                            NO. COA13-811

                  NORTH CAROLINA COURT OF APPEALS

                         Filed: 7 January 2014


STATE OF NORTH CAROLINA

     v.                             Wake County
                                    No. 10 CRS 223385
TRAVIS MELTON SHERMAN,
     Defendant.


     Appeal by defendant from judgment entered 16 August 2012 by

Judge Paul C. Ridgeway in Wake County Superior Court.      Heard in

the Court of Appeals 9 December 2013.


     Roy Cooper, Attorney General, by Jonathan P. Babb, Special
     Deputy Attorney General, for the State.

     Glover & Petersen, P.A., by James R. Glover and Ann B.
     Petersen, for defendant-appellant.


     MARTIN, Chief Judge.


     Defendant Travis Melton Sherman was charged with the murder

of Kenneth Edward Ring in violation of N.C.G.S. § 14-17.     A jury

found defendant guilty of first-degree murder, and judgment was

entered on the verdict sentencing him to life imprisonment without

parole.   He appeals.

     The facts relevant to the sole issue presented on appeal

involve two of defendant’s for-cause challenges to prospective

jurors.   First, defendant moved to excuse prospective juror Mark
                                    -2-
Antonelli for cause because Mr. Antonelli said he would form

opinions during the trial.      The trial judge, after questioning Mr.

Antonelli, denied defendant’s motion, and as a result, defendant

used a peremptory challenge to excuse Mr. Antonelli.

     Next, defendant moved to excuse prospective juror Timothy

Brunstetter for cause because he had orders from the United States

Marine Corps to report to Quantico, Virginia, before the projected

end of the trial.        The trial judge denied this motion, and

defendant used his sixth and final peremptory challenge to excuse

Mr. Brunstetter.

     After defendant used all six of his peremptory challenges, he

renewed his motion to remove Mr. Antonelli and Mr. Brunstetter for

cause.   The trial judge again denied both motions, and defendant

asked for additional peremptory challenges.          The court refused to

give defendant additional peremptory challenges.         Later, defendant

renewed his request for additional peremptory challenges so he

could use one to excuse a prospective juror.              The judge again

denied   the   request    for     additional      peremptory   challenges.

Defendant appeals.

                         _________________________

     On appeal defendant argues only one issue.          He maintains that

the trial court’s failure to allow his for-cause challenges to

prospective    jurors    Mr.    Antonelli   and    Mr.   Brunstetter   was
                                 -3-
prejudicial error that requires a new trial.   We disagree.

     For a defendant to seek reversal of a judgment based on a

trial court’s refusal to allow his for-cause challenges, the

defendant must comply with N.C.G.S. § 15A-1214(h).     Compliance

with N.C.G.S. § 15A-1214(h) is mandatory and is the only way to

preserve for appellate review the denial of a for-cause challenge.

State v. Sanders, 317 N.C. 602, 608, 346 S.E.2d 451, 456 (1986).

Section 15A-1214 requires that

          (h) In order for a defendant to seek reversal
          of the case on appeal on the ground that the
          judge refused to allow a challenge made for
          cause, he must have:

               (1) Exhausted the peremptory challenges
               available to him;

               (2) Renewed his challenge as provided in
               subsection (i) of this section; and

               (3) Had his renewal motion denied as to
               the juror in question.

          (i) A party who has exhausted his peremptory
          challenges may move orally or in writing to
          renew a challenge for cause previously denied
          if the party either:

               (1) Had peremptorily     challenged   the
               juror; or

               (2) States in the motion that he would
               have challenged that juror peremptorily
               had his challenges not been exhausted.

N.C. Gen. Stat. § 15A-1214(h)–(i) (2011).

     A review of the transcript reveals that defendant complied
                                     -4-
with N.C.G.S. § 15A-1214(h).       He moved to excuse Mr. Antonelli for

cause, and the court denied that motion.           Defendant then used a

peremptory challenge to excuse Mr. Antonelli. Defendant also moved

to excuse Mr. Brunstetter for cause, and the court denied that

motion. As a result, defendant used his final peremptory challenge

to   excuse   Mr.   Brunstetter.     After   defendant     used    his   final

peremptory    challenge,   he    renewed   his   motions   to     excuse   Mr.

Antonelli and Mr. Brunstetter for cause, and the court denied both

motions.   Therefore, defendant has complied with the provisions of

N.C.G.S. § 15A-1214(h).

       N.C.G.S. § 15A-1212 lists the grounds for challenges for cause

to a prospective juror.         “We review a trial court’s ruling on a

challenge for cause for abuse of discretion.”            State v. Lasiter,

361 N.C. 299, 301, 643 S.E.2d 909, 911 (2007).              A trial court

abuses its discretion when its ruling is “manifestly unsupported

by reason or is so arbitrary that it could not have been the result

of a reasoned decision.”        State v. Hennis, 323 N.C. 279, 285, 372

S.E.2d 523, 527 (1998).     When we review a trial judge’s ruling we

consider only whether it is supported by the record, not whether

we agree with the ruling.       Lasiter, 361 N.C. at 302, 643 S.E.2d at

911.    This is a deferential standard of review because a trial

judge has the advantage of interacting with a juror.              Id.

       Defendant argues that Mr. Antonelli should have been excused
                                          -5-
for cause because he responded that he would form opinions during

the trial, which would substantially impair his ability to follow

and apply the law.        Defendant fails to state the statutory ground

upon which he is relying for his for-cause challenge, but, for two

reasons, it is implied that he is relying on N.C.G.S. § 15A-

1212(8), which allows a for-cause challenge when, “[a]s a matter

of conscience, . . . [a juror] would be unable to render a verdict

with respect to the charge in accordance with the law of North

Carolina.” N.C. Gen. Stat. § 15A-1212(8) (2011). First, defendant

argues    that     forming     opinions     during    trial   would    impair    Mr.

