{1} Defendant appeals his convictions for possession of a controlled substance, driving while under the influence (DWI), and possession of drug paraphernalia (current convictions), as well as the enhancement of his sentence based on prior convictions for DWI. We hold that Defendant’s Fourth Amendment and speedy trial rights were not violated and that his current convictions were supported by substantial evidence. As to his prior DWI convictions, however, we hold that there was insufficient evidence presented and reverse on this issue. Accordingly, we affirm Defendant’s current convictions but remand for resentencing consistent with this opinion.
I. BACKGROUND
{2} At approximately 2:45 a.m. on May 8, 2006, Officer Cullison of the Clovis Police Department initiated a traffic stop after observing Defendant towing a trailer missing a tail light and a license plate. When he approached, Officer Cullison noticed that Defendant was very nervous and that his responses were inconsistent. At that point, Officer Cullison ran a check on Defendant’s driver’s license and discovered that Defendant’s license had been revoked, thereby subjecting him to immediate arrest. Accordingly, Officer Cullison took him into custody.
{3} Officer Borders, who had arrived when Officer Cullison took Defendant into custody, conducted an inventory of Defendant’s car. In the center console of the vehicle, Officer Borders discovered a cell phone case containing a glass pipe wrapped in a napkin. In the pipe was a white powdery residue. Because it was immediately apparent to the officers that the pipe was used for the consumption of narcotics, it was taken as evidence.
{4} Officer Cullison then took Defendant to the Curry County Detention Center, administered a series of field sobriety tests, and concluded that Defendant was under the influence. A subsequent blood test revealed the presence of methamphetamine. The State’s toxicologist testified that the level of methamphetamine in Defendant’s blood was sufficient to result in impairment.
{5} Defendant was tried and convicted of DWI, possession of a controlled substance, and possession of drug paraphernalia. This appeal followed.
II. DISCUSSION
{6} Defendant raises four issues on appeal. He challenges (1) the denial of his motion to suppress evidence that was seized from his vehicle, (2) the denial of his motion to dismiss the charges on speedy trial grounds, (3) the sufficiency of the evidence to support his possessory convictions, and (4) the sufficiency of the evidence to establish that he has six prior convictions for DWI. We address each argument in turn.
A. Motion to Suppress
{7} “In reviewing a trial court’s denial of a motion to suppress, we observe the distinction between factual determinations[,] which are subject to a substantial evidence standard of review and application of law to the facts[,] which is subject to de novo review.” State v. Nieto,
{9} “Under Article II, Section 10 of our New Mexico Constitution, a warrantless search of a vehicle or warrantless seizure of an object from within a vehicle requires a particularized showing of exigent circumstances or some other recognized exception to the warrant requirement.” State v. Bomboy,
{10} Defendant’s car was towed and impounded subsequent to his arrest and, as the officers testified below, standard practice entails an inventory of the contents of such vehicles. Taking an inventory of vehicle contents before towing and impoundment is a well-recognized exception to the warrant requirement. See generally State v. Rujfino,
{11} “[T]he scope of a permissible inventory search is broad[.]” State v. Shaw,
{12} Once the pipe was discovered in the course of the inventory, the plain view exception to the warrant requirement supported its seizure.
Under the plain view exception to the warrant requirement, items may be seized ■without a warrant if the police officer was lawfully positioned when the evidence was observed, and the incriminating nature of the evidence was immediately apparent, such that the officer had probable cause to believe that the article seized was evidence of a crime.
State v. Ochoa,
{13} Relying on State v. Gomez,
{14} In his briefs on appeal, Defendant seeks to expand his arguments. Specifically, Defendant now contends that the inventory search was invalid because the officers failed to articulate sufficiently clear policies and procedures governing such activities and because the scope of the search exceeded the legitimate purposes of the inventory. Defendant does not provide us with any citation to the record indicating that he made this argument to the district court. See Rule 12-213(A)(4) NMRA (requiring a party to include “a statement explaining how the issue was preserved in the court below”). Although the State has not relied on Defendant’s failure to preserve the arguments that he makes on appeal, it is well established that “[w]here defendants have failed to comply with [Rule 12-213], ... an appellate court may decline to address such contention on appeal.” State v. Nozie,
{15} Before trial, Defendant challenged the search by arguing that it could not be considered a search incident to arrest, and he challenged the seizure based on Officer Borders’ failure to obtain a warrant. During trial, Defendant cross-examined the officers regarding their training, but he did not renew his earlier motion to suppress at that time. Nor did he raise the issue regarding the policy or the scope of the search in his motion for a directed verdict. Defendant did not alert the district court at any time to his current arguments and, as a result, the district court did not consider these arguments as the basis for its ruling on suppression. See State v. Elliott,
{16} The preservation rule “serves many purposes: it provides the lower court an opportunity to correct any mistake, it provides the opposing party a fair opportunity to show why the court should rule in its favor, and it creates a record from which this Court may make informed decisions.” State v. Jamen,
{17} Because the search was a proper inventory search and because the seizure is justified by the plain view doctrine, we uphold the denial of Defendant’s motion to suppress and turn to consider whether his Sixth Amendment speedy trial right was violated.
