An unpublished opinion of the North Carolina Court of Appeals does not constitute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   Defendant-
      Appellant.


      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 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
                                            -3-
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 partially-

smoked        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
                                   -4-
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
                                           -5-
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
                         -6-
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
                        -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 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
                     -8-
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
                        -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 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
                                      -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 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
                                 -11-
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 closed-
          circuit television.     Now, those are two
                                -12-
          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:
                                       -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
           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
                                            -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 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).
