                             NOTICE: NOT FOR PUBLICATION.
      UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION DOES NOT CREATE
             LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED.




                                       IN THE
                ARIZONA COURT OF APPEALS
                                   DIVISION ONE


                          STATE OF ARIZONA, Appellee,

                                           v.

                  SUFYAN SAFWAN TALIBUDDIN, Appellant.

            Nos. 1 CA-CR 12-0670, 1 CA-CR 13-0929 (Consolidated)
                            FILED 11-06-2014


               Appeal from the Superior Court in Mohave County
                            No. S8015CR201100200
                    The Honorable Steven F. Conn, Judge

                                     AFFIRMED


                                      COUNSEL

Arizona Attorney General’s Office, Phoenix
By Andrew Reilly
Counsel for Appellee

Mohave County Legal Advocate’s Office, Kingman
By Jill L. Evans
Counsel for Appellant
                             STATE v. TALIBUDDIN
                              Decision of the Court



                          MEMORANDUM DECISION

Judge Peter B. Swann delivered the decision of the Court, in which Presiding Judge
Andrew W. Gould and Judge Jon W. Thompson joined.


SWANN, Judge:

¶1            Sufyan Safwan Talibuddin (“Defendant”) appeals his conviction and
sentence for aggravated assault and the denial of his motion to vacate judgment.
Defendant argues that the trial court erred in finding that he was voluntarily
absent from his trial and in admitting evidence that he was on probation. For
reasons that follow, we affirm.

                    FACTS AND PROCEDURAL HISTORY

¶2           Defendant was indicted on two counts of aggravated assault in
connection with an assault committed against his roommate. For sentence
enhancement purposes, the State alleged that Defendant had two prior historical
felony convictions and that he committed the assault while on probation.

¶3             When Defendant failed to appear for trial, he was tried in absentia. A
jury found Defendant guilty of aggravated assault on one count and the lesser
offense of misdemeanor assault on the second count. After return of the verdicts,
the trial court issued a bench warrant for Defendant’s arrest. Defendant was taken
into custody a month later.

¶4           At sentencing, the trial court dismissed the misdemeanor assault
conviction on the grounds that it merged into the aggravated assault conviction
and sentenced Defendant to a presumptive ten-year prison term. Defendant
timely appealed from his conviction and sentence.

¶5             Defendant further filed a motion to vacate judgment, arguing that
the trial court erred by conducting the trial in his absence and thereby deprived
him of his right to be present. After an evidentiary hearing at which both
Defendant and his trial counsel testified regarding the circumstances surrounding
Defendant’s failure to appear for trial, the trial court ruled that Defendant’s
absence from trial was voluntary and denied the motion. Defendant appealed
from the denial of his motion to vacate judgment, and on Defendant’s motion, we
consolidated the two appeals.




                                         2
                              STATE v. TALIBUDDIN
                               Decision of the Court

                                   DISCUSSION

I.     Finding of Voluntary Absence

¶6             A defendant’s right to be present at trial is guaranteed by both the
federal and state constitutions. U.S. Const. Amend. 6, 14; Ariz. Const. art. 2, § 24;
State v. Garcia-Contreras, 191 Ariz. 144, 147, ¶ 8, 953 P.2d 536, 539 (1998), see also
Ariz. R. Crim. P. 19.2 (providing “defendant has right to be present at every stage
of trial”). This right is not absolute, however, and a defendant may waive it by
voluntarily absenting himself. Ariz. R. Crim. P. 9.1; Taylor v. United States, 414 U.S.
17, 20 (1973). We review a trial court’s finding that a defendant was voluntarily
absent from trial for abuse of discretion. State v. Sungia, 145 Ariz. 389, 391–92, 701
P.2d 1197, 1199–1200 (1985).

¶7            The trial court may infer that a defendant’s absence from trial is
voluntary if the defendant had personal notice of the time for trial, the right to be
present, and a warning the trial would go forward in his absence should he fail to
appear. Ariz. R. Crim. P. 9.1. When the circumstances indicate that these elements
have been satisfied and the defendant nevertheless fails to appear for trial, “the
absence is presumed voluntary” and the defendant bears the burden of proving
otherwise. State v. Hall, 136 Ariz. 219, 222, 665 P.2d 101, 104 (1983).

¶8             Defendant does not contest that he had notice of his right to be
present at trial or that he was warned that he could be tried in absentia if he failed
to appear. His challenge to the trial court’s finding of a waiver of the right to be
present is based on a contention that he did not have actual notice of the
rescheduled trial date, and that he was misled by his trial counsel’s failure to
contact him about the new date.

