0323-01" ] }, { "cite": "83 N.M. 480", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5332952 ], "weight": 2, "pin_cites": [ { "page": "483" }, { "page": "968" } ], "opinion_index": 0, "case_paths": [ "/nm/83/0480-01" ] }, { "cite": "118 N.M. 696", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1563632 ], "weight": 4, "pin_cites": [ { "page": "702" }, { "page": "1181" }, { "parenthetical": "holding that evidence of the victim's \"past sexual conduct would be cumulative of other evidence regarding [the defendant's] mistake of fact defense\"" } ], "opinion_index": 0, "case_paths": [ "/nm/118/0696-01" ] }, { "cite": "1998-NMCA-166", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 827345 ], "weight": 3, "pin_cites": [ { "page": "\u00b6 8" } ], "opinion_index": 0, "case_paths": [ "/nm/126/0168-01" ] }, { "cite": "107 N.M. 489", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1597187 ], "weight": 2, "pin_cites": [ { "page": "491" }, { "page": "784" } ], "opinion_index": 0, "case_paths": [ "/nm/107/0489-01" ] }, { "cite": "101 N.M. 363", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1586376 ], "weight": 4, "pin_cites": [ { "page": "367" }, { "page": "49" }, { "page": "366" }, { "page": "48", "parenthetical": "providing that the trial court may conduct an evidentiary hearing concerning the possibility of jury prejudice from extraneous material" } ], "opinion_index": 0, "case_paths": [ "/nm/101/0363-01" ] }, { "cite": "101 N.M. 595", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1586387 ], "weight": 2, "year": 1984, "pin_cites": [ { "page": "601" }, { "page": "943" } ], "opinion_index": 0, "case_paths": [ "/nm/101/0595-01" ] }, { "cite": "109 N.M. 541", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1590337 ], "weight": 2, "year": 1990, "pin_cites": [ { "page": "545-47", "parenthetical": "reversing conviction under doctrine of cumulative error where, among other errors, judge's improper communications with juror prejudiced the defendant" }, { "page": "825-27", "parenthetical": "reversing conviction under doctrine of cumulative error where, among other errors, judge's improper communications with juror prejudiced the defendant" } ], "opinion_index": 0, "case_paths": [ "/nm/109/0541-01" ] }, { "cite": "981 P.2d 1209", "category": "reporters:state_regional", "reporter": "P.2d", "year": 1999, "pin_cites": [ { "parenthetical": "providing that a defendant would be afforded greater relief on appeal if sufficient evidence did not support his conviction" } ], "opinion_index": 0 }, { "cite": "127 N.M. 391", "category": "reporters:state", "reporter": "N.M.", "year": 1999, "pin_cites": [ { "parenthetical": "providing that a defendant would be afforded greater relief on appeal if sufficient evidence did not support his conviction" } ], "opinion_index": 0 }, { "cite": "1999-NMCA-053", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 257608 ], "weight": 9, "year": 1999, "pin_cites": [ { "page": "\u00b6 2", "parenthetical": "providing that a defendant would be afforded greater relief on appeal if sufficient evidence did not support his conviction" }, { "parenthetical": "providing that a defendant would be afforded greater relief on appeal if sufficient evidence did not support his conviction" }, { "parenthetical": "providing that a defendant would be afforded greater relief on appeal if sufficient evidence did not support his conviction" }, { "page": "\u00b6 31" }, { "page": "\u00b6 35" } ], "opinion_index": 0, "case_paths": [ "/nm/127/0189-01" ] } ], "analysis": { "cardinality": 1151, "char_count": 26447, "ocr_confidence": 0.684, "pagerank": { "raw": 2.0235419459027217e-07, "percentile": 0.7457098850164624 }, "sha256": "961ec34e7eeaaa324d46dbd4711b6788a8b80c4302cd10c1de677fab11ec8caf", "simhash": "1:3fea57aa72c6cf59", "word_count": 4255 }, "last_updated": "2023-07-14T19:01:18.689942+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "DONNELLY and HARTZ, JJ., concur." ], "parties": [ "STATE of New Mexico, Plaintiff-Appellee, v. Pedro ORTIZ-BURCIAGA, Defendant-Appellant." ], "opinions": [ { "text": "OPINION\nAPODACA, Judge.