STATE v GOULD
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No. 95-018 IN THE SUPREMECOURT OF THE STATE OF MONTANA 1995 STATE OF MONTANA, Plaintiff and Respondent, v. ROBERT GOULD, Defendant APPEAL FROM: and Appellant. 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, Montana Jr.; Cannon & Sheehy, Helena, For Respondent: Hon. Joseph P. Mazurek, Attorney Barbara C. Harris, Ass't Attorney Helena, Montana Brant Light, County Attorney, Deputy County Attorney, Great Submitted Filed: General, General, Dean D. Chisholm, Falls, Montana on Briefs: Decided: July 27, 1995 September I, 1995 Justice Karla Robert entered the M. Gray delivered Gould (Gould) by the Eighth jury verdict intercourse 1. appeals Judicial finding without We restate consent. 2. Did incapacity, the Court, guilty of and sentence Cascade County, the on appeal offense of on sexual as follows: Court in denying District and the judgment err Gould's motion to of speedy trial? as defined intoxication of the Court. We affirm. the issues based on lack from District him Did the District dismiss the Opinion in Court err in concluding in 5 45-2-101(35), denying Gould's that MCA, includes motion to mental voluntary dismiss on that basis? Did the District 3. a directed evidence verdict on the intercourse verdict minor Eagle, of the of the offense evidence to support of sexual intercourse discrepancies, without the general of February Tami Lynn Archer Ian "Skip" the jury's Johnson Horvath (Johnson), and Gould met at the Black Eagle Country Montana. for on insufficiency On the evening (Clark), (Moddison), (Mattfeld) motion element of sexual case are not disputed. Moddison Gould's based consent" sufficient Disregarding Clark in denying consent? on the offense Jo Paitra err acquittal "without without Is there 4. of Court The group drank and socialized 2 guilty consent? facts in this 5, 1992, Janetta (Horvath), Jordan Club, at the Russ Mattfeld in Black club for several hours. group left February Clark the club Mattfeld leaving the contest in which of Jack Daniels. After club, the At around and Johnson. a drinking Clark they contest, Clark fell onto assisted Clark's Clark. Moddison returned to the living together with the into had from a fifth of the bottle. Mattfeld's room. then stepped discussed up. Johnson room to Johnson's they At her in getting soon thereafter, and jeans, to Johnson's of and Clark one-half bed and, residence drinking had to assist Gould, room. into having the sex with room; Johnson and Gould went room. Moddison removed Clark's intercourse intercourse with with Clark Finally, with the Gould's A few Clark. a guilty verdict where necessary had vaginal and anal room and had later, (State) of Moddison charged sexual Gould intercourse began on June 6, 1994, and the on June 8, 1994. to our resolution 3 and bed. offense trial the hours of Montana felony jury also and had vaginal Gould entered dead on Johnson's with consent. are set forth Johnson 13, 1993, the State information returned bra and underwear her. Clark. intercourse On April jury of Mattfeld turns stumbled sweater where, without The met at her from Mattfeld's hallway discovered took Mattfeld's removed vaginal group and Mattfeld and Moddison by drinks. on the morning a.m. drank approximately the collapsed anal 1:00 1:45 a.m., Clark one point, They at approximately nine 6, 1992. After Clark consumed approximately Additional of the facts issues. 1. Did the District Court err in denying to dismiss based on lack of speedy trial? The Sixth Article II, criminal Amendment to Section defendant appeal that dismiss the and, of his again argument. that that While Mont. in State 516, 518, length assertion V. of the (citation unique delay; (1993), omitted). they his motion indicates within to (2) 163-64. Mont. None of these together of each case. 4 14, 1993, and his right the waivers analysis. test to a speedy 117; we adopted Court (3) factors 865 P.2d, alone and balanced State v. is 173 are: (1) defendant's State 1125, 1134 dispositive; in light Stewart the (1977), factors delay; 514, to the defendant. 32, did rights 407 U.S. The Barker 17, to (1972), 101, and (4) prejudice 263 right a four-factor v. District for his the waivers a defendant's reason the merits our speedy trial v. Wingo a speedy speedy trial set forth Briceno to that Therefore, 33 L.Ed.2d ex rel. right to reach by Gould of his in Barker 2192, his Gould waived periods. whether are considered circumstances on on September Supreme Court 568 P.2d 162, of the right; Thompson rather, 2182, that first the waivers has been violated test a Gould argues refuse the record waiver to be used in determining Barker and guarantee denying Gould waived is true time States 92 S.Ct. Constitution Constitution in we should it a total address motion of speedy trial. to specific The United 