An unpublished opinion of the North Carolina Court of Appeals does not constitute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

NO. COA 13

- 1045 NORTH CAROLINA COURT OF APPEALS

Filed: 20 May 2014

STATE OF NORTH CAROLINA

v. Hoke County No s
. 12 CRS 895 , 12 CRS 50141 , 13 CRS 229 LARRY MCMILLAN

Appeal by D efendant 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 D efendant

A ppellant

.

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- 2

-

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 D e fendant’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

D efendant, her first cousin, sticking his head ou t of the attic.

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

officers to arrive, she saw D efendant coming down a ladder

ou tside the house. Ms. Woods chased D efendant until he ran into

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

used her key to open the door s to allow law enforcement officers

to enter the house.

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

Sheriff’s Department e ntered the house with Ms. Woods. Sergeant

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

twelve

- gauge shotgun was l a ying near the stairs.

Ronnie Woods, Defendant's uncle and the owner of the ho use ,

testified that D efendant did not have permission to enter the- 3

-

house that day n or 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

ply wood 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 partially

smoked cigarettes that he knew h is uncle kept in ashtray s
.

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

D efendant’s reque st 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 s ubmission of the instruction.

Arguments on appeal “c hallenging 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

- i ncluded

offense must be given only if the evidence would permit the jury- 4

-

rationally to find defendant guilty of th e 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 e ntering 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 the re is no evidence of any non - felonious or

non - larcenous purpose for the breaking or entering , an
instruction as to misdemeanor breaking or ent ering is not

required

. State v. Hamilton , 132 N.C. App. 316, 321

- 22, 512

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

In th e present case , the indictment charged that D efendant

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- 5

-

appropriate it to the taker’s own use. State v. Bowers , 273

N.C. 652, 65 5, 161 S.E.2d 11, 14 (1968). Defendant’s own

testimony established that he intended to take partially

- smoked

cigarette s 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 l arceny. 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 , altho ugh 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 D efendant’s conduct at trial.

T he conduct upon which D efendant’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 D efendant had refused plea offers and that,

against the advice of counsel, D efendant desired to address the

tria l 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- 6

- anything.

What is it

– but you need to think about that as to whether or not you wi sh 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 ph ony - 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- 7

- 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 BA I LIFF: 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- 8

-
indicated he had neve r 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, pleas e.
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 di fficult 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 h ad 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- 9

- 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 time s 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 C OURT: 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 tha t 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- 10

- 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 hi m 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 dis ruption 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

D efendant’s counsel had a conversation prior to trial concerning

D efendant’s behavior and , while counsel may have questioned

D efendant’s intellect, he did not question D efendant’s- 11

-

competency to stand trial. Defendant’s counsel concurred with

the prosecutor ’s summary of the ir conversation. Before

officially recessing for the day, t he trial court again asked

counsel to speak with D efendant’s grandmother.

The next morning the trial court addressed D efendant:

THE COURT: Mr. McMillan, I know that you were up set yesterday, and I understand that t his 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 closed

circuit television. Now, those are two- 12

- options th at I don’t want to have to go to.

Do you understand that?

THE DEFENDANT: (Nodding head up and down.)

THE COURT: Do I h ave 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.

N o 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:- 13

- [ 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 th e 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. E d . 2d 351 (2007) (internal

quotation marks and citations omitted). Relevant i ndicators of

a possible need for further hearing include e vidence 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. E d . 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 ul timate ruling on th e issue, is manifest.

State v. Staten , 172 N.C. App. 673, 682, 616 S.E.2d 650, 65 6

- 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 D efendant- 14

-

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 D efendant and determined Defendant had the

ability to follow instructions and to understand the nature of

the charges and the proceedings. At no time did D efendant

indicate , nor does anything in the r ecord 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 quest ions

. Information

before the trial court shows, at most , that D efendant may have

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

with grief he was experienc ing . The record does not show

D efendant had any prior history of mental illness or psychiatric

commitments.

No error.

Judges ELMORE and DAVIS concur
.
Report per Rule 30(e).