               Filed 6/27/19 by Clerk of Supreme Court
                         IN THE SUPREME COURT
                      STATE OF NORTH DAKOTA


                               2019 ND 164


State of North Dakota,                           Plaintiff and Appellee

      v.

James Glenn Watson,                            Defendant and Appellant


                               No. 20180294


State of North Dakota,                           Plaintiff and Appellee

      v.

James Glenn Watson,                            Defendant and Appellant


                               No. 20180295


State of North Dakota,                           Plaintiff and Appellee

      v.

James Glenn Watson,                            Defendant and Appellant


                               No. 20180296
      Appeals from the District Courts of Golden Valley, Hettinger, and Stark
County, Southwest Judicial District, the Honorable William A. Herauf, Judge.

      AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.

      Opinion of the Court by Crothers, Justice.

       Christina M. Wenko (argued) and Olivia L. Krebs (appeared), Dickinson, ND,
for plaintiff and appellee.

      Kevin McCabe, Dickinson Public Defender Office, Dickinson, ND, for
defendant and appellant.




                                        2
                                     State v. Watson
                       Nos. 20180294, 20180295, 20180296


       Crothers, Justice.
[¶1]   James Watson appeals after a jury found he was guilty of continuous sexual
abuse of a child in Golden Valley County, he conditionally pled guilty to sexual
assault in Hettinger County, and he conditionally pled guilty to continuous sexual
abuse of a child in Stark County. Watson argues the district court erred by granting
continuances in all three cases and violated his statutory speedy trial rights. We
conclude the court did not abuse its discretion by granting the State’s motions for
continuances in the Hettinger and Stark County cases. But Watson’s statutory speedy
trial right was violated in the Golden Valley County case because trial did not begin
within 90 days of Watson’s speedy trial election and the district court did not find
good cause for the delay. We affirm the Hettinger and Stark County judgments and
reverse the Golden Valley County judgment and remand.


                                            I
[¶2]   This case involves consolidated appeals from district court cases in Hettinger
County, Stark County, and Golden Valley County. Although the issues raised on
appeal are similar and the victim and defendant are the same in each case, we address
the facts of each case separately.
                                           A
                               Golden Valley County
[¶3]   On June 30, 2017, Watson was charged in Golden Valley County with one
count of continuous sexual abuse of a child. The complaint alleged Watson engaged
in sexual conduct or sexual acts on at least a weekly basis with a child under the age
of 15 during the fall of 2011 through December 2011.
[¶4]   On October 2, 2017, Watson was arraigned. On October 3, 2017, Watson filed
and electronically served a speedy trial request under N.D.C.C. §§ 29-01-06 and

                                           1
29-19-02. A jury trial was scheduled for December 27, 2017. The trial was later
rescheduled for January 3-5, 2018.
[¶5]   On December 14, 2017, the State moved for a continuance. The State argued
good cause existed for the court to grant a continuance because the investigation was
ongoing, law enforcement released additional information, and the State wanted
additional time to review the new information and make Watson an offer. The State
also claimed it had a scheduling conflict because the jury trial was tentatively
scheduled for January 3-5, 2018, and the State’s Attorney had a jury trial scheduled
in a different case on January 5, 2018. Watson objected to the State’s motion.
[¶6]   On December 15, 2017, the district court advised the parties the jury trial was
scheduled for January 3-5, 2018 as a backup trial due to problems with the court’s
schedule. The court recommended the State prepare as if the case would be going to
trial on the dates scheduled unless the court specifically ordered a continuance.
[¶7]   On December 20, 2017, the district court denied the State’s motion for a
continuance. The court considered Watson’s right to a speedy trial and whether the
State had shown good cause for a continuance. The court found good cause did not
exist based on the State’s request for more time to investigate. The court found any
conflict with another case scheduled for trial on the same day was not applicable
because the judge also would be involved in that case if it did not settle, and no
conflict would exist if it did settle. The court denied the State’s request.
[¶8]   The trial was not held on January 3-5, 2018. There is no information in the
record about the trial until January 22, 2018, when an amended notice of trial was
filed, rescheduling the jury trial to January 31-February 2, 2018. The trial was held,
and the jury found Watson guilty of continuous sexual abuse of a child. Watson was
sentenced to 25 years in prison.


