STATE OF MISSOURI, ) ) Plaintiff-Respondent, ) ) v. ) No. SD36076 ) Filed: July 8, 2020 MATTHEW CURTIS TABER, ) ) Defendant-Appellant. )
APPEAL FROM THE CIRCUIT COURT OF OZARK COUNTY Honorable Elizabeth A. Bock, Special Judge
AFFIRMED Following a jury trial, Matthew Taber (Def endant) was convicted, as a prior offender, of first-degree assault and first-degree trespassing. See § 565.050; § 569.140. 1 Before sentencing, defense counsel filed a motion to determine whether Defendant was competent to proceed. At a hearing on the motion, a competency hearing was scheduled for three months later. At the competency hearing, however, the defense expert witness was not available to testify. Defense counsel requeste d a continuance. The trial court denied the

1 All statutory refere nces are to RSMo (2000) unless ot herwise specified. All rule references are to Missouri Court Rules (2020).2 request and, after hearing the evidence presen ted, decided that Defendant was competent to proceed to sentencing. Presenting one point on appeal, Defendantcontends the trial court abused its discretion in denying Defendant’s request for continuance at his post-trial competency hearing. Finding no abuse of discretion, we affirm. “In our review of the facts, we are to viewthem in the light most favorable to the trial court’s ruling challenged on appeal, deferring to the tria l court’s superior opportunity to determine the credibility of witnesses.” State v. Williams , 134 S.W.3d 766, 772 (Mo. App. 2004) (citation omitted). The following su mmary of facts has been prepared in accordance with these principles. Defendant was originally charged with th ree counts. Count 1 charged the class A felony of assault in the first degree. It alleged that Defe ndant “knowingly caused serious physical injury” to Edward Dossett, Jr. (Victim ) “by beating him repeatedly with his hands and fists.” Count 2 charged the class C felony of burglary in the second degree. It alleged that Defendant “knowingly entered unlawfully into an inhabitable structure” owned by Victim, “for the purpose of committing the crim e of stealing therein.” Count 3 charged the class A misdemeanor of stealing. It alleged that Defendant “appropriated pizza and beer,” which was owned by Victim, without his cons ent and with the purpose to deprive him thereof. The beating mentioned in Count 1 was alleged to have o ccurred on or about November 16, 2013. The burglary of Victim’s residence and the stealing of his food mentioned in Counts 2 and 3 were alleged to have occurred on November 17, 2013. Defendant was charged as a prior offender. Th e trial court – assigned in 2014 and continuing throughout the case – found that Defendant was a prior offender before the first of his two trials.3 In July 2015, Defendant’s first trial resulted in a mistrial before the jury was seated due to Defendant’s visible intoxication. The trial court noted that Defendant had “made himself unavailable for trial” when “he got kind of nervous and sat out in his car and probably drank a pint of someth ing[,]” causing himself to become intoxicated. Trial counsel later claimed that Defendant was “self-me dicating with alcohol because of ... his delusions[.]” Thereafter, defense counsel raised con cerns about Defendant’s competency to proceed to trial. The trial court ordered th at Defendant undergo a competency evaluation by the Department of Mental Health (DMH). Dr. Bridget Graham, a DMH forensic examiner, conducted the evaluation. In he r opinion, Defendant suffered from a mental disease or defect that rendered him unable to assist his attorneyin his own defense. Dr. Graham opined that Defendant: (1) “holds the persecutory delu sion that an underground bunker is beneath his RV on his [parents’] farm”; (2) believes “that individuals in his co mmunity, including the alleged victim’s family, his de fense attorney, the prosecutor and judge are all conspiring against him”; and (3) is conv inced “that his current charge s are the result of this conspiracy[.]” Further, “[w]hen asked how he could be defended agai nst the charges, ... it appears that [Defendant] plans to put forth a defense rooted in delusion.” Based on the results of Dr. Graham’s evaluation and the part ies’ stipulation, the trial court decided in October 2015 that Defendant was incompetent to proceed to trial. He was committed to the custody of DMH. In May 2016, DMH filed a motion to proceed to trial. The motion stated that, based on the opinion of a DMH examiner, Defendant was no longer incap able of understanding the proceedings against him or assisting in his own defense. According to the DMH examiner: (1) “[a]s compared to [Defendant’s] initial competency evaluation, his4 understanding of the charges ag ainst him was realis tic and not rooted in delusion”; and (2) Defendant “repeatedly noted that his be liefs related to the supposed group of people living underneath the family farm is not rela ted to his current defense strategy and is irrelevant at this time.” Based on DMH’s motion and report, the trial court decided that Defendant was competent to proceed to trial and sustained the motion to proceed. Defendant’s second jury trial took place January 9-10, 2017. After the State had rested its case, the trial court discussed De fendant’s right to testify. Defense counsel announced that he anticipated Defendant woul d be testifying. The trial