No. 95-018 INTHESUPREME

COURTOFTHESTATEOFMONTANA 1995

STATEOFMONTANA,

Plaintiff andRespondent,
v. ROBERTGOULD,

Defendant andAppellant.

APPEALFROM: District Court of the Eighth Judicial District,

In andfor the County of Cascade, TheHonorable John McCarvel, Judge presiding.

COUNSELOFRECORD:

For Appellant: EdmundF. Sheehy, Jr.; Cannon&Sheehy, Helena, Montana
For Respondent: Hon. Joseph P. Mazurek, Attorney General, Barbara C. Harris, Ass't Attorney General, Helena, Montana Brant Light, County Attorney, DeanD. Chisholm, Deputy County Attorney, Great Falls, Montana

Filed: Submitted onBriefs: July 27, 1995 Decided: September I, 1995Justice Karla M. Gray delivered the Opinion of the Court.

Robert Gould (Gould) appeals from the judgment and sentence entered bythe Eighth Judicial District Court, Cascade County, on the jury verdict finding him guilty of the offense of sexual intercourse without consent. Weaffirm. Werestate the issues onappeal asfollows: 1. Did the District Court err in denying Gould's motion to dismiss based on lack of speedy trial? 2. Did the District Court err in concluding that mental incapacity, asdefined in 545-2-101(35), MCA,includes voluntary intoxication and in denying Gould's motion to dismiss on that basis?3. Did the District Court err in denying Gould's motion for
a directed verdict of acquittal based on insufficiency of the evidence onthe "without consent" element of the offense of sexual intercourse without consent? 4. Is there sufficient evidence to support the jury's guilty verdict onthe offense of sexual intercourse without consent?
Disregarding minor discrepancies, the general facts in this
case are not disputed. Onthe evening of February 5, 1992, Janetta Jo Paitra Clark (Clark), TamiLynnArcher Horvath (Horvath), Russ Moddison (Moddison), Ian "Skip" Johnson (Johnson), Jordan Mattfeld (Mattfeld) andGould metat the Black Eagle Country Club, in Black Eagle, Montana. Thegroup drank and socialized at the club for
2several hours. Clark consumed approximately nine drinks. The

group left the club at approximately 1:00 a.m. onthe morning of February 6, 1992. After leaving the club, the group met at the residence of Mattfeld andJohnson. At around 1:45 a.m., Mattfeld andClark had
adrinking contest in which they took turns drinking from afifth of Jack Daniels. Clark drank approximately one-half of the bottle. After the contest, Clark stumbled into Mattfeld's room. At
onepoint, Clark fell andMattfeld hadto assist her in getting up. Clark collapsed onto Mattfeld's bedand, soon thereafter, Johnson andModdison assisted her from Mattfeld's roomto Johnson's room. They removed Clark's sweater and jeans, then stepped into the hallway where, together with Gould, they discussed having sexwith Clark. Moddison returned to Johnson's room; Johnson andGouldwent to the living room. Moddison removedClark's bra andunderwear andhadvaginal and anal intercourse with her. Johnson also had vaginal and anal intercourse with Clark. Finally, Gould entered the room and had vaginal intercourse with Clark. A few hours later, Moddison discovered Clark deadonJohnson's bed. OnApril 13, 1993, the State of Montana (State) charged Gould by information with the felony offense of sexual intercourse without consent. Gould's jury trial beganonJune6, 1994, andthe jury returned aguilty verdict onJune 8, 1994. Additional facts
are set forth where necessary to our resolution of the issues.

31. Did the District Court err in denying Gould's motion

to dismiss based onlack of speedy trial? The Sixth Amendment to the United States Constitution and Article II, Section 24 of the Montana Constitution guarantee a criminal defendant the right to aspeedy trial. Gould argues on appeal that the District Court erred in denying his motion to dismiss based onlack of speedy trial. The State contends that Gould waived his right to aspeedy trial and, asaresult, that weshould refuse to reach the merits of his argument. While it is true that Gould waived his right to
aspeedy trial ontwo occasions, first onSeptember 14, 1993, and again onDecember 13, 1993, the record indicates that his waivers
were limited to specific time periods. Therefore, the waivers did not constitute atotal waiver byGould of his speedy trial rights andwewill address the waivers within our speedy trial analysis. TheUnited States SupremeCourt set forth afour-factor test to beused in determining whether adefendant's right to aspeedy trial has been violated in Barker v. Wingo (1972), 407 U.S. 514, 530, 92 S.Ct. 2182, 2192, 33 L.Ed.2d 101, 117; we adopted the Barker test in State exrel. Briceno v. District Court (1977), 173 Mont. 516, 518, 568P.2d 162, 163-64. TheBarker factors are: (1) length of the delay; (2) reason for the delay; (3) defendant's assertion of the right; and (4) prejudice to the defendant. State

