{1} Defendant appeals from convictions of kidnaping, conspiracy to commit kidnaping, second-degree criminal sexual penetration (CSP II), and aggravated burglary. He raises three points on appeal: (1) his right to a speedy trial was violated by a twenty-one-month delay between his arrest and trial; (2) he was deprived of his right to a trial by jury because a certified court interpreter was not sworn in before voir dire commenced; and (3) his right to be free from double jeopardy was violated by his convictions for kidnaping, CSP II, and aggravated burglary. We conclude that Defendant’s convictions of kidnaping and CSP II violate рrinciples of double jeopardy, and we therefore remand with instructions to vacate one of Defendant’s convictions. We affirm on all other issues.
I. BACKGROUND
{2} Defendant’s convictions stem from an incident that occurred on March 2, 2006, in Doña Ana County, New Mexico. At trial, Victim testified that she was driving home that evening after stopping for fuel at a gas station. Shortly after leaving the gas station, Victim observed a work truck pass her vehicle. A few minutes later, Victim testified that she stopped her vehicle on the roadway because the work truck she had observed earlier was now parked sideways across the road, blocking trаffic in both directions. Victim stated that two men exited the truck and approached her vehicle. She explained that she opened her car door after the driver of the truck displayed a gun. She testified that after the truck driver gained entry to her vehicle, he proceeded to sexually assault her while the passenger of the truck held her hands above her head. After the assault, Victim stated that the men let her go, returned to the work truck, and drove away. The next day, Victim reported the incident to the police and subsequently identified Defendant as the driver of the truck.
{3} Defendant was arrested and charged with: (1) kidnаping; (2) conspiracy to commit kidnaping; (3) aggravated burglary committed with a deadly weapon or, in the alternative, committed during the commission of a battery; and (4) CSP II committed during the commission of a felony, or in the alternative, committed while being aided or abetted by another. Following a jury trial, Defendant was convicted on all charges. This appeal followed.
II. DISCUSSION
{4} Defendant argues that his right to a speedy trial was violated, that he was denied his right to trial by jury, and that his convictions violate his right to be free from double jeopardy. We address each argument in turn.
A. The District Court Did Not Violate Defendant’s Right to a Speedy Trial
{5} Defendant argues that the delay of his trial for over twenty-one months prejudiced his defense due to the death of an alibi witness during the pretrial delay. As a result, he maintains that the delay violated his right to a speedy trial.
{6} As an initial matter, we consider Defendant’s argument that our Supreme Court’s decision in State v. Garza,
{7} While Defendant correctly states the relevant holding in Garza, we disagree with his characterization of that holding. The Court in Garza sought to clarify what it perceived to be ambiguities in Barker v. Wingo,
{8} Defendant’s argument regarding the alleged retroactive application of Garza appears to be directed solely at Garza’s modification of the burden-shifting employed in prior New Mexico case law. To the extent that Defendant’s argument is also directеd to Garza’s modification of the guidelines governing the determination of presumptive prejudice, we reject the argument. The Court in Garza changed the existing guidelines from nine months to one year for a simple case, from twelve months to fifteen months for an intermediate case, and from fifteen months to eighteen months for a complex ease.
1. Application of the Barker factors
{9} We turn now to analysis of Defеndant’s argument that his speedy trial right was violated. In making this determination, we employ the balancing test created in Barker and weigh the conduct of both the prosecution and the defendant in light of four factors: “(1) the length of delay, (2) the reasons for the delay, (3) the defendant’s assertion of his right, and (4) the actual prejudice to the defendant.” Garza,
{10} According to Garza, the initial inquiry in speedy trial analysis is а determination as to whether the length of pretrial delay is “presumptively prejudicial.”
{11} Garza provides guidance as to the order in which we consider the factors. Our Supreme Court in Garza stated that
a. Prejudice Factor
{12} “The United States Supreme Court has identified three interests under which we analyze prejudice to the defendant: (i) to prevent oppressive pretrial incarceration},] (ii) to minimize anxiety and concern of the accused},] and (iii) to limit the possibility that the defense will be impaired.” Id. ¶ 35 (internal quotation marks omitted). “As to the first two types of prejudice, some degree of oppression and anxiety is inherent for every defendant who is jailed while awaiting trial.” Id. (alterations omitted) (internal quotation marks omitted). “Therefore, we weigh this factor in the defendant’s favor only where the pretrial incarceration or the anxiety suffered is undue.” Id. Furthermore, “}t]he oppressive nature of the pretrial incarceration depends on the length of incarceration, whether the defendant obtained release prior to trial, and what prejudicial effects the defendant has shown as a result of the incarceration.” Id.
{13} In the present ease, Defendant spent only three months in jail while he negotiated the reduction of his bond. He was released a full year-and-a-half before his trial. In addition, while Defendant asserts that he “was forced to worry about the pending trial for the better part of two years,” he has not demonstrated that his worry was undue. See In re Ernesto M., Jr.,
{14} Defendant also claims he was prejudiced because one of his alibi witnesses died during the time he was awaiting trial. However, Defendant did not inform his attorney about the existence of this witness until the week before trial. In addition, Defendant concedes that he was able to present the testimony of another alibi witness and, as a result, he was not deprived of an alibi defense. Moreover, Defendant failed to state what exculpatory testimony would have been offеred through the alibi witness and, in turn, how the witness’s absence prejudiced him. Therefore, because Defendant has not made a particularized showing of prejudice, we conclude that he has not met his burden.
