An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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 Proced ure.

NO. COA04-167


Filed: 5 October 2004


    v.                        Cumberland County
                            No. 02 CRS 053868

    Appeal by defendant from judgment entered 5 September 2003 by Judge Robert F. Floyd in Cumberland County Superior Court. Heard in the Court of Appeals 4 October 2004.

    Attorney General Roy Cooper, by Assistant Attorney General Anita LeVeaux, for the State.

    Ligon and Hinton, by Lemuel W. Hinton, for defendant- appellant.

    TYSON, Judge.

    Thomas Lee McMillan (“defendant”) appeals his conviction for statutory rape and taking indecent liberties with a child. We find no error.

I. Background
    On 17 September 2002, defendant was indicted on charges of statutory rape, taking indecent liberties, and first-degree kidnapping. On 21 July 2003, defendant was indicted on additional charges of first-degree kidnapping and statutory rape.
    On 5 September 2003, a jury convicted defendant of statutory rape and taking indecent liberties with a child. The offenses were consolidated for judgment and defendant was sentenced to a term of 192 to 240 months imprisonment. Defendant appeals.
II. Issues
    Defendant argues that (1) there was variance between the facts alleged in the indictment and the evidence presented at trial; (2) he received ineffective assistance of counsel at trial; and (3) the trial court erred by denying his motion for a continuance.
III. Age of Victim
    Defendant was convicted of statutory rape pursuant to N.C. Gen. Stat. § 14-27.7A(a) (2003), which provides:
        A defendant is guilty of a Class B1 felony if the defendant engages in vaginal intercourse or a sexual act with another person who is 13, 14, or 15 years old and the defendant is at least six years older than the person, except when the defendant is lawfully married to the person.

(Emphasis supplied). Defendant concedes that he was not lawfully married to the victim and that he was at least six years older than the victim on the date of the offense. Defendant also does not contest a finding that he engaged in sexual intercourse with the victim. Defendant's contention is simply that the victim was older than the age alleged in the indictments. He argues the victim was fourteen years old and four months on the date of the offense, not fourteen years old as alleged in the indictment. Nothing requires the State to set out the victim's age in years and months in the indictment. The victim's age clearly falls within the purview of the statute. This assignment of error is overruled.
IV. Ineffective Assistance of Counsel
    Defendant cites admissions in the transcript from his trial counsel that he was not prepared to try his case. Defendantcontends evidence was erroneously admitted at trial, including an unsigned letter which was hearsay and a videotape of an interview with the victim. Counsel did not object to the admission of either piece of evidence. Defendant argues that if counsel had been prepared he could have developed a strategy for excluding the evidence. We decline to review this assignment of error because it is not properly raised at this stage of review. A defendant's ineffective assistance of counsel claim may be brought on direct review “when the cold record reveals that no further investigation is required, i.e., claims that may be developed and argued without such ancillary procedures as the appointment of investigators or an evidentiary hearing.” State v. Fair, 354 N.C. 131, 166, 557 S.E.2d 500, 524 (2001), cert. denied, 535 U.S. 1114, 153 L. Ed. 2d 162 (2002).
    Here, an insufficient record exists for us to review defendant's claims. It is unclear on the record whether counsel's failure to object was due to lack of preparation or a choice of trial tactics. Defendant may move for appropriate relief and request a hearing held on whether he received effective assistance of counsel. See State v. Dockery, 78 N.C. App. 190, 192, 336 S.E.2d 719, 721 (1985) (“The accepted practice is to raise claims of ineffective assistance of counsel in post-conviction proceedings, rather than direct appeal.”). Once a record is developed and a ruling is adverse to defendant, defendant petition for certiorari.
V. Motion for Continuance
    Prior to trial, defense counsel moved for a continuance on the grounds that he was not prepared for trial because of defendant's failure to meet with him. Defendant contends that counsel's failure to be prepared was not related to defendant's conduct, because counsel could have reviewed his file and the exhibits before trial. Counsel failed to do so and defendant argues his defense was substantially prejudiced. We disagree.
    This Court has stated:
        A trial court's ruling on a motion to continue ordinarily will not be disturbed absent a showing that the trial court abused its discretion, but the denial of a motion to continue presents a reviewable question of law when it involves the right to effective assistance of counsel. The right to effective assistance of counsel includes, as a matter of law, the right of client and counsel to have adequate time to prepare a defense. Unlike claims of ineffective assistance of counsel based on defective performance of counsel, prejudice is presumed in cases where the trial court fails to grant a continuance which is “essential to allowing adequate time for trial preparation.”

In re Bishop, 92 N.C. App. 662, 666, 375 S.E.2d 676, 679 (1989) (citations omitted). Our Supreme Court further analyzed the legal standards governing the appeal of a denial of a motion to continue, stating that:
        To establish that the trial court's failure to give additional time to prepare constituted a constitutional violation, defendant must show “how his case would have been better prepared had the continuance been granted or that he was materially prejudiced by the denial of his motion.” “[A] motion for a continuance should be supported by an affidavit showing sufficient grounds for the continuance.” “'[A] postponement is proper if there is a belief that material evidence will come tolight and such belief is reasonably grounded on known facts.'”

        . . . .

        . . . “'[C]ontinuances should not be granted unless the reasons therefor are fully established. Hence, a motion for a continuance should be supported by an affidavit showing sufficient grounds.'”

State v. Jones, 342 N.C. 523, 531, 467 S.E.2d 12, 17 (1996) (citations omitted). Here, “[d]efendant's oral motion to continue, made on the date set for trial and not supported by an affidavit, did not set forth any form of 'detailed proof indicating sufficient grounds for further delay.'” Id. at 532, 467 S.E.2d at 18 (citations omitted); see also State v. Cody, 135 N.C. App. 722, 726, 522 S.E.2d 777, 780 (1999). Defendant has failed to show how he was materially prejudiced by denial of his motion and cites no evidence that would have “come to light” if his trial had been delayed. Jones, 342 N.C. at 532, 467 S.E.2d at 18. Moreover, it appears that the alleged failure of counsel to be prepared for trial could have been caused by defendant's failure to meet with or to discuss his case with counsel. Defendant indicated that he wanted counsel to continue to represent him. Defendant failed to show how additional time afforded to counsel may have aided him in preparing for the case. The trial court did not abuse its discretion in failing to grant the motion for continuance.
VI. Conclusion
    After having reviewed defendant's assignments of error, we find no error in his trial or judgment. Defendant's ineffective assistance of counsel assignment of error is dismissed withoutprejudice.
    No error.
    Judges WYNN and GEER concur.
    Report per Rule 30(e).

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