in the Court of Appeals 12 February 2019.
by defendant from judgments entered 26 July 2017 by Judge
Martin B. McGee in Cherokee County No. 13 CRS 306, 50486
Attorney General Joshua H. Stein, by Special Deputy Attorney
General Melody R. Hairston, for the State.
Hayes for 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
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
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 decision. We therefore find no prejudicial error in
the trial court's judgment.
and Procedural History
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, 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.
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 his penis. Millie's
parents contacted the police to report the incident.
April 2013, Millie went to a regularly scheduled appointment
with a counselor who treated her for anxiety. The counselor
observed that Millie was upset and asked Millie if she wanted
to talk. Millie told the counselor that Jones had pulled her
pants down and "stuck his finger in her hole and that it
June 2013, Jones was indicted for taking indecent liberties
with a child and first degree sexual offense with a child by
an adult. The case went to trial on 25 July 2017. Jones moved
to continue the trial, arguing that he received insufficient
notice of the trial date under N.C. Gen. Stat. §
7A-49.4(e) and that he did not have time to contact or
subpoena certain witnesses. After hearing arguments, the
trial court ruled that "in my discretion I'm going
to deny the request to continue."
trial, Betty testified that she typically left for her
afternoon bus route at 2:30 p.m., but that on 4 April 2013,
she left closer to 2:45 p.m. because her sister had not yet
arrived to pick up her kids. Jones testified that, after
Betty left, he played guitar for the children while sitting
on his bed. He stated that he only played about one song
before Millie's mother arrived. Jones testified that