                                                                                                            F     PEAL


                                                                                                                Atl
      IN THE COURT OF APPEALS OF THE STATE OF WASHING
                                                                                                                      QT.
                                             DIVISION ' II


    STATE OF WASHINGTON,                                                  No. 44774 -6 -II


                                    Respondent,


           v.



    TAMMERA MICHELLE THURLBY,                                       PUBLISHED OPINION


                                    Appellant.


         SUTTON, J. —        Tammera Michelle Thurlby appeals her three convictions for unlawful

delivery   of a controlled substance.    She argues that the trial court ( 1) violated her constitutional


right to be present when it resumed the second day of trial in her absence, and ( 2) failed to

adequately consider on the record the presumption against waiver of her right to be present at trial.

We hold that the trial court did not abuse its discretion in continuing the trial in Thurlby' s absence

and that the trial court adequately considered on the record the presumption against waiver.

Therefore, we affirm.


                                                  FACTS


         On August 31, 20121, the State charged Tammera Michelle Thurlby with three counts of

unlawful delivery of a controlled substance ( methamphetamines) within 1000 feet of a school bus
                2
route   stop.       Thurlby was present in the courtroom when her trial began on December 11, 2012.

On that day, the trial court erpaneled a jury and the State presented six of nine witnesses. Before




1 The State later amended the information on December 11, 2012 and again on March 21, 2013.

2
    Uniform Controlled Substances Act (VUCSA),        ch.   69. 50 RCW.
No. 44774 -6 -II




the court recessed for the day, Thurlby' s counsel instructed her to arrive at court before 9 :00 AM

the   next   day; Thurlby      replied, "      Okay." 1 Verbatim Report of Proceedings ( VRP) at 103.

          When the trial court reconvened shortly after 9: 00 AM the next morning, Thurlby was not

present      in the   courtroom.       Thurlby' s counsel stated that he did not have a telephone number to

contact her. The trial court agreed to wait a few minutes before issuing a bench warrant, but almost

15    minutes    later   Thurlby       still   had    not appeared.       The trial court then issued a bench warrant;


officers searched        for   Thurlby         that morning,    but   could not   find her.   During the recess, the trial

court also inquired with the St. John' s Medical Center' s patient intake department and the


emergency room department, the court administration office, the clerk' s office, and the jail but

was unable to locate Thurlby and confirmed that none of these facilities had received a phone call

from Thurlby. The trial court then took another recess until 1: 30 PM to allow more time for officers

to find Thurlby.

          Following that recess, defense counsel made a motion for a mistrial or continuance, which

the trial court denied. The trial court made a preliminary finding that ( 1) Thurlby was voluntarily

absent    because the trial        court        had   not   heard any     good   cause   for her   absence, (   2) noted that


rescheduling the trial would be difficult given the number of people involved in presenting the

State'   s case, and (   3)    ruled   that the trial       would proceed without        Thurlby in   attendance.   The trial


resumed, and the jury returned guilty verdicts and special verdicts on each of the three charges

against Thurlby.

             On March 21, 2013, the trial court reconvened for sentencing after Thurlby was taken into

custody on February 13, 2013. Before sentencing, the trial court provided Thurlby an opportunity

to explain her absence on the second day of trial; under oath Thurlby explained that her mother


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had serious health issues and had to have emergency surgery on December 12, 2012. Thurlby said

that she had tried to call " the Clerk" to reschedule, but was told that because the charges were for

a   felony   matter she could not reschedule.                2 VRP     at   228.    Thurlby apologized and explained that

she did not attend trial because her mother was " everything" to her. 2 VRP at 229. The trial court

also allowed Thurlby' s mother to speak; she informed the trial court of her health problems leading

up to the surgery and explained that Thurlby, her only child, had been present at the hospital that

day to help her.

          The trial court acknowledged Thurlby' s decision to be with her mother instead of attending

her trial, but      noted   that   she   had been " ordered" to be in         court while      her    absence was a " choice."    2


VRP at 242. The trial court found that Thurlby' s absence was a " willing voluntary waiver of her

right    to be   present    during       the trial"   and   proceeded       with    the sentencing     hearing.   2 VRP at 243.


Thurlby timely appealed.

                                                             ANALYSIS


                        I. RIGHT To BE PRESENT: ABSENCE AFTER TRIAL HAS BEGUN


           The Sixth Amendment of the United States Constitution guarantees the right to be present


at one' s    trial. State    v.   Irby,   170 Wn.2d 874, 880 -81, 246 P. 3d 796 ( 2011).                  The Washington State


Constitution        also grants      every    accused person      the "     right   to appear" at trial.     CoNST.   art.   I, § 22


    amend.   10).    A defendant may waive the right to be present, however, through voluntary absence

if the   waiver     is voluntary,        knowing,     and   intelligent. State        v.   Frawley,        Wn.2d ,      334 P. 3d


1022, 1027 ( 2014).                A defendant' s absence is voluntary if the trial court can infer that the

defendant' s absence was intentional, rather than beyond his or her control. State v. Atherton, 106


Wn.     App.     783, 789 -90, 24 P. 3d 1123 ( 2001).            When a defendant' s voluntary absence occurs after



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trial has begun, the trial court may, in its discretion, continue the trial to its conclusion, including

entering   a verdict.       CrR 3. 4( a), ( b).     We review the trial court' s decision to proceed with trial


despite the defendant' s absence for abuse of discretion. State v. Garza, 150 Wn.2d 360, 365 -66,

77 P. 3d 347 ( 2003).         The trial     court   has   abused   its discretion if the decision       was "    manifestly


unreasonable, or [ was] exercised on untenable grounds, or                 for   untenable reasons."     State v. Woods,


143 Wn.2d 561, 626, 23 P. 3d 1046 ( 2001) (               emphasis omitted).




         To determine whether the defendant is voluntarily absent from trial, the trial court, under

a   totality   of   the   circumstances      standard,    follows   a   three    step   process:   It   must (   1)   inquire


sufficiently into the circumstances of the defendant' s disappearance to justify a finding of

voluntary      absence, (   2) make a preliminary finding of voluntariness if the circumstances in step one

so allow, and ( 3) provide the defendant an opportunity to explain his or her absence before the trial

court   imposes       a sentence.   State   v.    Thomson, 123 Wn.2d 877, 881, 872 P. 2d 1097 ( 1994).                   The


trial court is required to indulge " every reasonable presumption against waiver" when performing

each    step. Garza, 150 Wn.2d at 367.


          Thurlby acknowledges that even if the trial court was correct in making a preliminary

finding of voluntary absence after its attempts to locate her for several hours before proceeding

without her, once the trial court heard her explanation for her absence, its ruling was no longer

reasonable.         Additionally, Thurlby relies on Garza' s holding that an incarcerated defendant who

makes reasonable efforts to inform the court that he or she cannot attend trial due to incarceration


requires retraction of a preliminary finding of voluntariness. Garza, 150 Wn.2d at 370. She argues

that Garza requires the same result here because she called the " Clerk' s office" on December 12.

Br. of Appellant at 9. We disagree.




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       In Garza, our Supreme Court held that the trial court abused its discretion when, after the


defendant informed his counsel he would be late, the trial court waited only five minutes before

proceeding with trial. Garza, 150 Wn.2d at 363 -64. Rather than presume that " something outside

of Garza' s control" delayed him, the trial court did not indulge the presumption against waiver

when it waited an unreasonably short amount of time and immediately concluding that the

defendant'   s absence was       voluntary.      Garza, 150 Wn.2d     at   369 (   emphasis added).    The Supreme


Court held that the decision to proceed was manifestly unreasonable and that the trial court' s

preliminary determination of voluntary absence without employing the presumption against

waiver was an abuse of           discretion.     Garza, 150 Wn.2d    at    369.    Garza' s efforts to alert the trial


court to his incarceration were irrelevant to the Garza holding. See Garza, 150 Wn.2d at 371.

        This case is analogous to Thomson, which held that the trial court did not abuse its

discretion in making a preliminary finding of voluntary absence where ( 1) Thomson informed his

attorney that a medical emergency prevented him from being in court, but he did not provide a

way to reach him again, and ( 2) the trial court issued a bench warrant in the morning after

defendant' s absence but did not reconvene the trial until 1: 30 PM without any further contact from

Thomson.        Thomson, 123 Wn.2d          at   879, 884.   Similar to Thomson, the trial court here did not


abuse its discretion when it made a preliminary finding of Thurlby' s voluntary absence on

December 12.        Before it made its preliminary finding, the trial court sought information from

multiple   sources       about   any   contact with   Thurlby. The trial court waited over three hours for

Thurlby    to   return   to trial before   making   its ruling.   Based on the information available that day,

the trial court had no evidence that Thurlby' s absence was due to an event outside of her control.




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The trial court' s decision to proceed with Thurlby' s trial was not manifestly unreasonable nor

based on untenable grounds.


       The trial court also did not abuse its discretion when it found that Thurlby was voluntarily

absent after hearing her explanation before sentencing. Thurlby and her mother addressed the trial

court at length, but the trial court recognized that Thurlby' s attention to her mother' s needs was a

voluntary   choice while     her   attendance at court was   mandatory.     No    circumstance " outside [ of




Thurlby' s] control" prevented her from attending trial. Garza, 150 Wn.2d at 369.

        We hold that the trial court did not abuse its discretion when it made a preliminary finding

that Thurlby was voluntarily absent or when it found that her mother' s emergency surgery did not

prevent her from attending her trial.

                II. ADEQUATE CONSIDERATION OF PRESUMPTION AGAINST WAIVER

        Thurlby argues that the trial court abused its discretion when it failed to expressly consider

the presumption against waiver during its voluntary absence ruling at sentencing because the trial

court never said   the   words " presumption against waiver."    Suppl. Br.     of   Appellant   at   5.   She relies


on State v. Cobarruvias3 to support this argument. Because we decline to adopt the reasoning of

Cobarruvias, we disagree.


        Division Three of our court recently held that the trial court in Cobarruvias was required

to expressly consider on the record the defendant' s explanation for his trial absence in light of the

presumption against waiver.          Cobarruvias, 179 Wn.    App.   at   532.   Under Cobarruvias, the trial


court must do more than " simply listen" when the defendant offers an explanation for his or her




3 State v. Cobarruvias, 179 Wn. App. 523, 532, 318 P. 3d 784 ( 2014).

                                                      6
No. 44774 -6 -II



absence.      Cobarruvias, 179 Wn.        App.   at   533.   Cobarruvias requires the trial court, on the record,


to ( 1)    determine "   what    actually happened" that      prevented     the defendant from coming to trial, ( 2)


 assess the reasonableness" of the defendant' s absence in light of what happened, and ( 3) decide

whether      that   absence was     voluntary.   Cobarruvias, 179 Wn.          App.    at   533.    Division Three stated


that it could not determine whether the trial court in that case, when it ruled that the defendant had

been voluntarily absent after the defendant' s explanation, began its analysis " anew" or if it began

 with its ( well supported) original determination of voluntariness and weigh[ ed] that against the

reasonableness of         the defendant' s   actions."   Cobarruvias, 179 Wn.          App.    at   533.   Because it could


not make this determination, Division Three held that the trial court abused its discretion, reversed


the trial court and remanded for a new trial. Cobarruvias, 179 Wn. App. at 533.

            Cobarruvias is       an unwarranted extension of       Garza     and   Thomson:         Neither Thomson nor


Garza, two           earlier    Washington    Supreme Court        cases,    require    an explicit mention of the


presumption against waiver during a subsequent determination of voluntary absence or require the

trial     court   to begin " anew" as the Cobarruvias decision instructs.              Cobarruvias, 179 Wn. App. at

533.       The Cobarruvias court recognized its extension into new legal territory, saying that even

though the trial court' s determination of voluntary absence after the defendant' s explanation was

reasonable, "       we believe the trial court erred in not expressly considering the defendant' s showing

in light of the ` overarching' presumption against waiver. Neither Thomson nor Garza dealt with

the     application of    the   presumption   to the third prong   of the    Thomson test."         Cobarruvias, 179 Wn.


App. 532 ( emphasis added).

             We respectfully disagree with Cobarruvias' legal extension. Neither existing case law nor

the Washington or federal constitutions require the trial court to use precise language or begin



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No. 44774 -6 -II




anew when         considering the defendant'   s explanation   for his   or   her   absence   from trial. Here, the


colloquy between Thurlby and the trial court demonstrates that the trial court considered the

presumption against waiver even though it did not use that specific phrase. The trial court carefully

questioned Thurlby and her mother to determine what had happened; the court acknowledged

Thurlby' s decision to be with her mother but noted that Thurlby chose to be with her mother while

she was ordered to attend trial, and found that Thurlby voluntarily waived her right to be present

at   trial.    Therefore, we hold that the trial court did not abuse its discretion when it found that


Thurlby was voluntarily absent.

              We affirm.



                                                            9414,   47M
                                                            Sutton, J.
 We concur:




                                                        8
