                     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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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.

                      ANDREW JOHN REA, Appellant.

                             No. 1 CA-CR 18-0781
                               FILED 10-10-2019


           Appeal from the Superior Court in Mohave County
                        No. S8015CR201800309
            The Honorable Billy K. Sipe, Judge Pro Tempore

                                  AFFIRMED


                                   COUNSEL

Arizona Attorney General’s Office, Phoenix
By Gracynthia Claw
Counsel for Appellee

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



                      MEMORANDUM DECISION

Judge Lawrence F. Winthrop delivered the decision of the Court, in which
Presiding Judge Jennifer B. Campbell and Judge Michael J. Brown joined.


W I N T H R O P, Judge:

¶1            Andrew John Rea (“Appellant”) appeals his convictions and
sentence for theft and facilitation of theft of means of transportation. See
Arizona Revised Statutes (“A.R.S.”) sections 13-1802(A)(1), -1814(A)(1),
-1004(A). Appellant argues the trial court committed reversible error by
taking the verdict in Appellant’s absence without first finding that
Appellant had voluntarily chosen not to appear. Finding no error, we
affirm.

                 FACTS AND PROCEDURAL HISTORY

¶2              In September 2018, Appellant was tried before a jury for theft,
facilitation to commit burglary in the second degree, and facilitation of theft
of means of transportation.         Appellant was released on his own
recognizance and acknowledged in open court his agreement to the terms
of that release, including his obligation to appear at all future proceedings.

¶3            Appellant was reminded of those release order conditions
during the final pretrial conference, and at the conclusion of the first day of
trial. Consistent with that explicit understanding, Appellant appeared
every day of his three-day trial, testified in his own defense, and was
present for multiple jury questions after jury deliberations began. When
the evidentiary phase ended and the jury started its deliberations in mid-
afternoon on day two of the trial, the court specifically advised Appellant
to “stay around the courthouse” so the court could get him back “in a
moment’s notice.” The jury did not reach a verdict on day two of the trial
and resumed deliberations on the morning of day three.

¶4            In the late morning of day three of the trial, the judge advised
the attorneys, with the Appellant present, that the judge needed to leave for
a meeting and expected to be back around 1:00 PM. He also noted that the
jury had indicated it would continue to deliberate through lunch. The jury
reached a verdict during the noon hour, and counsel were so notified. The
court reconvened at 1:58 PM; Appellant was not present. The court did not



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                             STATE v. REA
                           Decision of the Court

immediately inquire about Appellant’s absence, nor did defense counsel at
any time object to the jury announcing its verdict in Appellant’s absence.
The jury found Appellant not guilty of facilitation to commit burglary in
the second degree, but guilty of Class 6 felony facilitation to commit theft
of means of transportation and of Class 1 misdemeanor theft.

¶5             After the jury was excused, the judge questioned defense
counsel about Appellant’s absence. Defense counsel stated he did not know
where Appellant was, but advised the court that he had texted Appellant
at 1:00 PM and informed him that the jury had reached a verdict. He had
also tried to call Appellant, but the call went to voicemail.1

¶6             The State requested a bench warrant in light of Appellant’s
failure to appear. The judge declined to immediately issue the warrant,
speculating that the Appellant “may have simply not received the notice”
or may not have gotten “himself back into court on time,” and that these
are “not the type of charges somebody would flee from and not want to face
sentencing.” Appellant did appear for sentencing a few months later but
never explained why he had failed to appear for the verdict. The court
suspended Appellant’s sentence and placed him on three years’ supervised
probation.

¶7            Appellant filed a timely notice of appeal from the judgment
and sentence. We have jurisdiction under Arizona Constitution Article 6,
Section 9, and A.R.S. §§ 12-120.21(A)(1), 13-4031, and -4033(A).

                               ANALYSIS

      I.     Standard of Review

¶8              Generally, “[w]e review the trial court’s determination of a
defendant’s voluntary or involuntary absence for an abuse of discretion.”
State v. Reed, 196 Ariz. 37, 38, ¶ 2 (App. 1999). However, when a defendant
fails to object to an alleged trial error, we review for fundamental,
prejudicial error. See State v. Escalante, 245 Ariz. 135, 140, ¶ 12 (2018).



1       Defense counsel clarified that on the morning of day three,
Appellant had given counsel Appellant’s mother’s number to use if counsel
needed to contact him. Appellant’s own phone had apparently been shut
off, and Appellant’s mother had been present through most of trial.
Defense counsel followed that instruction and utilized that number in an
effort to contact Appellant.


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                               STATE v. REA
                             Decision of the Court

¶9            To prevail on a claim of fundamental error, a defendant must
first prove that trial error exists. Id. at 142, ¶ 21. If error is established, we
must determine whether the error is fundamental, considering the totality
of the circumstances. Id. “A defendant establishes fundamental error by
showing that (1) the error went to the foundation of the case, (2) the error
took from the defendant a right essential to his defense, or (3) the error was
so egregious that he could not possibly have received a fair trial.” Id. If the
defendant establishes fundamental error under the first or second prong,
he must also make a separate showing of prejudice, which also “involves a
fact-intensive inquiry.” Id. (citation omitted). If the defendant establishes
prong three, “he has shown both fundamental error and prejudice, and a
new trial must be granted.” Id. In this process, “[t]he defendant bears the
burden of persuasion at each step.” Id. (citation omitted).

