State v. Lovato, 32,361

CourtCourt of Appeals of New Mexico
PartiesSTATE OF NEW MEXICO, Plaintiff-Appellee, v. ARTHUR J. LOVATO, Defendant-Appellant.
Docket NumberNo. 32,361,32,361
Decision Date23 July 2014

STATE OF NEW MEXICO, Plaintiff-Appellee,
ARTHUR J. LOVATO, Defendant-Appellant.

No. 32,361


July 23, 2014

This memorandum opinion was not selected for publication in the New Mexico Appellate Reports. Please see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions. Please also note that this electronic memorandum opinion may contain computer-generated errors or other deviations from the official paper version filed by the Court of Appeals and does not include the filing date.

Albert J. Mitchell, Jr., District Judge (by designation)

Gary K. King, Attorney General
Corinna Laszlo-Henry, Assistant Attorney General
Santa Fe, NM

for Appellee

Attorney and Counselor at Law, P.A.
Eric D. Dixon
Portales, NM

for Appellant


SUTIN, Judge.

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{1} A jury found Defendant Arthur Lovato guilty of driving with a breath alcohol concentration of .08 or more, driving while his license was suspended or revoked, and improperly turning at an intersection. See NMSA 1978, § 66-8-102(C)(1) (2008, amended 2010) (stating that it is unlawful for a person to drive in New Mexico with a breath or blood alcohol concentration of eight one hundredths or more); NMSA 1978, § 66-5-39(A) (1993, amended 2013) (prohibiting driving with a suspended or revoked license); NMSA 1978, § 66-7-322 (1978) (stating the required position and method of turning at intersections). The district court entered a judgment reflecting that Defendant had four prior convictions for driving while intoxicated (DWI) and was, therefore, a habitual DWI offender. In addition to ordering him to pay a fine, the court sentenced Defendant to a term of two and one-half years of incarceration followed by six months of supervised probation, and permanently revoked Defendant's driver's license. Defendant appeals from the court's judgment.

{2} Defendant raises six issues on appeal, including a claimed violation of his constitutional right to a speedy trial, sufficiency of the evidence, evidentiary and constitutional confrontation challenges, and issues in regard to his sentencing. We conclude that Defendant has not demonstrated reversible error. We affirm.


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{3} Because this is a memorandum opinion, and the parties are familiar with the factual and procedural background, we do not provide that information in a separate section. Relevant facts are presented, as needed, accompanying our analysis of Defendant's appellate issues.


{4} Defendant was arrested and charged in this case on February 26, 2010. Defendant's case was tried before a jury on March 30, 2012. From the date that Defendant was arrested to the date that he was tried spanned approximately twenty-five months.

{5} Defendant filed two motions to dismiss on speedy trial grounds, the first on May 26, 2011, and the second on January 4, 2012; both were denied. Defendant argues that the district court erred in failing to dismiss the charges against him on speedy trial grounds. In reviewing the district court's ruling on a speedy trial motion, the appellate courts "give deference to the district court's factual findings," but we review the speedy trial factors de novo. State v. Spearman, 2012-NMSC-023, ¶ 19, 283 P.3d 272 (alteration, internal quotation marks, and citation omitted).

{6} Defendant and the State agree that this was a simple case and that the twenty-five-month delay in bringing Defendant to trial therefore required consideration of the four speedy trial factors. See State v. Garza, 2009-NMSC-038, ¶ 48, 146 N.M. 499,

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212 P.3d 387 (holding that delay in excess of one year in a simple case requires evaluation of the speedy trial factors). Thus, we consider "(1) the length of delay[;] (2) the reasons for the delay[;] (3) the defendant's assertion of his right [to a speedy trial;] and (4) the actual prejudice to the defendant[.]" Id. ¶¶ 13-14. The district court did not weigh any one factor heavily in Defendant's favor.

