Mike Hatch, Attorney General, 1400 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101; and

Amy Klobuchar, Hennepin County Attorney, Linda M. Freyer, Assistant County Attorney, C-2000 Government Center, Minneapolis, MN 55487 (for respondent)

Melissa Sheridan, Assistant State Public Defender, 875 Summit Avenue, Room 254, St. Paul, MN 55105 (for appellant)

Considered and decided by Klaphake, Presiding Judge, Kalitowski, Judge, and Short, Judge.

Appellant Daniel Darnell Smith contends the district court erred by denying his motion for a continuance and proceeding to trial on criminal sexual conduct charges. We affirm.

The decision to grant a continuance is vested in the sound discretion of the trial court. State v. Lloyd, 345 N.W.2d 240, 247 (Minn. 1984). This court will not reverse the trial court unless it has abused that discretion. State v. Turnipseed, 297 N.W.2d 308, 311 (Minn. 1980). In determining whether the trial court soundly exercised its discretion, this court must

examine the circumstances before the trial court when the motion was made to determine whether the defendant was so prejudiced in preparing or presenting his defense as to materially affect the outcome of the trial.

Lloyd, 345 N.W.2d at 247.

The United States and Minnesota Constitutions guarantee a criminal defendant the right to compulsory process for obtaining witnesses in the defendant's favor. U.S. Const. Amend. VI.; Minn. Const. art. 1, § 6; State v. King, 414 N.W.2d 214, 219 (Minn. App. 1987), review denied (Minn. Jan. 15, 1988). In determining whether this right has been violated, we consider whether appellant sufficiently showed, when he moved for the continuance: (1) that the missing witness would be found within a reasonable time; and (2) that the missing witness would provide favorable noncumulative evidence. Id.

Appellant claims he established that at least one of the missing witnesses would be found within a reasonable time. We disagree. Although one of the witnesses was allegedly available to testify at the trial scheduled in December 1997, the trial was canceled when appellant pleaded guilty. After appellant withdrew his plea, appellant's investigator learned the witness had been evicted from her apartment and did not leave a forwarding address. From January to the trial date in April, appellant had four months to locate the witness but was unable to do so. The state also provided evidence that it was unable to locate either of the two witnesses. Further, appellant provided no new information indicating where the witness might be. Because appellant did not show the missing witnesses would be found within a reasonable time, we conclude the district court acted within its discretion in denying appellant's motion for a continuance.

Appellant claims that had the witnesses been located, they would have provided favorable noncumulative evidence that he had not raped the victim, but had engaged in consensual sex. We disagree.

In the police report of the incident, the police officer noted that the victim stated the two witnesses "didn't know anything was wrong" when they talked to the victim outside the building shortly after the alleged assault. The officer also noted that the witnesses had no idea their friend had been sexually assaulted, and did not notice anything unusual about the victim when she introduced them to appellant. The state does not challenge this evidence and agrees, based on the victim's testimony, that this is what happened. Moreover, the victim explained why she did not communicate to the witnesses that she had been sexually assaulted. Appellant does not claim the witnesses would have anything else to add concerning the incident.

The district court correctly determined appellant did not establish the testimony of the witnesses would add significantly to the facts already in the record. Because appellant has not shown the witnesses would be able to provide favorable, noncumulative evidence, we conclude the court did not abuse its discretion in denying the motion for a continuance. Finally, because this matter had been scheduled for trial four months earlier, and because appellant was granted a one-week continuance, we conclude the district court's denial of the motion for a second continuance did not prejudice appellant in preparing or presenting his defense so as to materially affect the outcome of the trial.

Affirmed.