\n{1} Defendant was convicted by a jury of criminal sexual contact of a minor in violation of NMSA 1978, \u00a7 30-9-13(A)(1) (1991), and criminal sexual penetration of a minor in violation of NMSA 1978, \u00a7 30-9-11(C) (1995). He raises several issues on appeal. We consider two of those issues, combined, dispositive of this appeal \u2014 whether (1) a judge who was not presiding at trial but was a spectator improperly influenced the jury by hugging the victim\u2019s grandmother in the jury\u2019s presence, and (2) the trial court deprived Defendant of his right to present a witness on his own behalf. Without deciding whether either of those two issues, standing alone, gave rise to reversible error, we determine that, together, they formed the basis for cumulative error requiring reversal. Because Defendant would be entitled to a dismissal of the charges on remand if the evidence adduced at trial was insufficient to support his convictions, we must address the sufficiency-of-the-evidence issue raised by Defendant. See State v. Benavidez, 1999-NMCA-053, \u00b6 2, 127 N.M. 189, 979 P.2d 234, cert. granted, 127 N.M. 391, 981 P.2d 1209 (1999) (providing that a defendant would be afforded greater relief on appeal if sufficient evidence did not support his conviction). For the same reason, we must address the speedy trial issue. In that regard, we conclude that sufficient evidence supported Defendant\u2019s convictions and that Defendant\u2019s right to a speedy trial was not violated. Because of our disposition, we need not reach Defendant\u2019s other issues.\nI. FACTUAL AND PROCEDURAL BACKGROUND\n{2} Defendant was charged with five counts of criminal sexual penetration of a minor under thirteen years old. In preparation for trial, the parties participated in a videotaped deposition of the victim. Former Judge Benjamin S. Eastburn presided at the videotape deposition, although he did not preside at trial. During portions of the deposition, the victim\u2019s grandmother sat with her while she was questioned. Toward the end of the questioning, the victim became distraught and sought comfort in her grandmother\u2019s lap. The State played the unedited videotape deposition in its case in chief at trial. Judge Eastburn, the victim, and the victim\u2019s grandmother were visible on the videotape. During portions of the deposition, Judge Eastburn was shown wearing his judicial robe.\n{3} Later, during Defendant\u2019s trial, Judge Eastburn entered the courtroom as a spectator and he and the victim\u2019s grandmother hugged each other in the presence of the jury. Although neither Defendant nor his counsel was aware of this incident, it was, however, observed by some of the jurors.\n{4} After the jury had returned its verdict, defense counsel learned of the incident and moved for a new trial. Upon questioning, five members of the jury panel reported that they had witnessed the hugging incident between Judge Eastburn and the child\u2019s grandmother. The trial court, however, denied Defendant\u2019s motion for a new trial stating: \u201cIt was obviously something we would all like to try to avoid. Unfortunately it happened, but I don\u2019t think it\u2019s really to the level where I should order a new trial, so I\u2019m going to deny your motion for a new trial.\u201d\n{5} At trial, the victim\u2019s videotaped deposition was introduced as evidence. She testified specifically about two contacts with Defendant, before Christmas of 1995 and the week before his arrest in March 1996. She also described other occurrences in less detail. The examining physician stated that some evidence indicated sexual abuse, but he was unable to conduct a complete examination. The victim\u2019s teacher testified concerning the victim\u2019s behavior before and after the alleged sexual abuse. She stated that the victim had symptoms of attention deficit disorder before the date of the first alleged contact but that the symptoms increased around that time. The State\u2019s expert psychological witness testified that the victim suffered from posttraumatic stress disorder and concluded that her behavior was a sign of sexual abuse.\n{6} The victim\u2019s treating counselor also testified as an expert witness for the State. She stated that the victim\u2019s description of sexual intercourse was advanced for her age, which was another indicator of sexual abuse. The victim was in the second grade when the alleged incidents occurred. The counselor referred to the victim\u2019s fear of Defendant\u2014 \u201c[Sjhe\u2019s constantly saying that Pedro\u2019s gonna hurt her. He\u2019s gonna come back and hurt her somehow. External cues, there were certain colors he wore in his garments that she was afraid of. She was afraid of the trailer it happened in.