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
 -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 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.
 -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 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.
 -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 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
 -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.