An unpublished opinion of the North Carolina Court of Appeals does not constitute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