An unpublished opinion of the North Carolina Court of Appeals does not constitute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. COA14-300
                       NORTH CAROLINA COURT OF APPEALS

                            Filed: 16 September 2014


In re: J.V.

                                              Currituck County
                                              No. 12 JB 30




      Appeal by      juvenile from order         entered 16 April 2013            by

Judge Edgar L. Barnes in Currituck County District Court.                      Heard

in the Court of Appeals 28 August 2014.


      Roy Cooper, Attorney General, by Stephanie A.                       Brennan,
      Special Deputy Attorney General, for the State.

      Peter Wood for the juvenile.


      STEELMAN, Judge.


      Where the trial court held a hearing on competency and the

juvenile did not appeal from that order, the juvenile failed to

preserve that ruling for appellate review.                  Where the juvenile

presented no new evidence upon              his motion for an additional

hearing    on   competency,      the    trial    court    did    not   abuse    its

discretion in denying the motion.
                                     -2-



                  I. Factual and Procedural Background

    On 2 October 2012, a juvenile petition was filed in the

District Court of Currituck County.           The petition alleged that,

on 6 September 2012, J.V., a middle school student, swore loudly

in a hallway during school and struck a teacher.

    On    23    October    2012,    J.V.’s    counsel      filed   a    motion

questioning J.V.’s capacity to proceed, alleging that J.V. was

diagnosed with “high spectrum Aspbergers [sic] syndrome.”               On 15

January   2013,    the    trial    court    held    a   hearing    on   J.V.’s

competency, and on 27 February 2013, the trial court entered an

order that concluded that J.V. had the capacity to proceed to

trial.

    At    the   adjudication      hearing    on    16   April   2013,   J.V.’s

counsel again moved for a competency hearing.               This motion was

denied by the trial court.

    At the conclusion of the hearing, the trial court entered

its order on adjudication, finding J.V. delinquent, based upon

his assault on a government official and disorderly conduct.

    From the adjudication order, J.V. appeals.

                          II. Standard of Review

           “Although the present statute requires the
           court to conduct a hearing when a question
                                      -3-
              is raised as to a defendant's capacity to
              stand trial, no particular procedure is
              mandated. The method of inquiry is still
              largely within the discretion of the trial
              judge.” State v. Gates, 65 N.C. App. 277,
              282, 309 S.E.2d 498, 501 (1983). The
              statutory hearing requirement “appears to be
              satisfied as long as it appears from the
              record that the defendant, upon making the
              motion,  is   provided  an   opportunity  to
              present any and all evidence he or she is
              prepared to present.” Id. at 283, 309 S.E.2d
              at 502.

State v. Robinson, ___ N.C. App. ___, ___, 729 S.E.2d 88, 94

(2012).       “Ultimately, ‘the decision to grant a motion for an

evaluation     of   a   defendant's   capacity         to   stand   trial   remains

within the trial judge's discretion.’”                  Id. (quoting Gates, 65

N.C. App. at 283, 309 S.E.2d at 502).                   “‘Where the procedural

requirement of a hearing has been met, defendant must show that

the trial court abused its discretion in denying the motion

before reversal is required.’”             Id. (quoting Gates, 65 N.C. App.

at 284, 309 S.E.2d at 502).

                          III. Competency Hearing

    In his first argument, J.V. contends that the trial court

abused its discretion when it found that J.V. had capacity to

proceed.      We note, however, that the notice of appeal in the

record references only the “adjudication of delinquency signed

April   30,    2013,    and   filed   on    May   7,    2013[,]”     and    not   the
                                  -4-
competency order, entered 25 February 2013 and filed 27 February

2013.

    Pursuant   to   Rule   3(d)   of    the   North   Carolina   Rules   of

Appellate Procedure, the notice of appeal “shall designate the

judgment or order from which appeal is taken[.]”            N.C. R. App.

P. 3(d).    J.V.’s failure to raise the competency order in his

notice of appeal constitutes a waiver of appeal from that order,

and this argument is dismissed.

                    IV. Motion at Adjudication

    In his second argument, J.V. contends that the trial court

abused its discretion when it declined to hold a second hearing

on competency prior to its adjudication hearing.         We disagree.

    Pursuant to N.C. Gen. Stat. § 15A-1002:

           (a) 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. The motion shall detail the specific
           conduct that leads the moving party to
           question   the   defendant's  capacity   to
           proceed.

           (b)(1)    When the capacity of the defendant
           to proceed is questioned, the court shall
           hold a hearing to determine the defendant's
           capacity to proceed. If an examination is
           ordered pursuant to subdivision (1a) or (2)
           of this subsection, the hearing shall be
           held   after  the   examination.  Reasonable
           notice shall be given to the defendant and
           prosecutor, and the State and the defendant
                                            -5-
             may introduce evidence.

N.C. Gen. Stat. § 15A-1002 (2013).                      “‘[T]he conviction of an

accused     person   while     he    is   legally       incompetent    violates     due

process[.]’”       State v. Coley, 193 N.C. App. 458, 461, 668 S.E.2d

46, 49 (2008) (quoting State v. Taylor, 298 N.C. 405, 410, 259

S.E.2d 502, 505 (1979)), aff’d, 363 N.C. 622, 683 S.E.2d 208

(2009).     J.V. contends that the trial court was under a duty to

hold    a   hearing,      based      upon      J.V.’s     motion,     to   reconsider

competency.

       In State v. Chukwu, this Court considered a matter where

the trial court failed to institute, sua sponte, a competency

hearing.     Citing to our decision in State v. McRae, this Court

observed that “[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.”                   State v. Chukwu, ___ N.C.

App. ___, ___, 749 S.E.2d 910, 916 (2013) (quoting State v.

McRae, 139 N.C. App. 387, 390, 533 S.E.2d 557, 559 (2000)).                          In

Chukwu, we held that “there were minimal competency concerns and

no     findings    by    any    of       the      examining    psychiatrists       that

Defendant's competency was temporary.”                   Chukwu, ___ N.C. App. at

___, 749 S.E.2d at 918.           As a result, we concluded that:
                                               -6-
            Because (i) the evidence presented does not
            raise a bona fide doubt about Defendant's
            competency   during   the  trial  and   (ii)
            Defendant's competency was not temporal in
            nature, we hold that the trial court did not
            err when it did not commence a second
            competency hearing sua sponte.

Id.

      In the instant           case, at the adjudication hearing on 16

April    2013,    J.V.’s      counsel          sought     to    revisit   the    issue   of

competency.       The basis of the motion was that counsel felt that

the     trial    court       did    not        properly        consider   the    testimony

presented at the competency hearing, did not mention some of the

testimony in its findings, and thus did not decide the issue

correctly.       The trial court responded, succinctly:

            The Court asserts that it is the sole finder
            of fact and was the sole finder of fact
            during this hearing and respectfully denies
            your motion. The fact that a witness stated
            something other than what the Court found
            doesn't necessarily mean that I'm obligated
            to find that as a fact.

      At no point in this colloquy did counsel suggest that any

new   evidence     existed         or    that    other     circumstances        had   arisen

suggesting      that     a   bona       fide    doubt     existed    concerning       J.V.’s

competency to proceed, or that the competency found at the prior

hearing was temporary in nature.
                              -7-
    In the absence of new evidence beyond that considered at

the prior competency hearing, we hold that the trial court did

not abuse its discretion in denying J.V.’s motion to reconsider

the issue of competency.

    DISMISSED IN PART, AFFIRMED IN PART.

    Judge GEER concurs.

    Judge HUNTER, Robert N., Jr. concurs prior to 6 September

    2014.

    Report per Rule 30(e).