B. Speedy Trial Motion
{18} When reviewing a district court’s denial of a motion to dismiss on speedy trial grounds, we give deference to the court’s factual findings. State v. Urban,
{19} To briefly summarize the relevant time frame, Defendant was arrested on May 8, 2006, and a criminal complaint was filed in magistrate court on May 10, 2006. This complaint was dismissed when the State decided to pursue felony charges in district court. A criminal information was filed in district court on September 15, 2006. Defendant was ultimately tried and convicted on June 28, 2007. Defendant contends that the delay between the arrest and the trial was impermissibly long and that his convictions should be overturned on speedy trial grounds.
{20} When evaluating a speedy trial claim, the Court must consider the following factors: (1) the length of the delay, (2) the reasons given for the delay, (3) the defendant’s assertion of the right to a speedy trial, and (4) prejudice to the defendant. Id. We begin by considering the length of the delay.
1. Length of Delay
{21} “Initially, the length of delay must cross a threshold to establish a presumption of prejudice and to trigger further inquiry into the other factors.” Id.; see State v. Garza,
{22} In the present case, the parties disagree about when Defendant’s speedy trial right attached to the charges. The State argues—without argument or citation to authority—that Defendant’s right attached when the criminal information was filed in district court on September 15, 2006. Defendant simply states that he was incarcerated for fourteen months, counting from arrest to trial, and that he was incarcerated for nine and a half months, counting from district court indictment to trial. He does not argue which is the proper time frame. The question of when the Sixth Amendment speedy
2. Reasons for Delay
{23} Under the second factor, we consider the reasons for the delay by dividing the period of delay into segments. The first period of delay is from Defendant’s arrest on May 6, 2006, until Defendant’s arraignment on October 2, 2006. The second period is from the arraignment until the first trial date on March 28, 2007. The third period of delay is between March 29, 2007, when the trial was reset and May 2, 2007, when a new attorney entered an appearance for Defendant. The last period of delay is between May 3, 2007, and June 28, 2007, the ultimate trial date.
{24} The first five-month period of delay is attributable to several factors. Defendant was first charged in magistrate court and those charges were eventually dismissed. The State then refiled slightly different charges in district court, and Defendant was indicted on those charges on September 15, 2006. There was a four-day delay caused when the Department of Corrections failed to transport Defendant for his arraignment or preliminary hearing originally scheduled for September 28, 2006; the arraignment took place on October 2, 2006. Defendant does not argue that the State acted in bad faith during this period. We therefore weigh this period slightly against the State. See Garza,
{25} On March 28, 2007, the scheduled trial was vacated because the trial judge was not feeling well. The next day a new trial was set for April 27, 2007. This period of delay weighs neutrally and does not count against either party. See White,
{26} The last period of delay resulted from the need to vacate the second, April 27, 2007, trial setting, which the parties agree resulted from a late-discovered conflict regarding Defendant’s representation by the public defender department. A new trial date was set for June 28, 2007. This period of approximately two months must weigh against Defendant. See White,
3. Assertion of the Right
{27} Defendant timely asserted his right to a speedy trial by filing a pro se motion on April 13, 2007. Although the assertion “was not especially vigorous,” there is no indication that Defendant acquiesced to the delay. Garza,
4. Prejudice
{28} Turning to the fourth and final factor, “[w]e examine the three types of prejudice that Barker held relevant to the speedy trial analysis: (1) oppressive pretrial incarceration; (2) anxiety and concern of the accused; and (3) the possibility of impairment to the defense.” State v. Stock,
{29} In addition, Defendant’s claim of undue anxiety or concern is little more than a bare assertion, to which we accord no weight. See State v. Brown,
5.Balancing the Factors
{30} In summary, the length of the delay, the reasons for delay, and the assertion of the right factors weigh in Defendant’s favor. Nevertheless, the total length of the delay was only minimally beyond the presumptive threshold. See id. ¶ 24 (explaining that when the length of delay is not extraordinary, it does not weigh heavily in a defendant’s favor). Three months of the delay were not attributable to the State, the remaining ten months of delay weighed only slightly against the State, and Defendant did not establish that he suffered cognizable prejudice. Under these circumstances, we conclude that Defendant’s right to a speedy trial was not violated. See id. ¶ 40 (balancing the factors and concluding that there was no speedy trial violation when the defendant failed to show prejudice and the remaining factors did not weigh heavily in the defendant’s favor).
C. Sufficiency of the Evidence
{31} Defendant challenges the sufficiency of the evidence to support his convictions for possession of methamphetamine and possession of drug paraphernalia. In addition, Defendant argues that the State failed to provide sufficient evidence to establish that he had prior DWI convictions. We begin by considering the evidence supporting the current convictions.