V. Thompson (1993), 263 Mont. 17, 32, 865 P.2d, 1125, 1134 (citation omitted). Noneof these factors alone is dispositive; rather, they are considered together andbalanced in light of the unique circumstances of each case. State v. Stewart (1994), 266 4Mont. 525, 529, 001P.2d 629, 632 (citations omitted). Length of Delay Thelength of the delay is of primary importance. State v. Heffernan (1991), 248Mont. 67, 70, 809P.2d 566, 568. Unless the length of the delay is presumptively prejudicial, it is unnecessary to consider the remaining three factors. State v. Weeks (Mont. 1995), 891P.2d 477, 482, 52St.Rep. 78, 81 (citation omitted). If
adelay is presumptively prejudicial, the State has the burden of rebutting the presumption byproviding areasonable explanation for the delay andshowing that the defendant wasnot prejudiced. State
v. Curtis (1990), 241Mont. 288, 299, 787P.2d 306, 313 (citation omitted). Wepreviously havestated that adelay greater than 200 days usually triggers afull speedytrial analysis. State v. Hembd (1992), 254Mont. 407, 413, 838P.2d 412, 416 (citation omitted). Here, the total delay between the filing of the information and the commencement of Gould's trial was 419 days. Thus, the length of delay is presumptively prejudicial and weanalyze the remaining speedy trial factors. Reason for Delay Analysis of the second factor, reason for the delay, requires allocating the delay to the party responsible for causing it. Heffernan, 809P.2d at 568. Theoverall 419-day delay in this case canbedivided into five segments. Thefirst segment, of 56days, beganwhenthe State filed the information against Gould onApril 13, 1993, andcontinued until June 8, 1993, whenGould successfully movedto continue the trial
5set for June 21, 1993. This segment of the delay is attributable

to the State. Thesecond segment, of 136days, began onJune 8, 1993, and continued until October 22, 1993, whenthe State successfully moved to continue the trial set for October 25, 1993. During this time, Gould successfully moved for three continuances and, in his September 14, 1993, motion, specifically waived his right to a speedy trial until October 11, 1993, when Dr. Donald Reay, an expert witness for the defense,- would be available for trial. Additionally, he entered into, and then withdrew from, a plea agreement with the State. Upon withdrawing from the plea agreement, Gould informed the court he would be seeking new counsel. Gould points out that the State amended the information against himduring this period bydropping oneof the charges. In fact, the State filed the amended information on July 26, 1993, subsequent to Gould's successful motion to continue. Gould argues that weshould allocate the time from that date until October 22, 1993, to the State. However, the amended information did not impact the trial date set in response to Gould's July 26, 1993, motion to continue anddid not require additional trial preparation byGould; therefore, the State's filing of the amendedinformation did not result in any delay. This 136-day segment of delay is attributable to Gould. Thethird segment, of 34days, beganonOctober 22, 1993, and continued until November 24, 1993. TheState's October 22, 1993,
6motion to continue wasdue to Gould's failure to obtain counsel

after his withdrawal from the plea agreement with the State. On November 18, 1993, upon motion by the State, Gould appeared in court and was ordered to retain counsel or proceed pro se by November 24, 1993. While this segment of delay arguably should be attributed to Gould on the basis that his unrepresented status undoubtedly prompted the State's October 22nd and November 18th motions, weattribute it to the State given the importance of the right to aspeedy trial at issue here. Thefourth segment, of 106days, beganonNovember 24, 1993, and continued until March 11, 1994. Although ordered to retain counsel or proceed pro se by November 24, 1993, Gould did not appear with newcounsel until December 13, 1993. Additionally, Gould requested that his trial beset nosooner than March 7, 1994, andin this request, hewaived his right to aspeedy trial for that time period. OnMarch 11, 1994, the State successfully movedto continue the trial set for March 21, 1994. This segment of delay is attributable to Gould. The fifth segment, of 87days, began with the State's March 11, 1994, motion to continue the trial date, and concluded when Gould's trial began on June 6, 1994. During this period, the District Court, onits owninitiative, continued the trial andset
anomnibus hearing. This segment of delay is attributable to the State.Gould is responsible for 242 days, while the State is responsible for 177days, of the 419-day overall delay. Theright
7to aspeedy trial wasprimarily designed to protect defendants from