court informed Defendant, among other things, that no one coul d force Defendant to testify or prevent him from testifying. The court also informed Defe ndant that, by testifying, he would be subject to cross-examination. Defendant acknowledged his understanding of his right to testify and the potential consequences, and he confirmed th at it was his intention to testify. The trial court also noted that Defendant could always change his mind at the last minute and decide that he did not want to testify. After the first of two defense witnesses te stified, defense counsel asked the court for a moment to talk with Defendant about “ possible testimony.” The court recessed for approximately 20 minutes. Thereafter, the trial court asked if there were “any issues” that they needed to “take up on the record” before the jury was brought in, and defense counsel stated: “No, not from us.” Defendant did not testify. The jury found Defendant guilty as charged on Count 1, guilty of the lesser-included offense of firs t-degree trespassing on Count 2, and not guilty on Count 3. The matter was set for sentencing. Defendant’s motion for a new trial included a claim that he was denied a fair trial because he had lacked the capacity to assist in his own defense and that he was incompetent at the time of trial. The motion alleged that: (1) the defense had prepared for trial with the5 understanding that Defendant woul d testify, but he thenrefused to testify during the trial; (2) post-trial discussions between Defendant and trial counsel caused coun sel to believe that “Defendant’s diagnosed mental health problem s with delusions and paranoia ... had led to Defendant’s pullback from testifying at tr ial”; (3) Defendant was evaluated by defense expert clinical psychologist , Dr. Kent Franks, on January 27, 2017; and (4) Dr. Franks had concluded that Defendant was not competent duri ng the trial because his delusional disorder had influenced his view of the trial and his ability to testify. Defense counsel also filed a notice of competency issue pursuant to § 552.020 RSMo Cum. Supp. (2014). This notice alleged that Defendant had lacked competence atthe trial and that he was incompetent to proceed. 2 In March 2017, based on defense counsel’s request and Dr. Franks’ report, the trial court ordered that Defendant undergo another evaluation by DMH to determine whether he had been competent at trial and whether he wa s competent to proceed. The trial court noted, however, that “[n]othing at the trial, that [the court] saw, indicated that [Defendant] was not competent[,]” that he “interacte d with his attorneys” and that Defendant made statements in

2 Section 552.020 states that “[n]o person who as a result of mental disease or defect lacks capacity to understand the proceedings agains t him or to assist in his own defense shall be tried, convicted or sentenced for the commission of an offense so long as the incapacity endures.” § 552.020.1. “If the court determines that the accused lack s mental fitness to proceed, the criminal proceedings sha ll be suspended and the court shall commit him to the director of the department of mental health .” § 552.020.9. The accused is then subject to a review of his competency afte r six months, and a report of the examination must be filed with the court. § 552.020.11(1). Either party is entitled to an order granting an examination of the accused and, following that examination, a report must be filed with the court. § 552.020.11(2). If either party cont ests the fitness to proceed or contests the findings, the court must hold a hearing on th e issue. § 552.020.11(3). “The report or reports may be received in evidence at any hearing on the i ssue but the party contesting any opinion therein relative to fitness to proceed shall have the right to summon and to cross-examine the examiner who rendered such opinion and to offer evidence upon the issue[.]” § 552.020.11(3). “If the accused is found mentally fit to proceed, the criminal proceedings shall be resumed[.]” § 552.020.11(4).6 the sentencing assessment report, which was co nducted after Dr. Franks ’ evaluation, that were “completely logical, consistent with the ev idence that was presented at trial, and totally consistent with his defense of self-defense[.]” The trial court also raised th e possibility that the defens e had “sandbagged,” in that the defense had failed to communicate any c oncern about Defendant’s competence during the trial, and that “this is the situation where it’s ripe for manufactur ing grounds to set aside a conviction.” Defense counsel responded that Defendant’s “delusions that there was ... an underground tunnel system that he was aware of and that this prosecu tion was connected to that never stopped[,]” but that counsel “genui nely believed that [Defendant] was still going to be able to testify because thatwasn’t really relevant to this case[.]” The trial court replied that defendants “get cold feet a ll the time at trial.” Defense counsel agreed and said, “that’s why I didn’t raise it then. But discussing it w ith him afterwards, I came to believe that ... his not testifying was connected to his fear of this being brought up.... [I]n his mind, it became connected, and that’s what prevented him from testifying[.]” In August 2017, DMH filed a report in wh ich its examiner, Dr. Bridget Graham, concluded that Defendant