\u201d\n{7} At the close of the State\u2019s case, Defendant moved for a directed verdict. The trial court granted the motion on three of the five counts in the indictment. Defendant later called his sister-in-law, Jo Ortiz, as a witness, who testified about her interactions with the victim and the victim\u2019s mother. The sister-in-law stated that the victim visited her after the alleged abuse and that she appeared normal. The witness then began to testify concerning the victim\u2019s sexual knowledge before the alleged abuse, but the State objected on hearsay grounds. A bench conference followed, and defense counsel proffered that the sister-in-law would testify about her conversation with the victim in which the victim described sexual intercourse in graphic detail. Defendant argued that the statement was not offered to prove the matter asserted \u2014 how people have intercourse. Defendant instead contended that he sought to use the testimony to show the victim\u2019s advanced understanding of sex before the dates of the alleged sexual abuse, thus rebutting the conclusion of the victim\u2019s treating counselor that the victim\u2019s advanced understanding of sex indicated sexual abuse. The trial court, however, sustained the State\u2019s hearsay objection and excluded the testimony.\n{8} Defendant testified on his own behalf. He stated that he always treated the victim as a father would and denied her accusations.\nII. DISCUSSION\nA. Cumulative Error\n{9} Defendant argues cumulative error arising from several of the issues raised on appeal, including Judge Eastburn\u2019s alleged improper influence on the jury and the exclusion of the testimony of Defendant\u2019s sister-in-law. See State v. Wilson, 109 N.M. 541, 545-47, 787 P.2d 821, 825-27 (1990) (reversing conviction under doctrine of cumulative error where, among other errors, judge\u2019s improper communications with juror prejudiced the defendant). \u201cWe must reverse any conviction obtained in a proceeding in which the cumulative impact of irregularities is so prejudicial to a defendant that he is deprived of his fundamental right to a fair trial. U.S. Const. amend. VI, XIV; N.M. Const. art. II, \u00a7 14.\u201d State v. Martin, 101 N.M. 595, 601, 686 P.2d 937, 943 (1984). We agree with Defendant that cumulative error from these irregularities together, supports reversal here. We believe the prejudicial effect of these errors, taken together, had considerable impact on this case, which, as in other child abuse cases, turns on the jury\u2019s determination of the credibility of the defendant and the young victim.\n1. Improper Influence on the Jury\n{10} First, we determine that the hugging incident gave rise to a presumption of prejudice that the State failed to rebut. See State v. Doe, 101 N.M. 363, 367, 683 P.2d 45, 49 (Ct.App.1983) (\u201cIf the court finds an improper communication occurred, the State must rebut the presumption [of prejudice].\u201d). The trial court questioned the jurors concerning this incident. See id. at 366, 683 P.2d at 48 (providing that the trial court may conduct an evidentiary hearing concerning the possibility of jury prejudice from extraneous material). Five of the jurors testified that they saw Judge Eastburn hug the victim\u2019s grandmother. Based on the hugging incident observed by the jurors, it is reasonable to conclude that they were influenced by it.\n{11} Rule 11-606(B) NMRA 1999 outlines the limited instances in which a member of the jury may be called upon to testify as to the validity of a verdict. Specifically, Rule 11-606 provides, in part:\nUpon an inquiry into the validity of a verdict or indictment, a juror may not testify as to any matter or statement occurring during the course of the jury\u2019s deliberations or to the effect of anything upon that or any other juror\u2019s mind or emotions as influencing the juror to assent to or dissent from the verdict or indictment or concerning the juror\u2019s mental processes in connection therewith, except that a juror may testify on the question whether extraneous prejudicial information was improperly brought to the jury\u2019s attention or whether any outside influence was improperly brought to bear upon any juror.\n{12} The State argues on appeal that there was no improper communication and that the hugging did not improperly influence the jurors. We believe, however, that such a display could well have had an improper influence on the jury.