State v. Jones , 265 N.C. App. 293 ( 2019 )

IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA18-508
Filed: 7 May 2019
Cherokee County, No. 13 CRS 306, 50486
STATE OF NORTH CAROLINA
v.
MARK EDWIN JONES
Appeal by defendant from judgments entered 26 July 2017 by Judge Martin B.
McGee in Cherokee County Superior Court. Heard in the Court of Appeals 12
February 2019.
Attorney General Joshua H. Stein, by Special Deputy Attorney General Melody
R. Hairston, for the State.
Mark Hayes for defendant.
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.
STATE V. JONES
Opinion of the Court
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 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 Collin1, 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.
1 We use pseudonyms to protect the juveniles’ identities.
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Opinion of the Court
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 his penis. Millie’s parents contacted the police to report
the incident.
On 8 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 hurt.”
On 10 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.”
At 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 Millie was upset because
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Opinion of the Court
she wanted one of Jones’s guitar picks. He denied ever being alone with Millie or
touching her.
Millie testified that she went into Jones’s bedroom and was alone with him.
She testified that Jones removed her pants and underwear and touched her “privates
on the inside” and outside with his finger. Millie’s mother testified about what Millie
reported to her. She explained that Millie, who had a speech impediment, had
clarified that she was talking about Jones’s “dick,” not his guitar pick.
At the close of the State’s case, Jones requested to add his father as a rebuttal
witness to testify that Jones was at work at the time Millie arrived at his home the
morning of the alleged crime. Jones argued that this rebuttal testimony was
necessary because Millie and her mother both had unexpectedly testified that Jones
was home (rather than away at work) at that time. The trial court denied the request.
On 26 July 2017, the jury convicted Jones of both charges. The trial court
sentenced him to 300 to 420 months in prison for first degree sexual offense and 16
to 29 months in prison for indecent liberties. Jones also was ordered to enroll in
lifetime satellite-based monitoring and to register as a sex offender for life. Jones
timely appealed.
Analysis
I. Denial of Motion for Continuance
Jones first argues that the trial court erred in denying his motion for a
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Opinion of the Court
continuance because his counsel was not given sufficient notice of trial in violation of
N.C. Gen. Stat. § 7A-49.4(e). As explained below, we reject this argument because
Jones has not shown that he was prejudiced by the trial court’s error.
Section 7A-49.4 provides that “[c]riminal cases in superior court shall be
calendared by the district attorney at administrative settings according to a criminal
case docketing plan” which “shall, at a minimum, comply with the provisions of this
section.” N.C. Gen. Stat. § 7A-49.4(a). Subsection (e) of the statute requires that “[n]o
less than 10 working days before cases are calendared for trial, the district attorney
shall publish the trial calendar.” Id. § 7A-49.4(e). This “trial calendar” is required to
“schedule the cases in the order in which the district attorney anticipates they will
be called for trial and should not contain cases that the district attorney does not
reasonably expect to be called for trial.” Id.
In his motion for continuance, Jones argued that he did not receive the
minimum “10 working days” notice of trial required by the statute. In July 2016, the
trial court entered an order setting the case for trial on 14 November 2016 but the
trial was continued—apparently several times, from trial terms in November 2016,
January 2017, April 2017, and June 2017, until the eventual 24 July 2017 trial date.
The case also was placed on what the State calls a “trial session calendar” more than
10 days before the trial, but that calendar, titled “Superior/Criminal – Trial Matters”
included more than a dozen criminal cases set for trial on 24 July 2017, all listed in
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Opinion of the Court
alphabetical order by the defendants’ last names. Jones contends that this calendar
does not comply with section 7A-49.4(e) because it does not list cases “in the order in
which the district attorney anticipates they will be called for trial” and, given the
number of complicated criminal cases on the list, necessarily includes “cases that the
district attorney does not reasonably expect to be called for trial” that day. Id.
Instead, Jones asserts that the “true trial calendar” necessary under section
7A-49.4(e) was a document filed 11 July 2017 and emailed to Jones’s counsel on 12
July 2017. That document, titled “Trial Order the Prosecutor Anticipates Cases to be
Called,” listed Jones’s case as the first case for trial on 24 July 2017. Jones contends
that this trial order, because it identifies the cases actually to be tried on 24 July 2017
and lists them in the order in which they will be called for trial, is the “trial calendar”
required by section 7A-49.4(e). And, Jones contends, he did not receive the necessary
10 days’ notice of this calendar before trial, thus entitling him to a continuance.