oppressive tactics bythe prosecution. Heffernan, 809P.Zd at 569; citing Barker, 407 U.S. at 529. Gould does not contend, andthe record does not reflect, that the State engaged in anydeliberate tactics to delay the trial. Thedelay weattribute to the State
was of the type which is inherent in the system and which we categorize as institutional delay. _SeeHembd, 838 P.2d at 416; Heffernan, 809 P.2d at 570. Institutional delay weighs less heavily against the State than purposeful delay. Hembd, 838P.2d at 416 (citation omitted). Under the circumstances of this case, weconclude that the State hassatisfied its burden of providing a reasonable explanation for the 177days of delay attributed to it. Assertion of the Right Amotion to dismiss for denial of speedy trial is timely if madeprior to the actual commencementof trial. Briceno, 568P.2d at 165; citing State v. Steward (19751, 168 Mont. 385, 543 P.2d 178. Gould moved to dismiss the charges against him on speedy trial grounds onMay2, 1994, approximately onemonth prior to the scheduled trial date. Thus, Gould satisfied the third Barker factor by timely asserting his right. Prejudice to the Defendant The fourth Barker factor is prejudice to the defendant. We
assess prejudice byconsidering the following interests protected bythe right to aspeedy trial: (1) preventing oppressive pretrial incarceration; (2) minimizing the defendant's anxiety andconcern; and (3) limiting the impairment of the defense. Curtis, 787 P.2d
8at 315 (citations omitted).

Gould argues that he clearly has established the pretrial incarceration factor because hewas incarcerated on this charge while awaiting trial. Gould's pretrial incarceration, however, doesnot weigh in his favor under the circumstances of this case. On February 6, 1992, while awaiting sentencing on an unrelated offense, Gould committed the offense at issue in this
case. He was sentenced on the unrelated offense to ten years' imprisonment, with five years suspended, approximately twoandonehalf weeks later and began serving his sentence at the Montana State Prison. OnDecember 24, 1992, he was transferred to the Billings Pre-Release Center. In April, 1993, while at the PreRelease Center, Gould wasarrested for the offense at issue here. At that time, heobviously hadnot completed his sentence for the unrelated offense. OnMay11, 1993, Gould successfully movedthe District Court to allow himto remain incarcerated at the Cascade County Jail, rather than being returned to the Montana State Prison, because allowing him to remain in Cascade County would benefit him in preparing his defense. It appears that Gould would have remained in the custody of the Montana Department of Corrections and, thus, incarcerated in
somemanner during the period in question. This Court previously has held that incarceration on a different charge negates any prejudice resulting from incarceration while awaiting trial. Hembd, 838 P.2d at 416. Under these circumstances, Gould's pretrial incarceration wasneither oppressive nor prejudicial.
9Gould argues that hesuffered overwhelming anxiety andconcern

because of his lengthy incarceration. In this regard, wenote that, asdiscussed above, Gould would havebeen in custody in any event; thus, anxiety and concern relating to the length of his incarceration are not specifically related to his incarceration on the offense at issue here. Gould also argues that hesuffered from anxiety and concern due to the nature of the charge and the circumstances under which this offense occurred. Specifically, he contends that Clark's inability to testify caused additional anxiety andconcern. Acertain amount of anxiety andconcern is inherent in being charged with a crime. Thompson, 865 P.2d at 1135 (citation omitted). Proving anxiety andconcern beyond that which normally accompany being charged with acrime is extremely difficult. See Curtis, 707 P.2d at 316. Onceaccomplished by adefendant, the State faces the nearly impossible task of proving lack of anxiety and concern. Curtis, 707 P.2d at 316. Where a defendant puts forth only marginal evidence of anxiety and concern, the State's burden of proving lack of anxiety lessens considerably. Curtis,
787 P.2d at 316. In support of his claim of overwhelming anxiety andconcern, Gould offers nothing more than bare assertions summarizing the circumstances in this case. Hefails to present even marginal evidence proving that hesuffered anxiety andconcern beyond that inherent in being charged with this offense. Weconclude that the minimal anxiety andconcern Gould established did not exceed that