Antonelli’s ability to apply the law of North Carolina.                     Second,

defendant cites Witherspoon v. Illinois, 391 U.S. 510, 20 L. Ed.

2d 776 (1968), in support of his argument, which the General

Assembly codified at N.C.G.S. § 15A-1212(8).                  N.C. Gen. Stat. §

15A-1212 official commentary (2011).                 Therefore, while defendant

fails to state that he is relying on N.C.G.S. § 15A-1212(8), we

infer    he   is     relying   on   N.C.G.S.    §    15A-1212(8)    based   on   his

argument.

     A review of the transcript reveals the following relevant

exchanges:

              MR. DOLAN: Let me ask you this: . . . Can
              you be sure that you would wait until all of
              the evidence was presented before you came and
              started to make any decision in this case?

              [MR.    ANTONELLI]:       I   don’t     think   I    could
                     -6-
guarantee that, but I think I would be able
to, but I couldn’t guarantee it.

MR. DOLAN: What do you mean you don’t think
you [can] guarantee it?

[MR. ANTONELLI]:     Well, because you   form
opinions as it goes on and it changes.

MR. DOLAN: And are you saying that you think
you would form opinions as the case went on?

[MR. ANTONELLI]:   Probably.

. . . .

MR. DOLAN: . . . Are you saying you don’t
think that you can wait, that you’re probably
going to form opinions along the way?

[MR. ANTONELLI]:   Most likely.

MR. DOLAN: I would move for cause, your Honor.

. . . .

THE COURT: Yes.
Mr. Antonelli, let me follow-up with just a
question for you.    You’ve already heard me
instruct several times to that one of the
rules you have to follow is to [sic] not form
or express any opinions about the outcome of
this case, and there are a number of important
steps that a case must go through. There is
the evidence, there is the arguments of
counsel, there is my instructions on the law,
and then there’s deliberation.        What we
require of jurors is the ability to keep an
open mind and not form or express opinions
until they get into the jury deliberation
room, engage in deliberation with their fellow
jurors, consider all of the things I’ve just
described.   Do you believe that you could
fulfill that duty as a juror?

[MR. ANTONELLI]:   Yes, but I believe I would
                     -7-
still form an opinion but can still be open-
minded.

THE COURT:     In the event that you were
instructed on the law or persuaded by an
argument or persuaded by evidence later in the
trial that your opinion was perhaps in error,
would you be able to set aside any opinion
that you had formed and listen to either of
the evidence or the instructions or the
argument or the deliberation in views of your
fellow jurors? Would you be able to set aside
any opinion that you had formed and render a
verdict according to the instructions, the
law, and the argument and the evidence?

[MR. ANTONELLI]:    I believe so.     I can’t
guarantee that, but I believe so.

THE COURT:     And when you say you can’t
guarantee that, what do you mean by that?

[MR. ANTONELLI]: I’ve never been through this
so I don’t know how my opinion is going to
form . . .

. . . .

THE COURT:    Are you willing to follow my
instructions to keep an open mind throughout
this case?

[MR. ANTONELLI]:   Yes.

THE COURT: I’m going to deny the motion for
cause at this time.

MR. DOLAN:    I just want to be clear, Mr.
Antonelli, and I’m not trying to pick on you.
Is it your position that you will form an
opinion as the case progresses?

[MR. ANTONELLI]:  I would probably say most
likely, yeah, I would form an opinion as it
was going on, but I can’t guarantee that I
definitely will.
                                   -8-


     The above-quoted portion of voir dire demonstrates that the

trial court did not abuse its discretion when disallowing the for-

cause challenge.    The trial judge was in the best position to

observe Mr. Antonelli and to weigh and decide the credibility of

his responses.   The judge’s denial of the for-cause challenge to

Mr. Antonelli is logically supported by his response that he was

willing to follow the judge’s instructions.     Therefore, the trial

court did not err when disallowing defendant’s for-cause challenge

to Mr. Antonelli.

     Next,   defendant   argues,    without   citing   any   statutory

authority or case law, that the trial court erred when it denied

his for-cause challenge to Mr. Brunstetter because he was a Marine

with orders to report to Quantico, Virginia, before the projected

end of the trial.    We assume that defendant is relying on the

catch-all provision of N.C.G.S. § 15A-1212 for his challenge, which

allows a for-cause challenge when a juror “[f]or any other cause

is unable to render a fair and impartial verdict.”     N.C. Gen. Stat.

§ 1212(9).

     Our Supreme Court considered whether a prospective juror

could render a fair verdict because he was concerned about the

estimated time of the trial in State v. Reed, 355 N.C. 150, 160,

558 S.E.2d 167, 174 (2002), appeal after remand, 162 N.C. App.

360, 590 S.E.2d 477 (2004).    The Court concluded that the trial
                                 -9-
court did not abuse its discretion when it denied the for-cause

challenge.   Id.   In reaching this conclusion, the Court noted that

trial judges routinely decide whether to excuse a prospective juror

because of concerns about the length of a trial.      Id.   Also, in

Reed, despite the estimated length of the trial, the prospective

juror stated that he could be fair to both sides.    Id.

     In this case, the trial court did not abuse its discretion in

refusing to allow the for-cause challenge.    Mr. Brunstetter twice

asserted that despite his orders to report to Quantico, Virginia,

he could focus on the trial if he was selected to be a juror.

Also, the trial court was able to observe Mr. Brunstetter when he

made these statements.      Therefore, based on Mr. Brunstetter’s

testimony, the trial court properly denied the challenge because

Mr. Brunstetter could render a fair verdict despite his concerns

about the length of the trial.

     No Error.

     Judges ERVIN and MCCULLOUGH concur.
