State v. Jones, 265 N.C.App. 293, 827 S.E.2d 754 (May. 7, 2019)

In this child sexual assault case, the defendant failed to show prejudice caused by the trial court’s denial of the defendant’s motion for a continuance. That motion asserted that the district attorney did not file an adequate trial calendar 10 or more days before trial in violation of G.S. 7A-49.4(e). In July 2016, the trial court entered an order setting the case for trial on 14 November 2016. The case however was continued several times 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. However that calendar included more than a dozen criminal cases set for trial on 24 July 2017, listed in alphabetical order by the defendants’ last names. The defendant argued that this calendar does not comply with the statute 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 DA does not reasonably expect to be called for trial that day. The defendant argued that the “true trial calendar” was a document filed 11 July 2017 and emailed to defense counsel on 12 July 2017. That document, entitled “Trial Order the Prosecutor Anticipates Cases to be Called,” listed the defendant’s case as the first case for trial on 24 July 2017. The defendant argues that this trial calendar did not give him 10 days notice before trial. The court agreed that the 11 July 2017 document is the only trial calendar that complies with the statute and that it was not published 10 or more days before the trial date. However, it concluded that the defendant did not show that he was prejudiced by the failure to receive the required notice. In so holding, the court rejected the defendant’s argument that he is not required to show prejudice. Here, the defendant argued that with more time he may have been able to call witnesses who would have established how the victim’s story changed over time and that she was coached. This however was speculation, as the defendant failed to produce any evidence that the witnesses would have so testified. Likewise, he did not assert that the trial court denied him the opportunity to make an offer of proof or build a record of what testimony these witnesses would have provided. Thus, no prejudice was shown.