had been competent at trial, but that he was not competent to proceed to sentencing. Defense counsel res ponded by filing a challenge to Dr. Graham’s opinions. In October 2017, a competency hearing was he ld. The trial cour t agreed to hear evidence about Defendant’s competency at trial, but the record would be left open with no final determination until Defendant was competen t and could participate in the hearing on the motion for a new trial. Dr. Graham and de fense expert Dr. Franks then testified about Defendant’s competency, both during the trial and as of the date of the hearing. While each7 expert differed in their opini on that Defendant was competent during trial, both agreed he was not competent to proceed to sentencing. As mentioned previously, Dr. Franks exam ined Defendant 17 days after the January 2017 trial. According to Dr. Fr anks, Defendant told him about the series of tunnels under his family’s property and the conspiracy to k eep it hidden. Defendant became a target once he found out about the conspiracy and described himself as a “whistle blower.” Defendant said there was a “strong possibili ty” his knowledge of this conspi racy led to his arrest, and Victim was selected to frame him for the assa ult. Dr. Franks dia gnosed Defendant with “delusional disorder, persecutory type [and] an alcohol abuse disorder.” Dr. Franks opined that Defendant had a “really severe head inju ry” in 2008 and the delusions started to develop after that. Dr. Franks opined that Defendant was delusional at trial, noting that “his condition is deteriorating.” According to Dr. Franks, Defe ndant said that: (1) he and a defense witness were going to testify that Defendant had acted in self-defense; and (2 ) Defendant chose not to testify because “he froze up” and “he couldn’ t do it, he couldn’t talk, he just froze with anxiety[.]” Dr. Graham, a licensed psychologist and certified forensic examiner for DMH, testified that she examined Defendant in mi d-May and late June 2017. Dr. Graham agreed that Defendant had a “long history” of “per secutory delusional beliefs.” Dr. Graham explained, however, that “someone can hold de lusional beliefs and still be competent to proceed” because it is “how those delusional beliefs impact their case” that matters. According to Dr. Graham, Defendant had been found competent to proceed to trial because, despite his delusional beliefs, he had demonstrated the capacity to work with his attorney in a rational manner by understand ing that his delusional belief s would not be admissible and by moving forward with a defens e of self-defense. There wa s no information of which she8 was aware to indicate that Defendant’s conditio n had deteriorated to the point that he was no longer competent to a ssist in his defense at trial in January 2017. Regarding Defendant’s decision not to testify, he told Dr. Graham (jus t like Defendant had told Dr. Franks) that “he froze, he became very anxious, and [he] just wa s unable to take the stand in his defense.” Dr. Graham described those statements as a “very rational response to testifying.” Dr. Graham also opined there were no statements by Defendant “that his anxiety was in any way related to his persecutory delusional belief s[,]” and Defendant “did not attribute ... his choices, his decisions, even the outcome to hi s persecutory delusional beliefs.” In Dr. Graham’s opinion, Defendant was not competent to proceed as of the date of the evidentiary hearing. Dr. Graham believed that Defendant’s conviction had “activated” his paranoia and persecutory delusional beliefs. In contrast to his rational view of the trial, when asked what he thought would happen at the sentencing he aring, Defendant became far more concerned about his delusional beliefs and “exposing this conspiracy[.]” At the close of the October 2017 hearing, th e trial court decided that Defendant was not competent to proceed to sentencing and committed him to the custody of DMH. The trial court again stated that the issue of whether Defendant was competent at trial would be kept open until Defendant was competent and a hearing on his motion for a new trial could be held. In early July 2018, DMH file d a motion to proceed to sentencing, based on a DMH examiner’s opinion that Defendant no longe r lacked the capacity to understand the proceedings against him or to assist in his ow n defense. Defense counsel responded by filing a request for a second examination. The trial court sustained that request on July 16, 2018. The court ordered that Defendant be evaluated by a qualified psychologist of his own choosing and that a report be filed by September 14, 2018. On November 19, 2018, the trial9 court ordered the defense “to file psych ev aluation [within] 15 days as report is long overdue.” At a December 10, 2018 hearing attended by de fense counsel and the prosecutor, the trial court scheduled a competency heari ng for March 18, 2019. On February 7, 2019, defense counsel filed a mental competencyevaluation report by Dr. Michael Walsh. At the March 18 th competency hearing, Defenda nt was represented by defense counsel John Zimmerman (Zimmerman). The tr ial court asked Zimmerman if he was ready to proceed. Zimmerman told the court that De fendant’s expert witness, Dr. Walsh, was not present. Zimmerman said it was “not clear to [him] that it was clearly communicated to [Dr. Walsh] that