10which is inherent in being charged with the offense at issue here

and, therefore, this interest does not weigh heavily against the State.Themost important consideration in analyzing prejudice to a defendant resulting from pretrial delay is whether the delay impaired his defense. Stewart, 881P.2d at 634. Gould argues that his defense was impaired because the time lag of more than two years between the alleged crime and the trial resulted in witnesses' memories fading. It is clear that prejudice exists if defense witnesses are unable to accurately recall events of the distant past. See Heffernan, 809 P.2d 570; citing Barker, 407 U.S. at 532. Here, Gould wasthe only defense witness. His defense at trial wasthat Clark consented to intercourse with him. Heremembered the details with regard to intercourse with Clark and testified that she consented. The record clearly shows that Gould was able to effectively, albeit unsuccessfully, present this defense. Gould also argues that his defense was impaired due to the
manner in which Moddison's and Johnson's charges were handled; Moddison pled guilty to sexual intercourse without consent andthe charge against Johnson wasdropped. It is unclear howthis relates to the pretrial delay in this case. Weconclude that Gould's defense wasnot impaired bythe delay. In summary, although Gould timely asserted his right to a speedy trial, his ownactions delayed the trial for 242days and the delay attributable to the State was institutional. Gould was
11not prejudiced by the delay. After balancing the four Barker

factors, wehold that the District Court did not err in denying Gould's motion to dismiss based onlack of aspeedy trial. 2. Did the District Court err in concluding that mental incapacity, asdefined in 545-2-101(35), MCA,includes voluntary intoxication and in denying Gould's motion to dismiss onthat basis? At the close of the State's case, Gould movedto dismiss the charge against him as amatter of law. Heargued that Clark's voluntary intoxication precluded the State from establishing that Clark wasmentally incapacitated and, therefore, from proving the "without consent" element of the offense of sexual intercourse without consent. The District Court concluded that mental incapacity, as defined in §45-Z-101(35), MCA,is not limited to situations where the victim is involuntarily intoxicated anddenied Gould's motion onthat basis. Ourstandard in reviewing adistrict court's conclusion of law is whether the interpretation of the law is correct. State v. Christensen (19941, 265 Mont. 374, 375-76, 877 P.2d 468, 469 (citation omitted). The statutory definition of "without consent" insofar as it relates to the offense of sexual intercourse without consent encompasses the situation in which the victim is incapable of consent because she is mentally incapacitated. Section 45-5- 501(1) (b)(i), MCA. Pursuant to §45-2-101(35), MCA,aperson is mentally incapacitated when she is "temporarily incapable of appreciating or controlling [her] ownconduct as aresult of the influence of an intoxicating substance." Gould argues that the 12Montana legislature intended mental incapacity to have the same

meaning under 545-Z-101(35), MCA,asit hasunder the NewYork law from which Montana's statute wasadopted. Under NewYork Penal Law 5130.00(6) (1987), mental incapacity means: aperson is rendered temporarily incapable of appraising or controlling his conduct owing to the influence of a narcotic or intoxicating substance administered to him without his consent, or to anyother act committed upon himwithout his consent. (Emphasis added.) In interpreting astatute, welook first to the plain meaning of its words. Christensen, 877P.2d at 469 (citation omitted). If the legislative intent canbeascertained from the plain meaning of the words used, nofurther interpretation is required andwewill not resort to legislative history. Clarke v. Massey (Mont. 1995), 897P.2d 1085, 1088, 52St.Rep. 538, 540 (citation omitted). Where the language is plain, unambiguous, direct, and certain, the statute speaks for itself and there is no need to resort to extrinsic meansof interpretation. Christensen, 877 P.2d at 469 (citation omitted). In addition, [iln the construction of a statute, the office of the judge is simply to ascertain anddeclare what is in terms or in substance contained therein, not to insert what has beenomitted

. . . . Section l-2-101, MCA. Section 45-2-101(35), MCA,provides that aperson is mentally incapacitated when, due to the influence of an intoxicating substance, she is temporarily incapable of appreciating or controlling her conduct. The statute by its terms does not differentiate between voluntary andinvoluntary intoxication andis 13not limited to involuntary intoxication. Section 45-Z-101(35),

