State v. Minyard

NO. COA13-377
NORTH CAROLINA COURT OF APPEALS
Filed: 7 January 2014
STATE OF NORTH CAROLINA
v. Burke County
Nos. 09 CRS 3910
09 CRS 4222-23
11 CRS 1471
JAMES ALLEN MINYARD
Appeal by defendant from judgment entered 16 August 2013 by
Judge Jerry Cash Martin in Burke County Superior Court. Heard in
the Court of Appeals 10 October 2013.
Attorney General Roy Cooper, by Assistant Attorney Sherri
Horner Lawrence, for the State.
Appellate Defender Staples Hughes, by Assistant Appellate
Defender Daniel Shatz, for defendant-appellant.
HUNTER, JR., Robert N., Judge.
James Allen Minyard (“Defendant”) appeals from a 16 August
2013 judgment entered after a jury convicted him of (i) attempted
first degree sexual offense; (ii) five counts of taking indecent
liberties with a minor; and (iii) attaining habitual felon status.
Defendant argues the trial court erred by (i) denying Defendant’s
motion to dismiss the charge of attempted first degree sexual
offense; (ii) denying Defendant’s motion to dismiss the five counts
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of taking indecent liberties with a minor; and (iii) by not
conducting a sua sponte inquiry into Defendant’s capacity to
proceed. Defendant also asks this Court to review documents
inspected in camera by the trial court to determine whether
Defendant received all exculpatory materials contained therein.
After careful review, we hold the trial court did not err.
I. Facts & Procedural History
A Burke County grand jury indicted Defendant on 14 September
2009 for first degree sexual offense and six counts of taking
indecent liberties with a minor, D.B. (“Theodore”).1 Defendant
was also indicted as a habitual felon on 13 June 2011. The cases
proceeded to a jury trial on 13 August 2012 in Burke County
Superior Court. At the close of the State’s evidence, the trial
court dismissed one count of taking indecent liberties with a minor
and the charge of first degree sexual offense and allowed the
charge of attempted first degree sexual offense and the five counts
of taking indecent liberties with a minor to proceed to trial.
The jury found Defendant guilty of attempted first degree sexual
offense, five counts of taking indecent liberties with a minor,
and of attaining habitual felon status. The trial court issued
1 Pseudonyms are used to conceal the identities of the juveniles
involved in this case.
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concurrent sentences of 225–279 months imprisonment for attempted
sexual offense and 121–155 months for the five counts of taking
indecent liberties with a minor. The five sentences were
consolidated into a single Class C judgment. Defendant entered
written notice of appeal on 21 August 2012. The testimony
presented at trial tended to show the following facts.
In February 2008, Defendant began dating Theodore’s mother
(“Pamela”) after meeting on an Internet dating website. Pamela
testified that her relationship with Defendant began well: the two
spent time together, took trips together, and “had a good time.”
Pamela has three children: a son who was seven years old at the
time of trial (“Phillip”), a daughter who was eleven years old at
the time of trial (“Paulina”), and Theodore, who was thirteen years
old at the time of trial. Pamela testified that Theodore has an
IQ of 64, which “meant that he was mildly mentally retarded.”
Pamela testified that Defendant also had children at the time she
met Defendant, including a six-year-old son (“Daniel”) and an
infant daughter (“Diana”) he saw every other weekend.
Defendant and Pamela’s relationship was not physically
intimate. Pamela testified that “[a]fter several months I would
question him a lot about why he never hugged me, why he never
kissed me. We never had any intimacy at all.” When asked about
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the lack of intimacy, Pamela stated that Defendant told her “that
he had been hurt in the past and that he had already ruined lives
by having children and he didn’t want to ruin any more.”
During their relationship, Pamela testified that Defendant
“seemed to love my boys. He would always ask for the boys to come
over and spend the night with [Daniel] and two other little boys
that he kept a lot.” Pamela testified that Theodore and Phillip
spent the evening at Defendant’s house “often,” and at least one
night a month while Pamela attended her scrapbooking club. Pamela
spent evenings at Defendant’s home “on the weekends he would get
his daughter . . . because he said he didn’t want to be alone with
[Diana] because he never wanted something said . . . about him
being alone with his daughter.” Pamela testified that during her
visits with Defendant, she would “sleep on the couch and [one of
the little boys he kept] would sleep in his room with him, or if
I slept in his bed then he would put pillows between us from my
head to my feet.” Defendant and Pamela’s relationship lasted
eighteen months and ended in July 2009, with Pamela telling
Defendant “to make up his mind about me. If he couldn’t be intimate
and go further in the relationship, then I – that isn’t what I
wanted.”
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In March 2008, Pamela was hospitalized for gastric bypass
surgery and gave Defendant power of attorney over her children.
Pamela’s mother (“Grandmother”) stayed with Pamela during her
surgery, eventually leaving to see her grandchildren at
Defendant’s home. Grandmother said Defendant “wouldn’t let [her]
have [Pamela’s] children . . . and he said he was going to call
the Law on me.” When a member of the sheriff’s department arrived
at Defendant’s house, Grandmother testified that she spoke with
the sheriff and left after finding out about the power of attorney.
Grandmother testified that she liked Defendant at the start of the
relationship with Pamela: “I thought that, you know, because they’d
get out and go to those races and, you know, to Pizza Hut and have
birthday parties with the kids. And I thought he was all right
then.”
Pamela testified that Theodore asked to stop going to
Defendant’s house in December 2008. Pamela said Theodore did not
tell her why he wished to stop visiting Defendant at that time.
In March 2009, Pamela said Theodore told her Defendant touched
him. Pamela asked Defendant about touching Theodore, and Pamela
testified that Defendant said he only touched Theodore when he
helped bathe him. Theodore was present and Pamela testified that
Theodore didn’t disagree with Defendant’s statement. Pamela also
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said Theodore was nine at the time and did not need her help
bathing at that age. Pamela testified that around that time
Theodore “started having nightmares and would wake up saying he
was scared” and “would go to the bathroom and say that he was
bleeding and that he was hurting.” Pamela also testified she saw
Theodore’s bloody stools “two or three times.”
