An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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 Proced ure.

NO. COA03-374

NORTH CAROLINA COURT OF APPEALS

Filed: 2 March 2004

STATE OF NORTH CAROLINA

v .                         Guilford County
                            No. 01 CRS 79971
THEODORE ANTYON WILSON,
            Defendant.

    Appeal by defendant from judgment entered 6 December 2002 by Judge Ripley E. Rand in Guilford County Superior Court. Heard in the Court of Appeals 28 January 2004.

    Roy A. Cooper, III, Attorney General, by T. Lane Mallonee, Special Deputy Attorney General, for the State.

    The Kelly Law Firm, by George E. Kelly, III, for defendant- appellant.

    MARTIN, Judge.

    Defendant appeals from a judgment entered upon his conviction by a jury of possession of a firearm by a felon. The record reveals that defendant was indicted for the offense on 2 April 2001, and that on 24 August 2001, his counsel filed a motion questioning his capacity to proceed to trial. On 30 August 2001, Emily Latta, a certified forensic examiner, attempted to examine the defendant at The Guilford Center for Behavioral Health and Disability Services. Defendant refused to be interviewed by Ms. Latta and she recommended that he receive further psychiatric treatment before proceeding to trial in order to determine his competency. Thereafter, Dr. Charles Vance, a forensic psychiatristat Dorothea Dix Hospital, reported that a forensic evaluation of the defendant had been completed and that defendant was competent to proceed to trial. The record does not disclose whether a hearing was conducted with respect to defendant's capacity to proceed. The firearm charge, along with indictments charging defendant with robbery with a dangerous weapon and assault with a deadly weapon with intent to kill inflicting serious injury, were tried at the 12 November 2001 session of the Superior Court of Guilford County. A mistrial was declared after the jurors were unable to agree upon a verdict.
    Defendant was retried at the 2 December 2002 session of the Superior Court of Guilford County only upon the charge of possession of a firearm by a felon. The evidence at trial tended to show that on 16 February 2001, Officer Dan Knott of the Greensboro Police Department was on patrol when he noticed a crowd of people quickly dispersing in an excited manner from the parking area in front of a grocery store. Officer Knott turned into the parking lot and heard people yelling, “He's got a gun. He just shot him.” The witnesses were pointing at the defendant, who was getting into the driver's seat of a gray Nissan Maxima parked in the lot.
    Officer Knott got out of his patrol car, drew his weapon, and ordered the defendant to put his hands in view, to turn around, get down on his knees, and then to lie on the ground. The defendant initially complied, but then fled before lying on the ground. After a brief chase, Officer Knott apprehended defendant,handcuffed him, placed him under arrest, and returned him to the scene where he was placed in a patrol car.
    Officer Knott then approached the gray Nissan Maxima and saw that the front door was open and that a pit bull dog was sitting in the back seat. One of the officers at the scene asked the defendant, “Is that dog vicious?” The defendant replied, “He usually isn't, but y'all got on uniforms.” At the time of this exchange, defendant had not been advised of his Miranda rights. Defendant's pre-trial motion to suppress this statement was denied.
    After an animal control officer removed the dog, officers searched the car and found a 9mm semi-automatic handgun partially underneath the driver's seat with the barrel visible and facing the back seat. The evidence showed that defendant was not the registered owner of the vehicle and had no keys for the vehicle in his possession.
    The defendant presented no evidence.