530, erred on two occasions, constitute trial Montana States to a speedy trial. on December 13, 1993, and we will United Court as a result, were limited not District contends a speedy trial the the right based on lack The State trial 24 of the Gould's of the (1994), 266 Mont. 525, 529, 001 P.2d 629, 632 (citations Length Heffernan length to Delay of the delay The length of is of primary (1991), 248 Mont. of the delay consider 1995), the is presumptively remaining is presumptively three prejudicial, factors. the delay (1990), omitted). days usually Here, and the length triggers 254 Mont. (1992), the a full 407, total remaining delay is 288, delay Gould's the Heffernan, 809 P.2d at 568. The first delay to five segment, against June 8, 1993, has the burden a delay explanation of for State 313 (citation greater than 200 State 416 (citation filing If of the v. Hembd omitted). information was 419 days. the and we analyze prejudicial Thus, the factors. allocating information the for of the second factor, into omitted). analysis. trial presumptively Reason can be divided that the Weeks (Mont. 787 P.2d 306, 838 P.2d 412, between Unless was not prejudiced. speedy trial 413, speedy trial Analysis 299, have stated commencement of of the defendant 241 Mont. We previously v. a reasonable and showing that v. is unnecessary 78, 81 (citation by providing the presumption Curtis State the State State 568. it prejudicial, rebutting v. importance. 67, 70, 809 P.2d 566, 891 P.2d 477, 482, 52 St.Rep. a delay omitted). the party Delay reason for responsible The overall the delay, requires for causing it. 419-day delay in this case segments. of 56 days, Gould on April when Gould successfully 5 began when the State 13, 1993, filed and continued moved to continue the until the trial set for June 21, 1993. This segment of the delay is attributable to the State. The second segment, continued until to continue Gould October the trial 14, speedy trial expert witness agreement, for the Gould During continuances 1993, waived this his when Dr. right be available into, and then withdrew State. Upon informed the he Reay, for from would be his to a an trial. from, withdrawing court time, in Donald would and moved and, defense,- he entered the three 11, successfully 25, 1993. specifically October for with October motion, until Additionally, agreement moved 1993, began on June 8, 1993, 22, 1993, when the State set for successfully September of 136 days, a plea the plea seeking new counsel. points out that him during this period Gould against fact, the State subsequent that to the State. the motion to continue did not trial result attributable motion from that time in in the State's any delay. to continue. the date until to Gould's additional filing 1993, Gould argues October 22, did not amended information response This 26, In July trial 26, 1993, preparation of the amended information 136-day segment of delay is to Gould. The third continued on July and did not require therefore, information amended information the set amended the one of the charges. However, date State by dropping successful allocate impact by Gould; the to Gould's we should 1993, filed the until segment, of 34 days, November 24, 1993. 6 began on October The State's 22, 1993, and October 22, 1993, motion to after continue his withdrawal November court was due to Gould's 18, from the plea 1993, upon motion and was ordered November 24, 1993. attributed to undoubtedly Gould prompted the and continued counsel or appear with and in this time that request, period. continue his trial set for On appeared proceed pro arguably in se by should unrepresented be status the importance of the began on November 24, 1993, 1994. Although se by November his the State. 22nd and November 18th given of 106 days, ordered 24, 1993, December 13, until counsel here. 1993. to retain Gould did not Additionally, be set no sooner than March 7, 1994, On March 11, 1994, is attributable to a speedy trial the State March 21, 1994. successfully This for that moved to segment of delay to Gould. The fifth segment, motion Gould's trial District Court, an omnibus that he waived his right the trial 1994, pro or October at issue new counsel Gould requested basis obtain Gould segment of delay March 11, proceed with State, counsel to the State segment, until by the State's it to a speedy trial The fourth 11, on the to agreement retain While this we attribute motions, right to failure to of 87 days, continue began on June on its hearing. the 6, trial During continued segment of delay the State's March and concluded date, 1994. own initiative, This began with this when period, the trial is attributable the and set to the State. Gould responsible is responsible for 177 days, for 242 days, of the 419-day 7 while overall the delay. State is The right to a