An unpublished opinion of the North Carolina Court of Appeals does not constitute 

controlling legal authority. Citation is disfavored, but may be permitted in accordance 

with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.

NO. COA13-1045

NORTH CAROLINA COURT OF APPEALS

Filed: 20 May 2014

STATE OF NORTH CAROLINA

v. Hoke County

Nos. 12 CRS 895, 12 CRS 50141,

 13 CRS 229

LARRY MCMILLAN

Appeal by Defendant from judgment entered 16 April 2013 by 

Judge Claire V. Hill in Superior Court, Hoke County. Heard in 

the Court of Appeals 29 April 2014.

Attorney General Roy Cooper, by Assistant Attorney General 

Thomas J. Campbell, for the State. 

Gerding Blass, PLLC, by Danielle Blass, for DefendantAppellant.

McGEE, Judge.

Larry McMillan (“Defendant”) appeals from judgment imposed 

upon jury convictions of felony breaking or entering, larceny of 

a firearm, possession of a firearm by a felon, and habitual 

breaking or entering. Defendant was sentenced to an active term 

of a minimum of thirty-eight months and a maximum of fifty-eight 

months. Defendant presents two issues on appeal: (1) whether 
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the trial court erred by failing to submit the lesser-included

offense of misdemeanor breaking or entering; and (2) whether the 

trial court erred by failing to order, sua sponte, a hearing to 

evaluate Defendant’s competence to stand trial. We hold the 

trial court did not err.

The State’s evidence tends to show that on 30 January 2012, 

Santana Marie Woods (“Ms. Woods”) stopped by the home of her 

parents (the house) and heard a noise coming from within the

house. Ms. Woods walked around the outside of the house and saw 

Defendant, her first cousin, sticking his head out of the attic. 

Ms. Woods called 911. As Ms. Woods waited for law enforcement 

officers to arrive, she saw Defendant coming down a ladder 

outside the house. Ms. Woods chased Defendant until he ran into 

the woods. The doors to the house were locked and Ms. Woods

used her key to open the doors to allow law enforcement officers 

to enter the house. 

Sergeant Tracy Grady (“Sergeant Grady”) of the Hoke County 

Sheriff’s Department entered the house with Ms. Woods. Sergeant 

Grady observed that the ladder to the attic was down and that a 

twelve-gauge shotgun was laying near the stairs.

Ronnie Woods, Defendant's uncle and the owner of the house,

testified that Defendant did not have permission to enter the 
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house that day nor to take or remove anything from the house. 

Ronnie Woods further testified that the shotgun found near the 

stairs was ordinarily stored under his bed and that a piece of 

plywood was affixed to the inside of the attic window.

At trial, Defendant testified he entered the house in which 

he formerly resided with his uncle and aunt, to get partiallysmoked cigarettes that he knew his uncle kept in ashtrays. 

Defendant admitted he climbed a ladder to enter the house 

through the attic and that he took $5.00 in change from a basket 

on a dresser. Defendant denied removing the shotgun from 

beneath the bed.

At the charge conference, the trial court denied 

Defendant’s request to submit the lesser-included offense of 

misdemeanor breaking or entering to the jury. Defendant argues 

there is evidence in the record, in the form of his testimony 

indicating he did not enter the house with the intent to steal 

anything, to support submission of the instruction.

Arguments on appeal “challenging the trial court's 

decisions regarding jury instructions are reviewed de novo by 

this Court.” State v. Osorio, 196 N.C. App. 458, 466, 675 

S.E.2d 144, 149 (2009). “An instruction on a lesser-included 

offense must be given only if the evidence would permit the jury 
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rationally to find defendant guilty of the lesser offense and to 

acquit him of the greater.” State v. Millsaps, 356 N.C. 556, 

561, 572 S.E.2d 767, 771 (2002).

“The essential elements of felonious breaking or entering 

are (1) the breaking or entering (2) of any building (3) with 

the intent to commit any felony or larceny therein.” State v. 

Mitchell, 109 N.C. App. 222, 224, 426 S.E.2d 443, 444 (1993). 

Misdemeanor breaking or entering is a lesser-included offense 

and entails the breaking or entering of a building without the 

intent to commit a felony or larceny. State v. Dozier, 19 N.C. 

App. 740, 742, 200 S.E.2d 348, 349 (1973), cert. denied, 284 

N.C. 618, 201 S.E.2d 690 (1974). If an indictment alleges a 

defendant broke and entered a building with the intent to commit 

larceny, and if there is no evidence of any non-felonious or 

non-larcenous purpose for the breaking or entering, an 

instruction as to misdemeanor breaking or entering is not 

required. State v. Hamilton, 132 N.C. App. 316, 321-22, 512 

S.E.2d 80, 85 (1999).

In the present case, the indictment charged that Defendant 

entered a building with the intent to commit larceny. The crime 

of larceny consists of the taking and carrying away of another’s 

property without that person’s consent and with the intent to 
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appropriate it to the taker’s own use. State v. Bowers, 273 

N.C. 652, 655, 161 S.E.2d 11, 14 (1968). Defendant’s own 

testimony established that he intended to take partially-smoked

cigarettes from an ashtray inside the house and convert them to 

his own use. All of the evidence established an entry with the 

intent to commit larceny. We hold the trial court did not err 

by denying the request for the instruction. 

Defendant next contends the trial court should have, sua 

sponte, ordered a hearing to determine Defendant’s competence to 

stand trial. Defendant concedes that, although there is no 

evidence in the record that he had a prior mental health 

diagnosis or history of mental illness, the trial court should 

have held a hearing based upon Defendant’s conduct at trial. 

The conduct upon which Defendant’s argument is based 

occurred as the trial court recessed at the end of the day, 

outside the presence of the jury. Defendant’s counsel advised

the trial court that Defendant had refused plea offers and that, 

against the advice of counsel, Defendant desired to address the

trial court. The following then transpired:

THE COURT: All right. Mr. McMillan, 

stand up please, sir. Before you say 

anything – I would remind you that, before 

you say anything, anything you say can and 

will be used against you. And evidently 

your counsel has advised you not to say 
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anything.

What is it – but you need to think 

about that as to whether or not you wish to 

say anything at this time.

THE DEFENDANT: Yeah. I’m not signing

s---. And I –

THE COURT: Excuse me –

THE BAILIFF: Sir, watch your language.

THE COURT: -- Mr.McMillan.

THE DEFENDANT: That paper –

THE COURT: Mister – Mister –

THE DEFENDANT: No. I -

THE COURT: Mr. McMillan –

THE DEFENDANT: They ain’t got no 

fingerprints. You ain’t getting my –

THE COURT: Mr. McMillan, hush.

THE DEFENDANT: I’m telling you what it 

is.

THE COURT: Mr. McMillan, do you want 

me to hold you in contempt of court right 

now?

THE DEFENDANT: I don’t care what you 

do, man. You ain’t doing nothing. You 

ain’t coming up with no phony-a-- m-----f---

--- papers, no –

THE COURT: Mr. McMillan, you are 

disrupting court. You are now held in 

contempt of court for the language and 

disrupting court. You will be serving 30 
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days. If this continues we will try this 

case without you being present.

THE DEFENDANT: That’s what you do 

then.

THE COURT: Mr. McMillan, all you have 

to do is cooperate and be polite. You 

wouldn’t do this with your grandmother 

sitting here, would you? And she just –

THE DEFENDANT: Why do I –

THE COURT: And she just walked right 

out of the courtroom.

THE DEFENDANT: She can walk right back 

in here, and then I can do it right here in 

front of her. Now, you gonna use them 

pictures? Because I have not touched no

f------ gun.

THE COURT: Mr. McMillan –

THE DEFENDANT: You can Mr. McMillan 

all you want, bro.

THE COURT: All right. Contempt, 

another 30 days. Sixty days. Take him out.

THE DEFENDANT: I’ll do 60 years.

THE BAILIFF: Let’s go.

THE DEFENDANT: You’re gonna look at 

them pictures where that gun was loaded –

(The defendant was escorted out of the 

courtroom.)

MR. JOHNSON: Your Honor, for the 

record, I did do what I believe was due 

diligence in discussing with his 

grandmother. In a prior health history, she 
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indicated he had never taken any psychiatric 

meds and only received counseling related to 

some grief. But essentially he had no 

commitments, no involuntary commitments. 

THE COURT: All right. So what are you 

saying, Mr. Johnson? You need to turn your 

microphone on, please.

MR. JOHNSON: Just relating –

THE COURT: I understand. But are you 

– are you trying to say that you have a 

question as – that – as to his competency 

and his ability to proceed at trial?

MR. JOHNSON: Based upon this, yes. 

I’ve had a question.

THE COURT: All right. Well, if you’ve 

had a question, why haven’t you previously 

done it and filed a motion in order to have 

him evaluated?

MR. JOHNSON: Well, I had a question, 

and I resolved it as being – him being 

competent for trial. He’s been difficult to 

deal with.

THE COURT: Well, there’s a difference 

between difficult to deal with and a mental 

health issue. So –

MR. JOHNSON: And I – as I said, I did 

discuss with his grandmother whether he had 

any involuntary[y] commitments, whether he 

had any psychiatric treatment, things of 

that nature. And she indicated, no, that he 

never – he’s, I believe, 27, 28 years old –

that he’s never had anything in the way of 

that sort of treatment. 

I found his behavior difficult but –

and I had, you know, some conversations with 
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a number of folks. And it appeared as 

though he was competent to stand trial.

THE COURT: So how is his conduct today 

any different than what it’s been up until 

now?

MR. JOHNSON: It’s been worse today.

THE COURT: And how do you mean 

“worse”?

MR. JOHNSON: Well, he has at times

been – cursed me out and not wanting to 

follow instruction. But – and I’ve gone to 

meet with him most days last week. And he 

was somewhat cooperative or more cooperative 

than he had been.

THE COURT: But he understands the 

nature of the charges?

MR. JOHNSON: He does understand the 

charges against him.

THE COURT: And he’s –

MR. JOHNSON: I have made every attempt 

to explain them. I’ll say that.

THE COURT: Well, he appears to 

understand the charges, and he appears to 

understand that there are no fingerprints 

and that – I can’t remember what else he 

said.

And last week when you met with him, he 

cooperated with you in preparing for trial. 

Is that correct?

MR. JOHNSON: Several days he was 

cooperative. He has a different perspective 

on how this trial will proceed. I have 

attempted to explain the procedure and 
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proper courtroom behavior.

THE COURT: And what did he say when 

you told him – or explain – attempted to 

explain procedure and proper courtroom 

behavior?

MR. JOHNSON: Well, I advised him to 

shave for today, and he did shave. I 

advised his grandmother to bring him clothes 

for today. He did put on those clothes. I, 

you know, told him not to swear, not to act 

outrageously in front of a jury, not – to 

keep his voice soft. You know, essentially 

I gave him a pad to write on and asked him 

to whisper. I informed him that the 

speakers were fairly sensitive, and we 

didn’t want to cause disruption in front of 

the jury.

THE COURT: Did he write anything down?

MR. JOHNSON: He did not write anything 

down today.

THE COURT: All right. Where is his 

grandmother? Do you have contact with her?

MR. JOHNSON: I do.

THE COURT: All right. You need to 

call her, and you need to ask her to go and 

talk with him. You need to discuss with her 

how he acted after she left.

MR. JOHNSON: Yes, ma’am.

The prosecutor then stated for the record that he and 

Defendant’s counsel had a conversation prior to trial concerning 

Defendant’s behavior and, while counsel may have questioned 

Defendant’s intellect, he did not question Defendant’s 
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competency to stand trial. Defendant’s counsel concurred with 

the prosecutor’s summary of their conversation. Before 

officially recessing for the day, the trial court again asked 

counsel to speak with Defendant’s grandmother.

The next morning the trial court addressed Defendant:

THE COURT: Mr. McMillan, I know that 

you were upset yesterday, and I understand 

that this can be very stressful for you. 

But I want to give you the opportunity to 

remain in the courtroom because I think it’s 

important for you to be here during your 

trial.

Do you understand?

THE DEFENDANT: Uh-huh.

THE COURT: And so as long as you 

behave properly and conduct yourself 

properly – you’ve got a notepad. You can 

take notes, and you can pass those to Mr. 

Johnson. And as long as you, you know, act 

properly in front of the jury, then we’ll be 

fine. But if at any point in time you 

become disruptive, then we have two options. 

Either you will be restrained or – and I 

don’t want to do that. I don’t want to do 

either of these two things. I want you to 

be here with us in this courtroom.

Do you understand that?

THE DEFENDANT: Uh-huh.

THE COURT: Or if it’s – if it becomes 

necessary, I may have to enter an order that 

you be removed from the courtroom. And then 

you would be watching the trial on closedcircuit television. Now, those are two 
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options that I don’t want to have to go to. 

Do you understand that?

THE DEFENDANT: (Nodding head up and 

down.)

THE COURT: Do I have your promise –

and your grandmother’s here today. 

Do I have your promise that you’re 

going to act properly here today during this 

trial?

THE DEFENDANT: Yeah.

THE COURT: Okay. If at any time you 

feel like you need a break, just let Mr. 

Johnson know. He’ll bring it to my 

attention. Okay? Is that fair?

THE DEFENDANT: (Nodding head up and 

down.)

THE COURT: Do we have an agreement 

before we bring the jury in? Yes or no?

THE DEFENDANT: Yes.

The trial court then brought in the jury and resumed the 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. 

N.C. Gen. Stat. § 15A-1001(a) (2013). Our Supreme Court has 

stated: 
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[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. In enforcing this 

constitutional right, the standard for 

competence 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, cert. 

denied, 552 U.S. 997, 169 L. Ed. 2d 351 (2007) (internal 

quotation marks and citations omitted). Relevant indicators of 

a possible need for further hearing include evidence of a 

defendant’s irrational behavior, his demeanor at trial, or a

prior medical opinion as to defendant’s competency. Drope v. 

Missouri, 420 U.S. 162, 180, 43 L. Ed. 2d 103, 118 (1975).

[A]ppellate courts 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, 656-57

(2005).

The trial court, by not conducting a formal hearing, sua 

sponte, into Defendant’s competence to stand trial, did not

abuse its discretion. The record demonstrates that Defendant 
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had “sufficient present ability to consult with his lawyer with 

a reasonable degree of rational understanding and ha[d] a 

rational as well as factual understanding of the proceedings 

against him.” Badgett, 361 N.C. at 259, 644 S.E.2d at 221. The 

trial court addressed Defendant and determined Defendant had the 

ability to follow instructions and to understand the nature of 

the charges and the proceedings. At no time did Defendant 

indicate, nor does anything in the record suggest, that he did 

not understand the trial court’s questions or instructions. 

Defendant had been mostly cooperative with counsel, had followed 

counsel’s instructions to shave and wear appropriate clothing, 

and had answered the trial court’s questions. Information 

before the trial court shows, at most, that Defendant may have 

received counseling at one time in his life to help him deal 

with grief he was experiencing. The record does not show 

Defendant had any prior history of mental illness or psychiatric 

commitments.

No error. 

Judges ELMORE and DAVIS concur.

Report per Rule 30(e).