¶9            The facts surrounding Defendant’s failure to appear for trial are not
in dispute. Defendant was present in court at a final management conference on
March 5, 2012, when the trial court scheduled his trial for April 24, 2012. He had
been sentenced to prison in another case, and at this conference the trial court
granted his request to be transferred from the county jail to the Department of
Corrections to permit him to finish that prison sentence before trial in the present
case. The April 24th trial date was set based on the belief that Defendant would
be released from prison prior to that date. In granting the request, the trial court
instructed Defendant that even though he would no longer be on probation when
he got out of prison, he would still be “on release on this case.”

¶10            While Defendant was in prison, the trial court held two more final
management conferences. At the first conference on April 9, 2012, defense counsel
told the trial court that Defendant was not present because he had not yet been
released from prison. Because of Defendant’s expected unavailability on April


                                          3
                             STATE v. TALIBUDDIN
                              Decision of the Court

24th, the trial court reset the trial to May 30, 2012. At the next conference on May
14, 2012, defense counsel informed the trial court that Defendant was set to be
released from prison later that week and agreed that the trial could proceed as
scheduled on May 30th.

¶11              Defendant was released from prison on May 15, 2012, but failed to
appear for trial on May 30th. The trial court held a hearing on whether trial should
proceed in his absence. Defense counsel told the trial court that she was informed
that Defendant had been released from prison and was living at a half-way house
in Phoenix. She further reported that although Defendant was being supervised
by a parole officer, her multiple attempts to contact Defendant through the parole
officer had failed and that she last had contact with Defendant on March 5th. After
learning that defense counsel did not know Defendant’s exact whereabouts or how
to contact him, the trial court ruled that the trial would proceed in Defendant’s
absence, because “even though the defendant may not know of today’s trial date,
the only reason that he doesn’t know is that he has not fulfilled his obligation to
keep in contact with his attorney and to make sure that he knows when this case
is set for trial.”

¶12            The trial court did not abuse its discretion by finding that Defendant
voluntarily absented himself from trial when he failed to appear for trial on May
30th. At the evidentiary hearing on the motion to vacate judgment, Defendant
testified that he was released from prison two weeks before the rescheduled trial
date. There was nothing that physically prevented him from appearing for trial
on May 30th. Even though Defendant never received actual notice of the
rescheduled trial date, as the trial court noted in deciding to proceed with trial in
absentia, he was charged with the duty to stay in contact with his attorney.

¶13             Defendant testified that he could not call his attorney while in
prison because he did not have phone privileges. However, he failed to offer any
reason why he could not have called his attorney during the two weeks after his
release from prison to determine the status of his case. Accordingly, the trial court
could reasonably have found that Defendant’s knowledge of his original trial date
and his failure to fulfill his responsibility to maintain contact with his counsel
evidenced a knowing and voluntary absence from trial. State ex rel. Thomas v.
Blakey, 211 Ariz. 124, 127-28, ¶¶ 12-14, 118 P.3d 639, 642-43 (App. 2005); see also
State v. Muniz-Caudillo, 185 Ariz. 261, 262, 914 P.2d 1353, 1354 (App. 1996) (holding
absence voluntary where defendant did not have personal notice of trial date, but
failed to stay in contact with trial counsel to ascertain trial date).

¶14           Defendant cites Peoples v. Evans, 172 N.E.2d 799 (Ill. 1961), for the
proposition that his miscommunication with counsel constitutes a valid excuse for
his nonappearance. But that case is readily distinguishable. In Evans, the


                                         4
                             STATE v. TALIBUDDIN
                              Decision of the Court

defendant left the state and failed to appear for trial in reliance on counsel’s
observation that he did not believe the defendant’s trial would proceed during the
time he was out of town. Id. at 800. Here, in contrast, there was no affirmative
conduct by counsel that misled Defendant about his obligations to remain in
contact. Defendant testified at the evidentiary hearing that he simply assumed
that the charges against him were dismissed because he was released from prison
on parole without any detainer. His assumption, however, was not based on
anything counsel told him -- it was the result of his failure to contact counsel or
the court to determine the status of his pending case after his release from prison.

II.    Admission of Other-act Evidence

¶15          Defendant argues the trial court erred in admitting evidence that he
was on probation. He contends this evidence should have been excluded as
inadmissible “other-act evidence” pursuant to Ariz. R. Evid. 404(b).

