State v. Gould

No. 95-018
IN THE SUPREMECOURT 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.

COUNSELOF 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

Submitted on Briefs: July 27, 1995
Decided: September I, 1995
Filed:
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

2
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
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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

8
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 one-
half 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 Pre-
Release 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

10
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

11
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: