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An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA06-922


Filed: 5 June 2007


v .                         Graham County
                            No. 05 CRS 50227


    Appeal by defendant from judgment entered 6 December 2005 by Judge James U. Downs in Graham County Superior Court. Heard in the Court of Appeals 21 February 2007.

    Roy Cooper, Attorney General, by Barbara A. Shaw, Assistant Attorney General, for the State.

    Michael E. Casterline, for the defendant-appellant.

    ELMORE, Judge.

    On 6 December 2005, Jeffrey Shane Burchfield (defendant) was convicted by a jury in Graham County of assault with a deadly weapon inflicting serious injury. The trial court conducted a sentencing hearing and sentenced defendant to twenty-nine to forty- four months in prison. It is from this conviction and sentence that defendant appeals.
    Ms. Victoria Rogers, defendant's fiancée, testified that she smelled alcohol on defendant's breath when he arrived home on 7 April 2005. The two argued, and defendant then attempted to leave the residence. He had a loaded gun and planned to go hunting. Ms.Rogers attempted to stop him and the gun accidentally went off. She then ran from the residence and defendant left as well.
    Officer Kyle Farley of the Graham County Sheriff's Department testified that he responded to a call at defendant's residence on 7 April 2005. When he arrived, he saw Ms. Rogers on the front porch. She was crying and her hand and arm were injured.
    Mr. Russell Moody, paramedic with the Graham County EMS, testified that he responded to a call on 7 April 2005 concerning Ms. Rogers. Upon arriving, Mr. Moody learned that she was forty weeks pregnant and her due date was 12 April 2005. He saw that Ms. Rogers had sustained injuries to her right forearm, her left lower back, the back of her head on her right side, the left side of her face, around her left eye, and around the back of her neck. She had swelling and black and blue marks around her knuckles and a small skin tear to her right index finger with swelling and deformity. Mr. Moody asked her what happened so that he could treat her. She responded that “Jeff had struck her several times with a walking cane that he had made.”
    Ms. Christie Waldroop, an employee of the Graham Domestic Violence and Sexual Assault Center, accompanied Ms. Rogers in an ambulance to Harris Regional Hospital on 7 April 2005. At the hospital, nurse Denise Scroggs attended to Ms. Rogers. Both women testified that Ms. Rogers told them that defendant had hit her with a walking cane.
    Ms. Wanda Brooms, Clerk of the Superior Court in Graham County, identified for the State a complaint and motion for adomestic violence protection order filed by Ms. Rogers against defendant on 11 April 2005. The trial court held a voir dire before ruling on the admissibility of the complaint and motion. During the voir dire, the trial court recalled Ms. Rogers to testify to the cause of her injuries.
    Defendant first argues that the trial judge erroneously failed to recuse himself, without request, after making remarks questioning the truthfulness of Ms. Roger's testimony on voir dire. This argument is without merit.
    At trial, defendant did not object to the remarks or make a motion for recusal. “The rule is that when defendant fails to object during trial, he has waived his right to complain further on appeal.” State v. Nobles, 350 N.C. 483, 498, 515 S.E.2d 885, 895 (1999). Defendant contends that this error constitutes plain error, citing Rule 10(c)(4) of the North Carolina Rules of Appellate Procedure, which states:    
        In criminal cases, a question which was not preserved by objection noted at trial and which is not deemed preserved by rule or law without any such action, nevertheless may be made the basis of an assignment of error where the judicial action questioned is specifically and distinctly contended to amount to plain error.

N.C.R. App. P. 10(c)(4) (2007). Our Supreme Court “has not applied the plain error rule to issues which fall within the realm of the trial court's discretion.” State v. Steen, 352 N.C. 227, 256, 536 S.E.2d 1, 18 (2000). Moreover, our Supreme Court “has held that plain error analysis applies only to jury instructions and evidentiary matters.” State v. Wiley, 355 N.C. 592, 615, 565S.E.2d 22, 39-40 (2002). Accordingly, because defendant failed to move for recusal or object to the trial judge's remarks during voir dire, defendant's argument is waived and cannot be resurrected through plain error analysis.
    Defendant next argues that the remarks themselves constitute prejudicial or plain error. Again, because defendant failed to object to the court's questioning of Ms. Rogers on voir dire, defendant failed to properly preserve this argument for appellate review. Nobles, 350 N.C. at 498, 515 S.E.2d at 895. Moreover, defendant's assignment of error does not pertain to jury instructions or evidentiary matters. Wiley, 355 N.C. at 615, 565 S.E.2d at 39-40. Accordingly, defendant's second argument is also without merit.
    Finally, defendant argues that the trial court abused its discretion by sentencing defendant to the maximum allowable sentence in the presumptive range under the Structured Sentencing Act. Because trial court judges are allowed discretion when sentencing within the statutory range, we find no error.
    A sentence within the statutory limit will generally be presumed regular and valid. State v. Gantt, 161 N.C. App. 265, 271, 588 S.E.2d 893, 897 (2003). In State v. Caldwell, 125 N.C. App. 161, 162, 479 S.E.2d 282, 283 (1997), we examined the Structured Sentencing Act and held that “[i]t is clear from the plain language of [the] statutes that the Legislature intended to provide the trial court with a window of discretion to be exercised when sentencing a criminal defendant within the presumptive range.” Id.     Defendant's sentence of a minimum term of twenty-nine months and a maximum term of forty-four months is within the limit of the presumptive range under the Structured Sentencing Act. N.C. Gen. Stat. § 15A-1340.17(c) (2005). Accordingly, we find no error.
    No error.
    Judges TYSON and GEER concur.
    Report per Rule 30(e).

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