1. Evidence Supporting the Current Convictions
{32} When reviewing a challenge to the sufficiency of the evidence to support a conviction,
{33} To prove the crime of methamphetamine possession, the State was required to demonstrate (1) that Defendant had methamphetamine in his possession, (2) that Defendant knew or believed it to be methamphetamine, and (3) that this happened in New Mexico on May 8, 2006. See NMSA 1978, § 30-31-23(D) (2005). With respect to the possession of drug paraphernalia charge, the State must have established (1) that Defendant used or possessed drug paraphernalia; (2) that Defendant had the intent to plant, propagate, cultivate, grow, harvest, manufacture, compound, convert, produce, process, prepare, test, analyze, pack, repack, ingest, inhale or otherwise introduce into the human body, a controlled substance; and (3) that this happened in New Mexico on or about the 8th day of May 2006. See NMSA 1978, § 30-31-25.1 (2001).
{34} The State called several witnesses to establish the date on which the pertinent events occurred. The officers testified that they found a pipe containing a white powdery substance in the vehicle that Defendant was driving — in a cell phone case that was located in the center console. Subsequent forensic testing revealed that the substance was methamphetamine. We conclude that the circumstantial evidence was sufficient to establish that Defendant possessed or constructively possessed the methamphetamine and the pipe. See State v. Barber,
{35} Defendant contends that the circumstantial evidence should not be regarded as sufficient to establish possession and intent because the vehicle might theoretically have been accessible to others. See State v. Phillips,
2. Evidence Supporting the Prior Convictions
{36} “Sentencing for a DWI conviction in New Mexico is graduated depending on a defendant’s prior convictions, if any.” State v. Bullcoming,
{37} Below, the State filed an information alleging that Defendant had eight prior convictions for DWI. The document indicated that certified copies of the abstracts of record and/or judgments and sentences associated with these prior convictions were attached as exhibits. The exhibits, however, were never filed on record. When the prosecutor discovered the oversight at the sentencing hearing, he presented a document that he appears to have had on hand. Because the document was not designated as an exhibit, it is not available for our review. The transcript of the sentencing hearing, however, provides reasonably clear information about its nature and content. The document is described as a copy of a prior judgment and sentence, which was filed in the same judicial district in 2004. This judgment and sentence reflected the district court’s determination that at that time in 2004 Defendant had admitted to least six prior convictions for DWI as a part of a plea agreement.
{38} Defendant argued that the State had failed to make a prima facie showing with respect to any prior convictions for DWI. Defendant pointed out that the State generally presents entries of appearance and/or waivers of counsel, as well as judgments and sentences for each claimed prior conviction, and he argued that without such documents, the court could only sentence him for a first DWI offense.
{39} After hearing Defendant’s position, the district court asked whether the State would like a continuance in order to gather the documents that it had intended to present. Defendant promptly objected to the suggestion, contending that there had already been significant delays and urging the court to impose the lighter sentence in view of the State’s “lack of preparation.”
{40} In response, the prosecutor observed that in this context, proof of prior convictions rather than sentences is required and that the State’s burden is merely to make a prima facie showing. In light of these considerations, the prosecutor contended that the document previously submitted was sufficient to meet the State’s initial burden. To the extent that additional information might be desired, the prosecutor suggested that the court could take judicial notice of its own records that would reflect Defendant’s prior convictions for DWI within the district. Ultimately, however, the prosecutor offered to supply the missing exhibits at a future date, if that was desired by the court.
{41} Rather than continuing the proceedings, the court indicated that it was “going to take appropriate judicial notice that ... the court found ... [Defendant ha[d] at least six prior DWI convictions____ Therefore ... this current DWI is in addition to that.” On appeal Defendant challenges this ruling, renewing his argument that the State failed to make a prima facie showing of any prior DWI convictions. We agree with Defendant.
{42} There appears to be relatively little authority in New Mexico specifically addressing the prosecution’s burden of making a prima facie showing with respect to prior DWI convictions. The statute relating to prior convictions for DWI does not require the district court to make any findings — it simply mandates that “[u]pon a fourth conviction pursuant to this section, an offender is guilty of a fourth degree felony and ... shall be sentenced to a term of imprisonment of eighteen months, six months of which shall not be suspended, deferred or taken under advisement.” NMSA 1978, § 66-8-102(G) (2005) (amended 2008). Indeed, we are aware of no authority which conclusively establishes what sort of evidence must be presented in order to make a prima facie showing of the existence of prior DWI convictions.
{43} In State v. Sedillo,
{44} We are further unpersuaded that the trial court’s willingness to review court records in order to locate Defendant’s previous convictions would satisfy the State’s burden of proof to establish the fact of those convictions. In order for a defendant’s sentence to be enhanced under Section 66-8-102(G), “[t]he [s]tate bears the initial burden of establishing a prima facie case of a defendant’s previous [DWI] convictions.” State v. Pacheco,
III. CONCLUSION
{45} For the foregoing reasons, we affirm Defendant’s current convictions, but we reverse Defendant’s sentence and remand for resentencing in conformity with this opinion.
{46} IT IS SO ORDERED.