We agree with Jones that the trial order entered 11 July 2017 is the only “trial
calendar” that complies with N.C. Gen. Stat. § 7A-49.4(e), and it was not published
10 or more days before the trial date. But, as explained below, Jones has not shown
that he was prejudiced by the failure to receive the full 10-day notice and we therefore
find no prejudicial error.
Jones first contends that he is not required to show prejudice because a
defendant’s right to 10-day notice of trial under N.C. Gen. Stat. § 7A-49.4(e) is
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Opinion of the Court
analogous to the right to a week-long notice period between arraignment and trial
under N.C. Gen. Stat. § 15A-943, which states that a defendant “may not be tried
without his consent in the week in which he is arraigned.” Our Supreme Court has
held that a violation of this notice period between arraignment and trial is presumed
prejudicial. See State v. Shook, 293 N.C. 315, 319, 237 S.E.2d 843, 847 (1977).
But there are key distinctions between the week-long notice period in section
15A-943 and the 10-day notice period in section 7A-49.4(e). First, the language in
section 15A-943(b) provides that a defendant “may not be tried without his consent in
the week in which he is arraigned.” (Emphasis added). Our Supreme Court held that
this language “vests a defendant with a right, for by its terms it requires his consent
before a different procedure can be used.” Shook, 293 N.C. at 319, 237 S.E.2d at 846–
47. The Court reasoned that “[t]o require a defendant to show prejudice when
asserting the violation of this statutory right which he has insisted upon at trial
would be manifestly contrary to the intent of the legislature.” Id. at 319, 237 S.E.2d
at 847. Here, by contrast, the requirements in section 7A-49.4(e) for setting and
publishing the trial calendar do not expressly vest any rights in the defendant. And,
notably, other provisions in section 7A-49.4, such as subsection (f) governing the order
of cases called for trial, expressly vest rights in the defendant in the same manner as
section 15A-943.
In addition, the circumstances of this case highlight why a prejudice analysis
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Opinion of the Court
is appropriate here, while inappropriate for the week-long notice period between
arraignment and trial. During the week of arraignment, the defendant has only just
announced the decision to plead not guilty and proceed to trial. The week-long notice
period thus provides a minimum amount of time that the defendant will be permitted
to prepare following the decision to go to trial. By contrast, the trial calendar often
comes long after the defendant has made the decision to plead not guilty and go to
trial; it is intended to provide time for the defendant to secure witnesses and take
other steps that may be necessary once a specific trial date is set. Because the
defendant may already have had ample time to prepare for trial, and because the
nature of the case may mean the defendant did not need more time to prepare, it is
appropriate to ask whether the lack of the minimum 10-day notice period actually
prejudiced the defendant.
Here, for example, on 12 July 2016—more than a year before the trial in this
case—the trial court entered an order stating that “the trial of this matter is hereby
scheduled for November 14, 2016, subject to further motions for orders continuing
this matter as may be agreed upon by the State and Defendant or ordered by the
Court.” The trial date was continued from that “November term” for nearly six
months, although the record does not indicate whether those continuances were done
by agreement of the parties or by order of the Court.
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Opinion of the Court
In any event, Jones certainly knew for months that his case would soon be
called for trial, and thus knew he should prepare. In this context, it does not appear
“manifestly contrary to the intent of the legislature” to require a showing of prejudice;
to the contrary, this appears to be the sort of circumstance in which our legislature
would expect a showing of prejudice before finding the violation amounted to
reversible error compelling a new trial. See N.C. Gen. Stat. § 15A-1443(a); State v.
Phachoumphone, __ N.C. App. __, __, 810 S.E.2d 748, 752 (2018); State v. Love, 177
N.C. App. 614, 623, 630 S.E.2d 234, 241 (2006). Accordingly, we hold that a violation
of N.C. Gen. Stat. § 7A-49.4(e) is reversible error only upon a showing of prejudice to
the defendant.
Jones also contends that, even if he must show prejudice, he has done so
because he would have been able to contact and subpoena additional witnesses if he
was allowed more time to prepare for trial. Specifically, Jones argues that he would
have been able to make contact with the physician who performed the physical exam
of Millie and with the person who performed the forensic interview of Millie.