he had to be here this dat e” and Dr. Walsh had not been subpoenaed. The prosecutor told the court that it was his understanding Dr. Walsh wa s going to be at the hearing. Zimmerman admitted that “this is verymuch on [him],” that he had not attempted to contact Dr. Walsh until the Thursday before the Monday hearing, an d that he might not have been clear enough to his legal assistant about ensuring Dr. Wals h’s presence at the hearing. Zimmerman also admitted that he had not tried to reach Dr. Walsh over the weekend. The trial court took a short recess so that Zimmerman could again try to contact Dr. Walsh. Zimmerman reported that the receptionist at Dr. Walsh’s office said Dr. Walsh was not on the schedule for that week. The trial court stated that “this [hearing] has been set since December” and that the court was “not happy with the situ ation[.]” The court ruled that, “[s]ince [Dr. Walsh] is not present and with the understanding that [the defense was] going to have him present today for the State to cross-examine,” the court would not admit Dr. Walsh’s report into evidence. Thereafter, Zimmerman asked for a continuan ce to “get Dr. Walsh here” so that they could admit his report. Zimmerman stated that “it’s a detailed report with new information10 related to a head injury that I don’t think the C ourt has ... seen before.” The trial court then asked for the State’s response. The prosecutor ob jected, stating that “[t]his case has been set for three months” and “[t]here’s no reason why ... Defendant could not ge t his witness here.” In addition, the prosecutor stated that he had read Dr. Walsh’ s report and was prepared with his witness for the hearing. The trial cour t had also read the report and recognized Defendant’s right to this second evaluation. The court further acknow ledged its awareness of the previous evaluations on the issue by Dr. Franks and Dr. Graham. Ultimately, the court denied the request for a conti nuance “because this hearing has been set for over three months, and the State did have their witness here from Fulton today.” The court went on to hear testimony from the DMH expert and Zimmerman. Dr. Randy Telander, a forensic examiner, testified on behalf of DMH. After reviewing the records, including Defendant ’s records from Fulton State Hospital, Dr. Telander attempted to interview Defendant for the evaluation. Defendant repeatedly declined to speak with Dr. Telander, stating th at Defendant “didn’t th ink it would be in his best interest” and that “it turns out for the wo rst.” Defendant had previously indicated that he was aware that the sentencing assessmen t report had recommende d a sentence of 15 years’ imprisonment, and Defendant had told ot hers at the hospital numerous times that he preferred to stay at Fulton State Hospital rath er than be sentenced. Dr. Telander relied on the same information as Dr. Graham had, butdisagreed with Dr. Graham’s opinion that Defendant was not competent to proceed to se ntencing. Dr. Telander confirmed that, since Dr. Graham’s previous report, Defendant had undergone months of competency restoration in DMH. Dr. Telander opined that: (1) Defe ndant was competent to proceed, both because he understood the legal process going forward and because he was able to assist his attorney; (2) Defendant’s delusions would not prohibit him from assisting in further proceedings11 because the fact that he had indicated a preference for being ruled incompetent rather than being sentenced “shows his abil ity to reason and understand wh at’s happening realistically at this point.” Zimmerman, who had been one of Defendant’s attorneys since 2016, also testified at the hearing about his observations relating to Defendant’s competency. According to Zimmerman, their defense had been based upon Defendant testifying. Zimmerman spent a lot of time with Defendant before trial in witness preparation. After coming back into the courtroom and being confronted with the jurors, Defendant changed his mind and told Zimmerman, “I’m just not goi ng to testify. I’m going to rely on the presumption of innocence.” With respect to sentencing, Zimme rman testified that Defendant believed he was being persecuted as a whis tle blower so it was difficult for him to cooperate. Zimmerman admitted that Defendant: (1) did not make any references to the underground tunnel system in his statements for the sent encing assessment repor t; (2) made several statements that were consistent with a de fense witness’ testimony supporting self-defense that had been presented at trial; and (3) also expressed to Zimmerman Defendant’s desire to remain in DMH, rather than go to prison. The trial court found that , “based on the most credible evidence presented in the competen cy hearings,” Defendant was competent to proceed. The trial court also found that Defendant was competent at the time of trial based on the “extensive reco rd on this case.” In April 2019, the court sentenced Defendant to 15 years’ imprisonment for Count 1, with $10,000 in restitution to be paid to Vi ctim, and 60 days’ incarceration for Count 2. This appeal followed. Defendant’s single point on appeal challenge s the trial court’s decision to deny Defendant’s request for a continuance at his po st-trial competency hearing. The decision12 whether to grant or deny a cont inuance “is within the sound di scretion of the trial court.”
