An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA03-683
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Filed: 6 January 2004


         v.                        Forsyth County
                                No. 01 CRS 58214

    Appeal by defendant from judgment entered 1 October 2002 by Judge William Z. Wood, Jr. in Forsyth County Superior Court. Heard in the Court of Appeals 22 December 2003.

    Attorney General Roy Cooper, by Assistant Attorney General Donald W. Laton, for the State.

    Irving Joyner for defendant-appellant.

    LEVINSON, Judge.

    Defendant Christopher Virgil Belin was charged with first degree burglary, felony larceny and simple assault. All of the charges arose out of defendant's 18 August 2001 entry into the apartment of Clarence Moore, the uncle of his ex-girlfriend. On the date in question, defendant removed the screen from Moore's otherwise open window, entered his home, and demanded money from Moore. When Moore told defendant that he did not have any money, save $15.00 lying on the television, defendant assaulted Moore before plundering through the apartment, taking a jar of coins and the money on the television, and leaving.
    Prior to trial, defense counsel filed a motion pursuant toN.C.G.S. § 15A-1002(a) seeking to determine defendant's capacity to proceed in light of his being medicated with Thorazine and Lithium. The motion noted that defendant was sleepy, inattentive, and slurring his speech. In response, the trial court entered an order committing defendant to Dorothea Dix Hospital to determine defendant's capacity to proceed. After observation and evaluation by the Dix Hospital staff, a report was prepared stating that defendant was “capable of proceeding to trial.”
    When this matter came on for trial, the trial court reviewed the Dix Hospital report and inquired as to whether defendant wanted to be heard further on his competence to proceed. Further, at the request of the prosecutor, the trial court inquired of defendant whether he understood the reason he was in court. Being satisfied that defendant was aware of the nature of the charges against him and the proceedings to take place, the matter proceeded to trial.
    After hearing the evidence and arguments of counsel, the jury found defendant guilty as charged. The trial court entered a consolidated judgment, sentencing defendant to 120-153 months imprisonment. Defendant appeals.
    By his only assignment of error brought forward on appeal, defendant argues that the trial court failed to properly conduct a hearing to determine his competency to stand trial. This argument is unpersuasive.
    N.C.G.S. 15A-1001(a) (2003) provides:
        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 theproceedings against him, to comprehend his own situation in reference to the proceedings, or to assist in his defense in a rational or reasonable manner.
To guard against the trial of an incompetent person, N.C.G.S. § 15A-1002(a) (2003) requires that a hearing be held when the trial court is put on notice that a defendant may be incompetent to stand trial. See State v. Young, 291 N.C. 562, 567-68, 231 S.E.2d 577, 580-81 (1977) (holding that the defendant waived the statutory right under G.S. § 15A-1002(b)(3) to a hearing subsequent to his commitment by his failure to question the correctness of the diagnostic finding that he was competent to stand trial, understood the charges and was able to cooperate with trial counsel, and counsel nor the defendant objected to the failure to hold the hearing). While there is no set procedure that the trial court must follow in conducting a competency hearing, State v. Gates, 65 N.C. App. 277, 282, 309 S.E.2d 498, 502 (1983), N.C.G.S. § 15A-1002 (b) (2003) provides that when conducting a competency hearing, the trial court must give the parties an opportunity to present evidence and be heard on the issue of defendant's competency. N.C.G.S. § 15A-1002(b)(1-3)(subsection (b)(3) repealed by Session Laws 1989, c.486, s.1). Defendant has the burden of persuasion on his motion under G.S. § 15A-1002. State v. O'Neal, 116 N.C. App. 390, 395, 448 S.E.2d 306, 310 (1994).
    The test to determine a defendant's capacity to proceed to trial is whether he has the capacity to comprehend his position, to understand the nature and object of the proceedings against him, to conduct his defense in a rational manner, and to cooperate with hiscounsel to the end that any available defense may be interposed. State v. Nobles, 99 N.C. App. 473, 475, 393 S.E.2d 328, 329 (1990). In State v. Shytle, 323 N.C. 684, 689, 374 S.E.2d 573, 575 (1989), the Supreme Court explained, “a defendant does not have to be at the highest stage of mental alertness to be competent to be tried. So long as [he] can confer with his . . . attorney so that the attorney may interpose any available defenses for him[.]” While the better practice is to make findings of fact on a motion to determine a defendant's competency, it is not error for the trial court not to do so “where the evidence compels the ruling made.” State v. Aytche, 98 N.C. App. 358, 363, 391 S.E.2d 43, 46 (1990). Defendant essentially argues in the case sub judice that the hearing conducted just prior to trial was not adequate to determine defendant's capacity to proceed to trial. We note, however, that like the defendant and his attorney in Young, defendant in this case neither questioned the Dix Hospital finding that he was competent to stand trial, nor the trial court's finding that defendant understood the charges and was able to cooperate with trial counsel. In addition, neither counsel nor defendant stated any objection to the manner in which the hearing was held. Accordingly, defendant has arguably waived any objection that he might have had in this regard.
    Further, even if the matter were not waived, on the record before the Court, we conclude that the trial court properly considered the matter of defendant's capacity to proceed to trial. Here, after defendant's attorney filed a motion questioningdefendant's capacity to proceed pursuant to G.S. § 15A-1002(a), the trial court ordered that defendant be admitted to Dorothea Dix Hospital for evaluation. Dix Hospital staff found that defendant was indeed competent to proceed to trial. Subsequently, the trial court reviewed the report submitted by Dix Hospital staff. The court also inquired of defendant's attorney whether he wanted to be heard further on the matter of his client's competency to proceed. Moreover, the court inquired of defendant whether he understood his reason for being in court. Defendant replied that he understood that he was charged with first degree burglary, larceny and simple assault; that he understood what “charged” meant; that he understood what he was doing in court on that day; and that he knew the name of the witness who was going to testify against him. When asked whether he was ready to go to trial, defendant answered, “Not really, but I guess I don't have a choice.” His attorney stated that defendant was at “the best he's been in the year that I have been representing him.”
    The State and defendant were given adequate opportunity to present their positions. Defendant simply failed to meet his burden of persuasion. While the report from Dix Hospital was completed some four months prior to trial, that report was certainly competent evidence from which the trial court could determine that defendant had the present ability to proceed to trial. The report, along with defendant's answers to the trial court's inquiries, supports the trial court's conclusion that defendant was competent to stand trial. Accordingly, the trialcourt did not err in so concluding. Defendant's assignment of error is overruled.
    Defendant failed to bring forth his remaining assignments of error and they are therefore taken as abandoned. N.C.R. App. P. 28(b)(6). Defendant received a fair trial, free from prejudicial error.
    No error.
    Chief Judge EAGLES and Judge BRYANT concur.
    Report per Rule 30(e).

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