                                           B
                                   Hettinger County


                                           2
[¶9]   On June 30, 2017, Watson was charged in Hettinger County with two counts
of gross sexual imposition in violation of N.D.C.C. § 12.1-20-03, a class AA felony;
and one count of gross sexual imposition in violation of N.D.C.C. § 12.1-20-03, a
class A felony. The complaint alleged Watson engaged in a sexual act or sexual
contact with the victim when he was between the ages of 48 and 50 and the victim
was between 15 and 18, and he compelled the victim to submit by force or threat of
imminent death or serious bodily injury.
[¶10] On October 2, 2017, Watson was arraigned and a criminal information was
filed charging him with one count of gross sexual imposition in violation of N.D.C.C.
§ 12.1-20-03, a class AA felony. On October 3, 2017, Watson filed and electronically
served a speedy trial request under N.D.C.C. §§ 29-01-06 and 29-19-02.
[¶11] The jury trial was scheduled for December 27, 2017. An amended notice of
trial was later entered, stating the jury trial would be held on December 27-29, 2017.
On December 18, 2017, the State moved for a continuance. The State alleged good
cause existed for the delay because the victim was a necessary witness and she was
unavailable for trial on December 28-29, 2017.
[¶12] On December 20, 2017, the district court advised the parties the State must
comply with N.D.C.C. § 29-19-06 for the court to properly consider whether a
continuance should be granted based upon the unavailability of a witness. The State
filed a supplemental brief in support of its motion. Watson objected to the State’s
motion.
[¶13] On December 22, 2017, the district court granted the State’s motion, finding
the State’s supplemental brief supplied the information required by N.D.C.C. §
29-19-06. The court concluded the State had shown good cause to delay the trial
beyond the 90-day requirement based on the witness’s unavailability. The court
continued the trial to January 31-February 2, 2018. An amended notice rescheduled
the trial for February 7-9, 2018.




                                           3
[¶14] The parties reached a plea agreement under which the State amended the gross
sexual imposition charge to a sexual assault charge. On March 13, 2018, an amended
criminal information was entered, charging Watson with one count of sexual assault
in violation of N.D.C.C. § 12.1-20-07, a class C felony. Watson entered a conditional
Alford plea of guilty to the amended charge. Watson was sentenced to five years in
prison, with credit for time served. A criminal judgment was entered.
                                           C
                                    Stark County
[¶15] On June 30, 2017, Watson was charged in Stark County with continuous
sexual abuse of a child in violation of N.D.C.C. § 12.1-20-03.1, a class AA felony.
The State alleged Watson engaged in sexual contact or acts on a weekly basis with a
child under 15 during the fall of 2011 through April 2013.
[¶16] On October 2, 2017, Watson was arraigned. On October 3, 2017, Watson filed
and electronically served a speedy trial request under N.D.C.C. §§ 29-01-06 and
29-19-02. The jury trial was scheduled for December 27-29, 2017.
[¶17] On December 14, 2017, the State moved for a continuance, claiming it was
unavailable for the week of December 25-29, 2017. The State also filed an affidavit
from the State’s Attorney, stating the primary witness in the matter was unavailable
to testify at the scheduled trial. Watson objected to the requested continuance and
argued the State failed to meet the requirements of N.D.C.C. § 29-19-06 for a
continuance due to an absent witness.
[¶18] On December 18, 2017, the district court denied the continuance motion based
on the unavailability of the witness because the State failed to comply with N.D.C.C.
§ 29-19-06, but allowed the State until December 20, 2017 to file the required
information if it wanted the court to consider the witness’s unavailability as a reason
for a continuance. The State supplemented its motion to provide the required
information.
[¶19] On December 20, 2017, the district court granted the State’s motion, finding
the State’s unavailability was not a sufficient or justifiable reason for a continuance,

                                           4
but good cause existed to delay the trial beyond the 90-day requirement based on the
witness’s unavailability.
[¶20] On December 21, 2017, Watson objected to the State’s supplement to its
motion for a continuance, arguing the State did not show that it used diligence to
secure the witness for trial. The court reviewed the objection and ordered that its
order granting the continuance “stands,” finding the State submitted the required
information to comply with N.D.C.C. § 29-19-06 and Watson did not address
prejudice, which was the key element in deciding whether to grant a continuance in
the case.
[¶21] A jury trial was rescheduled for February 7-9, 2018, at the Stark County
Courthouse. Watson ultimately entered an Alford conditional guilty plea to one count
of continuous sexual abuse of a child, a class AA felony. He was sentenced to 25
years in prison with the possibility of parole. A criminal judgment was entered.