       II.     Right to be Present and Voluntary Absence

¶10             A criminal defendant has the right to be physically present
when a jury verdict is rendered. State v. Levato, 186 Ariz. 441, 444 (1996)
(“[C]riminal defendants, under all but exceptional circumstances, are
entitled as a matter of constitutional right to be physically present for the
return of jury verdicts.”). See also U.S. Const. amend. 6, 14; Ariz. Const. art.
2, § 24; Ariz. R. Crim. P. 19.2 (“A defendant in a felony or misdemeanor trial
has the right to be present at every stage of the trial, including . . . the return
of the verdict.”).

¶11           But the right of a defendant to be present at trial is not
absolute: a defendant may waive his right to be present at any proceeding
through voluntary absence. See Ariz. R. Crim. P. 9.1. “The court may infer
that a defendant’s absence is voluntary if the defendant had actual notice of
the date and time of the proceeding, notice of the right to be present, and
notice that the proceeding would go forward in the defendant’s absence.”
Id. After such an inference, the burden shifts to the defendant to prove his
absence was involuntary. Reed, 196 Ariz. at 39, ¶ 3.

¶12          Appellant argues the superior court erred by receiving the
verdict in Appellant’s absence without making any finding of voluntary
absence.2 Additionally, Appellant claims he did not have adequate notice


2     The State contends that because Appellant fails to argue that
announcing the verdict in his absence constituted fundamental error, that
argument is waived. See State v. Moreno-Medrano, 218 Ariz. 349, 354, ¶ 17
(App. 2008) (“[The appellant] does not argue the [untimely-objected-to]



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                            Decision of the Court

of the time of the proceedings and thus, that the burden should not fall on
him to prove his absence was involuntary.

¶13            As a primary matter, the record reflects that Appellant clearly
had notice of the date of the proceedings, of his right to be present, and that
all phases of the trial would proceed in his absence if he failed to appear.

¶14           The only dispute, then, is whether Appellant had actual
notice of the time the court was reconvening for purposes of taking the
verdict. Appellant was present in the courtroom on day one when the court
specifically advised the prospective jury that “[e]ach day [of the trial] . . .
[w]e’ll take a lunch break from noon to 1:30.” After the jury was sent to
deliberate on day two of the trial, the court told Appellant to “stay around
the courthouse,” cautioned that “it’s really frustrating when we need the
defendant and [we] find out he or she is across town,” and reminded
Appellant that they might need to “get [him] back [t]here in a moment’s
notice.” More specifically, on day three of the trial, Appellant was present
when the judge explained he had a meeting at 11:30 AM and would not
likely “be back until 1:00,” but that the jury would continue to deliberate
during the lunch hour.

¶15            In addition to Appellant being repeatedly reminded by the
court of his continuing obligation to appear, and explicitly advised of both
the court’s anticipated schedule for the afternoon of day three and the fact
that the jury was continuing its deliberations during the lunch hour,
defense counsel specifically followed Appellant’s directions and called and
texted Appellant at 1:00 PM, utilizing the phone number provided by
Appellant and leaving a message that the jury had reached a verdict, which
was a clear indication that Appellant needed to immediately return to the
courtroom.

¶16           We find these facts sufficient to show Appellant had actual
notice that the proceedings could resume at any time after the judge
returned at 1:00 PM. Although the judge did not predict an exact time the
verdict could be rendered, Appellant not only had notice that his trial was
ongoing and that he needed to be present when the lunch recess was ended,


alleged error was fundamental. That argument is therefore waived.”)
(internal citations omitted). Here, although Appellant in his brief initially
argues that the “court committed reversible error,” he later contends that
“this case should be reversed . . . at a minimum, [for] prejudicial
fundamental error.” Accordingly, Appellant’s argument of fundamental
error is not waived.


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                               STATE v. REA
                             Decision of the Court

but also that the jury had chosen to continue to deliberate during the lunch
recess, a very clear signal that the jury could return with a verdict at any
time. As instructed by Appellant, defense counsel called and texted
Appellant at 1:00 PM, giving adequate time for Appellant to return by the
time the court actually reconvened at 1:58 PM. Further, it is well established
that “[a]n out-of-custody defendant has the responsibility to remain in
contact with his attorney and the court” so that he may be informed and
present at all stages of the trial. State v. Bishop, 139 Ariz. 567, 571 (1984). As
such, Appellant had the burden of proving his absence was involuntary.
See Reed, 196 Ariz. at 39, ¶ 3. Appellant made no record below to suggest,
let alone prove, his absence was involuntary. On these facts, the court did
not abuse its discretion in inferring that Appellant’s absence was
voluntary.3

¶17           Finally, even assuming Appellant’s argument in this regard
was not waived by defense counsel’s failure to object either before or after
the verdict was returned, these facts clearly indicate Appellant had
adequate notice of the time of the proceeding and the court did not err, let
alone fundamentally err, in not sua sponte making further inquiry
concerning Appellant’s failure to appear. See State v. Tudgay, 128 Ariz. 1, 3
(1981) (“Since there was a prima facie showing of voluntary waiver, and no
evidence presented by appellant to the contrary, the court did not err in
proceeding in absentia.”).




3       When the judge declined to issue a bench warrant after Appellant’s
absence, the judge speculated that Appellant “may have simply not
received the notice” of the proceeding. On this record, the judge’s comment
falls short of proving Appellant did not have actual notice of the time of the
proceeding. Further, the court did not err in failing to make an explicit
ruling regarding Appellant’s voluntary absence. See State v. Rice, 116 Ariz.
182, 185-86 (App. 1977) (finding “the [trial] court did not err in trying and
sentencing [the defendant] in absentia” although the trial court had never
made an explicit ruling of voluntary absence).


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                           STATE v. REA
                         Decision of the Court

                            CONCLUSION

¶18         For the foregoing reasons, we affirm the convictions and
sentence imposed by the trial court.




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




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