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State v. Jones

Court of Appeals of North Carolina

May 7, 2019

STATE of North Carolina
v.
Mark Edwin JONES

         Heard in the Court of Appeals 12 February 2019.

Page 755

          Appeal by defendant from judgments entered 26 July 2017 by Judge Martin B. McGee in Cherokee County, No. 13 CRS 306, 50486 Superior Court.

         Attorney General Joshua H. Stein, by Special Deputy Attorney General Melody R. Hairston, for the State.

         Mark Hayes, Greensboro, for defendant.

          OPINION

         DIETZ, Judge.

         Defendant Mark Edwin Jones appeals his convictions for first degree sexual offense and taking indecent liberties with a child. Jones argues that the trial court erred by denying his motion for a continuance because the district attorney did not file an adequate trial calendar ten or more days before trial, in violation of N.C. Gen. Stat. § 7A-49.4(e). Jones also argues that the trial court erred in denying his request to present a rebuttal witness to respond to testimony from the State’s witnesses.

         As explained below, because the case was scheduled for trial many months in advance and then continued several times, even assuming the trial calendar submitted by the district attorney was inadequate under N.C. Gen. Stat. § 7A-49.4(e), Jones must establish that he was prejudiced by the failure to receive sufficient notice. He has not done so here.

          With respect to the rebuttal witness, that decision is one left to the trial court’s discretion and, because the trial court permitted other testimony that established the same facts Jones sought from his rebuttal witness, Jones has not shown that the trial court’s decision was so manifestly arbitrary that it could not have been the result of a reasoned

Page 756

decision. We therefore find no prejudicial error in the trial court’s judgment.

          Facts and Procedural History

         On 4 April 2013, Defendant Mark Jones went to work at 8:00 a.m. Jones’s wife, Betty, stayed at home with their youngest child. At 9:15 a.m., Betty’s sister dropped off her two children, Millie and Collin[1], for Betty to babysit. Betty watched the children from 9:15 a.m. until she had to leave to drive her afternoon school bus route sometime between 2:30 and 2:45 p.m. After Betty left, the children were alone with Jones for a short period of time before Millie and Collin’s mother arrived to pick them up around 2:45 p.m.

          When Millie’s mother picked her up, Millie was upset. Later that evening, Millie began crying. When her mother asked her what was wrong, Millie indicated that Jones had removed her underwear and touched her private area, put his finger in her "hole," and showed her ...


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