MCA,is clear onits face. Moreover, while it is undisputed that Montana's mental incapacity statute wasmodeled after NewYork's, it also is clear that the Montana legislature did not adopt the New York law verbatim. Compare § 45-2-101(35), MCA, with N.Y. Penal Law § 130.00(6) (1987). The Montana legislature's deletion of the language from the NewYork statute which limits mental incapacity to situations wherethe victim is involuntarily intoxicated created
astatute substantially different from that uponwhich our statute
wasmodeled. The District Court properly refused to insert into §45-2- 101(35), MCA,language from the NewYork penal statute omitted by the Montana legislature. Weconclude that §45-2-101(35), MCA,by its terms, does not exclude voluntary intoxication. Therefore, Clark's voluntary intoxication did not preclude the State from proving the "without consent" element of the offense of sexual intercourse without consent. Gould further argues that there is adouble standard in the law because people are responsible for their criminal acts despite their voluntary intoxication pursuant to §45-2-203, MCA,while victims may be deemed incapable of consent when they are voluntarily intoxicated. Hedoes not assert, however, that this alleged double standard infringes onanyConstitutional right and, absent such achallenge, wemust apply the statutes aswritten. We conclude that the District Court did not err in

14interpreting mental incapacity, asdefined in §45-Z-101(35), MCA,

to include voluntary intoxication. Therefore, wehold that the court properly denied Gould's motion to dismiss. 3. Did the District Court err in denying Gould's motion for a directed verdict of acquittal based on insufficiency of the evidence on the "without consent" element of the offense of sexual intercourse without consent? In addition to his motion to dismiss asamatter of law based
onstatutory interpretation, Gould argued that the charge should be dismissed because the State's evidence of Clark's mental incapacitation and, therefore, of the "without consent" element of the offense, was insufficient to go to the jury. The District Court rejected this argument and refused to dismiss the charge. Pursuant to § 46-16-403, MCA, a trial court may direct a verdict of acquittal anddismiss acriminal charge at the close of the State's case whenthe evidence is insufficient to support a guilty verdict. Ourstandard in reviewing atrial court's grant or denial of suchamotion is whether, after reviewing the evidence in
a light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Weeks -I 891 P.2d at 491-92 (citation omitted). Here, wefocus only onevidence relating to mental incapacity. The record illustrates that during the evening hours of February 5, 1992, andthe early morning of February 6, 1992, Clark drank a substantial amount of alcohol. Dr. John Henneford testified that Clark's blood alcohol content reached at least .45. Clark's intoxication wasuncontroverted. Sheran into things as
15she attempted to walk, fell andneeded assistance in getting up,

andhadto beassisted to Johnson's room. Atoxicologist opined that Clark was in the comatose-to-death phase of intoxication and explained that, at the comatose phase, a person becomes unresponsive to conditions around her. Reviewing the evidence in a light most favorable to the prosecution, weconclude that there wassufficient evidence for the jury to find beyond a reasonable doubt that Clark was mentally incapacitated dueto intoxication and, thus, incapable of consent whenGould had intercourse with her. Wehold that the District Court did not err in denying Gould's motion for adirected verdict of acquittal. 4. Is there sufficient evidence to support the jury's guilty verdict on the offense of sexual intercourse without consent? Gould argues on appeal that the evidence established that Clark was dead whenhe had intercourse with her and, therefore, that there wasinsufficient evidence uponwhich the jury could find the "person" element of the offense of sexual intercourse without consent. Our standard in reviewing the sufficiency of the evidence to support a criminal conviction is whether, after reviewing the evidence in alight most favorable to the prosecution, anyrational trier of fact could havefound the essential elements of the crime beyond a reasonable doubt. State v. Whitcher (1991), 248 Mont. 183, 187, 810P.2d 751, 753 (citations omitted). Gould testified that, whenhe entered Johnson's bedroom, he
16asked Clark how it wasgoing; she replied "all right." Healso

testified that, after having intercourse with Clark, hereturned to the living room around 2:30 to 2:45 a.m. andwatched television. Dr. John Henneford, a pathologist, estimated that Clark died between 3:00 and 5:00 a.m., but opined that she probably died between 4:00 and 4:30 a.m. James Bruckner, the Cascade County Deputy Coroner, also estimated the time of death to bebetween 4:00 and4:30 a.m. Reviewing the evidence in a light most favorable to the prosecution, weconclude that there was sufficient evidence from which the jury could find that the State hadproved the "person" element of the offense of sexual intercourse without consent beyond
areasonable doubt. Therefore, wehold that sufficient evidence supported the jury's guilty verdict. Affirmed.

Weconcur: