                                                                  FILED
                                                               MARCH 26, 2020
                                                         In the Office of the Clerk of Court
                                                        WA State Court of Appeals, Division III




            IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
                               DIVISION THREE

STATE OF WASHINGTON,                          )         No. 36059-8-III
                                              )
                     Respondent,              )
                                              )
       v.                                     )         UNPUBLISHED OPINION
                                              )
WILLIAM GEORGE NICOL,                         )
                                              )
                     Appellant.               )

       PENNELL, C.J. — William Nicol appeals his convictions for two counts of first

degree rape of a child and one count of first degree child molestation. We affirm.

                                    BACKGROUND

       The facts relevant to Mr. Nicol’s appeal pertain to events that happened during

and after his jury trial. We therefore limit our discussion to those circumstances.
No. 36059-8-III
State v. Nicol


       Mr. Nicol was released from custody pretrial. Once trial began on October 17,

2016, Mr. Nicol timely appeared for each day of trial. Deliberations began on October 21,

2016, at approximately 11:49 a.m. At 4:13 p.m., the jury issued a question, asking “[d]oes

each count of rape need to be in a different location or just that the victim was raped

multiple times?” Clerk’s Papers at 77. Mr. Nicol was present as the court read the

question and the parties agreed on a response. But when court reconvened in response to

the bailiff’s report that the jury had reached a verdict, Mr. Nicol did not appear.

       The trial court asked Mr. Nicol’s attorney about Mr. Nicol’s whereabouts. The

attorney stated he did not know Mr. Nicol’s location. The attorney explained that he

spoke with Mr. Nicol after the jury’s question and informed Mr. Nicol he “thought that

[Mr. Nicol] was going to be found guilty.” Report of Proceedings (RP) (Oct. 21, 2016) at

845. Mr. Nicol responded to this information by telling his attorney that he was heading

to the bathroom. When the attorney learned the jury reached a verdict, he called Mr. Nicol

by phone, but Mr. Nicol did not respond. To determine how to proceed, the court

considered CrR 3.4 and State v. Thomson, 123 Wn.2d 877, 880-81, 872 P.2d 1097 (1994)

(considering waiver of right to be present at trial under state and federal constitutions and

rules of criminal procedure).

       A security officer provided testimony relevant to Mr. Nicol’s absence. The officer

explained he screened individuals entering the courthouse the week of trial. At about

                                              2
No. 36059-8-III
State v. Nicol


4:45 p.m. on October 21, 2016, the security officer noticed a man in his late sixties

leaving the courthouse and jogging away. The officer recognized the man as someone he

had seen coming and going from the courthouse earlier in the week. The trial court later

made a factual finding that the man observed by the security officer was “probably” Mr.

Nicol. RP (Oct. 21, 2016) at 857.

       After hearing the security officer’s testimony, the court asked Mr. Nicol’s attorney

to again explain for the record, “as an officer of the court,” his efforts to contact Mr.

Nicol Id. at 854-55. The court first emphasized it was not asking the attorney to “disclose

any conversations” with his client. Id. at 854. The attorney then reiterated he talked with

Mr. Nicol, Mr. Nicol left for the bathroom, and the attorney called Mr. Nicol twice

without answer. The attorney did not repeat the substance of his conversation with Mr.

Nicol, although the prosecutor emphasized the attorney had already stated on the record

that he “told his client he thought he was going to be found guilty.” Id. at 856. Mr.

Nicol’s attorney further indicated he could not waive his client’s right to be present at the

verdict.

       Based on the foregoing circumstances, the trial court found Mr. Nicol voluntarily

absented himself from trial. The court decided to hear the verdict without Mr. Nicol

present. Mr. Nicol was convicted as charged.



                                               3
No. 36059-8-III
State v. Nicol


       After discharging the jury, the court ordered a nationwide bench warrant for

Mr. Nicol’s arrest. Mr. Nicol did not reappear for over a year. Once back in court and

represented by new counsel, Mr. Nicol filed a motion to set aside the court’s finding of

voluntary absence. The motion was denied. A judgment and sentence was issued on

April 19, 2018.

       Mr. Nicol appeals.

                                        ANALYSIS

       The only argument on appeal pertains to the trial court’s determination that Mr.

