To summarize, we conclude that mere intoxication will not suffice; to prove a mental incapacity caused by intoxication, the alleged victim must demonstrate by a preponderance of the evidence that her faculties were prostrated. Because the judge did not apply this standard, we remand for further findings. The judge may reopen the record to allow for additional testimony on this or any other subject if he concludes it would be helpful in analyzing and reconsidering not only the intoxication issue but all aspects of the consent issue.
We also do not foreclose the judge’s receipt of additional testimony or his further amplification of his second prong findings, which we do not otherwise address at this time, despite defendant’s contention that the evidence was inadequate and the findings speculative.
Remanded for further proceedings in conformity with this opinion. We do not retain jurisdiction.
The remand here is almost as good as a loss for the defense. The Supreme Court has provided the trial court with a roadmap to amplify its decision and avoid reversal during the next round of appeals. Moreover, it is not requiring the trial court to take additional testimony that the defense could potentially use to improve the record.