In August 2009, Grandmother was watching Theodore during his
summer vacation from school. Theodore began experiencing pain
going to the bathroom:
A. He was at my home. He was staying the week
with me, so -- before he went back to school.
And he had went to the bathroom and he come in
there and said that he was hurting. And I asked
him what was wrong. And he said that
[Defendant] had hurt him in his behind and --
Q. Did he -- did he say anything more
particular than that or was that exactly what
he said?
A. He just said he entered -- I can’t remember
the exact words -- but he entered his bottom,
his behind.
Q. All right. Did he say anything about
touching his private part?
A. Yeah.
Q. What did he say about that?
A. He said he played with his, his front ends
(phonetic).
Q. Okay. And when he told you that what was
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his demeanor like?
A. He was just crying, upset.
Grandmother called Pamela and asked if Theodore recounted these
events to her, and Pamela said he had not. Grandmother called the
Burke County Department of Social Services (“DSS”). Grandmother
also said she was unaware that Defendant and Pamela were no longer
dating at that time. Pamela asked Theodore about Grandmother’s
statements after Grandmother’s phone call:
Q. Okay. Did you ever talk to [Theodore] after
that?
A. I did.
Q. About [Defendant] touching him?
A. I did.
Q. What did he tell you?
A. He said that [Defendant] would spit in his
hand and pull on his weenie, and that he would
make him lay on his side and he would stick
his weenie up his butt.
Q. Okay. And what did you do once you heard
that?
A. I sent [Defendant] a really bad e-mail.
Q. Okay. And did [Theodore] tell you about how
many times that happened?
A. He said five or six times.
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Pamela contacted Defendant on 12 August 2009 and asked him to leave
her alone. Pamela also stated that Defendant said “he did not
want me to take [Phillip] out of his life and that I didn’t deserve
to have him.” Pamela said Defendant began requesting reimbursement
for repairs Defendant made to the heat pump on her home and that
Defendant filed a lawsuit against Pamela seeking $1,279 in
reimbursement for his work on the heat pump.
Pamela spoke with DSS on 18 August 2009, and thereafter took
Theodore to the Burke County Child Advocacy Center, known as the
Gingerbread House (“Gingerbread House”). Shelley Winters (“Ms.
Winters”), a forensic interviewer at the Gingerbread House,
interviewed Theodore on 19 August 2009. Ms. Winter’s interview
with Theodore was entered into evidence and played for the jury.
Elizabeth Browning (“Ms. Browning”), a sexual assault nurse
examiner, examined Theodore on 21 August 2009. Ms. Browning
performed a medical exam where she asked Theodore if he had “any
concerns about his body.” Ms. Browning said:
He told me that [Defendant] had put his
private in his butt and had touched his wee-
wee. He told me that he had spit on his finger
and touched his . . . his weenie[.] . . . And
he said that when he put it in his butt that
it hurt. He said that it was big and hairy. He
told me not to tell my mama but I did.
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Ms. Browning also observed that Theodore had a healed anal fissure.
Ms. Browning noted that this was not abnormal and that a number of
causes, such as large bowel movements, could create an anal
fissure. Ms. Browning also said Theodore stated that the Defendant
would be “mean and whooped me . . . in the bedroom in his -- at
his house.”
Agent Angeline Mary Bumgarner (“Agent Bumgarner”) of the
Burke County Sheriff’s Office worked as a child sex crimes
detective and was assigned Theodore’s case. Agent Bumgarner
reviewed DSS reports concerning Theodore, reviewed video of
Theodore’s interview with Ms. Winters, reviewed Ms. Browning’s
medical report, spoke with Pamela, and charged Defendant with six
counts of taking indecent liberties with a minor. Defendant was
arrested on 21 August 2009. After arrest, Defendant made a
statement that Agent Bumgarner read into evidence:
“I, [Defendant], want to make the following
statement: I started dating [Pamela] on
February 8, 2008. I was comfortable with her
and her kids and they were comfortable with
me. Around the first part of March, 2009,
[Pamela] contacted me and said [Theodore] told
her that I had touched [Theodore], he wouldn't
tell how he was touched. I told [Pamela] that
I didn’t want to be around her or her kids
because I was paranoid because I didn’t want
to lose my own kids. [Pamela] begged me to
come back, she would come over but I wouldn’t
let [Theodore] stay the night unless she was
there. Whenever [Pamela’s] kids stayed the
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night, each one had their own areas to sleep;
there was a bunk bed, [Diana’s] bedroom or the
couch. Every now and then [Phillip], would
sneek (sic) in my room and sleep and I would
tell [Pamela] everytime (sic) that happened.
I just had [Pamela] served for work that I did
for her and money I used from my company to do
the work.”
Theodore testified at trial, saying that Defendant touched
“[m]y butt and my wiener.” When asked what part of Defendant’s
body touched him, Theodore said “[h]is wiener. His wiener.”
Theodore stated that Defendant’s “wiener” touched his “butt” four
or five times in Defendant’s bedroom. Theodore testified that
Defendant used to spank him with a leather belt and told Theodore
not tell anyone about the spanking. When the State’s counsel asked
“how did his weenie touch your bottom?,” Theodore answered that he
did not remember how it happened. Theodore said Defendant’s
“weenie” touching his bottom made him sad. Theodore stated that
he told Grandmother about Defendant touching him while he was in
the bathtub. Theodore also testified that he spoke to Pamela,
Grandmother, and to someone at the Gingerbread House about
Defendant touching him.
Defendant moved to dismiss all charges at the close of the
State’s evidence. The trial court allowed the motion to dismiss
the charges of first degree sexual offense and one charge of
indecent liberties with a child, but allowed the charges of
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attempted first degree sexual offense and the remaining five
charges of indecent liberties with a minor to proceed.
Defendant recounted positive experiences at the start of his
relationship with Pamela, such as taking Pamela’s children on road
trips to Tweetsie Railroad, Grandfather Mountain, and the Blue
Ridge Parkway. Defendant testified that he had diabetes, a prior
gastric bypass surgery, and erectile dysfunction that affected his
relationship with Pamela “horribly.” Defendant testified that he
took several types of medication to treat his erectile dysfunction
and that “none of it worked.” Defendant doubled his dosage “in
hopes that, you know, I could give her the one thing that she
wanted most in me.” Defendant said his erectile dysfunction
contributed to his breakup with Pamela. Regarding Theodore’s pain
using the restroom, Defendant testified that Theodore experienced
pain using the restroom, suffered from constipation, and
experienced large resulting bowel movements. Defendant testified
that he had to remove and repair toilets occasionally after
Theodore used the restroom, and that he did not believe Theodore
received medication to treat the issue. Defendant also said that
Grandmother did not like him from “day one.”
Defendant testified about a two-week vacation to Dollywood in
Pigeon Forge, Tennessee beginning 1 July 2009. Defendant, Pamela,
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Theodore, Phillip, Paulina, Daniel, Defendant’s brother, and
Defendant’s brother’s girlfriend and her children went on the trip.
During the trip, Defendant planned to “stop by the chapel there in
Pigeon Forge” and marry Pamela. However, Defendant testified that
“the closer the time got to us being in that position, something
just scared the socks off me and just said, you know, ‘Don’t do
it.’” Defendant and Pamela’s relationship ended shortly after in
July 2009. Defendant renewed his motion to dismiss at the close
of his case.
After the jury began deliberations, Defendant’s counsel
notified the court that Defendant was “having a little problem.”
Defendant was asked to “stay vertical” and the trial court told
him:
[Defendant], you’ve been able to join us all
the way through this. And let me suggest to
you that you continue to do that. If you go
out on us, I very likely will revoke your
conditions of release. I’ll order you
arrested. We’ll call emergency medical
services; we’ll let them examine you. If
you’re healthy, you’ll be here laid out on a
stretcher if need be. If you’re not healthy,
we will continue on without you, whether
you’re here or not. So do your very best to
stay vertical, stay conscious, stay with us.
Before the jury returned, the trial court received a report that
Defendant had “overdosed.” One of Defendant’s witnesses, Evelyn
Gantt, told the court that Defendant consumed eight Xanax pills
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because “[h]e was just worried about the outcome and I don’t know
why he took the pills.” Defendant’s counsel and the State did not
wish to be heard on the issue and Defendant’s pretrial release was
revoked. The sheriff was directed to have Defendant examined by
emergency medical services (“EMS”), and Defendant was then
escorted from the courtroom. The court then made findings of fact:
The Court finds Defendant left the courtroom
without his lawyer.
The Court finds that while the jury was in
deliberation -- the jury had a question
concerning an issue in the case -- and prior
to the jurors being returned to the courtroom
for a determination of the question, the Court
directed the Defendant to -- who was in the
courtroom at that point -- to return to the
Defendant’s table with his counsel. Defendant
refused, but remained in the courtroom. The
Court permitted that.
The Court noticed that after the question was
resolved with the juror, that while the jury
was out in deliberations working on
Defendant’s case, the Defendant took an
overdose of Xanax. While he was here in the
courtroom and while the jury was still out in
deliberations, Defendant became lethargic and
slumped over in the courtroom.
. . . .
The Court finds that outside of the jury’s
presence the Court noted that Defendant was
stuporous and refused to cooperate with the
Court and refused reasonable requests by
bailiffs.
. . . .
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The Court finds that Defendant’s conduct on
the occasion disrupted the proceedings of the
Court and took substantial amount of time to
resolve how the Court should proceed. The
Court finally ordered that Defendant’s
conditions of pretrial release be revoked and
ordered the Defendant into the custody of the
sheriff, requesting the sheriff to get a
medical evaluation of the Defendant.
The Court finds that Defendant, by his own
conduct, voluntarily disrupted the
proceedings in this matter by stopping the
proceedings for a period of time so the Court
might resolve the issue of his overdose.
The Court notes that the -- with the consent
of the State and Defendant’s counsel that the
jurors continued in deliberation and continued
to review matters that were requested by them
by way of question.
The Court infers from Defendant’s conduct on
the occasion that it was an attempt by him to
garner sympathy from the jurors. However, the
Court notes that all of Defendant’s conduct
that was observable was outside of the jury’s
presence.
The Court notes that both State and Defendant
prefer that the Court not instruct jurors
about Defendant’s absence. And the Court made
no reference to Defendant being absent when
jurors came in with response to -- or in
response to question or questions that had
been asked.
After the jury entered its verdict, the trial court amended
its statement after EMS indicated that Defendant consumed “fifteen
Klonopin” and two 40-ounce alcoholic beverages, which the court
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inferred were from the “two beer cans . . . found in the back of
his truck.” Defendant was tried and sentenced as a habitual felon
on 16 August 2012. Defendant made a motion to dismiss at the close
of evidence in his habitual felon proceeding, which was denied.
Defendant timely filed his notice of appeal on 21 August 2012.
II. Jurisdiction & Standard of Review
Defendant appeals as of right from a decision of the trial
court. N.C. Gen. Stat. §§ 7A-27(b), 15A-1444(a) (2011).
Defendant raises three issues on appeal. The first issue
concerns whether sufficient evidence exists showing Defendant
attempted to penetrate Theodore’s anus with his penis in violation
of N.C. Gen. Stat. § 14-27.4(a)(1) (2011). Defendant argues that
insufficient evidence existed and that his motion to dismiss was
thus improperly denied. The second issue on appeal is whether
sufficient evidence exists to show Defendant committed five counts
of indecent liberties with a minor in violation of N.C. Gen. Stat.
§ 14-202.1(a)(1) (2011). Defendant again argues his motion to
dismiss these counts was improperly denied. The first two issues
are issues of law, and reviewed de novo. State v. Bagley, 183
N.C. App. 514, 523, 644 S.E.2d 615, 621 (2007). Further:
A motion to dismiss should be denied if there
is substantial evidence of each essential
element of the charged offense and substantial
evidence that the defendant is the individual
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who committed it. Substantial evidence is such
relevant evidence as a reasonable mind might
accept as adequate to support a conclusion.
The court must consider the evidence in the
light most favorable to the State.
Furthermore, the State is entitled to every
reasonable inference to be drawn from the
evidence.
Circumstantial evidence may withstand a motion
to dismiss and support a conviction even when
the evidence does not rule out every
hypothesis of innocence. The evidence need
only give rise to a reasonable inference of
guilt in order for it to be properly submitted
to the jury for a determination of defendant’s
guilt beyond a reasonable doubt.
State v. Foreman, 133 N.C. App. 292, 298, 515 S.E.2d 488, 493
(1999) aff’d as modified, 351 N.C. 627, 527 S.E.2d 921 (2000)
(internal citations and quotation marks omitted). “Any
contradictions or discrepancies in the evidence are for the jury
to resolve and do not warrant dismissal.” State v. Rasor, 319
N.C. 577, 585, 356 S.E.2d 328, 334 (1987).
The third issue on appeal is whether the court improperly
failed to institute, sua sponte, a competency hearing during the
trial when Defendant became “stuporous and non-responsive” during
the trial. This issue is a question of law, and is reviewed de
novo. “Conclusions of law are reviewed de novo and are subject to
full review.” State v. Biber, 365 N.C. 162, 168, 712 S.E.2d 874,
878 (2011); see also Carolina Power & Light Co. v. City of
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Asheville, 358 N.C. 512, 517, 597 S.E.2d 717, 721 (2004)
(“Conclusions of law drawn by the trial court from its findings of
fact are reviewable de novo on appeal.”).
Lastly, Defendant asks this Court to review sealed documents
provided to the trial court for in camera review of Theodore’s
medical and other records to determine if Defendant received all
exculpatory evidence. In Pennsylvania v. Ritchie, 480 U.S. 39(1987), the United States Supreme Court held that a defendant
accused of sexual abuse of a child may “have confidential records
of a child abuse agency turned over to the trial court for in
camera review and release of material information.” State v.
Kelly, 118 N.C. App. 589, 592, 456 S.E.2d 861, 865 (1995) (citing
Ritchie, 480 U.S. at 39). If the trial court conducts an in camera
inspection but denies the defendant’s request for the evidence,
the evidence should be sealed and “placed in the record for
appellate review.” State v. McGill, 141 N.C. App. 98, 101, 539
S.E.2d 351, 355 (2000) (quoting State v. Hardy, 293 N.C. 105, 128,
235 S.E.2d 828, 842 (1977)). Further:
On appeal, this Court is required to examine
the sealed records to determine if they
contain information that is both favorable to
the accused and material to [either his] guilt
or punishment. If the sealed records contain
evidence which is both “favorable” and
“material,” defendant is constitutionally
entitled to disclosure of this evidence.
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Id. at 101–02, 539 S.E.2d at 355 (quotation and citation omitted).
We review the trial court’s determination of whether a sealed
record contains exculpatory evidence de novo. State v. McCoy, ___
N.C. App. ___, ___, 745 S.E.2d 367, 370 (2013).
III. Analysis
i. Attempted First Degree Sexual Offense
Defendant argues the trial court erred by denying his motion
to dismiss and allowing the State to present evidence to the jury
concerning his first charge, attempted first degree sexual
offense. We disagree.
N.C. Gen. Stat. § 14-27.4 (2011) provides:
(a) A person is guilty of a sexual offense in
the first degree if the person engages in a
sexual act:
(1) With a victim who is a child under the age
of 13 years and the defendant is at least 12
years old and is at least four years older
than the victim.
A sexual act is defined as “cunnilingus, fellatio, analingus, or
anal intercourse, but does not include vaginal intercourse. Sexual
act also means the penetration, however slight, by any object into
the genital or anal opening of another person’s body: provided,
that it shall be an affirmative defense that the penetration was
for accepted medical purposes.” N.C. Gen. Stat. § 14-27.1(4)
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(2011). “The elements of an attempt to commit any crime are: (1)
the intent to commit the substantive offense, and (2) an overt act
done for that purpose which goes beyond mere preparation, but (3)
falls short of the completed offense.” State v. Miller, 344 N.C.
658, 667, 477 S.E.2d 915, 921 (1996). The State need not present
evidence of an actual attempted penetration, but the evidence
presented must be sufficient to show the defendant intended to
engage in the completed offense. State v. Dunston, 90 N.C. App.
622, 624–25, 369 S.E.2d 636, 638 (1988).
Here, the age requirements are satisfied: Defendant was
forty-five years old and Theodore was nine years old in March 2009,
when Theodore first spoke of Defendant touching him in the bathtub.
We next turn to whether there is a scintilla of evidence showing
Defendant’s intent. In State v. Buff, 170 N.C. App. 374, 612
S.E.2d 366 (2005), the defendant argued the State did not put
forward sufficient evidence for an attempted second degree sexual
offense. Id. at 380, 612 S.E.2d at 371. This Court held
substantial evidence existed and affirmed the trial court’s denial
of the motion to dismiss:
Waters testified that he observed defendant
“[go] down her pants” while fondling L.W.’s
breast. He then observed defendant remove
L.W.’s pants and touch her “private,” which
was clarified to mean between her legs, but
did not observe him insert anything inside her
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private. As noted previously, L.W. testified
that she never consented to any type of sexual
conduct with defendant, and sufficient
evidence as to L.W.’s physical helplessness
was offered. Therefore, when taken in the
light most favorable to the State, the
evidence presented showed defendant committed
several overt acts, including touching L.W.’s
breast and vaginal area, demonstrating intent
to commit a sexual act against L.W.’s will and
without her consent. The evidence, therefore,
was sufficient to reach the jury as to the
charge of attempted second degree sexual
offense.
Id. at 380–81, 612 S.E.2d at 371 (emphasis added).
Here, only Theodore’s testimony could be considered when the
trial court denied the motion to dismiss. State v. Ludlum, 303
N.C. 666, 669, 281 S.E.2d 159, 161 (1981) (noting that
corroborative testimony cannot be considered “substantive evidence
of the facts stated”). The trial court recognized this and re-
stated only Theodore’s testimony before denying Defendant’s motion
to dismiss on attempted first degree sexual offense. Theodore’s
testimony, taken in the light most favorable to the State, shows
Defendant “committed several overt acts . . . demonstrating intent
to commit a sexual act.” Buff, 170 N.C. App. at 380, 612 S.E.2d
at 371. The act of placing one’s penis on a child’s buttocks
provides substantive evidence of intent to commit a first degree
sexual offense, specifically anal intercourse. See N.C. Gen.
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Stat. § 14-27.1(4); Buff, 170 N.C. App. at 380–81, 612 S.E.2d at
371.
Defendant points to testimony showing intent in State v.
Mueller, 184 N.C. App. 553, 647 S.E.2d 440 (2007). In Mueller,
the defendant took his victim to secluded areas and would “place
his penis between her thighs and move back and forth until he
ejaculated on her.” Id. at 563–64, 647 S.E.2d at 448–49. The
defendant in Mueller repeated this act over several years and also
told the victim “he loved her and wanted to have sex with her.”
Id. This Court held the defendant’s actions were sufficient for
the trial court to find the evidence of intent required for
attempt. Id. Defendant argues Mueller “sharply” contrasts with
the present case; however, the distinction is inappropriate. While
the acts in Mueller and statements by the defendant clearly show
the intent necessary for attempt, so too did the State’s evidence
in Buff where “defendant committed several overt acts, including
touching L.W.’s breast and vaginal area, demonstrating intent to
commit a sexual act.” Buff, 170 N.C. App. at 380, 612 S.E.2d at
371. Similarly here, while Theodore did not testify that Defendant
stated a desire to engage in anal intercourse with him, Defendant’s
acts themselves provide evidence of the required intent. Intent
may be present in the absence of a fully completed act. See State
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v. Sines, 158 N.C. App. 79, 85, 579 S.E.2d 895, 899, cert. denied,
357 N.C. 468, 587 S.E.2d 69 (2003) (holding the requisite intent
existed in an attempted statutory sexual offense where the sexual
act did not occur). Thus the first element is satisfied.
The next required element is an overt act. Overt acts are
sometimes coupled with demands for sexual acts. For example, in
State v. Henderson, 182 N.C. App. 406, 642 S.E.2d 509 (2007),
“[t]he evidence in the instant case tended to show that defendant
removed his pants, walked into the room where his seven-or eight-
year-old daughter was seated, stood in front of her, and asked her
to put his penis in her mouth.” Id. at 412–13, 642 S.E.2d at 513–
14. This was held to be an overt act satisfying the second element
of attempt. Id.; see also Sines, 158 N.C. App. at 85, 579 S.E.2d
at 899 (“Defendant’s placement of his penis in front of victim’s
face, coupled with his demand for oral sex, comprise an overt
act[.]”).
Theodore’s testimony does not include statements that
Defendant demanded he perform a sexual act. However, the alleged
acts themselves are overt acts exceeding mere preparation and
statements of intent are not explicitly required. Buff, 170 N.C.
App. at 380, 612 S.E.2d at 371 (“[T]he evidence presented showed
defendant committed several overt acts, including touching L.W.’s
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breast and vaginal area, demonstrating intent to commit a sexual
act.”). Thus, Theodore’s testimony that Defendant placed his penis
on Theodore’s buttocks satisfies the second element of attempt.
Lastly, the third element requires that the attempted crime
was not consummated. Miller, 344 N.C. at 667, 477 S.E.2d at 921.
Here, the trial court noted that only corroborative direct
testimony showed Theodore’s anus was penetrated by Defendant.
However, Theodore’s testimony by itself provides evidence of at
least a non-consummated “sexual act” and satisfies the evidentiary
predicate for the third element of attempt.
Taken in the totality of the circumstances, Theodore’s
statements provide the circumstantial and substantive evidence
such that a jury could believe that Defendant intended to commit
a first degree sexual offense against Theodore and that overt acts
were taken toward that end. We therefore hold the trial court did
not err in denying Defendant’s motion to dismiss the charge of
attempted first degree sexual offense.
ii. Indecent Liberties with a Minor
Defendant next argues the State presented insufficient
evidence to support five counts of indecent liberties with a minor.
Defendant argues that Theodore’s statements that Defendant touched
his buttocks with his penis “‘four or five times’ only establishes
-24-
suspicion or conjecture that there were five touchings and not
four.” Defendant further argues Theodore’s testimony was
insufficient to establish the touchings occurred in separate
incidents. We disagree.
N.C. Gen. Stat. § 14-202.1 (2011) provides:
(a) A person is guilty of taking indecent
liberties with children if, being 16 years of
age or more and at least five years older than
the child in question, he either:
(1) Willfully takes or attempts to take any
immoral, improper, or indecent liberties with
any child of either sex under the age of 16
years for the purpose of arousing or
gratifying sexual desire; or
(2) Willfully commits or attempts to commit
any lewd or lascivious act upon or with the
body or any part or member of the body of any
child of either sex under the age of 16 years.
§ 14-202.1 does not require a completed sex act nor an offensive
touching of the victim. “Indecent liberties are defined as such
liberties as the common sense of society would regard as indecent
and improper. Neither a completed sex act nor an offensive
touching of the victim are required to violate the statute.” State
v. McClary, 198 N.C. App. 169, 173, 679 S.E.2d 414, 417–18 (2009)
(citations and quotation marks omitted). Further:
The State is required to show that the action
by the defendant was for the purpose of
arousing or gratifying sexual desire. A
variety of acts may be considered indecent and
-25-
may be performed to provide sexual
gratification to the actor. Moreover, the
variety of acts included under the statute
demonstrate that the scope of the statute’s
protection is to encompass more types of
deviant behavior and provide children with
broader protection than that available under
statutes proscribing other sexual acts.
. . . .
The requirement that defendant’s actions were
for the purpose of arousing or gratifying
sexual desire may be inferred from the
evidence of the defendant’s actions.
Id. at 173–74, 679 S.E.2d at 418 (quotation and citation omitted).
Similar to first degree attempted sexual offense, “the crime of
indecent liberties is a single offense which may be proved by
evidence of the commission of any one of a number of acts.” State
v. Hartness, 326 N.C. 561, 567, 391 S.E.2d 177, 180 (1990).
Here, Theodore, a mildly mentally retarded juvenile,
testified that Defendant touched his “butt” with his penis four or
five times. These alleged actions are ones that “the common sense
of society would regard as indecent and improper.” McClary, 198
N.C. App. at 174, 679 S.E.2d at 418 (citation and quotation marks
omitted). The statute is designed to protect children against a
broader range of sexually deviant behaviors and Defendant’s
alleged conduct falls within that ambit. See id.-26-
A further issue is whether five total counts were justified
by Theodore’s testimony. Defendant argues that the “State must
show that the defendant took indecent liberties with the child in
separate incidents, rather than as part of a single transaction or
occurrence.” To support this assertion, Defendant points to State
v. Laney, 178 N.C. App. 337, 631 S.E.2d 522 (2006), where we held
that a defendant who put his hands on a victim’s breasts and inside
the waistband of the victim’s pants were one continuous act of
touching and not separate and distinct sexual acts warranting
multiple charges. Id. at 341, 631 S.E.2d at 524–25. In Laney,
evidence showed that both touchings occurred on the same evening,
21 January 2004. Id. at 341, 631 S.E.2d at 524. Theodore’s
testimony shows neither that the alleged acts occurred either on
the same evening or on separate occasions. However, this Court in
State v. Williams, 201 N.C. App. 161, 689 S.E.2d 412 (2009) noted
that no such requirement for discrete separate occasions is
necessary when the alleged acts are more explicit than mere
touchings:
[I]n State v. James, 182 N.C. App. 698, 643
S.E.2d 34 (2007), this Court, in
distinguishing State v. Laney, stated that as
opposed to mere touching, “multiple sexual
acts, even in a single encounter, may form the
basis for multiple indictments for indecent
liberties.” James, 182 N.C. App. at 705, 643
S.E.2d at 38. Thus, this Court found that a
-27-
different analytical path should be applied
when dealing with “sexual acts” as opposed to
touching in the context of charges of indecent
liberties. Id.Id. at 185, 689 S.E.2d at 425 (emphasis added); see also State v.
Coleman, 200 N.C. App. 696, 706, 684 S.E.2d 513, 520 (2009), rev.
denied, 364 N.C. 129, 696 S.E.2d 527 (2010).
This Court held, in State v. Garrett, 201 N.C. App. 159, 688
S.E.2d 118, 2009 WL 3818845 (2009) (unpublished), that a child’s
corroborated testimony that a “defendant touched her private part,
which she identified as her vagina” was sufficient to show
penetration in a rape case. Id. at *4 (emphasis added). The
defendant in Garrett argued that the child’s testimony was
“ambiguous” and showed only touching occurred, rather than
penetration. Id. Here, similar facts exist: circumstantial
evidence given by Theodore’s family and attending physicians
provide the scintilla of evidence necessary for the trial court to
find that multiple sexual acts were committed against Theodore.
Theodore’s in court testimony describes an adult male touching a
child while the child bathed and touching his buttocks with his
penis “four or five times.” The accusations levied by Theodore’s
in-court testimony are more properly categorized as distinct
sexual acts similar to James, rather than mere “touchings” as in
Laney, and thus the multiple counts can be proper.
-28-
Next, the requirement of “purpose of arousing or gratifying
sexual desire” may be “inferred from the evidence of defendant’s
actions.” See N.C. Gen. Stat. § 14-202.1; McClary, 198 N.C. App.
at 174, 679 S.E.2d at 418 (citation and quotation marks omitted).
Theodore’s statements of Defendant’s alleged actions provide ample
evidence to infer Defendant’s purpose of obtaining sexual
gratification. Cf. State v. Creech, 128 N.C. App. 592, 599, 495
S.E.2d 752, 756 (1998) (holding defendant’s actions in giving
massages to young boys while wearing only his underwear and the
child wearing only shorts were “for the purpose of arousing or
gratifying sexual desire”).
For the above reasons, we hold the Defendant’s motion to
dismiss the five counts of taking indecent liberties with a child
was properly denied.
iii. Defendant’s Capacity to Proceed
Defendant argues that the trial court erred by failing to
conduct a sua sponte competency hearing after he ingested a large
quantity of sedative, hypnotic or anxiolytic medications and
alcohol. Because Defendant voluntarily ingested these substances
in a non-capital trial, he voluntarily waived his constitutional
right to be present. Thus, we disagree with Defendant that a sua
-29-
sponte competency hearing was required and hold the trial court
committed no error.
“[A] trial court has a constitutional duty to institute, sua
sponte, a competency hearing if there is substantial evidence
before the court indicating that the accused may be mentally
incompetent.” State v. McRae, 139 N.C. App. 387, 390, 533 S.E.2d
557, 559 (2000) (quotation marks and citation omitted) (emphasis
in original); see also State v. Whitted, 209 N.C. App. 522, 527–
28, 705 S.E.2d 787, 791–92 (2011) (holding a defendant was denied
a fair trial because the trial court did not inquire sua sponte
into her competency); State v. Coley, 193 N.C. App. 458, 461, 668
S.E.2d 46, 49 (2008), aff’d, 363 N.C. 622, 683 S.E.2d 208 (2009).
N.C. Gen. Stat. § 15A-1001(a) (2011) also requires a competency
finding before defendants may stand trial:
No person may be tried, convicted, sentenced,
or punished for a crime when by reason of
mental illness or defect he is unable to
understand the nature and object of the
proceedings against him, to comprehend his own
situation in reference to the proceedings, or
to assist in his defense in a rational or
reasonable manner.
The State, a defendant, a defense counsel, or the trial court may
move for a competency determination. N.C. Gen. Stat. § 15A-1002(a)
(2011). If raised by any party, the trial court has a statutory
-30-
duty to hold a hearing to resolve questions of competency. N.C.
Gen. Stat. § 15A-1002(b).
On review, this Court “must carefully evaluate the facts in
each case in determining whether to reverse a trial judge for
failure to conduct sua sponte a competency hearing where the
discretion of the trial judge, as to the conduct of the hearing
and as to the ultimate ruling on the issue, is manifest.” State
v. Staten, 172 N.C. App. 673, 682, 616 S.E.2d 650, 657 (2005).
Further:
Evidence of a defendant’s irrational behavior,
his demeanor at trial, and any prior medical
opinion on competence to stand trial are all
relevant to a bona fide doubt inquiry. There
are, of course, no fixed or immutable signs
which invariably indicate the need for further
inquiry to determine fitness to proceed; the
question is often a difficult one in which a
wide range of manifestations and subtle
nuances are implicated.
Id. at 678–79, 616 S.E.2d at 655 (internal quotation marks and
citations omitted). While the trial court’s competency findings
receive deference, other “findings and expressions of concern
about the temporal nature of [a] defendant’s competency” may raise
a bona fide doubt as to a defendant’s competency. McRae, 139 N.C.
App. at 391, 533 S.E.2d at 560; Whitted, 209 N.C. App. at 529, 705
S.E.2d at 792 (“[D]efendants can be competent at one point in time
and not competent at another.”).
-31-
The appropriate test for a defendant’s competency to stand
trial is “whether the defendant has sufficient present ability to
consult with his lawyer with a reasonable degree of rational
understanding and has a rational as well as factual understanding
of the proceedings against him.” State v. Badgett, 361 N.C. 234,
259, 644 S.E.2d 206, 221 (2007) (quotation marks and citations
omitted). A defendant need not “be at the highest stage of mental
alertness to be competent to be tried.” State v. Shytle, 323 N.C.
684, 689, 374 S.E.2d 573, 575 (1989). “So long as a defendant can
confer with his or her attorney so that the attorney may interpose
any available defenses for him or her, the defendant is able to
assist his or her defense in a rational manner.” Id.A trial court may also remove a defendant for disruptive
conduct pursuant to N.C. Gen. Stat. § 15A-1032 (2011):
(a) A trial judge, after warning a defendant
whose conduct is disrupting his trial, may
order the defendant removed from the trial if
he continues conduct which is so disruptive
that the trial cannot proceed in an orderly
manner. When practicable, the judge’s warning
and order for removal must be issued out of
the presence of the jury.
(b) If the judge orders a defendant removed
from the courtroom, he must:
(1) Enter in the record the reasons for his
action; and
(2) Instruct the jurors that the removal is
not to be considered in weighing evidence or
determining the issue of guilt.
-32-
A defendant removed from the courtroom must be
given the opportunity of learning of the trial
proceedings through his counsel at reasonable
intervals as directed by the court and must be
given opportunity to return to the courtroom
during the trial upon assurance of his good
behavior.
Further, a trial court “has inherent power to take whatever
legitimate steps are necessary to maintain proper decorum and
appropriate atmosphere in the courtroom during a trial” including
removing “an unruly defendant.” State v. Brown, 19 N.C. App. 480,
485, 199 S.E.2d 134, 137, appeal dismissed, 284 N.C. 255, 200
S.E.2d 659 (1973).
“[I]n a non-capital trial, the defendant’s right to be present
is personal and may be waived.” State v. Forrest, 168 N.C. App.
614, 622, 609 S.E.2d 241, 246 (2005); see also State v. Wilson, 31
N.C. App. 323, 327, 229 S.E.2d 314, 317 (1976) (holding the
defendant’s action of leaving during the jury charge was a
voluntary waiver of his right to be present). Additionally, “[a]
defendant is not prejudiced by the granting of relief which he has
sought or by error resulting from his own conduct.” N.C. Gen.
Stat. § 15A-1443(c) (2011) (emphasis added).
Other state and federal courts have addressed the issue of a
defendant voluntarily ingesting intoxicants and destroying
competency. See Victor G. Haddox, et. al, Mental Competency to
-33-
Stand Trial While Under the Influence of Drugs, 7 Loy. L.A. L.
Rev. 425, 442–43 (1974). In People v. Rogers, 309 P.2d 949 (Cal.
App. 1957), the defendant intentionally injected himself with
large doses of insulin to induce insulin shock and to avoid trial.
Id. at 955–56. The First District Court of Appeal in California
held
there is ample authority for holding that a
statute granting a right to an accused in
categorical terms may be waived by the
voluntary act of the person entitled. That is
this case. The defendant, by his own actions,
induced the condition existing in the
afternoon of the fourth day of the trial. This
amounted to a waiver of the right to be
mentally present granted by section 1043 of
the Penal Code. If this were not the rule,
many persons, by their own acts, could
effectively prevent themselves from ever being
tried. A diabetic can put himself in insulin
shock by simply taking insulin and then not
eating, or by refusing to eat, or can disable
himself by failing to take insulin. Surely,
the Legislature in adopting section 1043 did
not intend such an absurd result.
Id. at 957 (emphasis added); see also United States v. Latham, 874
F.2d 852, 865 (1st Cir. 1989) (Selya, J., concurring) (“When
nonattendance results from controllable circumstance, waiver
should generally follow.”); Hanley v. State, 434 P.2d 440, 444
(Nev. 1967) (“The defendant’s voluntary absence waives his right
to be present and he cannot thereafter complain of a situation
which he created.”).
-34-
Here, the case was submitted to the jury for deliberations
shortly after a lunch break on 15 August 2012. The trial court
instructed Defendant to remain in the courtroom unless he needed
to speak with his attorney. Defendant asked whether he could go
to the courtroom lobby, which the trial court denied. The trial
court temporarily recessed from 2:10 p.m. to 2:38 p.m., pending
the jury’s verdict. At 2:38 p.m., the jury asked for a transcript
of Theodore’s forensic interview, and Defendant’s attorney alerted
the trial court that Defendant was “having a little problem.” The
trial court said “[s]ir, stay with us if you will. If you go out,
we’re going to have to go on without you. If you want to see what
happens here, try to stay vertical.” A bench conference occurred
between Judge Martin, the State, and Defendant’s counsel, the jury
was brought back and told that no such transcript existed, and the
jury again departed the courtroom. The trial court then warned
Defendant that “[i]f you’re not healthy we will continue on without
you, whether you’re here or not. So do your very best to stay
vertical, stay conscious, stay with us.”
The jury then asked to review the final ten minutes of the
forensic interview DVD. Before the jury returned to the courtroom,
Ms. Gantt told the trial court about Defendant’s overdose. The
trial court then revoked Defendant’s bond, had Defendant taken
-35-
into custody, and ordered an examination of Defendant by emergency
medical services. Defendant’s counsel and the State both agreed
not to make any remarks about Defendant’s absence when the jurors
returned to the courtroom. The jury returned to the courtroom and
watched the final ten minutes of the forensic interview.
Defendant’s statements to Agent Bumgarner were also published to
the jury. The jury also requested to know when Pamela had her
surgery, to which the trial court replied “[i]t is your duty to
remember the evidence whether called to your attention or not.”
The jury was again dismissed, and the trial court made its
findings of fact that Defendant had disrupted the proceedings by
leaving the courtroom against the instructions of the court and
overdosing on drugs. The trial court found that Defendant was
“stuporous and refused to cooperate with the Court and refused
reasonable requests by bailiffs,” but made these findings out of
the jurors’ presence. The court stated there was “nothing to
indicate” the jurors were aware that Defendant was not present,
but noted the requirement that the trial court instruct the jurors
that Defendant’s absence was “not to be considered in weighing
evidence or determining the issue of guilt.” Defendant’s counsel
asked that the instruction be given the following morning so that
Defendant could re-join the proceedings.
-36-
At 4:31 p.m., Defendant’s counsel and the State agreed to
allow the jury to return to the courtroom and announce their
verdict. The jury delivered their verdict finding Defendant guilty
of attempted first degree sexual offense and five counts of taking
indecent liberties with a minor. Defendant’s counsel was directed
to inform Defendant of these events and to request Defendant be
present for the habitual felon phase the next morning as well as
the sentencing phase of defendant’s other charges.
The next morning on 16 August 2012 Defendant was present at
the proceedings. The trial court informed Defendant he could
choose to testify as to being a habitual felon. Defendant stated
he was “hoping to testify yesterday,” but that “[u]nfortunate
circumstances” did not allow it. The trial court re-stated that
the court was considering the habitual felon charge that morning,
and Defendant chose not to testify on the habitual felon charge.
The above facts provide ample evidence to raise a bona fide
doubt whether Defendant was competent to stand trial. Defendant
appeared lethargic, “stuporous,” and non-responsive. Such conduct
would ordinarily necessitate a sua sponte hearing. Evidence of
irrational behavior, demeanor at trial, and any prior medical
opinion on competence are all relevant to a bona fide doubt
inquiry. Staten, 172 N.C. App. at 678–79, 616 S.E.2d at 655. The
-37-
inability to “stay vertical” or to obey the commands of court
personnel certainly would give rise to such a bona fide doubt.
Defendant is also correct that competency may fluctuate during the
course of a trial. See Whitted, 209 N.C. App. at 528–29, 705
S.E.2d at 792; Shytle, 323 N.C. at 688, 374 S.E.2d at 575.
However, Defendant voluntarily ingested large quantities of
intoxicants in a short period of time apparently with the intent
of affecting his competency. This more appropriately invokes an
analysis of whether Defendant waived his right to be present during
the proceedings. A defendant may waive his/her constitutional
right to be present at non-capital trial via his/her own voluntary
actions that squander those rights:
[W]here the offense is not capital and the
accused is not in custody, the prevailing rule
has been, that if, after the trial has begun
in his presence, he voluntarily absents
himself, this does not nullify what has been
done or prevent the completion of the trial,
but, on the contrary, operates as a waiver of
his right to be present, and leaves the court
free to proceed with the trial in like manner
and with like effect as if he were present.
Diaz v. United States, 223 U.S. 442, 455 (1912) (emphasis added);
compare Drope v. Missouri, 420 U.S. 162, 163–64 (1975) (“We granted
certiorari in this case to consider petitioner’s claims that he
was deprived of due process of law by the failure of the trial
court to order a psychiatric examination with respect to his
-38-
competence to stand trial and by the conduct in his absence of a
portion of his trial on an indictment charging a capital offense.”
(emphasis added)). Voluntary waiver of one’s right to be present
is a separate inquiry from competency, and in a non-capital case,
a defendant may waive the right by their own actions, including
actions taken to destroy competency.
The State and Defendant both cite State v. Harding, 110 N.C.
App. 155, 429 S.E.2d 416 (1993). In Harding, this Court held the
defendant understood the nature of the proceedings against her and
that the defendant’s voluntary use of drugs throughout trial did
not destroy her mental competency during trial. Id. at 166–67, 429
S.E.2d at 423–24. Defendant argues that Harding “implies that a
greater degree of drug-induced impairment, such as that present in
this case, could establish a lack of capacity to proceed.”
However, in Harding, the “defendant was present throughout the
proceedings.” Id. at 166, 429 S.E.2d at 423. The defendant did
not “exhibit . . . any signs during trial of being under the
influence of any controlled substance.” Id. Thus, Harding never
reached the issue of whether a defendant could forfeit his or her
right to be present at trial by voluntarily intoxicating himself
or herself. Id.-39-
Finally, Defendant does not offer evidence that his absence
prejudiced the proceedings. Defendant stated an intention to
testify but already testified and concluded his case prior to
ingesting the intoxicants. Defendant was absent only while the
jury was outside the courtroom and deliberating its verdict.
Further, any alleged error would have resulted from Defendant’s
own conduct. See N.C. Gen. Stat. § 15A-1443(c).
By voluntarily ingesting intoxicants, Defendant waived his
right to be present during a portion of these proceedings. To
hold otherwise would create a rule where “many persons, by their
own acts, could effectively prevent themselves from ever being
tried.” Rogers, 309 P.2d at 957. Thus we hold the trial court
did not err.
iv. Review of In Camera Documents
After careful review of the sealed materials, we conclude the
trial court did not violate Defendant’s constitutional rights by
refusing to disclose Theodore’s relevant medical records to
Defendant. No exculpatory materials existed within the relevant
medical records and the trial court did not err in withholding the
records. See Kelly, 118 N.C. App. at 592, 456 S.E.2d at 865.
-40-
IV. Conclusion
Based on the foregoing discussion, we hold the trial court
did not err in denying Defendant’s motions to dismiss, nor in
choosing not to conduct a sua sponte competency hearing after
Defendant voluntarily intoxicated himself and waived his right to
be present during a portion of the proceedings.
NO ERROR.
Judges ELMORE and DAVIS concur.