\n2. Exclusion of Testimony\n{13} We next determine that the trial court erred by precluding Defendant\u2019s sister-in-law from testifying concerning the victim\u2019s advanced sexual knowledge existing before the date of the alleged abuse. At trial, the State objected to this testimony on hearsay grounds. Defendant asserted that he was not offering the testimony for the truth of the matter asserted. Rather, Defendant sought to refute the testimony of the State\u2019s expert witnesses implicating sexual abuse by Defendant by showing that the victim had advanced sexual knowledge prior to contact with Defendant. The State continued to object on hearsay grounds. The trial court sustained the objection, and defense counsel asked to approach the bench to make an offer of proof. The taped transcript of the ensuing discussion at the bench\u2019 is inaudible. Pursuant to Rule 12-211(H) NMRA 1999 (stating that the appellant shall provide a report of the evidence or proceedings where a taped transcript is inaudible), Defendant filed a statement of his recollection of the bench conference. The statement asserts that defense counsel advised the trial court that the sister-in-law would testify about a conversation she had with the victim in which th\u00e9 victim \u201cdescribed in extremely graphic and vulgar terms how a man would transmit sperm in order to impregnate a woman.\u201d This statement indicates that Defendant argued that the evidence was relevant to rebut the implication from the expert witnesses\u2019 testimony that the victim\u2019s knowledge of sexual terminology supported the claim of sexual abuse. The trial court nevertheless sustained the State\u2019s objection.\n{14} On appeal, Defendant continues to argue that the sister-in-law\u2019s statements were not hearsay. The State apparently now concedes on appeal that Defendant\u2019s hearsay argument is supportable\u2014that the testimony was not being offered for the truth of the matter asserted. Instead, the State claims that, because the record does not reflect the reason why the trial court excluded the testimony, we can affirm on the basis that the trial court could have determined the evidence was more prejudicial than probative.\n{15} First, we agree that the testimony was not hearsay. Rule 11-801(0 NMRA 1999 defines hearsay as a \u201cstatement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.\u201d Defendant did not offer the testimony to prove how intercourse is performed or pregnancy occurs. See Jim v. Budd, 107 N.M. 489, 491, 760 P.2d 782, 784 (Ct.App.1987) (holding that statements \u201cnot offered for the truth of the words uttered\u201d were not hearsay). Rather, Defendant intended to use the testimony to show the victim\u2019s advanced sexual knowledge and to refute the State\u2019s expert testimony.\n{16} As we noted, the State nonetheless argues that, even if the testimony was relevant, see Rule 11-402 NMRA 1999 (providing that \u201c[a]ll relevant evidence is admissible, except as otherwise provided by constitution, by statute, by these rules or by other rules adopted by the supreme court. Evidence which is not relevant is not admissible.\u201d), its prejudicial effect outweighed its probative nature. See Rule 11^103 NMRA 1999 (\u201cAlthough relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues or misleading the jury, or by considerations of undue delay, waste of time or needless presentation of cumulative evidence.\u201d); see also State v. Snyder, 1998-NMCA-166, \u00b6 8, 126 N.M. 168, 967 P.2d 843 (\u201cGenerally, [the Court of Appeals] may affirm the district court\u2019s ruling on grounds not relied upon below unless the appellant did not have a fair opportunity to present admissible evidence in the district court concerning the facts on which those grounds depend.\u201d). The State argues that the sister-in-law\u2019s testimony referring to the victim\u2019s description of sexual activity in graphic and vulgar terms would be \u201cinflammatory and unfairly prejudicial, possibly leading to confusion of the issues.\u201d\n{17} We disagree. Following the balancing test of State v. Lucero, 118 N.M. 696, 702, 884 P.2d 1175, 1181 (Ct.App.1994), we note that defendant did not seek to show that the victim was already abused. See id. To the contrary, he sought to rebut the expert testimony that the victim\u2019s knowledge indicated she was sexually abused. Finally, this testimony was not cumulative of other evidence concerning the victim\u2019s understanding of sex. Cf. id. (holding that evidence of the victim\u2019s \u201cpast sexual conduct would be cumulative of other evidence regarding [the defendant\u2019s] mistake of fact defense\u201d). Consequently, in our view, if the trial court had weighed the probative value of the evidence against its inflammatory or prejudicial nature, which the court did not do, it could not properly have found that the inflammatory or prejudicial nature outweighed the probative value.