                                          II
[¶22] Watson argues his speedy trial right under N.D.C.C. § 29-19-02 was violated
in all three cases and the district court erred by granting the State’s motions for a
continuance. He claims the trials were required to begin within 90 days of when he
elected to assert his right to a speedy trial under N.D.C.C. § 29-19-02, he elected his
right on October 3, 2017, the statute required each trial to begin by January 2, 2018,
and the time limit could only be exceeded for good cause. He claims the State did not
have good cause for exceeding the statutory time limit in any of the cases. Watson
does not argue his speedy trial rights under either the federal or state constitutions
were violated, and we are not deciding those issues.
[¶23] “When an appellant raises a speedy trial issue, we review the district court’s
findings of fact under a clearly erroneous standard.” Koenig v. State, 2018 ND 59,
¶ 12, 907 N.W.2d 344 (quoting City of Grand Forks v. Gale, 2016 ND 58, ¶ 8,
876 N.W.2d 701); see also State v. Hall, 2017 ND 124, ¶ 12, 894 N.W.2d 836. The
decision to grant or deny a continuance is in the court’s discretion and the court’s

                                          5
decision will be reviewed for an abuse of discretion. State v. Ripley, 2009 ND 105,
¶ 12, 766 N.W.2d 465; Everett v. State, 2008 ND 199, ¶ 25, 757 N.W.2d 530. A court
abuses its discretion when it acts in an arbitrary, unreasonable, or unconscionable
manner, or when it misinterprets or misapplies the law.              State v. Hinojosa,
2011 ND 116, ¶ 7, 798 N.W.2d 634.
[¶24] Section 29-19-02, N.D.C.C., states:
       “In a criminal prosecution, the state and the defendant each shall have
       the right to a speedy trial. The right to a speedy trial in a criminal case
       in which the charging instrument contains a charge of a felony offense
       under section 19-03.1-23 or under chapter 12.1-20 is for the trial to
       begin within ninety days of the date the party elects this right. The
       prosecution and the defendant shall elect this right within fourteen days
       following the arraignment. The court may allow the trial to begin later
       than ninety days of the arraignment for good cause.”
This statutory speedy trial right applies in criminal cases involving felony offenses
under N.D.C.C. § 19-03.1-23, controlled substances, and under N.D.C.C. ch. 12.1-20,
sex offenses.    See N.D.C.C. § 29-19-02; State v. Gibson, 2017 ND 15, ¶ 5,
889 N.W.2d 852. The defendant has a statutory right to trial within 90 days of
electing the right under N.D.C.C. § 29-19-02. See N.D.C.C. § 29-19-02; see also
Koenig v. State, 2018 ND 59, ¶ 16, 907 N.W.2d 344. The defendant must “elect” his
right for the statute to apply, and a defendant elects his right when it is received by the
court and prosecutor. See Gibson, at ¶ 5. The defendant must elect the right within
a 14-day window following arraignment. See N.D.C.C. § 29-19-02; Koenig, at ¶ 19.
The statute also authorizes the court to allow the trial to begin later than 90 days after
the arraignment for good cause.          See N.D.C.C. § 29-19-02; see also Hall,
2017 ND 124, ¶ 10, 894 N.W.2d 836.


                                            A
[¶25] Watson pled guilty to the charges in the Hettinger and Stark County cases.
Generally, a defendant waives the right to a speedy trial when he pleads guilty. State
v. Wunderlich, 338 N.W.2d 658, 662 (N.D. 1983). However, Watson’s guilty pleas

                                            6
were conditional, reserving the right to appeal. He did not waive the right to a speedy
trial or the issues he raises about the district court’s orders granting a continuance.
See State v. Abuhamda, 2019 ND 44, ¶ 9, 923 N.W.2d 498.
[¶26] Watson argues the State failed to establish good cause for the continuances in
the Hettinger and Stark County cases. He claims the State failed to meet the
requirements for a continuance due to the unavailability of a witness under N.D.C.C.
§ 29-19-06 because it did not show it used due diligence to prepare for trial.
[¶27] In both the Hettinger and Stark County cases, the district court granted the
State’s requests for a continuance based on the unavailability of the primary witness.
The court’s decisions in the two cases are very similar. In both cases, the court found
the State supplied the information required under N.D.C.C. § 29-19-06 for a
continuance on the grounds of an absent witness. The court considered whether there
was good cause or whether the delay may violate Watson’s speedy trial rights. The
court found the continuance would result in a trial outside of the 90-day statutory
limit, but the delay would be relatively short and the court would try to start the trials
in the two cases on January 31, 2018 and February 7, 2018. The court considered the
reason for the delay and found the unavailability of the primary witness was a
concern, the State’s request was not a deliberate attempt to hamper the defense, there
was no fault on the part of the State, and this was a “more neutral” reason for a
continuance that weighed less heavily but still weighed against the State. The court
found Watson asserted the right to a speedy trial. Lastly, the court considered the
prejudice to Watson and found that was probably the most important factor in these
cases. The court found Watson did not show any actual prejudice and prejudice could
not be presumed under the facts of these cases. The court found the continuances
would not affect Watson’s speedy trial rights and the State showed good cause to
allow the trial to begin more than 90 days after the arraignment.
[¶28] Section 29-19-02, N.D.C.C., authorizes the district court to allow a trial to
begin later than 90 days after the arraignment for good cause.                 See Hall,
2017 ND 124, ¶ 10, 894 N.W.2d 836. Four factors are considered in determining

                                            7
whether the court had good cause to grant a continuance under N.D.C.C. § 29-19-02:
“(1) length of delay; (2) reason for delay; (3) defendant’s assertion of his right; and
(4) prejudice to the defendant.” Everett, 2008 ND 199, ¶ 26, 757 N.W.2d 530. “No
factor is controlling, but a ‘lack of prejudice substantially weakens a claim.’”
Hinojosa, 2011 ND 116, ¶ 8, 798 N.W.2d 634 (quoting State v. Moore, 2007 ND 7,
¶ 6, 725 N.W.2d 910).
[¶29] The district court granted continuances in both the Hettinger and Stark County
cases, which would have resulted in the trial being held after the 90-day statutory time
limit expired. However, the court considered the four factors and found good cause
existed for a continuance based upon the unavailability of the primary witness.
[¶30] There is no dispute Watson timely asserted his right to a speedy trial. Both
trials were required to begin by January 2, 2018. The district court indicated it would
attempt to quickly reschedule the trials. The trials were rescheduled to begin on
January 31, 2018 in Hettinger County and February 7, 2018 in Stark County, which
was 29 and 36 days beyond the 90-day limit. The length of the delay was relatively
short. Whether a delay is too long depends on the circumstances of the case, but the
allowable delay for a minor offense is less than that allowed for a more serious and
complex offense. Moore, 2007 ND 7, ¶ 7, 725 N.W.2d 910. In these cases, the delay
was minimal considering the severity of the offenses charged. See Hinojosa, 2011
ND 116, ¶ 9, 798 N.W.2d 634 (in Uniform Mandatory Disposition of Detainers Act
case, delay of 54 days was not excessive given the severity of the drug delivery
offense); Moore, at ¶ 7 (in another Uniform Mandatory Disposition of Detainers Act
case, delay of 38 days was minimal for the severity of the burglary, theft and criminal
mischief offenses).
[¶31] Here, the district court granted the continuances based on the unavailability of
the primary witness. A party may request a continuance on the grounds of an absent
witness under N.D.C.C. § 29-19-06, which provides:
              “An application for a continuance on the ground that a witness
       is absent must show:

                                           8
              1. That the applicant has used due diligence to prepare
              for the trial;
              2. The nature of the diligence used;
              3. The name and residence of the absent witness;
              4. What the applicant expects or believes such witness
              would testify were that witness present and orally
              examined in court;
              5. That the testimony of the witness is material;
              6. The nature of any document wanted and where the
              same may be found;
              7. That the same facts cannot be satisfactorily shown by
              other evidence; and
              8. That the witness is not absent through the connivance
              or counsel of the applicant.”
The court did not address each factor under N.D.C.C. § 29-19-06, but found the State
supplied sufficient information, including that the State used due diligence to prepare
for the trial and the nature of the diligence used. Watson argues the State did not
show it used any diligence in securing the witness for trial because the State did not
subpoena her.
[¶32] The State informed the district court the primary source of communication with
the witness was through the Stark County Victim/Witness Program Office and the
witness was informed of the trial dates. The State indicated its practice is to send
subpoenas after the pretrial conference when the trial dates can be confirmed, and the
pretrial conference was held on December 12, 2017. The State advised the court it
requested a meeting with the witness immediately following the pretrial conference,
they met on December 15, 2017, and the witness said she was available on
December 27, 2017, but was not available to testify between December 28, 2017 and
January 3, 2018. The State argued the witness was the victim of the alleged offenses
and therefore was a necessary witness, her testimony was material, and her testimony
could not be supplied by other witnesses. A delay due to the unavailability of the
State’s main witness when not attributable to the State, may serve as a valid reason
to justify a delay of trial. See State v. Bergstrom, 2004 ND 48, ¶ 18, 676 N.W.2d 83;
see also Barker v. Wingo, 407 U.S. 514, 531 (1972) (stating a missing witness may

                                          9
serve as a valid reason to justify an appropriate delay of trial). Watson has not cited
any law from this state supporting his argument that the State was required to
subpoena the witness to be entitled to a continuance based on witness unavailability.
The evidence supports the court’s finding that the State supplied the information
required under N.D.C.C. § 29-19-06.
[¶33] The final factor is prejudice. Prejudice can take three forms: “oppressive
pretrial incarceration, anxiety and concern caused by the delay, and an impaired
defense.” Everett, 2008 ND 199, ¶ 30, 757 N.W.2d 530 (quoting State v. Foster,
1997 ND 8, ¶ 12, 560 N.W.2d 194). “Delay is not presumptively prejudicial, and a
lack of prejudice substantially weakens a claim.” State v. Aguero, 2010 ND 210, ¶ 22,
791 N.W.2d 1. Watson did not allege prejudice in any of his responses to the State’s
motions in the Hettinger and Stark County cases. Although Watson was incarcerated
while awaiting trial, he did not claim that the additional month of incarceration was
“oppressive” or that he experienced anxiety caused by the delay. He has not shown
his defense was impaired by the delay. In weighing the factors, the district court
found this factor was probably the most important factor in these cases. Watson has
not shown the delay in either case caused him any prejudice.
[¶34] Although the 90-day statutory requirement for a speedy trial was exceeded in
both cases, the district court found good cause existed and justified exceeding the time
limit. The court’s decisions were not arbitrary, unreasonable, or unconscionable, and
the court did not misinterpret or misapply the law. Under the facts and circumstances
of these cases, the district court did not abuse its discretion by granting a continuance,
and Watson’s statutory speedy trial rights were not violated. We affirm the criminal
judgments in the Hettinger and Stark County cases.
                                            B
[¶35] Watson argues the district court erred by granting a continuance in the Golden
Valley County case.
[¶36] The trial was scheduled for December 27, 2017.                The trial was later
rescheduled for January 3-5, 2018. In a December 15, 2017 letter, the district court

                                           10
informed the parties the trial was “currently set as a backup to go January 3-5, 2018,
due to scheduling problems associated with the Court’s schedule.” The State moved
for a continuance to allow more time to review information it received from law
enforcement. The State also requested a continuance because it was unavailable due
to a conflict with a jury trial scheduled in another matter on January 5, 2018. The
district court denied the State’s motion, finding good cause for a continuance did not
exist and the scheduling conflict was “inapplicable” because the judge also would be
involved in that case. The State did not file another motion for a continuance. On
January 22, 2018, an amended notice was filed, stating the jury trial would be held on
January 31-February 2, 2018. No information in the record explains why the trial was
not held on January 3-5, 2018 and was rescheduled.
[¶37] At the beginning of the trial Watson moved for dismissal, arguing his statutory
speedy trial rights were violated. The State opposed the motion, stating, “The statute
29-19-02 does provide that the Court can, with good cause, grant a continuance if
necessary, and the State again supports and puts forth its prior arguments that we’ve
already submitted to the Court.” The district court denied the motion, ruling “Motion
is denied for the reasons previously stated in my order.” However, the court
previously denied the State’s request for a continuance in this case, finding an absence
of good cause. No other orders exist granting a continuance or denying a motion to
dismiss for a statutory speedy trial violation. Therefore, nothing in this record
identifies the prior order referred to by the court.
[¶38] Watson was arraigned on October 2, 2017, and he elected his right to a speedy
trial on October 3, 2017. Watson’s election was timely. See N.D.C.C. § 29-19-02;
Koenig, 2018 ND 59, ¶ 19, 907 N.W.2d 344 (stating election of statutory right must
be made within the 14-day window following arraignment). Under N.D.C.C. §
29-19-02, the trial was to begin by January 2, 2018, 90 days after Watson’s
arraignment and the date he elected his right. Section 29-19-02, N.D.C.C., states,
“The court may allow the trial to begin later than 90 days of the arraignment for good
cause.”

