No. 95-018 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1995 

STATE OF MONTANA, 

Plaintiff and Respondent, 

v. 

ROBERT GOULD, 

Defendant and Appellant. 

APPEAL FROM: District Court of the Eighth Judicial District, 

In and for the County of Cascade, 

The Honorable John McCarvel, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Edmund F. 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, Dean D. Chisholm, 

Deputy County Attorney, Great Falls, Montana 

Filed: 

Submitted on Briefs: July 27, 1995 

Decided: September I, 1995 
Justice Karla M. Gray delivered the Opinion of the Court. 

Robert Gould (Gould) appeals from the judgment and sentence 

entered by the Eighth Judicial District Court, Cascade County, on 

the jury verdict finding him guilty of the offense of sexual 

intercourse without consent. We affirm. 

We restate the issues on appeal as follows: 

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, as defined in 5 45-2-101(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 on the "without consent" element of the offense of sexual 

intercourse without consent? 

4. Is there sufficient evidence to support the jury's guilty 

verdict on the offense of sexual intercourse without consent? 

Disregarding minor discrepancies, the general facts in this 

case are not disputed. On the evening of February 5, 1992, Janetta 

Jo Paitra Clark (Clark), Tami Lynn Archer Horvath (Horvath), Russ 

Moddison (Moddison), Ian "Skip" Johnson (Johnson), Jordan Mattfeld 

(Mattfeld) and Gould met at the Black Eagle Country Club, in Black 

Eagle, Montana. The group drank and socialized at the club for 

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several hours. Clark consumed approximately nine drinks. The 

group left the club at approximately 1:00 a.m. on the morning of 

February 6, 1992. 

After leaving the club, the group met at the residence of 

Mattfeld and Johnson. At around 1:45 a.m., Mattfeld and Clark had 

a drinking contest in which they took turns drinking from a fifth 

of Jack Daniels. Clark drank approximately one-half of the bottle. 

After the contest, Clark stumbled into Mattfeld's room. At 

one point, Clark fell and Mattfeld had to assist her in getting up. 

Clark collapsed onto Mattfeld's bed and, soon thereafter, Johnson 

and Moddison assisted her from Mattfeld's room to Johnson's room. 

They removed Clark's sweater and jeans, then stepped into the 

hallway where, together with Gould, they discussed having sex with 

Clark. Moddison returned to Johnson's room; Johnson and Gould went 

to the living room. 

Moddison removed Clark's bra and underwear and had vaginal 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 dead on Johnson's bed. 

On April 13, 1993, the State of Montana (State) charged Gould 

by information with the felony offense of sexual intercourse 

without consent. Gould's jury trial began on June 6, 1994, and the 

jury returned a guilty verdict on June 8, 1994. Additional facts 

are set forth where necessary to our resolution of the issues. 

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

to dismiss based on lack 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 a speedy trial. Gould argues on 

appeal that the District Court erred in denying his motion to 

dismiss based on lack of speedy trial. 

The State contends that Gould waived his right to a speedy 

trial and, as a result, that we should refuse to reach the merits 

of his argument. While it is true that Gould waived his right to 

a speedy trial on two occasions, first on September 14, 1993, and 

again on December 13, 1993, the record indicates that his waivers 

were limited to specific time periods. Therefore, the waivers did 

not constitute a total waiver by Gould of his speedy trial rights 

and we will address the waivers within our speedy trial analysis. 

The United States Supreme Court set forth a four-factor test 

to be used in determining whether a defendant's right to a speedy 

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 ex rel. Briceno v. District Court (1977), 173 

Mont. 516, 518, 568 P.2d 162, 163-64. The Barker 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). None of these factors alone is dispositive; 

rather, they are considered together and balanced in light of the 

unique circumstances of each case. State v. Stewart (1994), 266 

4 
Mont. 525, 529, 001 P.2d 629, 632 (citations omitted). 

Length of Delay 

The length of the delay is of primary importance. State v. 

Heffernan (1991), 248 Mont. 67, 70, 809 P.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), 891 P.2d 477, 482, 52 St.Rep. 78, 81 (citation omitted). If 

a delay is presumptively prejudicial, the State has the burden of 

rebutting the presumption by providing a reasonable explanation for 

the delay and showing that the defendant was not prejudiced. State 

v. Curtis (1990), 241 Mont. 288, 299, 787 P.2d 306, 313 (citation 

omitted). We previously have stated that a delay greater than 200 

days usually triggers a full speedy trial analysis. State v. Hembd 

(1992), 254 Mont. 407, 413, 838 P.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 we analyze 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, 809 P.2d at 568. The overall 419-day delay in this case 

can be divided into five segments. 

