                     NOTICE: NOT FOR OFFICIAL PUBLICATION.
 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL
                 AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.




                                    IN THE
             ARIZONA COURT OF APPEALS
                                DIVISION ONE


                       STATE OF ARIZONA, Appellee,

                                        v.

                   LEON RAY YELLOWHAIR, Appellant.

                             No. 1 CA-CR 17-0613
                               FILED 11-27-2018


          Appeal from the Superior Court in Maricopa County
                       No. CR2015-117331-001
         The Honorable Annielaurie Van Wie, Judge Pro Tempore

                                  AFFIRMED


                                   COUNSEL

Arizona Attorney General’s Office, Phoenix
By Nicholas Chapman-Hushek
Counsel for Appellee

Maricopa County Public Defender’s Office, Phoenix
By Carlos Daniel Carrion
Counsel for Appellant
                         STATE v. YELLOWHAIR
                           Decision of the Court



                      MEMORANDUM DECISION

Judge Lawrence F. Winthrop delivered the decision of the Court, in which
Presiding Judge Jennifer M. Perkins and Judge Jon W. Thompson joined.


W I N T H R O P, Judge:

¶1            Leon Ray Yellowhair appeals his convictions and sentences
for two counts of aggravated driving or actual physical control while under
the influence of intoxicating liquor (“DUI”). Yellowhair argues the trial
court erred by proceeding with jury selection when he was involuntarily
absent. For the following reasons, we affirm.

                 FACTS AND PROCEDURAL HISTORY

¶2            We view the facts in the light most favorable to upholding the
verdicts and resolve all reasonable inferences against the defendant. State
v. Harm, 236 Ariz. 402, 404, ¶ 3 n.2 (App. 2015) (citing State v. Valencia, 186
Ariz. 493, 495 (App. 1996)).

¶3             On December 29, 2014, a police officer stopped Yellowhair’s
vehicle after he observed Yellowhair speeding and making a wide right-
turn. While questioning Yellowhair, the officer noticed signs of possible
impairment. The officer then attempted to perform field sobriety tests, but
Yellowhair refused to cooperate. After he arrested Yellowhair for
suspected impaired driving, the officer obtained a warrant to draw a
sample of Yellowhair’s blood. Subsequent testing of the sample revealed it
contained a blood alcohol content more than three and a half times the legal
limit. At the time of his arrest, Yellowhair’s driver’s license was suspended
and revoked. The State charged Yellowhair with two counts of aggravated
DUI.

¶4           Yellowhair failed to appear for most of his trial. When
Yellowhair did not appear for jury selection on the first trial day, the court
continued the jury selection for thirty minutes. Defense counsel requested
a continuance until the afternoon, informing the court that Yellowhair was
stranded at his girlfriend’s home with no means of getting to the
courthouse. The court denied the requested continuance.

¶5             At the conclusion of jury selection, defense counsel objected
to the State’s request that the court issue a warrant for Yellowhair’s arrest,


                                      2
                          STATE v. YELLOWHAIR
                            Decision of the Court

and he instead asked the court to do so the next morning. Defense counsel
explained:

              It’s my understanding that Mr. Yellowhair was with
       his ex-girlfriend earlier today and apparently after discussing
       this with his girlfriend, she had sought his assistance and left
       him with her kids in the morning when she went to work, but
       took his wallet, so he was unable to get here to court because
       the kids were there and she was at work and she was not
       willing to come to — leave work to get him to court, and so
       he’s basically stuck with kids throughout the day.

             The earliest that she could have gotten to leave work
       and get . . . him over here . . . was around 1:15-ish or so and at
       that point, Mr. Yellowhair felt that it would best be — it
       would better to just come in the morning.

¶6           The court rejected defense counsel’s request and promptly
issued an arrest warrant. Yellowhair failed to appear the next two days,
and he eventually self-surrendered the night before the fourth day of trial.
He appeared for closing arguments and return of the verdicts, and the court
instructed the jury before deliberations not to consider Yellowhair’s
absence when determining guilt.

¶7            The jury found Yellowhair guilty as charged. The court
imposed two concurrent ten-year prison terms, and Yellowhair timely
appealed. We have jurisdiction pursuant to Arizona Revised Statutes
sections 12-120.21(A)(1), 13-4031, and 13-4033(A)(1).

                                  ANALYSIS

¶8            Yellowhair argues the court erred in proceeding with jury
selection in his absence, and he contends the court should have instead
granted his request to continue the jury selection until he could be present.
Yellowhair specifically claims the court erred in finding his absence was
voluntary.

¶9            Under the Sixth and Fourteenth Amendments to the United
States Constitution and Article 2, Section 24, of the Arizona Constitution, a
criminal defendant has a right to be present at trial. State v. Levato, 186 Ariz.
441, 443 (1996); see also Ariz. R. Crim. P. 19.2 (indicating a defendant has the
right to be present at every stage of the trial, including jury selection).
However, a defendant may voluntarily relinquish his or her right to attend



                                       3
                          STATE v. YELLOWHAIR
                            Decision of the Court

trial. State v. Bohn, 116 Ariz. 500, 503 (1977). A valid waiver depends upon
the voluntariness of the defendant’s absence. Id.

¶10             “The finding of voluntary absence, and, therefore, the
existence of a waiver of the right to be present, is basically a question of
fact.” State v. Bishop, 139 Ariz. 567, 569 (1984) (quoting Brewer v. Raines, 670
F.2d 117, 120 (9th Cir. 1982)). “The trial court may infer that a defendant’s
absence is voluntary if the defendant had personal knowledge of the time
of the proceeding, his right to be present, and the warning that the
proceeding would take place in his absence if he failed to appear.” State v.
Muniz-Caudillo, 185 Ariz. 261, 262 (App. 1996) (citation omitted); see also
Ariz. R. Crim. P. 9.1. Once the inference of voluntary absence is raised, a
defendant bears the burden of proving his or her absence from trial was
involuntary. State v. Goldsmith, 112 Ariz. 399, 401 (1975). This court will not
reverse a trial court’s finding that the defendant’s absence was voluntary
absent an abuse of discretion. Bishop, 139 Ariz. at 569.

¶11            Yellowhair concedes the court reminded him multiple times
before trial that if he failed to appear for future proceedings, the trial could
proceed in his absence. Indeed, at a pretrial hearing, the court specifically
informed Yellowhair that jury selection would begin on July 17, 2017, at
10:30 a.m. The court stated, “[s]o I really do need you here in person, in
Phoenix, to do your trial. I will tell you we do trials without defendants
here on a somewhat regular basis; I have never seen it be good when the
defendant is not here for their trial, okay?” Yellowhair responded
affirmatively. On this record, the court properly inferred Yellowhair
voluntarily waived his right to appear for trial.

¶12             Additionally, Yellowhair’s excuse for his absence from jury
selection does not explain his failure to attend the two subsequent days of
trial. Indeed, his continued absence reasonably undermines the credibility
of his rationalization for not appearing at trial on the first day.
Furthermore, the record reflects that Yellowhair could have appeared at
jury selection in the afternoon, yet he chose not to do so. Yellowhair thus
fails to establish on appeal that his absence from trial was involuntary, and,
therefore, the trial court did not abuse its discretion in declining to delay
the jury selection.




                                       4
                      STATE v. YELLOWHAIR
                        Decision of the Court

                            CONCLUSION

¶13           For the foregoing reasons, Yellowhair’s convictions and
sentences are affirmed.




                      AMY M. WOOD • Clerk of the Court
                      FILED: AA




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