Opinion
ORDER ON MOTION FOR RECONSIDERATION AND MODIFYING OPINION
COX, J. Judge
Kimberlee McDonald seeks reconsideration of this court's decision [ 100 Wash.App. 828, 1 P.3d 1176] terminating review in her Motion for Reconsideration dated June 2, 2000. This court considered the motion and the State's Response to Motion to Reconsider dated August 17, 2000.
Now, therefore, this court,
ORDERS that:
1. Page 17 of the slip opinion [unpublished portion of case] of this court's decision, which was filed on May 15, 2000, is hereby modified by striking the first paragraph on that page and substituting the following paragraphs:
As McDonald correctly argues in her motion for reconsideration, the relevant time period for determining if she suffered prejudice includes the period between December 1990 and September 1995. That was the period during which she was out of state and the statute of limitations was tolled.
With respect to that time period for which McDonald has established prejudice, we next consider the State's reasons justifying the delay. As we previously noted in this opinion, the State deferred to the federal prosecution for much of this time during which McDonald was outside Washington. Moreover, it appears that it continued to direct its resources to other matters while McDonald remained outside Washington following her federal sentencing. This is sufficient justification for the same reasons we previously articulated in this opinion.
Moving to the final prong of the analysis, we further balance the State's substantial interest in prosecuting crime and conserving its scarce resources against the prejudice to McDonald of the diminished persuasiveness of her medical expert trial testimony. On this record, we cannot conclude that the balancing tips in favor of McDonald. We note that there was no question that she had committed the criminal acts. Her claim of prejudice focuses on her mental state while committing those acts. Her medical expert at trial did eventually testify, based on the proper standard, that she had a diminished mental capacity at the time she committed the acts. McDonald contends that he would have been able to testify more persuasively had he seen her earlier. Whether the trial court would have been persuaded of the lack of the required mens rea had the expert testified earlier is, at best, speculative. Thus, we cannot conclude from the record that McDonald has met her burden to demonstrate that the State deprived her of due process for that period during which she was outside Washington.
2. Page 1 of the slip opinion [2nd column, 1st sentence at top of page 1177 of 1 P.3d] is hereby modified by striking the words " commerce clause" in the last sentence of the first paragraph on that page and substituting the words " Commerce Clause." The same substitution of words is hereby made at page 3 of the slip opinion [1st column, 11th line from top of page 1178 of 1 P.3d] in the sentence that begins with " McDonald claims ..." The same substitution is hereby made at the bottom of page 5 [1st column, 2nd line from top of page 1179 of 1 P.3d] and at the top of page 6 [1st column, 14th line from top of page 1179 of 1 P.3d] at the sentence beginning with " She argues ..." Likewise, the same substitution is hereby made at page 7 of the slip opinion [2nd column, 11th line from top of page 1179 of 1 P.3d] in the first sentence of the fourth paragraph on that page.
3. Except for the above modifications to the opinion, the court denies the motion.