        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                           Assigned on Briefs March 25, 2015

      STATE OF TENNESSEE v. WILLIAM DAVIDSON HAMBY, JR.

                 Appeal from the Criminal Court for Davidson County
                     No. 2012-C-2652     Monte Watkins, Judge




                No. M2014-00593-CCA-R3-CD            - Filed April 27, 2015



The defendant, William Davidson Hamby, Jr., was convicted after a bench trial of aggravated
kidnapping, a Class B felony, and he was sentenced to serve fourteen years in prison. On
appeal, the defendant challenges the sufficiency of the convicting evidence. He also asserts
that the trial court erred in not ordering a second evaluation of his competency after he
initially refused to attend his own trial. After a thorough review of the record, we conclude
that the evidence is sufficient to support the verdict and that the trial court’s failure to order
a second evaluation was not error, and we accordingly affirm the judgment.


 Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed

J OHN E VERETT W ILLIAMS, J., delivered the opinion of the Court, in which N ORMA M CG EE
O GLE and R OBERT L. H OLLOWAY, J R., JJ., joined.

Frank McLeod (at trial) and Richard C. Strong (on appeal), Nashville, Tennessee, for the
appellant, William Davidson Hamby, Jr.

Herbert H. Slatery III, Attorney General and Reporter; Caitlin Smith, Assistant Attorney
General; Victor S. Johnson, District Attorney General; and Hugh Ammerman, Assistant
District Attorney General, for the appellee, State of Tennessee.



                                           OPINION
                      FACTUAL AND PROCEDURAL HISTORY

        On July 8, 2012, the defendant struck his ex-girlfriend in a parking lot and forced her
to come upstairs and into his apartment against her will. He was subsequently arrested and
remained in jail, where he committed numerous disciplinary infractions, including flooding
his cell and throwing feces.

        On the morning of the October 14, 2013 trial, the defendant refused to come to the
courtroom or participate in the trial. In the course of arguments about the feasibility of
ordering the defendant’s appearance, the prosecution suggested the defendant was
obstructing the judicial process, citing a phone conversation before an earlier court date
where the defendant had told a relative, “I know how to get this thing continued for a month
or so.” The prosecution also stated for the record that the defendant had been evaluated by
a mental health professional and found “competent and sane.” Defense counsel agreed that
the defendant had been evaluated but requested a further mental examination, asserting that
“[i]n light of this new episode by [the defendant], he needs to be re-evaluated.” During the
discussion regarding the forced appearance of the defendant, defense counsel referenced the
defendant’s history of mental illness but stated that the defendant had consulted with him the
previous day about trial strategy and had decided to waive his right to a jury trial by asking
the judge to try his case. The trial court noted that the defendant could have been referring
to new legal representation in the comment regarding a continuance. The court questioned
whether it could “override medical staff, with regard to ordering one to appear in a particular
place.” Before taking a recess, the trial court found that the defendant had been “quite lucid
and … understood everything” at a court appearance approximately two weeks prior to the
trial.

        The record does not reflect any concrete details regarding the events of the morning
nor does it reveal the manner in which the defendant’s initial refusal to participate was
resolved. The transcript merely resumes with the appearance of the defendant, who waived
his right to a jury trial, and with the presentation of evidence.

       The victim, Melissa McComb, testified that she had a history of crack addiction after
losing a child in 1993. The defendant was her ex-boyfriend, and they had spent some time
at a motel together a few weeks prior to July 8, 2012, but at the time of the crime, they were
no longer romantically involved.

        The victim had been smoking crack with Peter York, a friend, the night before the July
8, 2012 kidnapping. That morning, they were planning to do drugs, and she and the
defendant had been exchanging text messages. Mr. York and the victim picked the defendant
up off the street in front of his apartment complex. Both the victim and the defendant bought

                                              -2-
drugs. The victim testified that on the way to the defendant’s apartment, she was in the back
seat and the defendant was in the passenger’s seat of the two-door vehicle. As they
approached the defendant’s apartment, the defendant kept asking her if she was coming in,
but she did not respond because she did not want to go in or to anger him by refusing to go.
When they arrived, she got out of the back of the car so that she could get into the front seat.
The defendant accused her of having a relationship with Mr. York. The victim refused to go
into the defendant’s apartment. After her refusal, the defendant struck her in the face,
grabbed her arm, and began to walk up to his apartment with her. She could taste blood after
the defendant hit her. The victim testified she wanted to leave but was afraid he would hit
her again if she broke away.

        When they entered the apartment, the defendant showed her a ten- to eleven-inch
knife, and she saw a larger knife under the couch. They went to the bedroom, she produced
the crack, and they smoked it. The victim testified that the defendant forced her to remain
in the apartment but did not force her to smoke crack. The victim later heard a knocking at
the door, and the defendant looked outside and said it was the police. He walked her into the
bathroom, opened the shower curtain, and told her to get in the bathtub and be quiet. The
victim overheard him tell officers that no one else was there, and she coughed loudly in the
hope of being heard.

        Mr. York confirmed that he and the victim had been together prior to the kidnapping,
doing drugs. However, Mr. York denied being under the influence of drugs at the time of
the offense. Mr. York testified that he and the victim had been in contact with the defendant
by phone and that they then picked him up. They made two stops, and the “main outcome”
was to “score drugs.” Mr. York testified that the purpose of contacting the defendant was
not to acquire drugs and that Mr. York could get his own drugs. According to Mr. York, the
victim was in the passenger’s seat and the defendant in the back seat. When they pulled into
the defendant’s parking lot to drop him off, the victim did not want to get out. Mr. York
testified he did not want the victim to go with the defendant because the defendant had
threatened to kill her. The victim raised the car seat to allow the defendant to get out. Mr.
York testified that the defendant went out through the passenger’s side door of the two-door
vehicle and that there was a struggle during which the victim tried to shut the door. The
defendant forced her out of the car, and he struck her in the face and “busted” her face open.
The two went up to the apartment.

       Mr. York called 911 at 8:20 a.m. on July 8, 2012. The recording of the call was
played in court. During the call, Mr. York told the operator that a man had just “busted” a
woman’s face, tried to drag her into his house, and had threatened to kill her. He gave the
number of the apartment unit that the defendant and victim had gone into and told the
operator that the defendant had knives in his home.

                                              -3-
       Mr. York testified that he had not been in the defendant’s apartment that day but had
been there three to four days earlier, doing drugs. Mr. York acknowledged having a
shoplifting conviction, numerous prior arrests, and mental health issues including diagnoses
of bipolar disorder, post-traumatic stress disorder, and schizoaffective disorder, for which
he was on medication.

        Officers arrived on the scene shortly after the 911 call and spoke to Mr. York. Officer
Joe Pennington testified that he saw blood on the ground where the assault had occurred and
saw a trail of blood leading to a third floor apartment. Officer Pennington and Officer John
Pryor both testified that they knocked on the door for several minutes and received no
response. Eventually, the defendant opened the door. He was shirtless, and both officers
testified he was sweating and had recent injuries to his hand. The defendant stated that no
one else was in the apartment and that he had not been in an altercation, and he denied the
police entry.

        Because the police were concerned for the safety of the victim, Officer Pennington
grabbed the defendant and detained him against an outside wall while Officer Pryor entered
the home. As police were entering the apartment, the defendant admitted that someone else
was inside. Officer Pryor testified that the victim was “hunkered down” in a bathtub with a
cut over her eye and blood coming down her face. Both officers testified that the victim
appeared to be very frightened. Officer Pennington testified that the victim gave him a false
name but that she told him her real name at the scene after he checked the information.
Officer Pennington saw a knife with a blade over six inches long propped by the door. The
knife had cardboard and tape on the handle to improve the grip, and there was another knife
in the kitchen. Officer Pennington stated that police entered the apartment after his sergeant
arrived and that a Computer-Aided Dispatch (“CAD”) report which showed that his sergeant
was not on the scene until 10:35 would not have been accurate because the report depended
on an officer manually entering his arrival time.

       The victim was taken to a hospital, where her injuries, which required stitches, were
photographed at 10:30 a.m. At the hospital, the victim gave Officer Pennington a statement
about the kidnapping. At trial, the victim testified that she first gave a false name because
she believed that there was a warrant out for her arrest at the time.

       Beth Halstead, the court clerk, testified that a warrant for a probation violation was
issued against the victim on July 6, 2012, but that it was not entered into the system over the
weekend and did not become active until July 9, 2012. The victim was arrested on July 13,
2012, for violating her probation.

       The victim testified she received a letter from the defendant while she was in custody,

                                              -4-
offering to pay for plastic surgery for her scar and asking her to tell police she had lied. She
sought an order of protection against the defendant when she was released from jail.

        The victim acknowledged having prior convictions for joyriding and criminal
impersonation. She denied that the defendant took her upstairs to help treat her wound. The
victim stated that she was on drugs at the time but denied that her drug usage affected her
memory. The victim testified that when she was in the bathtub, she wanted to be found and
that she “would rather be in jail than beaten” but that she was not sure if she would be able
to get to police if she left the bathroom. She acknowledged having given police a false name
when she was pulled over some days prior to the kidnapping.

       The trial court found the defendant guilty of aggravated kidnapping. At the
sentencing hearing, the defendant’s mother, who is a physician, testified regarding his history
of drug abuse and his history of mental illness. She stated that the defendant was bipolar and
required medication. His mother believed he had a good heart, and she did not believe he
committed the crime. The defendant also testified at the hearing, accusing the prosecutor and
police officers of lying and falsifying documents and taking issue with the fact that the victim
was not immediately arrested after the crime. He referenced certain lawsuits which he
believed were the source of a bias in the judicial system. He accused the victim and Mr.
York of fabricating the incident and stated the victim had stolen his EBT card. The trial
court found that three enhancement factors applied. In mitigation, it found that it was
“abundantly clear and obvious that [the defendant] has some serious mental health issues.”
The trial court sentenced the defendant to serve fourteen years in prison. On appeal, the
defendant contends that the evidence was insufficient to support the verdict. He also
challenges the trial court’s refusal to order a second mental health evaluation after the
defendant initially refused to be present at his trial.

                                         ANALYSIS

                               I. Sufficiency of the Evidence

        Under Tennessee Rule of Appellate Procedure 13(e), “[f]indings of guilt in criminal
actions whether by the trial court or jury shall be set aside if the evidence is insufficient to
support the finding by the trier of fact of guilt beyond a reasonable doubt.” In evaluating the
sufficiency of the evidence, the court must determine whether, after considering the evidence
in a light most favorable to the prosecution, any rational trier of fact could have found the
essential elements of the crime beyond a reasonable doubt. State v. Reid, 91 S.W.3d 247, 276
(Tenn. 2002). This court will not reweigh or reevaluate the evidence, and it may not
substitute its inferences drawn from circumstantial evidence for those drawn by the trier of
fact. State v. Goodwin, 143 S.W.3d 771, 775 (Tenn. 2004). A jury’s verdict of guilt,

                                              -5-
approved by the trial court, resolves conflicts of evidence in the State’s favor and accredits
the testimony of the State’s witnesses. State v. Smith, 436 S.W.3d 751, 764 (Tenn. 2014).
“Questions concerning the credibility of witnesses, the weight and value to be given the
evidence, as well as all factual issues raised by the evidence are resolved by the trier of fact.”
State v. Bland, 958 S.W.2d 651, 659 (Tenn. 1997). The State is entitled to the strongest
legitimate view of the evidence and to all reasonable and legitimate inferences that can be
drawn from it. State v. Hall, 8 S.W.3d 593, 599 (Tenn. 1999). A guilty verdict replaces the
presumption of innocence with one of guilt, and on appeal, the defendant bears the burden
of demonstrating that the evidence is insufficient to support the conviction. State v. Cole,
155 S.W.3d 885, 897 (Tenn. 2005). The same standard of review applies to direct and
circumstantial evidence. State v. Hawkins, 406 S.W.3d 121, 131 (Tenn. 2013).

        To prove that the defendant committed the crime of aggravated kidnapping as charged
in the indictment, the State was required to show that the defendant knowingly removed or
confined the victim so as to interfere substantially with her liberty and that the victim
suffered bodily injury. T.C.A. § 39-13-302(a), -304(a)(4) (2010). “Substantial” is defined
as “considerable in quantity” or “significantly large.” State v. White, 362 S.W.3d 559, 576
(Tenn. 2012) (quoting Webster’s Ninth New Collegiate Dictionary 1176 (1991)).

       The defendant’s challenge to the sufficiency of the evidence is in effect a request for
this court to reevaluate the credibility of the witnesses. The defendant claims that it was
“erroneous for the trial court to credit [the victim’s] testimony” because she admitted that she
had lied about her name both after the crime and during a previous traffic stop. However,
the victim’s attempts to elude arrest for her violation of probation do not render her
incompetent as a witness, and the evaluation of her credibility is entrusted to the trial court
and may not be usurped by this court on appeal. See Bland, 958 S.W.2d at 659. The trial
court credited the victim’s testimony, and the testimony of other witnesses and the physical
evidence corroborated her account of the crime.

        The defendant also contends that the victim was not confined against her will because
rather than leaving the apartment after the defendant assaulted her, led her upstairs, and
showed her a knife, she instead smoked crack cocaine with the defendant. The victim
testified that after she refused to accompany the defendant, he struck her hard enough to
cause significant bleeding and leave a wound that required stitches. He then took her by the
arm and led her upstairs. Mr. York witnessed both the assault and the kidnapping, and he
testified the defendant had previously made threats that he would kill the victim. The police
found a blood trail leading to the defendant’s apartment. Once in the apartment, the
defendant showed the victim a large knife without comment. At this point, the victim and
defendant smoked crack. When the police arrived, the defendant instructed her to hide in the
bathtub and remain silent. The victim testified that she attempted to make a sound but was

                                               -6-
afraid to come out because she was not certain she would be safe. Both officers testified that
the victim had injuries and appeared frightened when she was found, and Officer Pennington
saw a large knife by the door.

        The victim was not required to attempt to escape and risk provoking the defendant to
use the knife in order to demonstrate her desire to leave; the trier of fact was entrusted with
deciding whether the defendant substantially interfered with her liberty. See State v. Cecil,
409 S.W.3d 599, 608 (Tenn. 2013). The defendant’s argument that the victim could have left
the apartment instead of smoking crack again asks us to reevaluate the evidence and the
credibility of witnesses. We conclude that the proof was sufficient to permit a rational trier
of fact to find that the defendant knowingly removed or confined the victim so as to interfere
substantially with her liberty and that the victim suffered bodily injury. The defendant is not
entitled to relief.

                                  II. Competency Hearing

        The defendant also contends that, after he refused to come to court for his trial, the
trial court should have ordered a second mental health evaluation to evaluate his competency.
Although the defendant’s mental health evaluation is not a part of the appellate record, the
parties agree that the defendant was evaluated and found competent. However, the defendant
refused to appear in court on the morning of trial, and defense counsel then moved for a new
evaluation in light of the recent “episode.”

       Under the Fourteenth Amendment to the United States Constitution and article I,
section 8 of the Tennessee Constitution, a person who is mentally incompetent may not be
put to trial. State v. Blackstock, 19 S.W.3d 200, 206 (Tenn. 2000). The federal and state
constitutions require that the defendant have “the capacity to understand the nature and object
of the proceedings against him, to consult with counsel and to assist in preparing his
defense.” Mackey v. State, 537 S.W.2d 704, 707 (Tenn. Crim. App. 1975). In other words,
the defendant must have a “‘sufficient present ability to consult with his lawyer with a
reasonable degree of rational understanding’” and “‘a rational as well as factual
understanding of the proceedings.’” State v. Kiser, 284 S.W.3d 227, 244 (Tenn. 2009)
(quoting Dusky v. United States, 362 U.S. 402, 402 (1960)).

        “When it is believed an accused is incompetent to stand trial or waive his or her rights,
it is the duty of the court to conduct a hearing for the purpose of inquiring into the
competence of the accused, and, where warranted, ordering a psychiatric examination and
evaluation of the accused.” Berndt v. State, 733 S.W.2d 119, 122 (Tenn. Crim. App. 1987)
(citing T.C.A. § 33-7-301(a)). A trial court’s decision regarding the ordering of an
evaluation is reviewed considering only those facts which were before the court at the time

                                               -7-
of the trial or the entry of the pleas. See id. at 122 (concluding that in evaluating whether a
court was required to order an evaluation sua sponte, the appellate court should only consider
the facts before the trial court at the time). The standard of review is “‘[w]hether a
reasonable judge, situated as was the trial court judge whose failure to conduct an evidentiary
hearing is being reviewed, should have experienced doubt with respect to competency to
stand trial.’” Kiser, 284 S.W.3d at 245 (quoting Williams v. Bordenkircher, 696 F.2d 464,
467 (6th Cir. 1983)). A competency evaluation is only necessary if the evidence warrants a
belief that the defendant is incompetent to stand trial. Kiser, 284 S.W.3d at 245 (citing State
v. West, 728 S.W.2d 32, 34 (Tenn. Crim. App. 1986)). This inquiry is fact-dependent, and
relevant factors include the defendant’s medical history, the opinion of psychiatric experts,
and the defendant’s behavior at trial. Kiser, 284 S.W.3d at 245 (citing Williams, 696 F.2d
at 466). “‘The presence or absence of evidence relating to one of these factors is not
conclusive on the ultimate question of whether an evidentiary hearing is needed to insure that
the defendant is capable of aiding in the preparation of his or her defense.’” Id. at 245-46
(quoting Williams, 696 F.2d at 466 n.1). A trial court’s findings are conclusive on appeal
unless the evidence preponderates otherwise, and the defendant bears the burden of proving
incompetence by a preponderance of the evidence. State v. Reid, 164 S.W.3d 286, 306, 307
(Tenn. 2005).