\n{18} The State also contends Defendant failed to show that the trial court\u2019s exclusion of the proffered evidence prejudiced him. See State v. Wesson, 83 N.M. 480, 483, 493 P.2d 965, 968 (Ct.App.1972) (holding that \u201c[e]rror, to be reversible, must be prejudicial\u201d). We believe Defendant showed prejudice, however, because the exclusion compromised his right to present witnesses on his own behalf. See State v. Dorsey, 87 N.M. 323, 325, 532 P.2d 912, 914 (Ct.App.1975) (recognizing the fundamental due process right of a criminal defendant to present witnesses for his or her defense).\n{19} Citing State v. Finchum, 111 N-M. 716, 718-19, 809 P.2d 630, 632-33 (1991), the State next argues that the exclusion was harmless because substantial evidence supported the conviction, the sister-in-law\u2019s testimony was insignificant in comparison, and there was no substantial evidence discrediting the State\u2019s case. We disagree. The testimony was key to Defendant\u2019s rebuttal of the State\u2019s expert testimony that the victim\u2019s sexual knowledge indicated she was abused. Cf. State v. Gutierrez, 1998-NMCA-172, \u00b6 14, 126 N.M. 366, 969 P.2d 970 (holding that admission of hearsay was not harmless where only one other statement directly implicated the defendant in shooting the victim).\n{20} In summary, we believe that the combined impact of these irregularities amounted to cumulative error and deprived Defendant of a fair trial.\nB. Sufficiency of the Evidence\n{21} Pursuant to State v. Franklin, 78 N.M. 127, 129, 428 P.2d 982, 984 (1967) (advising counsel to advance arguments desired by client even if the merits of those arguments are questionable), and State v. Boyer, 103 N.M. 655, 659, 712 P.2d 1, 5 (Ct.App.1985) (recognizing that an attorney should present a client\u2019s contentions even if they go against the attorney\u2019s wisdom), Defendant argues that sufficient evidence did not support his convictions. His motion for a directed verdict preserved this issue. See State v. Jacobs, 102 N.M. 801, 803, 701 P.2d 400, 402 (Ct.App.1985).\n{22} \u201cWe review the evidence in the light most favorable to the verdict, resolving all conflicts ... and indulging all reasonable inferences ... in support of the judgment.\u201d State v. Orgain, 115 N.M. 123, 126, 847 P.2d 1377, 1380 (Ct.App.1993). We defer to the trial court\u2019s resolution of factual conflicts and determine \u201cwhether the evidence viewed in this manner could support the conviction.\u201d Id. It is the \u201cexclusive province of the jury\u201d to resolve factual inconsistencies in testimony. Id.\n{23} Section 30-9-13 defines criminal sexual contact of a minor in relevant part as:\nthe unlawful and intentional touching or applying force to the intimate parts of a minor or the unlawful and intentional causing a minor to touch one\u2019s intimate parts. For the purposes of this section, \u201cintimate parts\u201d means the primary genital area, groin, buttocks, anus or breast.\nA. Criminal sexual contact of a minor in the third degree consists of all criminal sexual contact of a minor perpetrated:\n(1) on a child under thirteen years of age[J\n{24} Section 30-9-11 defines criminal sexual penetration in relevant part as:\nthe unlawful and intentional causing of a person to engage in sexual intercourse, cunnilingus, fellatio or anal intercourse or the causing of penetration, to any extent and with any object, of the genital or anal openings of another, whether or not there is any emission.\nC. Criminal sexual penetration in the first degree consists of all sexual perpetration perpetrated:\n(1) on a child under thirteen years of age; or\n(2) by the use of force or coercion that results in great bodily harm or great mental anguish to the victim.\n{25} Defendant\u2019s convictions under these statutes ensue from the incidents occurring in December 1995 and on March 15, 1996. Having reviewed the record, we believe that sufficient evidence supported the convictions.