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An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA07-162


Filed: 2 October 2007


    v.                        Cabarrus County
                            Nos.    06 CRS 3771, 51990

    Appeal by defendant from judgment dated 13 September 2006 by Judge W. Erwin Spainhour in Cabarrus County Superior Court. Heard in the Court of Appeals 24 September 2007.

    No Brief for the State.

    D. Tucker Charns, for defendant-appellant.

    BRYANT, Judge.

    On 13 September 2006, a jury found Larry Leon Wade, (defendant) guilty of malicious conduct by a prisoner, disorderly conduct, and attaining the status of an habitual felon. The trial court consolidated the offenses for judgment and sentenced defendant to an active prison term of 151 to 191 months.
    The State adduced evidence that defendant was detained in Cabarrus County Jail on 8 May 2006. While his cell was being cleaned, he repeatedly tried to leave his cellblock by slipping through a doorway past Deputy Matthew Paris. Defendant cursed and taunted Paris, disregarded numerous orders to return to his cell, and struck an aggressive, fighting posture. With the assistance of fellow deputy Lewis Peck, Paris coaxed defendant back to thethreshold of his cell door. Defendant stood in the doorway, staring at Paris “with clenched fists, nostrils flaring,” and refused to enter his cell. Sensing “a fighting situation ready to happen,” Paris pushed defendant backward into the cell and shut the door. As Paris was locking the main door to the cellblock, defendant called his name. When the deputy stuck his head back around the door, defendant said, “I'm going to get you, Paris,” and spat in his face. Paris notified his supervisor of the incident, washed his face in the bathroom, and consulted with the jail's nurse.


    On appeal, defendant claims that the trial court erred in failing to hold a hearing on his motion for a competency evaluation at Dorothea Dix Hospital, pursuant to N.C. Gen. Stat. § 15A-1002. We disagree.
    The record reflects that defendant filed the motion on the morning of trial, 12 September 2006. In support of the motion, counsel advised the trial court that defendant told a judge to “suck [his] dick” during a hearing on 26 April 2006. Moreover, in her months of representing defendant, counsel observed that he “acted very defiantly in trying . . . to prepare his defense.” Counsel ultimately agreed to defendant's request to file the motion after he asked her, on the morning of his trial, “If I were to hurt you in some[]way, shouldn't I get a psych exam?”
    After reading defendant's motion, the trial court asked counsel if she “wish[ed] to be heard further[.]” Counsel replied,“Nothing further, Your Honor. I certainly would tender [defendant] for any questions the Court might have of him.” The trial court heard argument from the prosecutor and began to announce its findings. When defense counsel sought to interject, the trial court allowed her to “go ahead.” Counsel expressed “grave concerns” about defendant's competency “in terms of oppositional defiance and understanding [of] the nature and scope of what he's charged with[.]” She reiterated that she filed the motion at defendant's behest, based on the question he posed to her on the morning of trial.
    The trial court observed that “there's nothing at all unusual about a defendant making outrageous statements, making profane statements, making statements that most people might not necessarily make perhaps[.]” Defense counsel averred that defendant appeared not to understand that the State could try him on the instant charges before proceeding on previously-filed charges of possession of cocaine and possession of a firearm by a convicted felon. After reviewing defendant's criminal history, the trial court found that he was “well acquainted with the judicial system[.]”
    In denying defendant's request for a competency evaluation, the trial court found nothing “alleged in this motion that indicates . . . that he's mentally ill or . . . lacks capacity.” The trial court found defendant's conduct to evince instead a lack of “respect for people who might try to help him such as his attorney[,]” as well as an “extreme disrespect for the court” anda “lack of any respect for authority[.]” The trial court ordered that a deputy be seated behind defendant during the trial, in light of his reference to harming his counsel.
    The trial court then addressed defendant, telling him that every effort would be made to provide him with a fair trial. Responding to the prosecutor's suggestion that he had filed his motion in order to delay his trial, defendant stated that he had been detained for nine months without trial on a charge of possession of a firearm as a convicted felon, despite his counsel's possession of “a ballistics report from the investigator that states that the fingerprints found on the gun d[id] not belong to [defendant].” Defendant affirmed his understanding when the trial court replied, “We're not trying that case today.” At the conclusion of the State's evidence, the trial court engaged defendant regarding his right to testify. After consulting with counsel, defendant elected not to testify in order to preserve his right to the final argument to the jury.
    Under N.C. Gen. Stat. § 15A-1002, “[t]he question of the capacity of the defendant to proceed may be raised at any time” by a motion “detail[ing] the specific conduct that leads the moving party to question the defendant's capacity to proceed.” N.C. Gen. Stat. § 15A-1002(a) (2005). The trial court must hold a hearing on the motion. N.C. Gen. Stat. § 15A-1002(b) (2005); State v. Gates, 65 N.C. App. 277, 283, 309 S.E.2d 498, 501 (1983). The trial court may also appoint one or more experts to evaluate the defendant, or “may order the defendant to a State facility for the mentally illfor observation and treatment for the period, not to exceed 60 days, necessary to determine the defendant's capacity to proceed[.]” N.C. Gen. Stat. § 15A-1002(b)(1)-(2) (2005). In construing the procedural requirements of N.C. Gen. Stat. § 15A- 1002(b), however, we have held as follows:
        Although [N.C. Gen. Stat. § 15A-1002] requires the court to conduct a hearing when a question 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.

        . . .

        The hearing requirement of G.S. 15A-1002(b)[] 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.

Gates, 65 N.C. App. at 282-83, 309 S.E.2d at 501-02. Once the hearing requirement is satisfied, “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. at 283, 309 S.E.2d at 502 (citing State v. Woods, 293 N.C. 58, 235 S.E.2d 47 (1977)).
    We find no merit to defendant's assertion that the trial court failed to hold a hearing on his motion, as required by N.C. Gen. Stat. § 15A-1002(b). The trial transcript reflects that the trial court reviewed defendant's motion in open court and allowed his counsel repeated opportunities to be heard in support thereof. The trial court's colloquy with counsel reflects its full consideration of her proffer. Gates, 65 N.C. App. at 282, 309 S.E.2d at 501-02 (citation omitted). Although no evidence was adduced at thehearing, the trial court did not deny defendant the opportunity to present evidence. Id. at 282-83, 309 S.E.2d at 502 (citation omitted). As movant, defendant bore the burden of proving the existence of grounds for relief. Id. at 283, 309 S.E.2d at 502 (citation omitted). Accordingly, we overrule his assignment of error.
    Although defendant does not separately challenge the ruling on his motion, we find no abuse of discretion by the trial court. Further, the record on appeal includes additional assignments of error which are not addressed in defendant's appellate brief. Pursuant to N.C. R. App. P. 28(b)(6), they are deemed abandoned.
    No error.
    Judges WYNN and ELMORE concur.
    Report per Rule 30(e).

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