A. Length of Delay

{7} While the length of delay plays a role in the threshold determination of presumptive prejudice, it is also weighed in the balance at the second stage of the analysis. Id. ¶ 23. "Considering the length of delay as one of the . . . factors, the greater the delay the more heavily it will potentially weigh against the [prosecution]." Id. ¶ 24. In evaluating the length of delay factor, we examine "the extent to which the delay stretches beyond the bare minimum needed to trigger judicial examination of the claim." State v. Coffin, 1999-NMSC-038, ¶ 59, 128 N.M. 192, 991 P.2d 477 (internal quotation marks and citation omitted). On appeal, Defendant does not take a position regarding the weight that should be assigned to the delay of approximately thirteen months beyond the twelve-month threshold for simple cases. We have held that a delay of six months beyond the triggering date in an intermediate case weighed only slightly against the prosecution. See State v. Montoya, 2011-NMCA-074, ¶ 17, 150 N.M. 415, 259 P.3d 820. In contrast, in Garza, our Supreme Court recognized

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that a delay of five or more years weighed heavily in the defendant's favor. 2009-NMSC-038, ¶ 24. Here, the delay of thirteen months beyond the triggering date, being longer than the six-month delay in Montoya, but significantly shorter than the five to six years discussed in Garza, weighs moderately against the State and in Defendant's favor. See 2009-NMSC-038, ¶ 24 (recognizing that a delay of three years and nine months "was too short to weigh heavily" in the defendant's favor).

B. Reasons for the Delay

{8} Defendant argues that the State delayed the trial in this matter in four ways: (1) by excusing Judge Orlik; (2) by failing to offer to stipulate to a judge, thereby "allow[ing] the matter to proceed through the bureaucracy of multiple [j]udge reassignments until finally the Supreme Court stepped in and appointed Judge Mitchell"; (3) failing to seek a trial date from Judge Mitchell as a first priority and choosing instead as a "first thing" to move to revoke Defendant's bond; and (4) vacating the July 28, 2011, trial setting so that the prosecutor could attend a nominating committee hearing.

{9} The record reflects that the State filed a notice of excusal as to Judge Orlik on November 16, 2010. Between November 16 and December 14, 2010, two judges were assigned to and recused from the case. On December 14, 2010, our Supreme Court designated Judge Mitchell to preside over the case. On December 14, 2010, the

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State filed a motion to set aside Defendant's bond and to modify the conditions of his release on the ground that Defendant had been arrested on December 14, 2010, for another DWI offense. On July 28, 2011, the court granted a stipulated joint order for continuance on the basis that the prosecutor would not be available for the August 2, 2011, trial. In the stipulated order, the State and Defendant agreed to vacate the August 2, 2011, trial date and that any resultant delay would weigh against the State in a speedy trial analysis. Trial was re-set to commence on September 28, 2011.

{10} In light of the foregoing, approximately one month of delay can reasonably be viewed as having resulted from the State's excusal of Judge Orlik; and pursuant to the parties' stipulation, the approximate two-month delay from the vacated trial date of August 2, 2011, to the re-set trial date of September 28, 2011, weighs against the State. Defendant does not demonstrate by evidence in the record or by argument in his briefs that the State's motion to revoke Defendant's bond that was filed the same day that Judge Mitchell was assigned to the case caused any delay in bringing the case to trial, and we will not assume that it did. Thus, Defendant's argument regarding the State-caused delay in this case accounts for three months of the approximate twenty-five-month delay in this case.

{11} Defendant does not demonstrate that the court erred in its weight assignment in regard to the remaining twenty-two months of delay, at least eight of which were

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attributed by the district court to Defendant's failures to appear and requests for continuances. See State v. Harvey, 1973-NMCA-080, ¶ 7, 85 N.M. 214, 510 P.2d 1085 ("[D]elay occasioned by the accused will weigh heavily against him."). Beyond showing that three months of the delay was caused by the State, Defendant offers no argument or record support to show that this factor should weigh in his favor. We will not assume that the district court erred by not weighing the reasons for the delay factor in Defendant's favor, nor will we search the record on Defendant's behalf to determine whether this factor should weigh in his favor. See State v. Dominguez, 2014-NMCA___, ¶ 26, ___ P.3d ___ (2014 WL 621866) (stating that we will not search the record to find facts to support the defendant's argument).1 Having been provided with no persuasive argument or record support to support doing so, we do not weigh the reasons for the delay factor in Defendant's favor.


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