\n{26} First, the victim reported the sexual abuse to her teacher and school principal. The results of her medical examination were consistent with sexual abuse. The victim told a social worker that someone had been touching her privates and putting his privates into hers; specifically, the victim pointed to her groin area. She also described a man\u2019s penis. The victim told the social worker that this happened about five times. The first incident occurred in December 1995, just before Christmas. At that time, the victim reported that a man touched her privates between her legs with his hand. The fifth incident occurred the weekend before the victim reported the abuse, in March 1996.\n{27} Next, the victim\u2019s counselor testified that the victim told her of the sexual abuse. The victim stated to her that \u201ca peepee was put in her cookie.\u201d Using anatomically correct dolls, the victim said to the counselor \u201cthat the man doll had pulled down his pants a little and pulled off her underwear and the man tried to put his peepee in the cookie.\u201d The counselor also testified that the victim told her, \u201cI felt the peepee, I cried, and the man doll stopped.\u201d Additionally, the victim stated to her that \u201csometimes when she cries the man doll doesn\u2019t stop.\u201d Finally, the counselor said that the victim was diagnosed with posttraumatic stress disorder, which can be caused by sexual abuse.\n{28} Finally, the victim herself testified as follows. Defendant \u201cput his private into my private.\u201d That occurred during the time when Mrs. McCauley was her teacher. Defendant touched her privates in her mother\u2019s bedroom on the bed. That happened at Christmas and on a Friday in March when she was at home sick.\n{29} Under the standard of review we previously noted, we conclude that this evidence was sufficient to support the convictions.\nC. Speedy Trial\n{30} Defendant argues that we should dismiss the charges against him because the eighteen-month delay between his arrest and trial violated his state and federal constitutional right to a speedy trial. See U.S. Const. amends. VI, XIV; N.M. Const. art. II, \u00a7 14; County of Los Alamos v. Beckman, 120 N.M. 596, 600, 904 P.2d 45, 49 (Ct.App.1995). We balance four factors in deciding whether Defendant\u2019s right to a speedy trial was violated: (1) the length of the delay, (2) reasons for the delay, (3) Defendant\u2019s assertion of his right, and (4) prejudice to Defendant. See Barker v. Wingo, 407 U.S. 514, 530, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972); State v. Rojo, 1999-NMSC-001, \u00b6 49, 126 N.M. 438, 971 P.2d 829. In this analysis, \u201cwe independently examine the record to determine whether Defendant\u2019s right to a speedy trial was violated, but give due deference to the trial court\u2019s findings of fact.\u201d Benavidez, 1999-NMCA-053, \u00b6 31, 127 N.M. 189, 979 P.2d 234.\n{31} The right to a speedy trial attaches when the reputed defendant becomes the \u201caccused.\u201d See State v. Manzanares, 1996-NMSC-028, \u00b6 8, 121 N.M. 798, 918 P.2d 714. This occurs with a formal indictment or information or arrest. See id. Defendant was arrested on March 19, 1996, and brought to trial on October 14, 1997. The trial court held that the case was of medium complexity and that the length of the delay raised a presumption of prejudice. See id. \u00b6 9 (holding that for cases of intermediate complexity, a twelve-month delay raises a presumption of prejudice). On appeal, neither party challenges this categorization of the case. Consequently, the burden shifted to the State to show that the Barker factors did not support dismissal. See Manzanares, 1996-NMSC-028, \u00b6 9, 121 N.M. 798, 918 P.2d 714. The trial court concluded that the State had rebutted the presumption of prejudice. The State can discharge its burden by showing that one or more of the following circumstances exist: there were good reasons for the delay, defendant did not timely assert his right and consented to the delay, or the delay did not prejudice the defendant. See Work v. State, 111 N.M. 145, 147, 803 P.2d 234, 236 (1990).