State v. Vivier ( 2012 )

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1 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
2 STATE OF NEW MEXICO,
3 Plaintiff-Appellee,
4 v. NO. 32,095
5 BRIAN VIVIER,
6 Defendant-Appellant.
7 APPEAL FROM THE DISTRICT COURT OF GUADALUPE COUNTY
8 Matthew J. Sandoval, District Judge
9 Gary K. King, Attorney General
10 Albuquerque, NM
11 for Appellee
12 Michael R. Demarco
13 McIntosh, NM
14 for Appellant
15 MEMORANDUM OPINION
16 KENNEDY, Judge.
1 Brian Vivier (Defendant) appeals his convictions for criminal sexual
2 penetration (CSP) of a child under the age of thirteen and kidnaping. We proposed
3 to affirm in a calendar notice. Defendant responded to our notice with a memorandum
4 in opposition. We have considered Defendant’s arguments, but are not persuaded by
5 them. We affirm.
6 Defendant claims that this case was a simple “he said, she said” case with no
7 difficult matters for the jury, only a few witnesses, and no other difficulties. [MIO
8 unnumbered 1-2] We have held that a simple case typically requires “less
9 investigation and tend[s] to involve primarily police officer testimony during the
10 trial,” while an intermediate case seems “to involve numerous or relatively difficult
11 criminal charges and evidentiary issues, numerous witnesses, expert testimony, and
12 scientific evidence.” State v. Laney, 2003-NMCA-144, ¶ 14, 134 N.M. 648, 81 P.3d
13 591. The jury trial in this case lasted two days and involved evidence of a safehouse
14 interview and examination of a young child, testimony from an expert witness, and
15 detailed testimony regarding the incident. This was not a simple case that primarily
16 involved officer testimony. In fact, the district court found that the case was of
17 intermediate complexity. [RP 97] We reject Defendant’s argument that the case
18 should be categorized as simple. As discussed in our calendar notice, for a case of
19 intermediate complexity, the length of delay is not considered presumptively
2
1 prejudicial unless it is fifteen months or longer. The delay in this case was less than
2 fifteen months and, therefore, there has been no threshold showing that the delay was
3 presumptively prejudicial. As we stated in our calendar notice, we need not inquire
4 further into the speedy trial factors.
5 In our notice, we proposed an additional ground for affirmance—that Defendant
6 had not demonstrated actual prejudice. In response, Defendant claims that he suffered
7 prejudice because “he was not a free man,” and he was required to attend counseling,
8 report weekly to pretrial services, submit for drug screens, and pay for the ankle
9 monitor. Defendant contends that, because of the ankle monitor and the obligations
10 of his release, he was subjected to “a form of oppressive incarceration” and was
11 anxious and concerned as a result. [MIO unnumbered 3] We disagree with
12 Defendant’s contentions. As explained in State v. Valencia, 2010-NMCA-005, 147
13 N.M. 432, 224 P.3d 659, the prejudice factor weighs in favor of a defendant only
14 when the pretrial incarceration or anxiety suffered is undue. Id. ¶ 28. Wearing an
15 ankle monitor instead of being placed in a jail cell is not considered to be oppressive
16 pretrial incarceration. Id. ¶ 29. Therefore, even if the delay would be considered
17 presumptively prejudicial in this case, Defendant did not meet his burden of
18 demonstrating prejudice.
3
1 For the reasons discussed in this Opinion and in our calendar notice, we affirm
2 the district court’s determination that Defendant’s speedy trial rights were not
3 violated.
4 IT IS SO ORDERED.
5 _______________________________
6 RODERICK T. KENNEDY, Judge
7 WE CONCUR:
8 ___________________________
9 LINDA M. VANZI, Judge
10 ___________________________
11 TIMOTHY L. GARCIA, Judge
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