partially concurring and partially dissenting.
I am in full agreement with the majority’s discussion of issues I, II and III. I am unable, however, to agree that there is evidence in this record from which a jury could find, beyond a reasonable doubt, that the defendant was mentally responsible at the time of the crime. I would, therefore, have reversed the defendant’s conviction and remanded the case to the district court with directions to enter an order of acquittal. In my opinion, there being insufficient evidence of mental responsibility at the defendant’s first trial, a second trial is precluded by principles of double jeopardy. See, Burks v. United States, 437 U.S. 1, 98 S.Ct. 2141, 57 L.Ed.2d 1 (1978).
When reviewing the sufficiency of the evidence on an appeal, the test is whether the evidence is sufficient to form a basis for a jury’s reasonable inference of guilt beyond a reasonable doubt when the State’s evidence is viewed most favorably. Mirich v. State, Wyo., 593 P.2d 590 (1979). In the course of this review, we must look at all of the evidence that supports the jury verdict — the State’s and the defendant’s. See, Driver v. State, Wyo., 589 P.2d 391 (1979).
In this case, it is conceded that the State offered no evidence of mental responsibility in its case-in-chief. It didn’t have to, since it was the defendant’s initial burden of going forward with evidence showing a lack of mental responsibility. § 7-ll-305(b), W.S.1977. The majority concedes that the defendant sustained her burden of going forward, and that thereafter the State could not rest on the statutory presumption of mental responsibility. From that point on, as is true with any other element which needs to be proven, it was the State’s burden to prove mental responsibility beyond a reasonable doubt.
The majority concludes that there was sufficient evidence from which mental responsibility could be inferred. In support of this conclusion, the majority points to a defense exhibit and testimony elicited from a defense witness during cross-examination. The only possible defense exhibit the majority could be referring to is Defense Exhibit “B” — which consists of records from the Wyoming State Hospital. The only material contained in these records which is even remotely beneficial to the State would be a notation that the defendant was discharged from the Wyoming State Hospital on June 23, 1973.
The alleged criminal incident with which we are concerned occurred more than four years after this discharge — on July 6, 1977. The statutory provision which excludes responsibility by reason of mental illness or deficiency speaks as of the time of the criminal conduct. See, § 7 — ll-304(a), W.S. 1977. Certainly, when a person places in issue his mental responsibility, the prosecu*965tion may inquire into his condition before and after the time of the alleged act. State v. Carroll, 52 Wyo. 29, 69 P.2d 542 (1937). But, it must be noted that Defense Exhibit “B” also makes a final diagnosis of “borderline mental retardation, psycho-social (environmental) deprivation,” with a prognosis that is “guarded.” I fail to see how any positive inference of mental responsibility on July 6, 1977, can be drawn from this material.
The defense witness of whom the majority speaks must be Scott Rosenke, who was stipulated to be an expert witness. Mr. Rosenke testified that the defendant had an inadequate personality which was tied to her borderline mental retardation. He testified that she “definitely” had difficulty seeing the consequences of her actions. On cross-examination, he testified that she understands the consequences of her actions “when they are laid out to her, but she does not foresee them.” On re-direct, he responded affirmatively to a question as to whether “the defendant has an inability to properly make judgment with regard to the consequences of her actions”. The gist of Mr. Rosenke’s testimony was that the defendant could solve concretely presented problems, but had difficulty figuring out the consequences of her responses to daily living problems.
The uneontradicted evidence in this case is that the defendant had borderline mental retardation, which was tied to and manifested itself in inadequate personality.1 A defect attributable to mental retardation is a “mental deficiency” under the statutes. § 7-ll-301(a)(iii), W.S.1977. The only question, therefore, is whether, as a result of this mental deficiency, the defendant “lacked substantial capacity either to appreciate the wrongfulness of [her] conduct or to conform [her] conduct to the requirements of law.” § 7-ll-304(a), supra. For me, in the context of this appeal, the question becomes whether there was evidence from which the jury could infer that the defendant did have substantial capacity to appreciate the wrongfulness of her conduct and to conform her conduct to the requirements of law. In my mind, there was no such evidence adduced through cross-examination of Mr. Rosenke. While .he opined that the defendant could solve concretely presented problems, that is not the test for mental responsibility under the statutes. The test, under the statutes, is whether at the time of the alleged offense the defendant had substantial capacity to appreciate the wrongfulness of her acts. In this regard, Mr. Rosenke opined that the defendant had definite difficulty appreciating the consequences of her acts. Unless the jury would be permitted to totally ignore this testimony and base its conclusion on pure speculation, the record is simply barren of anything that would assist the State in proving the defendant’s mental responsibility beyond a reasonable doubt. Under these circumstances, I would not give the State a “second bite at the apple.”
. Inadequate personality was defined by Mr. Rosenke as:
“. characterized by ineffectual responses to emotional, social, intellectual and physical demands. While the person may seem neither physically nor mentally deficient, he or she does manifest inadaptability, ineptness, poor judgment, social instability and lack of physical and emotional stamina.”