State v. Denning ( 2014 )


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  • An unpublished opinion of the North Carolina Court of Appeals does not constitute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

Document Info

Docket Number: 13-724

Filed Date: 3/18/2014

Precedential Status: Non-Precedential

Modified Date: 10/30/2014