The first segment, of 56 days, began when the State filed the 

information against Gould on April 13, 1993, and continued until 

June 8, 1993, when Gould successfully moved to continue the trial 

5 
set for June 21, 1993. This segment of the delay is attributable 

to the State. 

The second segment, of 136 days, began on June 8, 1993, and 

continued until October 22, 1993, when the 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 him during this period by dropping one of 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 we should 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 and did not require additional trial preparation 

by Gould; therefore, the State's filing of the amended information 

did not result in any delay. This 136-day segment of delay is 

attributable to Gould. 

The third segment, of 34 days, began on October 22, 1993, and 

continued until November 24, 1993. The State's October 22, 1993, 

6 
motion to continue was due 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, we attribute it to the State given the importance of the 

right to a speedy trial at issue here. 

The fourth segment, of 106 days, began on November 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 new counsel until December 13, 1993. Additionally, 

Gould requested that his trial be set no sooner than March 7, 1994, 

and in this request, he waived his right to a speedy trial for that 

time period. On March 11, 1994, the State successfully moved to 

continue the trial set for March 21, 1994. This segment of delay 

is attributable to Gould. 

The fifth segment, of 87 days, 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, on its own initiative, continued the trial and set 

an omnibus hearing. This segment of delay is attributable to the 

State. 

Gould is responsible for 242 days, while the State is 

responsible for 177 days, of the 419-day overall delay. The right 

7 
to a speedy trial was primarily designed to protect defendants from 

oppressive tactics by the prosecution. Heffernan, 809 P.Zd at 569; 

citing Barker, 407 U.S. at 529. Gould does not contend, and the 

record does not reflect, that the State engaged in any deliberate 

tactics to delay the trial. The delay we attribute to the State 

was of the type which is inherent in the system and which we 

categorize as institutional delay. _See Hembd, 838 P.2d at 416; 

Heffernan, 809 P.2d at 570. Institutional delay weighs less 

heavily against the State than purposeful delay. Hembd, 838 P.2d 

at 416 (citation omitted). Under the circumstances of this case, 

we conclude that the State has satisfied its burden of providing a 

reasonable explanation for the 177 days of delay attributed to it. 

Assertion of the Right 

A motion to dismiss for denial of speedy trial is timely if 

made prior to the actual commencement of trial. Briceno, 568 P.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 on May 2, 1994, approximately one month 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 by considering the following interests protected 

by the right to a speedy trial: (1) preventing oppressive pretrial 

incarceration; (2) minimizing the defendant's anxiety and concern; 

and (3) limiting the impairment of the defense. Curtis, 787 P.2d 

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at 315 (citations omitted). 

Gould argues that he clearly has established the pretrial 

incarceration factor because he was incarcerated on this charge 

while awaiting trial. Gould's pretrial incarceration, however, 

does not 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 two and onehalf weeks later and began serving his sentence at the Montana 

State Prison. On December 24, 1992, he was transferred to the 

Billings Pre-Release Center. In April, 1993, while at the PreRelease Center, Gould was arrested for the offense at issue here. 

At that time, he obviously had not completed his sentence for the 

unrelated offense. On May 11, 1993, Gould successfully moved the 

District Court to allow him to 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 

some manner 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 was neither oppressive nor prejudicial. 

9 
Gould argues that he suffered overwhelming anxiety and concern 

because of his lengthy incarceration. In this regard, we note 

that, as discussed above, Gould would have been 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 he suffered 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 and concern. 

A certain amount of anxiety and concern is inherent in being 

charged with a crime. Thompson, 865 P.2d at 1135 (citation 

omitted). Proving anxiety and concern beyond that which normally 

accompany being charged with a crime is extremely difficult. See 

Curtis, 707 P.2d at 316. Once accomplished by a defendant, 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 and concern, 

Gould offers nothing more than bare assertions summarizing the 

circumstances in this case. He fails to present even marginal 

evidence proving that he suffered anxiety and concern beyond that 

inherent in being charged with this offense. We conclude that the 

minimal anxiety and concern Gould established did not exceed that 

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

and, therefore, this interest does not weigh heavily against the 

State. 

