An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA03-836


Filed: 18 May 2004


v .                                     Forsyth County
                                        No. 01CRS060588

    Appeal by defendant from judgment entered 9 January 2003 by Judge Melzer A. Morgan, Jr. in Forsyth County Superior Court. Heard in the Court of Appeals 19 April 2004.

    Attorney General Roy A. Cooper, III, by Assistant Attorney General Brent D. Kiziah, for the State.

    David Childers for defendant-appellant.

    HUNTER, Judge.

    Anthony L. Hoover (“defendant”) appeals a judgment imposing a sixty-day suspended sentence for first degree trespass on the basis that he did not have the mental competency or capacity to proceed at a trial where he represented himself pro se. For the reasons stated herein, we conclude the trial court did not err.
    On 19 October 2001, defendant was charged by warrant with misdemeanor breaking and entering and first degree trespass. Defendant waived counsel and represented himself in district court. After being convicted of the charges, defendant appealed to superior court. Defendant once again waived counsel and represented himself. During his trial in superior court, neither defendant's competency to represent himself nor his mental capacitywere called into question. Defendant was subsequently found guilty by a jury of first degree trespass only. The evidence offered at trial supporting his conviction was as follows.
    Defendant resided in Apartment F7 at the Salem Crossing Apartments until he was evicted for non-payment of rent. After the eviction, Connie Colt (“Colt”), the resident manager of the apartment complex, learned that defendant was residing in Apartment B8 rented by Treva Reader (“Reader”). Colt informed defendant on 22 June 2001 that he needed to make arrangements to pay his unpaid past due rent for Apartment F7 in order to continue residing in Apartment B8. However, after receiving insufficient payment of the past due rent by 30 August 2001, Colt informed defendant that he must vacate the premises or be deemed a trespasser as of 1 September 2001. Defendant apparently vacated the premises for a short period of time.
    On 19 October 2001, Reader vacated Apartment B8 and turned in her keys to Colt. Since Reader had paid the rent through the end of the month, defendant believed he could stay in the apartment until that time. After a maintenance supervisor observed defendant in the apartment, the police were notified. Evidence of defendant living in the apartment was found. It was later discovered that defendant had been entering Apartment B8 using a spare set of keys given to him by Reader.
    By the sole assignment of error brought forth in his brief on appeal, defendant argues the trial court committed reversible error by failing to inquire into his mental competency or capacity toproceed at a trial where he represented himself pro se. Defendant contends that throughout the trial, his actions “exhibited a marked limitation in his ability to comprehend the nature and object of the proceedings, his own situation in reference to the proceedings, or the nature of the proceedings; by possible reason of mental illness or defect.” We disagree.
    Section 15A-1001 of the North Carolina General Statutes provides, inter alia, that:
        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) (2003).
        Our Supreme Court has . . . held 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.'” “[E]vidence of a defendant's irrational behavior, his demeanor at trial, and any prior medical opinion on competence to stand trial are all relevant” to a bona fide doubt inquiry.

State v. McRae, 139 N.C. App. 387, 390, 533 S.E.2d 557, 559 (2000) (citations omitted), appeal after remand, ___ N.C. App. ___, ___ S.E.2d ___ (6 April 2004). If the trial court fails to protect a defendant's right not to be tried or convicted while mentally incompetent, that defendant has been deprived of his due process right to a fair trial and any conviction entered must be vacated. Id. at 389-90, 533 S.E.2d at 559.    After reviewing the record, we conclude that there was not substantial evidence before the trial court indicating defendant lacked mental competency or capacity to proceed at trial. Considering he was not a member of the bar, defendant represented himself effectively at trial through (1) the cross-examination of State witnesses, (2) the introduction of exhibits into evidence, (3) testifying on his own behalf, and (4) his participation regarding jury instructions. While defendant occasionally offered testimony irrelevant to the offenses of which he was accused, such testimony is not unexpected from a non-attorney unfamiliar with the rules of evidence. Defendant's unfamiliarity with the processes associated with the criminal justice system would also explain why he questioned the trial court several times as to “[w]hy it took so long for this case to come to court?” His lack of knowledge on these issues, however, is not substantial evidence that he was mentally incompetent or incapable.
    Nevertheless, defendant contends that the trial court obviously questioned his mental state because the trial judge asked him at sentencing, “[h]ave you ever had any psychological treatment, sir?” Although defendant responded “[n]o, no, I I -- ain't nothing wrong with my mind[,]” the trial court ordered defendant to submit “to the Mental Health Center for an assessment, and comply with their recommendations with respect to treatment[]” as a condition of his probation. Admittedly, the trial court's question and probation condition may provide some evidence that defendant's mental state was in doubt. However, not everyindividual that undergoes a psychological assessment is mentally incompetent or incapable. At the time of sentencing, the trial court was aware that defendant (1) had previously been convicted of several other offenses, (2) was upset over the loss of his mother, (3) had recently filed for disability, (4) was residing in a homeless shelter, and (5) wanted to re-acquire several items of sentimental value that were in the possession of the apartment complex. It is very likely that the trial court simply determined that defendant could benefit from a psychological assessment based on the past and present occurrences in his life. Moreover, we note that defendant does not argue that the trial court ordered him to submit to a “substance abuse assessment and comply with their recommendations” despite there being no evidence that he had such a problem. Thus, even when considered in light of defendant's other actions at trial, there was not substantial evidence that defendant was deprived of his due process right to a fair trial because he was mentally incompetent or incapable of proceeding at trial where he represented himself pro se.
    No error.
    Chief Judge MARTIN and Judge THORNBURG concur.
    Report per Rule 30(e).

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