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    The record on appeal contains five assignments of error. By his first two assignments of error, defendant contends the trial court erred when it failed to conduct a hearing pursuant to G.S. § 15A-1002(b), and failed to make findings of fact with respect to defendant's capacity to proceed. Because defendant waived his statutory right to such a hearing, we find no error in either respect.
    N.C. Gen. Stat. § 15A-1002(b) (2003) requires that “[w]hen the capacity of the defendant to proceed is questioned, the court shallhold a hearing to determine the defendant's capacity to proceed.” The record in the present case shows that prior to defendant's first trial, his counsel filed a motion questioning defendant's capacity to proceed to trial. The record does not indicate whether a competency hearing was held prior to defendant's first trial. After the first trial resulted in a mistrial, there is no indication in the record, nor does defendant assert, that the question of his capacity to proceed was ever again brought to the attention of the trial court by the defendant before or during defendant's retrial.
    “[I]t is a general rule that a defendant may waive the benefit of statutory or constitutional provisions by express consent, failure to assert it in apt time, or by conduct inconsistent with a purpose to insist upon it.” State v. Young, 291 N.C. 562, 567, 231 S.E.2d 577, 580 (1977)(internal quotation omitted). In Young, the North Carolina Supreme Court held that a defendant waived his statutory right to a competency hearing when he failed to request a hearing before the trial court or object to the trial court's failure to hold a hearing even after requesting and receiving a competency evaluation from the State Hospital in Raleigh. Id. at 567-68, 231 S.E.2d at 580-81. Likewise, defendant's failure to ever request a competency hearing in this case or object to the trial court's failure to hold a competency hearing constituted a waiver of his statutory right to the competency hearing. Furthermore, there is nothing in the record before us to indicate that the trial court was presented with any substantial evidencethat defendant was without capacity to proceed at any time during his second trial. Thus, the trial court had no duty to institute, sua sponte, a competency proceeding in this case. See State v. McRae, 139 N.C. App. 387, 390, 533 S.E.2d 557, 559 (2000)(trial court has constitutional duty to initiate a competency hearing where there is substantial evidence before the court indicating that accused may be mentally incompetent). Accordingly, we find no error in the trial court's failure to hold a competency hearing pursuant to G.S. § 15A-1002(b) or make findings with respect to defendant's capacity to proceed since defendant's failure to request or object to the lack of such a hearing constituted a waiver of his statutory right. Defendant's first two assignments of error are overruled.
    In his third assignment of error, defendant contends the trial court erred when it denied his motion to suppress a statement made by defendant to officers after being taken into custody but prior to receiving any Miranda warnings. The sole question presented by his assignment of error is whether the trial court erred in concluding as a matter of law that defendant's statement was not elicited in violation of his rights as set forth in Miranda v. Arizona, 384 U.S. 436, 16 L. Ed. 2d 694 (1966).
    The findings of fact regarding the defendant's statement are uncontroverted. After taking custody of defendant, Officer Knott approached the gray Nissan Maxima and noticed a pit bull dog sitting in the back seat of the vehicle with the front door of the vehicle still open. One of the officers asked the defendant, “Isthat dog vicious?” The defendant responded, “He usually isn't, but y'all got on uniforms.” The trial court concluded as a matter of law that defendant's statement fell under the “public safety” exception to the Miranda rule. Conclusions of law following a suppression hearing are reviewed de novo. State v. Brooks, 337 N.C. 132, 141, 446 S.E.2d 579, 585 (1994).
    Under the United States Supreme Court's ruling in Miranda, “statements obtained as a result of custodial interrogation without the Miranda warnings are inadmissible.” State v. Perry, 298 N.C. 502, 506, 259 S.E.2d 496, 499 (1979). However, “questions asked by law enforcement officers to secure their own safety or the safety of the public and limited to information necessary for that purpose are excepted from the Miranda rule.” Brooks, 337 N.C. at 144, 446 S.E.2d at 587 (citing New York v. Quarles, 467 U.S. 649, 81 L. Ed. 2d 550 (1984)). Subjective motives of an officer in a particular case are irrelevant. Id.
    The public safety exception to the Miranda rule is a “narrow exception,” and is “intended to neutralize volatile situations and to address situations where spontaneity rather than adherence to a police manual is necessary.” State v. Crudup, 157 N.C. App. 657, 661, 580 S.E.2d 21, 25 (2003). In this case, the officers were on the scene of a reported shooting and were attempting to search the vehicle of the person whom they suspected was the perpetrator. When officers approached the vehicle, they noticed that the vehicle door was open and that a pit bull dog was sitting in the back seat. We believe the situation could be reasonably characterized as avolatile one in which the safety of the officers and the public at large justified the need for the officers to question whether the dog was vicious before taking the time to advise defendant of the Miranda warnings. Thus, even assuming the defendant's statement was otherwise subject to the Miranda rule, we hold the officer's question was reasonably prompted by a concern for public safety and as such, his response was not elicited in violation of Miranda. Defendant's third assignment of error is overruled.
    Next, defendant argues the trial court committed plain error by making a statement to the jury during the course of the trial that it did “not know whether or not defendant intends to testify” and that the expectation was that the “evidence shouldn't last much longer.” Our courts have repeatedly held that where a defendant fails to properly preserve an alleged error for review at trial, the plain error rule is to be applied in only the exceptional circumstance, where it can be said that “the instructional mistake had a probable impact on the jury's finding that the defendant was guilty.” State v. Lemons, 352 N.C. 87, 96-97, 530 S.E.2d 542, 548 (2000), cert. denied, 531 U.S. 1091, 148 L. Ed. 2d 698 (2001)(internal quotation omitted). We conclude defendant's contention of plain error in this case is without merit.
    In response to jury concerns regarding inclement weather and scheduling, the trial judge made the following statement to the jury in this case:
        Okay. What we will do is, from talking with the lawyers, about how much longer this trial is going to last, there is not a whole lot of evidence left from the State's perspective. Ido not know whether or not the defendant intends to testify. And that's a decision that we haven't gotten to yet, obviously, because the State's not through with its case. But the expectation is that the evidence shouldn't last much longer than about two hours, certainly not longer, in between an hour and two hours, if that long.