¶16           We review evidentiary rulings for abuse of discretion. State v. Mott,
187 Ariz. 536, 545, 931 P.2d 1046, 1055 (1997). The trial court has discretion to
admit other-act evidence provided that: 1) it is offered for a proper relevant
purpose under Rule 404(b); 2) its relevance under Rule 401 is not substantially
outweighed by the potential for unfair prejudice under Rule 403; and 3) the trial
court gives a limiting instruction if requested under Rule 105. State v. Ferrero, 229
Ariz. 239, 242, ¶ 12, 274 P.3d 509, 512 (2012). Because Defendant failed to object to
the challenged evidence at trial, our review is limited to fundamental error. State
v. Henderson, 210 Ariz. 561, 567, ¶ 19, 115 P.3d 601, 607 (2005). To prevail under
this standard of review, a defendant must establish both fundamental error and
resulting prejudice. Id. at ¶ 20.

¶17           Rule 404(b) provides that “evidence of other crimes, wrongs, or acts
is not admissible to prove the character of a person in order to show action in
conformity therewith.” Thus, other-act evidence may not be used to prove a
defendant’s bad character or guilt of another crime. State v. Gamez, 144 Ariz. 178,
179, 696 P.2d 1327, 1328 (1985). Such evidence may, however, be admissible for
other non-propensity purposes, “such as proof of motive, opportunity, intent,
preparation, plan, knowledge, identity, or absence of mistake or accident.” Ariz.
R. Evid. 404(b).

¶18          The State introduced the evidence that Defendant was on probation
to establish motive for the assault. The State’s theory was that Defendant
committed the assault because he was angry with the victim for telling
Defendant’s probation officer that Defendant had not been living at the home
where Defendant had informed his probation officer he was residing. Although
motive is not an element of assault, evidence of motive is relevant to proving a



                                         5
                              STATE v. TALIBUDDIN
                               Decision of the Court

defendant’s guilt. See State v. Hunter, 136 Ariz. 45, 50, 664 P.2d 195, 200 (1983)
(holding motive is relevant in murder prosecution even though not element of
offense); State v. Tuttle, 58 Ariz. 116, 120, 118 P.2d 88, 90 (1941) (“[P]roof of motive
is always relevant.”).

¶19           We reject Defendant’s argument that the fact that he was on
probation was not relevant. Defendant contends that because his probation officer
had not contacted him, there was no evidence that he knew that the victim had
told his probation officer about his violation, and therefore the reported probation
violation would not establish motive for the assault. The victim, however, testified
that as Defendant pushed his way into the victim’s bedroom and punched him in
the face, Defendant yelled at him about calling the police and his probation officer
to get him “busted.” Therefore, even if Defendant did not hear directly from his
probation officer about the authorities looking for him regarding his probation
violation, the jury could reasonably infer that Defendant had come by the
information secondhand from some other person who had been contacted by the
probation officer. Accordingly, the trial court did not abuse its discretion in
finding that evidence of Defendant’s probation status was admissible for a proper
relevant purpose under Rule 404(b).

¶20            The trial court could also reasonably find that the evidence was not
subject to exclusion under Rule 403. This rule provides for the exclusion of
otherwise relevant evidence when its probative value is substantially outweighed
by the danger of unfair prejudice. Ariz. R. Evid. 403. “Unfair prejudice results if
the evidence has an undue tendency to suggest decision on an improper basis,
such as emotion, sympathy, or horror.” Mott, 187 Ariz. at 545, 931 P.2d at 1055
(citing State v. Schurz, 176 Ariz. 46, 52, 859 P.2d 156, 162 (1993)). The jury was not
informed of the offenses for which Defendant was on probation, and we cannot
say that the court abused its discretion by concluding that any prejudice was
outweighed by the probative value of the evidence. See State v. Harrison, 195 Ariz.
28, 33, ¶ 21, 985 P.2d 513, 518 (App. 1998) (“The trial court is in the best position to
balance the probative value of challenged evidence against its potential for unfair
prejudice.”), aff’d, 195 Ariz. 1, 985 P.2d 486 (1999).

¶21           Finally, the trial court gave a limiting instruction pursuant to Rule
105 on the proper use of the other-act evidence. We presume that the jurors
followed the trial court’s instructions and did not use the evidence as proof of
Defendant’s bad character. State v. Newell, 212 Ariz. 389, 403, ¶ 68, 132 P.3d 833,
847 (2006). Thus, there was no error, let alone fundamental error, in the admission
of the other-act evidence.




                                           6
                         STATE v. TALIBUDDIN
                          Decision of the Court

                            CONCLUSION

¶22         For the reasons stated, we affirm Defendant’s conviction and
sentence.




                                 :gsh




                                   7