                                           11
[¶39] The trial began on January 31, 2018, which was more than 90 days after
Watson elected to exercise his right to a speedy trial. The district court denied the
State’s only motion for a continuance, finding good cause did not exist. The only
information in the record explaining why the trial was rescheduled outside the 90-day
limit is the court’s December 15, 2017 letter to the parties stating the trial was moved
due to court scheduling problems. We do not need to decide whether this explanation
is sufficient and whether the court abused its discretion, because the trial was
rescheduled a second time and the court did not provide any explanation on the record
for the further delay.
[¶40] Under N.D.C.C. § 29-19-02, the district court must find good cause for the
delay if it allows the trial to begin later than 90 days after a timely speedy trial
request. In this case, the court denied the motion for a continuance finding there was
not good cause and then rescheduled the trial twice outside the 90 days. The court did
not provide any explanation for rescheduling the trial a second time, and we have no
findings whether good cause existed for the delay. Without an explanation of the
court’s decision and a finding of good cause, we are unable to review the court’s
decision. See State ex. rel. Schlect v. Wolf, 2010 ND 101, ¶ 13, 783 N.W.2d 642.
Based on the record before us, the court did not comply with N.D.C.C. § 29-19-02
and it improperly rescheduled the trial after the time limit expired, thereby abusing
its discretion. Cf. State v. Olsen, 540 N.W.2d 149, 151 (N.D. 1995) (holding speedy
trial requirements of the Uniform Mandatory Disposition of Detainers Act were
violated when trial was held three days after continuance ended).
[¶41] On this record, Watson’s statutory speedy trial rights were violated. We
reverse the district court’s judgment in the Golden Valley County case, and remand
for dismissal of the charge with prejudice.


                                          III
[¶42] We affirm the judgments in the Hettinger and Stark County cases. We reverse
the judgment in the Golden Valley County case and remand.

                                          12
[¶43] Daniel J. Crothers
      Lisa Fair McEvers
      Jerod E. Tufte

       Jensen, Justice, concurring in part and dissenting in part.
[¶44] The majority opinion is well written and I concur in affirming the convictions
in Stark County and Hettinger County. Because the record supports a determination
the district court did not abuse its discretion in granting a continuance of the trial date
in Golden Valley County, I would affirm the Golden Valley conviction.
[¶45] Our review of the district court’s findings of fact related to Watson’s assertion
his right to a speedy trial was violated is subject to the clearly erroneous standard of
review. Koenig v. State, 2018 ND 59, ¶ 12, 907 N.W.2d 344; see also State v. Hall,
2017 ND 124, ¶ 12, 894 N.W.2d 836. The district court’s decision to grant or deny
a continuance is within the court’s discretion, and this Court’s review is limited to a
determination of whether the court abused its discretion. State v. Ripley, 2009 ND
105, ¶ 12, 766 N.W.2d 465; Everett v. State, 2008 ND 199, ¶ 25, 757 N.W.2d 530.
A court abuses its discretion when it acts in an arbitrary, unreasonable, or
unconscionable manner, or when it misinterprets or misapplies the law. State v.
Hinojosa, 2011 ND 116, ¶ 7, 798 N.W.2d 634.
[¶46] Section 29-19-02, N.D.C.C., authorizes the district court to allow a trial to
begin later than 90 days after the arraignment for good cause.                  See Hall,
2017 ND 124, ¶ 10, 894 N.W.2d 836. Four factors are considered in determining
whether the court had good cause to grant a continuance under N.D.C.C. § 29-19-02:
“(1) length of delay; (2) reason for delay; (3) defendant’s assertion of his right; and
(4) prejudice to the defendant.” Everett, 2008 ND 199, ¶ 26, 757 N.W.2d 530. “No
factor is controlling, but a ‘lack of prejudice substantially weakens a claim.’”
Hinojosa, 2011 ND 116, ¶ 8, 798 N.W.2d 634 (quoting State v. Moore, 2007 ND 7,
¶ 6, 725 N.W.2d 910).
[¶47] The majority concludes the record is so devoid of information that it is
impossible for us to review whether there was good cause to continue the Golden