\n{32} We now turn our analysis to the four Barker factors. As we previously noted, the length of the delay was about nineteen months, raising a presumption of prejudice. There were the following reasons for the delay. On September 23, 1996, the State filed a petition for an extension of time under Rule 5-604(D) NMRA 1999. On October 11, the Supreme Court granted the petition because the trial court could not schedule the trial within six months under Rule 5-604(B). Although the Supreme Court\u2019s memorandum indicated that Defendant stipulated to this extension, the State\u2019s petition provided that it was unable to contact Defendant\u2019s counsel. Defense counsel also noted this fact at the hearing on Defendant\u2019s motion to dismiss. Defendant argues that the six months from his arrest to this petition weigh against the State. Because the trial court\u2019s inability to schedule Defendant\u2019s trial resulted in this delay, we decline to allocate this period to either party. See Benavidez, 1999-NMCA-053, \u00b6 35, 127 N.M. 189, 979 P.2d 234 (refusing to charge either party with delay caused by trial court\u2019s reassignment of the case).\n{33} In granting the petition, the Supreme Court reset the trial deadline from October 15, 1996, to February 15, 1997. A jury trial was scheduled for October 31 to November 1, 1996. On October 26, 1996, defense counsel filed a Joint Motion for Continuance, stating that both parties desired more time to prepare for trial and consider settlement possibilities. Defendant argues that the month between the Supreme Court\u2019s extension and Defendant\u2019s motion for a continuance weighed against the State. We do not attribute this time for the consideration of the State\u2019s pretrial motion to either party. See id. \u00b6 39 (declining to charge either party with the delay resulting from the defendant\u2019s pretrial motions).\n{34} Defendant concedes that the following eight months, until his own motion for a continuance, weighed against neither party. He also argues that the four months following his motion, until his motion to dismiss, weighed against him. In conclusion, judicial procedure and the parties\u2019 trial preparation contributed to the delay in this case. Because the Defendant was responsible for some of this delay, we weigh this factor slightly in favor of the State.\n{35} The third factor of the Barker analysis is Defendant\u2019s assertion of his right to a speedy trial. Defendant invoked his speedy trial rights just prior to trial. Consequently, we do not give Defendant much weight for this assertion because most of the delay had already passed and he moved for dismissal rather than for a prompt trial. See State v. Tortolito, 1997-NMCA-128, \u00b6 17, 124 N.M. 368, 950 P.2d 811 (noting that assertion of right given less weight where the defendant does not move for a speedy trial as an alternative to dismissal); State v. White, 118 N.M. 225, 227, 880 P.2d 322, 324 (Ct.App.1994) (holding that assertion of right to a speedy trial two days before trial was not entitled to much weight).\n{36} Finally, the only prejudice that Defendant asserts is his pretrial incarceration. Our Supreme Court in Zurla v. State, 109 N.M. 640, 644, 789 P.2d 588, 592 (1990), recognized three types of prejudice that the right to a speedy trial was \u201cintended to minimize or prevent: (1) oppressive pretrial incarceration, (2) anxiety and concern of the accused; and (3) the possibility of impairment to the defense.\u201d Defendant has failed to demonstrate any prejudice other than his pretrial incarceration. Consequently, from our analysis of the four Barker factors, we conclude that the State overcame the presumption of prejudice and that Defendant\u2019s right to a speedy trial was not violated.\nIII. CONCLUSION\n{37} We conclude that the cumulative error resulting from the hugging incident and the exclusion of the sister-in-law\u2019s testimony deprived Defendant of his fundamental right to a fair trial. We hold, however, that the evidence was sufficient to support the convictions and that Defendant\u2019s speedy trial rights were not violated. We therefore reverse Defendant\u2019s convictions and remand for a new trial.\n{38} IT IS SO ORDERED.\nDONNELLY and HARTZ, JJ., concur.", "type": "majority", "author": "APODACA, Judge." } ], "attorneys": [ "Patricia A. Madrid, Attorney General, Ann M. Harvey, Assistant Attorney General, Santa Fe, for Appellee.", "Robert E. Tangora, Robert E. Tangora, L.L.C., Santa Fe, for Appellant." ], "corrections": "", "head_matter": "1999-NMCA-146\n993 P.2d 96\nSTATE of New Mexico, Plaintiff-Appellee, v. Pedro ORTIZ-BURCIAGA, Defendant-Appellant.\nNo. 19591.\nCourt of Appeals of New Mexico.\nSept. 10, 1999.\nCertiorari Denied, No. 26,004, Nov. 15, 1999.\nPatricia A. Madrid, Attorney General, Ann M. Harvey, Assistant Attorney General, Santa Fe, for Appellee.\nRobert E. Tangora, Robert E. Tangora, L.L.C., Santa Fe, for Appellant." }, "file_name": "0382-01", "first_page_order": 420, "last_page_order": 428 }