speedy trial oppressive was primarily tactics designed by the prosecution. citing Barker, 407 U.S. record does not reflect, at 529. that tactics to delay was of the which categorize as institutional Heffernan, 809 P.2d inherent heavily at 570. against the State at 416 (citation omitted). we conclude the State reasonable that explanation made prior at 165; 178. Gould trial grounds scheduled factor by timely The fourth prejudice by the right its denial dismiss Thus, asserting Barker his factor by considering to a speedy trial: incarceration; and (3) limiting 416; weighs less of this case, of providing attributed a to it. of the Right Steward date. at we Hembd, 838 P.2d burden the 177 days of delay Prejudice assess delay. of speedy trial (19751, the charges (2) minimizing the impairment Gould is timely Briceno, 168 Mont. on May 2, 1994, approximately trial and which delay commencement of trial. v. moved to system _See Hembd, 838 P.2d has satisfied for to the actual State the than purposeful for and the to the State Under the circumstances to dismiss citing we attribute Institutional Assertion A motion contend, engaged in any deliberate in delay. from 809 P.Zd at 569; Gould does not The delay is defendants Heffernan, the State the trial. type to protect against 568 P.2d 385, 543 P.2d him on speedy one month prior satisfied if the to the third Barker right. to the Defendant is prejudice to the defendant. the following interests (1) preventing oppressive the defendant's of the defense. 8 anxiety We protected pretrial and concern; Curtis, 787 P.2d at 315 (citations Gould argues incarceration while omitted). that factor awaiting because trial. On February favor 6, offense, with imprisonment, half weeks State later Release Center, At that time, he obviously Jail, to allow rather benefit him in preparing held appears that Hembd, pretrial his his P.2d 1993, from at incarceration 416. in ten at the while his in this years' Montana to at the sentence the Pre- at issue incarcerated to an two and one- the offense remain here. for the moved the at the Cascade the Montana Cascade State County would defense. have remained of Corrections incarceration on issue to sentence returned him to case. he was transferred for being the period resulting 838 at approximately 1992, Gould would Department that prejudice suspended, however, of this offense had not completed allowing some manner during has unrelated charge sentencing offense In April, than because the Montana the him to remain pretrial incarceration, On May 11, 1993, Gould successfully Prison, It the on this awaiting Gould was arrested Court County years Center. offense. District on the On December 24, Pre-Release unrelated while and began serving Prison. Billings five pretrial committed He was sentenced case. established under the circumstances 1992, Gould has he was incarcerated Gould's does not weigh in his unrelated he clearly and, in the thus, in question. This on a different incarceration Under was neither these 9 Court in previously negates awaiting circumstances, oppressive of incarcerated charge while custody nor prejudicial. any trial. Gould's Gould argues that because that, of his lengthy as discussed thus, event; concern due that Clark's regard, relating to related to the to his nature offense inability the we note that of in any length of his incarceration he suffered the charge occurred. to amount of anxiety with omitted). and on from the Specifically, testify caused Proving Curtis, faces burden at Curtis, marginal of proving with a crime impossible he additional evidence at at is extremely 316. in being 1135 (citation which normally difficult. See by a defendant, of proving lack and concern, lessens the of anxiety Where a defendant of anxiety of anxiety inherent beyond that task P.2d is P.2d Once accomplished 707 lack 865 and concern 316. the nearly and concern. only anxiety charged 707 P.2d and concern Thompson, a crime. accompany being 787 and concern and concern. charged forth this Gould also argues under which this A certain State and concern here. circumstances In anxiety Gould would have been in custody at issue and anxiety above, are not specifically the offense contends overwhelming incarceration. anxiety incarceration anxiety he suffered the considerably. puts State's Curtis, P.2d at 316. In support Gould offers of his nothing circumstances in evidence proving inherent in being minimal anxiety this that of overwhelming claim than more bare he suffered charged with and concern assertions He fails case. to anxiety this and concern, summarizing present offense. beyond that We conclude did the even marginal and concern Gould established 10 anxiety that the not exceed that which is and, inherent therefore, in being this charged interest with the offense does not weigh at issue here against the