State v. Edwards , 116 S.W.3d 511, 535 (Mo. banc 2003). “An abuse of discretion occurs when a trial court’s decision is clearly against the logic of the circumstances then before it and is so arbitrary and unreasonable as to shock the sense of justice an d indicate a lack of careful consideration.” State v. Harding , 528 S.W.3d 362, 376 (Mo. App. 2017). Pursuant to Rule 24.10(a), an application for continuance due to the absence of a witness must show, inter alia , “the materiality of the eviden ce sought to be obtained and due diligence upon the part of the applic ant to obtain the witness[.]” Id . “[W]hen a trial court concludes that a defendant did not make every effort to secure the attendance of a witness that he claims is indispensable, the court’s decision to deny a request for continuance is within its discretion.” State v. Salter , 250 S.W.3d 705, 712 (Mo. banc 2008). “Reversal is warranted only upon a very strong showing that th e court abused its discretion and prejudice resulted.” Edwards , 116 S.W.3d at 535. The party reque sting the continuance bears the burden of showing prejudice. State v. Jones , 479 S.W.3d 100, 111 (Mo. banc 2016); Harding , 528 S.W.3d at 376. “[T]he refusal to grant a continuance for a missing witness will not be reversed on appeal unless the w itness’ testimony would probably result in a different outcome.” State v. Dodd , 10 S.W.3d 546, 554-55 (Mo. App. 1999); State v. Patton , 84 S.W.3d 554, 556 (Mo. App. 2002); see, e.g. , State v. Artis , 215 S.W.3d 327, 337 (Mo. App. 2007). Defendant contends the tria l court abused its discre tion in denying Defendant’s request for a continuance because Zimmerman ma de a showing that Dr. Walsh “was material in that [Dr. Walsh’s] competency report and te stimony went to the fact that [Defendant] was not competent to proceed and was not competent at trial, which was a critical and contested issue at the hearing[.]” According to Defenda nt, “the defense had ma de reasonable efforts”13 to contact Dr. Walsh and Defendant was prej udiced because Dr. Walsh’s competency report “was the only evidence establishing [Defendant] was not competent at a contested competency hearing.” We disagree w ith these arguments for two reasons. First, Defendant did not establish that he had exercised due diligence in ensuring that Dr. Walsh would be present at the hearing. See Rule 24.10(a); Salter , 250 S.W.3d at 712. “Inadequate preparation does not justify a continuance where counsel had ample opportunity to prepare.” State v. Middleton , 995 S.W.2d 443, 465 (Mo. banc 1999). Here, attorney Zimmerman had ample opportunity and yet failed to diligently act to ensure that Dr. Walsh would be present for the competency hearing. The trial court noted that the competency hearing had been set since December 10, 2018, gi ving the defense more than three months to secure Dr. Walsh’s attendance for the hearing on March 18, 2019. In addition, Zimmerman admitted that Dr. Walsh’s absen ce was “very much on [Zimmerman.]” During the competency hearing, he stated that: (1) he had not attempted to contact Dr. Walsh until the Thursday before the Monday hearing; (2) he had not tried to reach Dr. Walsh over the intervening weekend; and (3) Zimmerman had not obtained a subpoena for Dr. Walsh. Thus, by Zimmerman’s own admission, he did not make every effort to secure Dr. Walsh’s attendance at the competency hearing. See Salter , 250 S.W.3d at 712 (hol ding that the trial court did not abuse its discretion in denying a c ontinuance because the defense had failed to use due diligence in obtaining the presence of an absent witness when the trial date had been set for 40 days and the defense had waited until 3 days before trial to contact the witness, who was then allegedly unavailable on the trial date). In support of Defendant’s argument, he cite s three cases in which a witness’ absence due to unforeseen circumstances did not demo nstrate a lack of due diligence by defense counsel. See State v. Litherland , 477 S.W.3d 156, 163-65 (Mo. App. 2015) (holding that14 the trial court abused its discretion in denying a continuance when the defense’s sole witness was temporarily unavailable due to havi ng gone into labor early that morning); State v.