{15} We now turn to the other Barker factors to determine whether they weigh heavily in his favor, despite his failure to demonstrate prejudice. See Garza,
b. Length of Delay
{16} The greater the delay in comparison to the complexity of the case, “the more heavily it will potentially weigh against the [s]tаte.” Id. ¶ 24. As previously noted, the district court made no findings regarding the complexity of the present case, but we conclude that it was of intermediate complexity. “Typically, simple eases require less investigation and tend to involve primarily police officer testimony during the trial.” State v. Laney,
{17} The delay in this case was six months longer than the fifteen-month guideline. In our view, such a delay was not so long or protracted as to weigh more than slightly against the State. See State v. Wilson,
c. Reasons for the Delay
{18} There are three types of delay, each of which weighs differently in favor of or against the state. The delays range from a deliberate attempt to delay trial to a valid, non-negligent reason for delay. See Barker,
{19} The record reflects only one motion for continuance and one petition for extension of the so-called six-month rule, both filed by the State. Our Supreme Court granted two additional extensions of the six-month rule. It appears that the majority of the delay in the present case was due to backlog at the lab that was conducting what the State termed “DNA testing.” In fact, the forensic scientist who testified for the State clarified that she tested vaginal swabs taken from Victim and items of Victim’s clothing for the presence of semen and, finding no semen, she did no further testing. The scientist also testified that the evidence to be tеsted arrived at the lab in May and June 2006, but that she was unable to test the evidence until March 2007 due to the “very large backlog” of evidence waiting to be tested.
{20} We conclude that the delay attributable to the lab’s backlog weighs only slightly against the State. There is no evidence and Defendant does not suggest that the State deliberately caused the backlog. See State v. Tortolito,
{21} The reason for the remaining delay, from the completion оf the lab’s testing in March 2007 to the trial in December 2007, is unclear. However, it appears likely that this delay was attributable to the district court’s schedule because no motions for continuance appear in the record. Accordingly, we consider this period of delay to be administrative, which we weigh only slightly against the State, given the relatively short length of time that the overall delay extended beyond the triggering guideline. See Garza,
d. Defendant’s Assertion of the Right
{22} In considering the third Barker factor, “we assess the timing of the defendant’s assertion and the manner in which the right was asserted.” Garza,
{23} Defendant objected to only one of the State’s two motions for continuance or extension. Moreover, he waited until the day before trial to affirmatively assert the right
e. Balancing the Factors
{24} In the present ease, Defendant failed to demonstrate actual prejudice, and the remaining factors weigh only slightly in his favor. The delay passed the threshold for asserting the right by only a few months and was largely caused by the time it took to complete lab testing and by administrative delay. Defendant acquiesced in part of the delay because he did not oppose the State’s first motion for continuance, and he did not assert his right to a speedy trial until the day before trial began. Thus, Defendant’s failure to make an affirmative showing of particularized prejudice precludes a determination that his speedy trial right was violated because the other three factors weigh only slightly against the State. Accordingly, on balance, we affirm the district court’s denial of his motion to dismiss.
B. The District Court Did Not Violate Defendant’s Right to Trial by Jury
{25} Defendant argues that he was deprived of his right to a trial by jury because a certified court interpreter who served the jury venire during voir dire was not properly sworn in. Defendant maintains that the district court abused its discretion by not granting a mistrial after defense counsel alerted the court to this fact. Defendant did not properly preserve the issue and, therefore, we decline to address it.
{26} The trial transcript does not conclusively show whether or not the interpreter was sworn in. Although the transcript of voir dire does not reflect that the interpreter was sworn, it is possible that the oath occurred before voir dire took place. However, even if the oath did not take place before voir dire, Defendant did not draw the district court’s attention to this procedural defect until after voir dire, after the petit jury had been seated, and after four witnesses had already testified. Defendant did not properly preserve the issue because he waited until after the time when the district court could have avoided or cured the error. See Gracia v. Bittner,
{27} Moreover, even if Defendant had properly preserved the alleged error, there was no prejudice to him. Apparently the only venire person for whom the interpretеr provided her services, juror no. 62, was not ultimately selected to serve on the jury.
C. Defendant’s Convictions for Both CSP II (Commission of a Felony) and Kidnaping Violated Protections Against Double Jeopardy
{28} Defendant claims that his constitutional protection against double jeopardy was violated because he was convicted of both CSP II (commission of a felony) and the predicate felony underlying the CSP II conviction. The State offered two theories of CSP II:(1) sexual intercourse during the commission of aggravated burglary and (2) sexual intercourse during the commission of kidnaping. Defendant maintains that the conduct supporting his сonviction of CSP II under either theory and the conduct supporting his convictions of aggravated burglary and/or kidnaping was unitary and not intended to be punished separately.