Nicol voluntarily absented himself at trial. We review this issue for abuse of discretion.

State v. Thurlby, 184 Wn.2d 618, 624, 359 P.3d 793 (2015).

       “The Sixth Amendment and the due process clauses of the Fifth and Fourteenth

Amendments to the United States Constitution, and article I, section 22 of our state

constitution all guarantee the right of the criminal defendant to be present at his or her

own trial.” Thurlby, 184 Wn.2d at 624 (citing Thomson, 123 Wn.2d at 880). A defendant

can knowingly and voluntarily waive this right. Thurlby, 184 Wn.2d at 624. Waiver “may

be express or implied.” Id. “If a trial has begun in the defendant’s presence, a subsequent

voluntary absence of the defendant operates as an implied waiver of the right to be

present.” Id. “Our rules of criminal procedure similarly permit the court to continue with

trial despite a defendant’s voluntary absence, provided that the defendant was present

                                              4
No. 36059-8-III
State v. Nicol


when the trial commenced.” Id. at 624-25 (citing CrR 3.4(b)); see also Thomson, 123

Wn.2d at 880-81 (Noting CrR 3.4’s consistency “with its federal counterpart,” Federal

Rule of Criminal Procedure 43.)

       A three-part test governs a trial court’s determination of whether a defendant

waived the right to be present. The court must (1) “make a sufficient inquiry into the

circumstances of the defendant’s absence[,]” (2) “make a preliminary finding of

voluntariness[,]” and (3) “provide the defendant with an opportunity to explain the

absence when he or she is returned to custody and before any sentence is imposed.”

Thurlby, 184 Wn.2d at 625-26 (citing Thomson, 123 Wn.2d at 881). “In performing this

analysis, the trial court must . . . indulge every reasonable presumption against waiver.”

Thurlby, 184 Wn.2d at 626.

       Here, the trial court expressly considered appropriate precedent, Thomson, before

examining the totality of the circumstances to find Mr. Nicol waived his right to be

present at his verdict. Mr. Nicol chose to be present in a timely manner for every day of

trial, and was present immediately before the court was ready to hear the verdict. He did

not respond to his attorney’s attempts to contact him over the phone. The court also

found, based on the security officer’s testimony, Mr. Nicol quickly left the courthouse

before the verdict. This inquiry into Mr. Nicol’s absence was limited, but Mr. Nicol does

not argue it was insufficient. Mr. Nicol instead cites precedent regarding a defendant who

                                             5
No. 36059-8-III
State v. Nicol


attended only various pretrial proceedings before trial went forward in his absence. State

v. Jackson, 124 Wn.2d 359, 878 P.2d 453 (1994). This precedent does not apply to a

defendant who attended all five days of his trial only to disappear immediately before his

verdict.

       Mr. Nicol also emphasizes his trial attorney’s public admission of the conversation

they shared just before Mr. Nicol’s disappearance. The propriety of the attorney’s

explanation is not relevant to this appeal. After the attorney recounted his explanation of

the predicted jury verdict to Mr. Nicol, the trial court expressly directed that the attorney

need not reveal the substance of his communications with his client. The court instead

focused on the attorney’s efforts to contact Mr. Nicol. The court made no findings

regarding the attorney-client communication, and did not mention the communication

when concluding Mr. Nicol was voluntarily absent. The trial court’s inquiry was

sufficient. Given that inquiry, the court also had ample basis to preliminarily find Mr.

Nicol voluntarily absent.

       The record does not indicate whether the trial court ever completed the third prong

of the aforementioned test. However, Mr. Nicol’s appellate brief does not raise this issue.

After Mr. Nicol’s reappearance, he had ample opportunity to explain his absence prior to

sentencing. Given the lack of explanation, there is no indication the court abused its



                                              6
No. 36059-8-III
State v. Nicol


discretion by finding Mr. Nicol was voluntarily absent from trial, and then hearing the

verdict without him present.

                                    CONCLUSION

       The judgment of conviction is affirmed.

       A majority of the panel has determined this opinion will not be printed in

the Washington Appellate Reports, but it will be filed for public record pursuant to

RCW 2.06.040.



                                          Pennell, C.J.

WE CONCUR:




Siddoway, J.




Fearing, J.




                                             7