heavily State. The most important defendant resulting impaired consideration his defense. his defense years It is clear to Stewart, the that Clark consented with regard because prejudice 570; The record effectively, albeit manner in charge to against the defense In the delay that in attributable in defense witnesses are past. See that present defense intercourse this case. 532. at trial Here, was that that Gould this she was able to defense. was impaired and Johnson's It at and testified shows his distant charges due to were without handled; consent is unclear how this We conclude the and the relates that Gould's by the delay. although his two He remembered the details Clark clearly was not impaired speedy trial, with to sexual delay summary, that resulted 407 U.S. him. Johnson was dropped. pretrial delay of more than His defense with Moddison's Moddison pled guilty the trial the Barker, unsuccessfully, argues which to a Gould argues lag if of witness. intercourse also whether the exists citing defense consented. Gould time and events to intercourse to the crime recall 809 P.2d Gould was the only is prejudice fading. accurately Heffernan, delay 881 P.2d at 634. alleged memories witnesses' pretrial was impaired between unable from in analyzing Gould own actions timely delayed to the State 11 asserted the trial his for was institutional. right to a 242 days and Gould was not prejudiced factors, by the we hold Gould's motion delay. that After the District to dismiss balancing Court based on lack did the not four Barker in denying err 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 charge against voluntary Clark of the State's him as a matter intoxication "without consent. situations Gould's The whether the Christensen (citation in Clark's of from proving sexual MCA, is the intercourse concluded is involuntarily that that not intoxicated mental limited to and denied basis. a district of 265 Mont. court's the 374, law is conclusion of law State v. 877 375-76, correct. 468, 469 P.2d omitted). definition the offense encompasses the situation because 501(1) (b) (i), mentally she MCA. is of "without sexual in when an intoxicating consent" the is victim [her] is substance." 12 incapable of 45-5- MCA, a person "temporarily own conduct consent Section § 45-2-101(35), she as it without incapacitated. to insofar intercourse which mentally or controlling of of Pursuant incapacitated appreciating influence offense that the from establishing therefore, Court interpretation (19941, He argued § 45-Z-101(35), victim to consent the in reviewing The statutory relates District on that Our standard is of where the motion law. and, element as defined Gould moved to dismiss the State incapacitated consent" without of precluded was mentally incapacity, case, incapable as a result Gould argues is of of the that the Montana legislature intended mental meaning under 5 45-Z-101(35), from which Montana's 5 130.00(6) MCA, as it statute (1987), mental incapacity have the same has under the New York law was adopted. incapacity to Under New York Penal Law 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 of its words. a statute, Christensen, the legislative intent the words used, no further not resort we look can be ascertained to legislative language statute is speaks for extrinsic means of (citation itself omitted). [iln judge or in been Section and interpretation. omitted). direct, there is 1995), and no need Christensen, Where certain, to the resort to 877 P.2d at 469 In addition, the construction of a statute, the office of the is simply to ascertain and declare what is in terms substance contained therein, not to insert what has omitted . . . . l-2-101, Section MCA. 45-2-101(35), incapacitated when, substance, she controlling her differentiate unambiguous, and we will v. Massey (Mont. 538, 540 (citation If meaning of is required Clarke meaning omitted). from the plain interpretation history. plain, to the plain 877 P.2d at 469 (citation 897 P.2d 1085, 1088, 52 St.Rep. the first is due MCA, provides to the between voluntary a person is mentally influence The of an incapable temporarily conduct. that of appreciating statute by and involuntary 13 its intoxicating terms intoxication or does not and is not limited to MCA, is clear involuntary on its incapacity that statute the verbatim. it is undisputed was modeled after Montana legislature (1987). did language The Montana not a statute 45-Z-101(35), where the victim substantially Montana's it adopt which limits from that Penal mental law Law § deletion is involuntarily different is clear New York N.Y. legislature's mental also the MCA, with from the New York statute to situations that New York's, Compare § 45-2-101(35), 130.00(6) Section face. while Moreover, intoxication. of the incapacity intoxicated upon which created