An unpublished opinion of the North Carolina Court of Appeals does not constitute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.
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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
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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
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$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
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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
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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
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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.
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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
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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
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“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
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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.
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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.
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No error.
Judges McGEE and STROUD concur.
Report per Rule 30(e).