Blocker , 133 S.W.3d 502, 503-05 (Mo. ba nc 2004) (holding that the trial court erred in denying a continuance when the defense’ s witness, who was under subpoena, was temporarily unavailable due to a family medical emergency); State v. Brown , 517 S.W.3d 617, 630-31 (Mo. App. 2017) (holding that the tria l court abused its discretion in denying a continuance because defense counsel did not ha ve ample opportunity to prepare for trial and reasonably required more time). These fact ually distinguishable cases do not support Defendant’s argument. Second, Defendant has not met his burden of showing that he was prejudiced by the trial court’s denial of a continuance. In De fendant’s point, he did not contend that Dr. Walsh’s testimony would have changed the out come of the hearing. Instead, Defendant contended that he was prejudi ced by the court’s denial of his continuance request because Dr. Walsh’s competency report “was the onl y evidence establishing [Defendant] was not competent” at the competencyhearing. That contention la cks merit because Dr. Walsh’s competency report was not the “only evidence” that Defendant was not competent to proceed to sentencing. Although Dr. Wa lsh’s report was not admitted in evidence, the trial court noted similar opinions expressed by Dr. Franks and Dr. Graham. 3 It was Dr. Telander’s opinion (reached after Defendant had been committed to DMH for several months) that the

3 In Defendant’s reply brief, he argues that the indivi dual opinions of Drs. Graham and Franks are different than that of Dr. Walsh. According to Defendant, “Dr. Walsh’s report discusses in great detail that [Defendant’s] mental health issues were actually triggered far earlier when he suffered a significant head injury[.] Dr. Graham rejected the idea that [Defendant’s] competency issues were caused by this head injury[,]” but instead opined that they were “activ ated” by his conviction. Defe ndant’s argument ignores Dr. Frank’s opinion that Defendant’s mental health issues were likely caused by a “really severe head injury[.]” Dr. Franks further opined that Defendant’s cond ition was deteriorating.15 trial court found most persuasive. Dr. Telander opined that Defendant was competent to proceed. Dr. Telander based his opinion, in part , on Defendant’s repeated statements during his DMH commitment that he preferred to be rule d incompetent, rather than be sentenced to imprisonment. According to Dr. Telander, that demonstrated Defendant’s “ability to reason and understand what’s happening realistically atthis point.” Zimmerman likewise admitted that Defendant had expressed to him his desire to remain in DMH, rather than go to prison. The trial court’s factual findi ng that Defendant was competen t to proceed to sentencing, “based on the most credible evidence presented in the competency hearings,” shows that the court credited Dr. Telander’s testimony regarding Defendant’s competency. Therefore, Defendant has failed to persuade us that the admission of Dr. Walsh’s testimony probably would have changed the outcome of the competency hearing. See Patton , 84 S.W.3d at 556. Given the extensive record on the underlying issue and the trial court’s tenure with the case since 2014, we cannot conclude the co urt’s decision to de ny Defendant’s motion for continuance was “clearly against the logic of the circumstances then before it” nor was it “so arbitrary and unreasonable as to shock the sense of justice and indicate a lack of careful consideration.” Harding , 528 S.W.3d at 376-77. Findi ng no abuse of discretion, Defendant’s point is denied. The judgment of the trial court is affirmed.

JEFFREY W. BATES, C.J. – OPINION AUTHOR DON E. BURRELL, J. – CONCUR MARY W. SHEFFIELD, J. – CONCUR