But it is not enough to simply assert that there were witnesses Jones might
have contacted if given more time. To show prejudice, a defendant asserting a
violation of N.C. Gen. Stat. § 7A-49.4(e) must show that, had that statutory provision
not been violated, there is a reasonable possibility that the outcome of the trial would
have been different. N.C. Gen. Stat. § 15A-1443(a). This, in turn, means that the
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Opinion of the Court
defendant must explain what testimony or evidence would have been admitted had
the continuance been granted. In other words, as our Supreme Court has explained,
the defendant must show what he “expected to attempt to prove through these
witnesses” that would affect the jury’s determination of guilt. State v. Branch, 306
N.C. 101, 105, 291 S.E.2d 653, 657 (1982). Without that evidence, an appellate court
cannot assess prejudice because “we can judicially know only what appears of record
on appeal and will not speculate as to matters outside the record.” Id.Jones argues that, with more time, he might have been able to call as witnesses
the physician who examined Millie and the investigator who conducted a “forensic
interview” with Millie. Jones argues that these witnesses could have established “how
much [Millie’s] story had changed over time, how much the story was coached out of
the child, and whether the interviewer had already heard a version of the story from
another adult.” But this is all speculation. Jones has not shown that these witnesses
would have offered the sort of testimony he imagines. Likewise, he has not asserted
that the trial court denied him the opportunity to make an offer of proof or build a
record of what testimony these witnesses actually would have provided—although
there has been ample time to do so since the trial court’s ruling denying the request
for a continuance. Because Jones has not shown what testimony these witnesses
would provide that might have impacted the outcome of the trial, we cannot conclude
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Opinion of the Court
that Jones was prejudiced by the trial court’s decision not to continue it. We thus find
no prejudicial error.2
II. Denial of Request for Rebuttal Witness
Jones also argues that the trial court erred in denying his request to add his
father as a rebuttal witness to rebut evidence presented by the State indicating that
Jones was at home on the morning of 4 April 2013 when Millie was dropped off. We
disagree.
“Where one party introduces evidence as to a particular fact or transaction, the
other party is entitled to introduce evidence in explanation or rebuttal thereof, even
though such latter evidence would be incompetent or irrelevant had it been offered
initially.” State v. Albert, 303 N.C. 173, 177, 277 S.E.2d 439, 441 (1981). A trial court’s
decision on whether to admit rebuttal evidence will not be overturned “absent a
showing of gross abuse of discretion.” State v. Anthony, 354 N.C. 372, 421, 555 S.E.2d
557, 588 (2001). “In determining relevant rebuttal evidence, we grant the trial court
great deference and we do not disturb its rulings absent an abuse of discretion and a
showing that the ruling was so arbitrary that it could not have been the result of a
2
Jones also argues that the State refused to turn over “the prosecution’s notes from its
interviews with Millie.” But the trial transcript indicates that the State declined to produce those notes
not because Jones had not asked for them in time, but because the State determined that, in those
interviews, Millie did not “make any additional disclosures or make any statements that would be
materially different than what has already been included in discovery.” In other words, the State did
not intend to turn over those notes even if the trial court continued the trial. If Jones believes the State
improperly withheld those notes, and this was error, that is a separate argument from the one Jones
asserts in this appeal. N.C. R. App. P. 28(b)(6).
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Opinion of the Court
reasoned decision.” Williams v. CSX Transp., Inc., 176 N.C. App. 330, 338, 626 S.E.2d
716, 724 (2006) (citations omitted). Additionally, “[e]videntiary errors are harmless
unless a defendant proves that absent the error a different result would have been
reached at trial.” State v. Ferguson, 145 N.C. App. 302, 307, 549 S.E.2d 889, 893
(2001).
After Millie and her mother unexpectedly gave testimony indicating that Jones
was at home when Millie’s mother dropped her off on the morning of 4 April 2013,
Jones requested to present rebuttal testimony from his father, who would have
testified that Jones was at work with him at the time Millie was dropped off. The trial
court denied that request. But the Court permitted Jones to present other evidence
rebutting that testimony, including testimony from both Jones and his wife. More
importantly, no party disputes that, whether or not Jones was at home that morning
with Millie, he was home alone with the children (at least for a short time) in the
afternoon. The State contends that it was during this time, not in the morning, that
the crimes occurred. Thus, the trial court reasonably determined that the requested
rebuttal testimony was repetitive and of limited relevance to the issues at trial. See
State v. Reid 204 N.C. App. 122, 126, 693 S.E.2d 227, 231 (2010); State v. Robinson,
355 N.C. 320, 333–34, 561 S.E.2d 245, 254 (2002). Because this decision was not
manifestly arbitrary and unreasonable, it was within the trial court’s discretion and
we cannot disturb it on appeal. Anthony, 354 N.C. at 421, 555 S.E.2d at 588.
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Opinion of the Court
Conclusion
For the reasons discussed above, we find no prejudicial error in part and no
error in part in the trial court’s judgments.
NO PREJUDICIAL ERROR IN PART; NO ERROR IN PART.
Judges BRYANT and ARROWOOD concur.
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