The most important consideration in analyzing prejudice to a 

defendant resulting from pretrial delay is whether the delay 

impaired his defense. Stewart, 881 P.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 was the only defense witness. His defense at trial was that 

Clark consented to intercourse with him. He remembered 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 and the 

charge against Johnson was dropped. It is unclear how this relates 

to the pretrial delay in this case. We conclude that Gould's 

defense was not impaired by the delay. 

In summary, although Gould timely asserted his right to a 

speedy trial, his own actions delayed the trial for 242 days and 

the delay attributable to the State was institutional. Gould was 

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not prejudiced by the delay. After balancing the four Barker 

factors, we hold that the District Court did not err in denying 

Gould's motion to dismiss based on lack of a speedy trial. 

2. Did the District Court err in concluding that mental 

incapacity, as defined in 5 45-2-101(35), MCA, includes 

voluntary intoxication and in denying Gould's motion to 

dismiss on that basis? 

At the close of the State's case, Gould moved to dismiss the 

charge against him as a matter of law. He argued that Clark's 

voluntary intoxication precluded the State from establishing that 

Clark was mentally 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 and denied 

Gould's motion on that basis. 

Our standard in reviewing a district 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, a person is 

mentally incapacitated when she is "temporarily incapable of 

appreciating or controlling [her] own conduct as a result of the 

influence of an intoxicating substance." Gould argues that the 

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Montana legislature intended mental incapacity to have the same 

meaning under 5 45-Z-101(35), MCA, as it has under the New York law 

from which Montana's statute was adopted. Under New York Penal Law 

5 130.00(6) (1987), mental incapacity means: 

a person 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 any other act committed upon 

him without his consent. 

(Emphasis added.) 

In interpreting a statute, we look first to the plain meaning 

of its words. Christensen, 877 P.2d at 469 (citation omitted). If 

the legislative intent can be ascertained from the plain meaning of 

the words used, no further interpretation is required and we will 

not resort to legislative history. Clarke v. Massey (Mont. 1995), 

897 P.2d 1085, 1088, 52 St.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 means of 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 and declare what is in terms 

or in substance contained therein, not to insert what has 

been omitted . . . . 

Section l-2-101, MCA. 

Section 45-2-101(35), MCA, provides that a person 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 and involuntary intoxication and is 

13 
not limited to involuntary intoxication. Section 45-Z-101(35), 

MCA, is clear on its face. 

Moreover, while it is undisputed that Montana's mental 

incapacity statute was modeled after New York'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 New York statute which limits mental incapacity 

to situations where the victim is involuntarily intoxicated created 

a statute substantially different from that upon which our statute 

was modeled. 

The District Court properly refused to insert into § 45-2- 

101(35), MCA, language from the New York penal statute omitted by 

the Montana legislature. We conclude 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 a double 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. He does not assert, however, that this 

alleged double standard infringes on any Constitutional right and, 

absent such a challenge, we must apply the statutes as written. 

We conclude that the District Court did not err in 

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

to include voluntary intoxication. Therefore, we hold 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 as a matter of law based 

on statutory 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 and dismiss a criminal charge at the close of 

the State's case when the evidence is insufficient to support a 

guilty verdict. Our standard in reviewing a trial court's grant or 

denial of such a motion 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, we focus only on evidence relating to mental incapacity. 

The record illustrates that during the evening hours of 

February 5, 1992, and the 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 was uncontroverted. She ran into things as 

15 
she attempted to walk, fell and needed assistance in getting up, 

and had to be assisted to Johnson's room. A toxicologist 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, we conclude that there was sufficient evidence for the 

jury to find beyond a reasonable doubt that Clark was mentally 

incapacitated due to intoxication and, thus, incapable of consent 

when Gould had intercourse with her. We hold that the District 

Court did not err in denying Gould's motion for a directed 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 when he had intercourse with her and, therefore, 

that there was insufficient evidence upon which 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 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. State v. Whitcher (1991), 248 Mont. 

183, 187, 810 P.2d 751, 753 (citations omitted). 

Gould testified that, when he entered Johnson's bedroom, he 

16 
asked Clark how it was going; she replied "all right." He also 

testified that, after having intercourse with Clark, he returned to 

the living room around 2:30 to 2:45 a.m. and watched 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 be between 4:00 

and 4:30 a.m. 

Reviewing the evidence in a light most favorable to the 

prosecution, we conclude that there was sufficient evidence from 

which the jury could find that the State had proved the "person" 

element of the offense of sexual intercourse without consent beyond 

a reasonable doubt. Therefore, we hold that sufficient evidence 

supported the jury's guilty verdict. 

Affirmed. 

We concur: