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 
-2-

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.
-3-

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 
-4-

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.”
-5-

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 
-6-

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 
-7-

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.
-8-

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 weewee. 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.
-9-

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 
-10-

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 
-11-

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, 
-12-

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 
-13-

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.

. . . .
-14-

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 
-15-

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 
-16-

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 
-17-

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.
-18-

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) 
-19-

(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 
-20-

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 restated 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. 
-21-

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 
-22-

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 eightyear-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 
-23-

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.