    Both the U.S. Constitution and N.C. Gen. Stat. § 8-54 (2003) prohibit the trial court from commenting on the defendant's failure to testify. State v. Banks, 322 N.C. 753, 763-764, 370 S.E.2d 398, 405 (1988)(citations omitted). However, the statement made by the trial court in this instance does not constitute a comment on the defendant's failure to testify. Instead, the comment dealt simply with the court's lack of information as to whether the defendant intended to testify or otherwise offer evidence and was motivated by the court's desire to provide the jury with some information as the anticipated length of the trial. Assuming, arguendo, that the comment was improper, it does not rise to the level of being so prejudicial that “without the error there is a reasonable possibility there would have been a different result at trial.” Banks, 322 N.C. at 764, 370 S.E.2d at 406.
    In his fifth and final assignment of error, defendant argues that the trial court erred when it denied defendant's motion to dismiss at the close of all the evidence as there was insufficient evidence to support the charge of possession of a firearm by a felon. We disagree.
    The trial court is obligated to grant a defendant's motion to dismiss if there is not substantial evidence of every essential element of the crime. State v. Alston, 341 N.C. 198, 244-245, 461S.E.2d 687, 712-13 (1995). “Substantial evidence means 'that amount of relevant evidence that a reasonable mind might accept as adequate to support a conclusion.'” Id. (internal quotation omitted). When determining whether there was sufficient evidence to withstand a motion to dismiss, the court must consider the evidence in the light most favorable to the State. Id.
    A person is guilty of possession of a firearm by a felon if: (1) he or she has previously been convicted of a felony; and (2) he or she has a handgun in his or her possession, custody, or control. N.C. Gen. Stat. § 14-415.1 (2003). Possession of a firearm may be actual or constructive. State v. Boyd, 154 N.C. App. 302, 307, 572 S.E.2d 192, 196 (2002). “A person has constructive possession of an item when the item is not in his physical custody, but he nonetheless has the power and intent to control its disposition.” Id. (internal quotation omitted).
    Defendant contends there was not substantial evidence that the handgun found under the front seat of the gray Nissan Maxima was in defendant's constructive possession. The State presented evidence showing that the defendant was seen getting into the gray Nissan Maxima where the handgun was found, that people in the area were pointing at the defendant as he was getting into the vehicle shouting, “He's got a gun. He shot him,” and that defendant knew the temperament of a pit bull dog sitting in the back seat of the vehicle. Though defendant points to contrary evidence, showing that neither the pistol nor the vehicle were legally owned by him and he had no keys for the vehicle, we hold there is substantialevidence, viewed in the light most favorable to the State, to support a reasonable inference that defendant constructively possessed the handgun found underneath the front seat of the gray Nissan Maxima. Accordingly, we overrule defendant's final assignment of error.
    No error.
    Judges STEELMAN and GEER concur.
    Report per Rule 30(e).

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