State v. Neff3/31/2004
MEMORANDUM DECISION
Not for Publication
Rule 111, Rules of the Supreme Court
AFFIRMED
After a jury trial, appellant Guy Neff was convicted of aggravated driving under the influence of an intoxicant and aggravated driving with an alcohol concentration of .10 or more. Neff now appeals to this court, arguing that the trial court erred in finding Neff had voluntarily waived his right to be present at his trial and that his convictions were not supported by substantial evidence. Finding no reversible error, we affirm.
We view the facts in the light most favorable to sustaining the convictions, with all reasonable inferences resolved against the defendant. State v. Riley, 196 Ariz. 40, 2, 992 P.2d 1135, 1137 (App. 1999). On an evening in April 2001, the vehicle Neff was driving was stopped by an officer on an unrelated matter. During the stop, the officer noticed that Neff had bloodshot eyes, slurred speech, and an odor of intoxicants on his breath. Although Neff refused to undergo field sobriety testing, a surreptitiously obtained Horizontal Gaze Nystagmus (HGN) test showed six out of six positive cues for intoxication. A subsequent test of Neff's breath indicated a blood-alcohol concentration (BAC) of .142 and .147. Neff also admitted that his driver's license was suspended.
Neff was charged with one count of aggravated driving under the influence with a suspended license and one count of aggravated driving with an alcohol concentration of.10 or more with a suspended license. The court set the trial date for January 23, 2002, and Neff signed a notice of acknowledgment of trial date, indicating his understanding that he would be tried in absentia if he failed to appear. Upon motion by the state, the court continued the trial date to February 28, 2002. Neff then signed a second acknowledgment of trial date, but this second acknowledgment erroneously listed the trial date as February 28, 3003. When Neff failed to appear at the scheduled trial date, the court found that he had voluntarily absented himself from trial and proceeded with the trial in Neff's absence. Neff was convicted of the two counts and sentenced to concurrent, 2.5-year prison terms. Neff now appeals his convictions and sentences to this court.
Neff first argues the court fundamentally erred in finding he had voluntarily absented himself from the trial. Neff contends that, because the acknowledgment of trial date listed an erroneous date, his absence was not voluntary but instead the result of a misunderstanding. A finding of voluntary absence from a criminal proceeding is a question of fact, which we normally review for an abuse of discretion. State v. Bishop, 139 Ariz. 567, 569, 679 P.2d 1054, 1056 (1984). But because Neff, through counsel, failed to object to the court's finding at trial, we review only for fundamental error. See State v. Bible, 175 Ariz. 549, 572, 858 P.2d 1152, 1175 (1993). Holding the trial while the defendant is involuntarily absent could result in structural, fundamental error. See State v. Garcia-Contreras, 191 Ariz. 144, 22, 953 P.2d 536, 541 (1998).
A defendant has a fundamental right to be present at his or her criminal trial. U.S. Const. amend. VI, XIV; Ariz. Const. art. II, § 24; see also State v. Jones, 197 Ariz. 290, 50, 4 P.3d 345, 363 (2000). But a defendant may waive this right by voluntarily absenting himself or herself from the trial. Ariz. R. Crim. P. 9.1, 16A A.R.S.; State v. Dann, 205 Ariz. 557, 54, 74 P.3d 231, 246 (2003). A trial court may infer that a defendant's absence from trial is voluntary if a defendant had personal knowledge of the scheduled date of the proceeding and his or her rig
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