{29} “The right to be free from double jeopardy consists of three separate constitutional protections. It protects against a second prosecution for the same offense after acquittal. It protects against a second prosecution for the same offense after conviction. And it protects against multiple punishments for the same offense.” State v. Rodriguez,
{30} “We analyze a multiple punishment double jeopardy challenge under Swafford v. State,
1. Unitary Conduct
{31} We begin our analysis by determining whether Defendant’s actions may be viewed as one, single transaction. Conduct is not unitary if sufficient “indicia of distinctness” separate the transaction into several acts. State v. Cooper,
{32} We consider in turn whether unitary conduct supported (1) CSP II and aggravated burglary, or (2) CSP II and kidnaping.
a. CSP II (Commission of a Felony) and Aggravated Burglary
{33} In order to convict Defendant of CSP II (commission of a felony), the jury had to find that Defendant “caused [Victim] to engage in sexual intercourse” and that he committed this act “during the commission of [either] kidnap[ ]ing or aggravated burglary.” The district court gave the jury two alternativе instructions on the charge of aggravated burglary. The first charge was that Defendant committed aggravated burglary by entering a vehicle without authorization “armed with a pistol while entering, leaving, or while inside the vehicle.” In the alternative, the court instructed the jury that it could find Defendant guilty of aggravated burglary if it found that Defendant entered the vehicle and “touched or applied force to [Victim] in a rude or angry manner while entering, leaving, or while inside the vehicle.” Both Defendant and the State agree that the jury convicted Defendant on the first charge— being armed with a pistol — and not on the alternative charge. We thеrefore analyze unitary conduct in accordance with the first charge of aggravated burglary.
{34} The jury could convict Defendant of aggravated burglary if it found that he entered Victim’s vehicle without authorization with the intent to commit criminal sexual penetration and while armed. Accordingly, the crime of aggravated burglary was completed as soon as Defendant, with the requisite intent, gained entry to Victim’s vehicle while armed with a pistol. The force Defendant used to gain entry into Victim’s car while armed with a pistol was distinct from the force used to restrain Victim in order to commit criminal sexual penetration. Cf. State v. Crain,
b. CSP II (Commission of a Felony) and Kidnaping
{35} We turn now to Defendant’s argument that convictions of both CSP II and kidnaping violated his protections against double jeopardy. Again, in order to convict Defendant of CSP II, the jury had to find that Defendant “caused [Victim] to engage in sexual intercourse” and that he committed this act “during the commission of [either] kidnap [ ]ing or aggravated burglary.” In order to convict Defendant of kidnaping, the jury was required to find that Defendant “restrained or confined [Victim] by force or intimidation” and that he “intended to hold [Victim] against [her] will to inflict a sexual offense on [Victim].” Defendant argues that the force used to restrain or confine Victim was the same force used to cause Victim to engage in sexual intercourse and, therefore, the conduct underlying both crimes was unitary.
{36} In order to address Defendant’s argument, we briefly review our ease law on the matter. In a ease this Court decided prior to the decision in Swafford, we suggested that double jeopardy principles do not preclude punishment for both CSP II (commission of a felony) and kidnaping. See State v. Tsethlikai,
{37} As we have made clear in cases decided after Swafford, unitary conduct occurs when the state bases its theory of kidnaping on the same force used to commit CSP II (commission of a felony) even though therе were alternative ways to charge the crime. See, e.g., Crain,
{38} In the present case, Defendant’s conviction for CSP II (commission of a felony) was based on sexual intercourse “during the commission of kidnap[]ing or aggravated burglary,” and his conviction for kidnaping required that he “restrained or confined” Victim with the intent to “inflict a sexual offense” on her. We said in Crain and Pisio that because some force or restraint is involved in every sexual penetration without consent, kidnaping cannot be charged out of every CSP without a showing of force or restraint separate from the CSP. Crain,
{39} We are unable to determine from the record whether the jury found that the kidnaping was accomplished by the truck’s confinement of Victim’s vehicle or by Defendant’s restraint of Victim inside the vehicle. The jury instruction supported either theory of kidnaping. Under such circumstances, we must “reverse a conviction if one of the alternative bаses for the conviction provided in the jury instructions is legally inadequate because it violates a defendant’s constitutional right to be free from double jeopardy.” State v. Foster,
2. Legislative Intent
{40} Having determined that the conduct was unitary, we turn to the second prong of our inquiry under a double-description analysis, which is to determine if the Legislature intended for the unitary conduct to be punished as separate offenses. The “sole limitation on multiple punishments is legislative intent.” Swafford,
{41} In the present case, there are no clear legislative expressions indicating that multiple punishments are permissible. Thus, we turn to the Blockburger elements test. The Blockburger test “focuses strictly upon the elements of the statutes.” State v. Armendariz,
{42} In comparing the two offenses, we consider whether each offense requires proof of an element that the other does not. Franco,
III. CONCLUSION
{44} For the foregoing reasons, we remand to the district with instructions to vacate Defendant’s conviction for the lesser offense, either kidnaping or CSP II. We affirm the district court’s judgment in all other respécts.
{45} IT IS SO ORDERED.