        To clarify, the defendant does not contend that, based on the information before the
trial court, including the evaluation finding him competent, the trial court erred in concluding
he was competent to stand trial. Instead, the defendant claims that the trial court erred in not
ordering a second evaluation based on the facts before it, thus affording him the opportunity
to show he was not competent.

        In State v. Blackstock, the appellate court concluded that the trial court was entitled
to rely upon the psychiatric evaluation finding the defendant competent and that the trial
court did not err in not ordering a second hearing when there was no further evidence of
incompetence. Blackstock, 19 S.W.3d at 206. Likewise, in Berndt v. State, the defendant
had been evaluated by a mental health professional who concluded he was competent to stand
trial. Berndt, 733 S.W.2d at 122. The trial judge observed the defendant in the courtroom,
and the transcript was “void of any statement or occurrence that would have mandated a sua
sponte hearing.” Id. This court concluded that statements in the presentence report
indicating that the defendant had psychiatric problems did not mandate a new evaluation.
Id. at 123. A trial court is not required to order an evaluation absent some indication that the
defendant’s competency is in question. See Kiser, 284 S.W.3d at 249 (concluding that
language in psychiatric report that the defendant may not be able to understand, control, or
plan his actions did not require an evaluation in light of counsel’s representation that the
defendant appeared competent and in light of the trial court’s own observations); compare
State v. Haun, 695 S.W.2d 546, 549 (Tenn. Crim. App. 1985) (concluding that trial court

                                              -8-
should have ordered a hearing when it was aware that the defendant had a history of mental
disorders, the defendant’s attorneys stated that he was unable to communicate with them, and
the defendant was suicidal); Kiser, 284 S.W.3d at 249 n.21 (citing Odle v. Woodford, 238
F.3d 1084, 1089-90 (9th Cir. 2001) for the proposition that an extensive history of mental
impairment, evidence of impairment from experts and jail records, and evidence that the
defendant was missing a piece of his brain the size of a grapefruit required an evaluation of
competency).

        Prior to the trial date, the defense had obtained a mental health evaluation which
showed that the defendant was competent to stand trial. On the morning of trial, the
defendant refused to come to court. Defense counsel stated that he had met with the
defendant the previous day and that the defendant was able to consult with him regarding the
evidence and assist in preparing his defense by choosing a bench trial. See Mackey, 537
S.W.2d at 707. The trial court found that the defendant had been lucid during a hearing two
weeks prior to the trial date. The defendant’s temporary refusal to attend trial is the only
indication in the appellate record that there had been any change in his mental health status
since the evaluation which found him competent. A refusal to attend trial might be, as the
prosecution suggested, equally indicative of a desire to manipulate the judicial system.
Considering all the facts and circumstances, including the prior evaluation, trial counsel’s
representation that the defendant had consulted with him regarding strategy the previous day,
and the court’s own recent observation of the defendant as “lucid,” we cannot conclude that
a reasonable judge would “‘have experienced doubt with respect to competency to stand
trial’” such that the court was required to order a new evaluation. Kiser, 284 S.W.3d at 245
(quoting Bordenkircher, 696 F.2d at 467); see also West, 728 S.W.2d at 34.

        The defense points to certain exhibits introduced at sentencing which chronicle the
defendant’s disruptive and irrational behavior during confinement, and he cites to the trial
court’s finding during the sentencing hearing that it was “abundantly clear and obvious that
[the defendant] has some serious mental health issues.” However, we are limited in our
review to the evidence before the judge at the time of the decision to deny a second
evaluation. See Berndt, 733 S.W.2d at 122. Furthermore, the standard for competency is not
that the defendant is free from “serious mental health issues” but that he has “the capacity
to understand the nature and object of the proceedings against him, to consult with counsel,
and to assist in preparing his defense,” a standard which a mental health professional found
that the defendant had met. Mackey, 537 S.W.2d at 707; see also Wilcoxson v. State, 22
S.W.3d 289, 305 (Tenn. Crim. App. 1999) (noting that not every defendant with a mental
problem is rendered incompetent to stand trial); State v. Benton, 759 S.W.2d 427, 428-29
(Tenn. Crim. App. 1988) (noting that competency to stand trial is a different inquiry from
insanity at time of the offense). The trial court’s finding in mitigation that the defendant had
mental health issues is not incompatible with the conclusion that there was no evidence

                                              -9-
warranting a second evaluation and that the defendant was competent to stand trial. We
conclude that the trial court did not err in refusing a second evaluation.


                                    CONCLUSION

      Based on the foregoing, we affirm the judgment of the trial court.




                                                 _________________________________
                                                  JOHN EVERETT WILLIAMS, JUDGE




                                          -10-
