State v. Denning

• Court: Court of Appeals of North Carolina
• Decided: March 18, 2014
• Docket: 13-724
• Status: Unpublished

Opinion

An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA13-724 NORTH CAROLINA COURT OF APPEALS

Filed: 18 March 2014

STATE OF NORTH CAROLINA

v. Wake County Nos. 11 CRS 228201, 3448 EUGENE OLIVER DENNING

Appeal by defendant from judgment entered 6 December 2012

by Judge Paul C. Ridgeway in Wake County Superior Court. Heard

in the Court of Appeals 19 November 2013.

Attorney General Roy Cooper, by Assistant Attorney General M. Denise Stanford, for the State.

S. Hannah Demeritt for defendant-appellant.

BRYANT, Judge.

Because there was sufficient evidence that defendant was

competent to proceed, the trial court did not err by failing to

sua sponte hold a competency hearing, and where the copies of

identification defendant submitted to the bank were admissible

as corroborating evidence, the trial court did not err in

admitting such. -2- On 4 June 2012, defendant Eugene Oliver Denning was

indicted on charges of felonious breaking and entering,

attempted obtaining property by false pretense, and larceny of

chose in action. On 5 June 2012, defendant was indicted on the

charge of attaining habitual felon status.

Prior to trial, on 2 October 2012, the trial court

addressed a motion by defendant to represent himself. The court

found that defendant was capable of proceeding but lacked the

capacity to represent himself and denied the motion. The matter

came on for trial before a jury on 5 December 2012 in Wake

County Superior Court, the Honorable Paul Ridgeway, Judge

presiding.

The evidence presented at trial tended to show that on 6

December 2011, a law enforcement officer with the Raleigh Police

Department responded to a call from the Wells Fargo Bank located

at 150 Fayetteville Street. The responding officer testified

that upon his arrival, the bank service manager informed him a

man presenting identification with the name Eugene Denning had

entered the bank and attempted to cash a business check drawing

on the account of Insurance Systems Group in the amount of

$4,000.00. The check was handwritten and made payable to Eugene

Denning. The authorizing signature was also that of Eugene -3- Denning. The teller had determined that the check was out of

sequence with recent checks cashed against the account and that

Eugene Denning had not authorized any of the previous

transactions. The teller notified her manager and contacted the

owner of Insurance Systems Group who informed her that Eugene

Denning was not an authorized signer for the account and that

the check was not to be cashed.

A few minutes prior to the arrival of the police officer,

defendant exited the bank leaving the check with the bank

teller. The teller also retained photocopies of the

identification cards defendant had presented, a North Carolina-

issued identification card and a social security card. Based on

the picture identification as well as a description of

defendant, law enforcement officers located defendant and

transported him back to the bank for a show-up identification.

At the show-up identification and again at trial, the bank

manager identified defendant as the man who attempted to cash a

business check against the account for Insurance Systems Group.

At trial, the president of Insurance Systems Group, Charles

Kerr, testified that on 6 December 2011, he received a call from

a bank teller at Wells Fargo informing him that a check had been

submitted against the Insurance Systems Group bank account for -4- $4,000.00. Kerr testified that no check had been issued by the

Insurance Systems Group for $4,000.00. Kerr further testified

that after receiving notice that someone had attempted to cash

one of his business checks he looked around his office, located

on the second floor of an office complex located at 827 North

Bloodworth Street. A cell phone and a business check were

missing. Kerr did not know defendant. However, an officer

worker on the first floor of the 827 North Bloodworth Street

office complex testified that she recognized defendant as a man

she observed walking around the office complex on 5 December

2012, the day before defendant attempted to cash the $4,000.00

check.

At the close of the State’s evidence, the trial court

dismissed the charge of larceny of a chose in action. Defendant

did not present evidence during the trial phase addressing the

substantive charges, but following the jury’s guilty verdicts,

defendant testified during the sentencing phase addressing his

habitual felon status.