                                            13
Valley trial from January 2, 2018 to January 31, 2018, and in turn determines the
district court abused its discretion. I find the record was sufficient to determine the
district court did not abuse its discretion in granting a continuance.
[¶48] At the beginning of the Golden Valley trial, Watson’s counsel requested the
case be dismissed, asserting the 90-day period to begin the trial as provided in
N.D.C.C. § 29-19-02 had run and there was not good cause to continue the start of the
trial beyond the statutory 90-day period. The district court responded the issue had
been addressed in a prior order and affirmed the continuance was appropriate. The
same trial judge, same defendant, and same defense counsel participated in all three
trials. The trials were all scheduled within a relatively short window of time. I have
no doubt the district court was referencing the rationale from the order(s) entered in
the other cases. The majority found the order(s) and reasoning sufficient to affirm the
convictions in Hettinger and Stark counties.
[¶49] Even if the majority appropriately ignores the reasoning provided by the
district court in the other cases, it errs by failing to evaluate the four factors required
to be considered in determining whether the court had good cause to grant the
continuance under N.D.C.C. § 29-19-02: “(1) length of delay; (2) reason for delay;
(3) defendant’s assertion of his right; and (4) prejudice to the defendant.” Everett,
2008 ND 199, ¶ 26, 757 N.W.2d 530. With regard to factor 1, the length of the delay,
we know from the record the delay was 29 days. The majority concludes delays of
29 and 36 days to be “relatively short” when reviewing the Stark County and
Hettinger County cases. Presumably, the same rationale would apply in Golden
Valley and the delay of 29 days was “relatively short.”
[¶50] Factor 2 requires consideration of the reason for the delay. If we exclude
consideration of the orders in Stark and Hettinger counties, which I believe the district
court was referring to, there is admittedly no direct statement of the reason on the
record. However, we do know from the exchange the district court has concluded
there is good cause for the delay.


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[¶51] Factor 3 requires consideration of whether the right to a speedy trial was
asserted. The right to a speedy trial was properly asserted by Watson.
[¶52] Factor 4 requires consideration of whether Watson was prejudiced by the
delay. The record supports the conclusion there was no prejudice. Watson, in the
exchange with the district court, did not assert any prejudice. To the contrary, Watson
asserted prejudice was not required. “No factor is controlling, but a ‘lack of prejudice
substantially weakens a claim.’” Hinojosa, 2011 ND 116, ¶ 8, 798 N.W.2d 634
(quoting Moore, 2007 ND 7, ¶ 6, 725 N.W.2d 910).
[¶53] To summarize the factors, there was a delay the majority concludes was
relatively short in Hettinger and Stark counties. We know the district court found
good cause, referenced an order that is not in the record, and did not put findings with
respect to the reason for the delay on the record. Watson properly asserted his right
to a speedy trial. Watson was not prejudiced by the 29-day delay.
[¶54] Our standard of review requires us to determine whether the district court
abused its discretion in granting the continuance. Ripley, 2009 ND 105, ¶ 12, 766
N.W.2d 465. A court abuses its discretion when it acts in an arbitrary, unreasonable,
or unconscionable manner, or when it misinterprets or misapplies the law. Hinojosa,
2011 ND 116, ¶ 7, 798 N.W.2d 634. Weighing the four factors this Court is required
to consider, I do not find the district court acted in an arbitrary, unreasonable, or
unconscionable manner, and I cannot conclude the district court misinterpreted or
misapplied the law. The district court found good cause, the delay was relatively
short, a delay of the same length was appropriate in the companion cases, and there
was no prejudice to Watson as the result of the delay. I would affirm the conviction
in Golden Valley County, as well as the convictions in Stark and Hettinger counties.
[¶55] Jon J. Jensen
      Gerald W. VandeWalle, C.J.




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