our statute was modeled. The District Court MCA, language 101(35), properly Clark's voluntary proving the intercourse "without further voluntary may voluntarily alleged absent deemed standard such a challenge, We conclude did into statute not § 45-2- omitted § 45-2-101(35), intoxication. element that there are responsible intoxicated. double insert the MCA, by Therefore, preclude of by the State offense of from sexual consent. intoxication be that voluntary consent" argues law because people victims exclude intoxication without Gould their We conclude does not terms, to from the New York penal the Montana legislature. its refused that is for criminal to § 45-2-203, of consent He does not assert, infringes acts District 14 despite when they however, that the statutes Court in the MCA, while on any Constitutional we must apply the standard their pursuant incapable a double did right are this and, as written. not err in interpreting to mental include court incapacity, voluntary properly as defined in § 45-Z-101(35), intoxication. Therefore, Gould's MCA, to dismiss. denied motion we hold that the 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 on statutory because incapacitation Pursuant the the this to State's case when the denial of such a motion a light most favorable reasonable Here, February drank testified Clark's only record illustrates relating that morning substantial amount that blood alcohol Clark's intoxication of content was uncontroverted. 15 a grant or the evidence in (citation the beyond a hours 6, 1992, John reached She ran of omitted). evening Dr. trier incapacity. of February alcohol. of support to mental during a at the close of the crime 891 P.2d at 491-92 on evidence may direct any rational elements of court's reviewing to the prosecution, element to a trial after mental the charge. court charge be The District insufficient in reviewing is whether, Weeks -I jury. to dismiss a criminal is Clark's consent" MCA, a trial evidence Our standard doubt. of the and refused 5, 1992, and the early a go to have found the essential we focus The to and dismiss verdict. could evidence of law based the charge should of the "without § 46-16-403, guilty fact State's argument of acquittal as a matter Gould argued that was insufficient rejected verdict to dismiss and, therefore, offense, Court motion interpretation, dismissed the to his Clark Henneford at least into of things .45. as she attempted to walk, fell and had to be assisted that Clark that, unresponsive prosecution, the the find beyond opined a person and becomes around her. in that a light there doubt and, with in denying most favorable was sufficient a reasonable had intercourse did not err up, phase of intoxication phase, due to intoxication when Gould in getting A toxicologist room. comatose evidence we conclude incapacitated Court at to conditions Reviewing to to Johnson's was in the comatose-to-death explained jury and needed assistance her. Gould's Clark motion that for the was mentally incapable We hold the for evidence that thus, to of consent the District a directed verdict of acquittal. 4. Is there sufficient guilty verdict on the without consent? evidence to support offense of sexual the jury's intercourse Gould that established Clark that the argues on appeal the was dead when he had intercourse there was insufficient "person" element evidence evidence with her and, therefore, upon which the jury of the offense of sexual that could intercourse find without consent. Our standard support a criminal evidence in a light trier of fact beyond 183, could a reasonable 187, Gould in reviewing conviction is most favorable have found doubt. 810 P.2d 751, testified the sufficiency whether, after to the prosecution, the essential State 753 (citations that, of the evidence v. Whitcher the any rational of the crime (1991), 248 Mont. omitted). when he entered 16 elements reviewing to Johnson's bedroom, he asked Clark testified how it after that, the living Dr. John was going; having room around Henneford, she replied intercourse 2:30 to 2:45 a pathologist, "all with a.m. Clark, estimated 3:00 and 5:00 a.m., but between 4:00 and 4:30 a.m. James Bruckner, and 4:30 prosecution, the element that that to television. Clark died she probably died the Cascade County also estimated the time of death to be between 4:00 the in a.m. Reviewing which opined He also he returned and watched between Deputy Coroner, right." we conclude jury could of the offense a reasonable supported doubt. the jury's Affirmed. We concur: evidence find that that of sexual Therefore, guilty a light there most favorable was sufficient evidence the State had proved the intercourse without consent we hold verdict. that to sufficient the from "person" beyond evidence
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