At the close of the phase on the substantive charges, the

jury returned guilty verdicts against defendant on the charges

of felony breaking and entering and attempting to obtain

property by false pretense. After the close of the evidence -5- submitted during the sentencing phase defendant was found guilty

of attaining habitual felon status. The trial court entered a

consolidated judgment in accordance with the jury verdicts and

sentenced defendant to an active term of 77 to 105 months.

Defendant appeals.

____________________________________

On appeal, defendant raises the following issues: (I)

whether the trial court committed plain error by trying

defendant; and (II) whether the trial court erred in admitting

evidence of the identification defendant submitted to the bank.

I

Defendant argues that the trial court committed plain error

by proceeding with defendant’s trial when he was demonstrably

incompetent to proceed. Defendant contends that the trial court

violated General Statutes, section 15A-1001(A), and violated

defendant’s due process rights protected by the Fourteenth

Amendment to the United States Constitution and Article I,

section 19 of our State Constitution. We disagree.

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. This -6- condition is hereinafter referred to as “incapacity to proceed.”

N.C. Gen. Stat. § 15A-1001(a) (2013). “The question of the

capacity of the defendant to proceed may be raised at any time

on motion by the prosecutor, the defendant, the defense counsel,

or the court.” Id. § 15A-1002(a).

[U]nder the Due Process Clause of the United States Constitution, [a] criminal defendant may not be tried unless he is competent. As a result, [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. Whitted, 209 N.C. App. 522, 527, 705 S.E.2d 787, 791

(2011) (quoting State v. Badgett, 361 N.C. 234, 259, 644 S.E.2d

206, 221 (2007)).

Defendant argues that his behavior at trial should have

raised bona fide doubts as to whether he understood the process

he was to undergo, the charges he was accused of or the

punishment he was facing, and whether he was able to assist his

attorney. Defendant argues that “[w]hile at times he seemed to -7- reference the matters at hand, he demonstrated an inadequate

understanding of the nature and object of the proceedings

against him.” Specifically, defendant draws attention to his

comments made before the trial court prior to empaneling the

jury, at the close of the State’s evidence during the first

phase of the trial and his testimony during the sentencing phase

of the trial.

Defendant’s case came on for trial during the 5 December

2012 criminal session of Wake County Superior Court before Judge

Ridgeway. Prior to trial, the prosecutor noted for the record

that a question as to defendant’s capacity to proceed had

previously been raised and that on 2 October 2012 Judge Stephens

found defendant capable of proceeding. Following this

statement, Judge Ridgeway allowed defendant an opportunity to

address the court out of the presence of the jury. Defendant

requested that his counsel be removed and that he be granted

pre-trial release. Furthermore, defendant detailed the

circumstances of his 6 December 2011 arrest; argued that because

there was no evidence of damage to a door, there was no evidence

of a breaking in reference to the felony breaking and entering

offense; and argued why a check was not evidence of a crime. -8- The trial court denied defendant’s motions to remove his counsel

and for pre-trial release and proceeded with the trial.

At the close of the State’s evidence, out of the presence

of the jury, defendant made a motion to call a witness, a

detective who had observed defendant upon his arrest and

interview at the police station. The trial court denied

defendant’s motion to subpoena the detective on the basis that

defendant failed to meet “a minimal showing” but did not

preclude defendant from calling the detective as a witness for

the defense.

Defendant’s comments as shown by his motions and detailed

arguments before the trial court, though not effective, do not

indicate an inability 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. See N.C.G.S. § 15A-1001(a).

Following the jury’s guilty verdicts on the charges of

felony breaking and entering and attempting to obtain property

by false pretense, the trial entered the sentencing phase to

determine whether defendant should be sentenced as an habitual

felon. The State sought to establish that, as indicted,

defendant had attained the status of habitual felon predicated -9- on prior convictions for felony breaking and entering and two

prior convictions of felony larceny. Evidence presented to

establish habitual felon status included defendant’s guilty plea

to the charge of felony breaking and entering of a motor

vehicle.

Following the State’s presentation of why defendant should

be sentenced as an habitual felon and after conferring with

counsel, defendant testified in his own defense. During his

testimony, defendant greeted the jury and touched on several

topics, including: his enrollment at Shaw University; where his

parents previously worked; and who may be elected as President

of the United States. However, defendant also spoke to his

impression that his sentencing exposure was “a little harsh.”

Defendant asserted that he did not believe he had been convicted

of three felonies and contested whether he had previously broken

into a vehicle.

So I look at it that if you think that I'm a habitual felon, . . . I don't think that if the jury got three felonies on me, I would love to see them myself. I don't think I've broken into no three cars. So anything like three cars, that's like breaking into my mother [sic] car. I'm not going to do anything like that.

Again, although his approach was perhaps not effective,

defendant clearly understood that he was facing a possibly -10- “harsh” sentence as an habitual felon, and tried to convince the

jury that he did not commit one or more of the predicate

felonies. From this record it appears that defendant did

understand the nature and object of the proceedings against him,

comprehended his own situation in reference to those

proceedings, and was able to assist in his defense in a rational

manner. See N.C.G.S. § 15A-1001(a); see also Whitted, 209 N.C.

App. at 527, 705 S.E.2d at 791 (“[T]he 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.” (citation

omitted)). Accordingly, defendant’s argument is overruled.

II

Next, defendant argues that the trial court committed

reversible error by admitting into evidence copies of

defendant’s State-issued identification card and social security

card. We disagree.

During the phase of the trial addressing defendant’s

substantive charges, the prosecution called to testify both the

Wells Fargo bank manager and the bank teller who interacted with

defendant. The bank manager testified that before defendant -11- left the bank, the teller had a copy of his identification. The

bank teller testified that when defendant attempted to cash his

check against the Insurance Systems Group account, he provided a

“North Carolina issued ID” and a social security card and that

she made a copy of those identification cards.

Q. What is State's Exhibit Number 5?

A. It's an identification card and a social security card.

Q. And is that actually a photocopy of an identification card and a social security card?

A. Yes.

Q. And is that a photocopy that you made there at the bank when they were presented to you along with that check?

A. It looks like it.

. . .

Q. And the social security and identification card that you received, what name was on those?

A. They both had Mr. Denning's name up there and they did match. The social security card name and the identification card name was identical.

Q. And what was that name?

A. It said Eugene Oliver Denning. -12- Defendant argues that the trial court violated the best

evidence rule, codified under General Statutes, section 8C-1,

Rule 1002. “To prove the content of a writing, recording, or

photograph, the original writing, recording, or photograph is

required, except as otherwise provided in these rules or by

statute.” N.C. Gen. Stat. ' 8C-1, Rule 1002 (2013).

Even presuming that it was error to admit the photocopy of

the State-issued identification card and social security card in

violation of the best evidence rule, which we do not, see id. at

§ 8C-1, Rule 1003 (“A duplicate is admissible to the same extent

as an original unless (1) a genuine question is raised as to the

authenticity of the original or (2) in the circumstances it

would be unfair to admit the duplicate in lieu of the

original.”), the photocopy was admissible to corroborate the

testimony of the bank manager and teller narrating the events in

the course of defendant’s attempt to obtain property by false

pretenses. See id. at § 8C-1, Rule 402 (“All relevant evidence

is admissible . . . .”); State v. McGraw, 137 N.C. App. 726,

730, 529 S.E.2d 493, 497 (2000) (“Corroborative evidence by

definition tends to strengthen, confirm, or make more certain

the testimony of another witness.” (citation omitted)).

Accordingly, defendant’s argument is overruled. -13- No error.

Judges McGEE and STROUD concur.

Report per Rule 30(e).