Opinion
2 CA-CR 2020-0210
03-07-2024
The State of Arizona, Appellee, v. Robert Jon Jacques, Appellant.
Kristin K. Mayes, Arizona Attorney General Alice M. Jones, Deputy Solicitor General/Section Chief of Criminal Appeals By Jacob R. Lines, Assistant Attorney General, Tucson Counsel for Appellee James Fullin, Pima County Legal Defender By Robb P. Holmes, Assistant Legal Defender, Tucson Counsel for Appellant
Not for Publication - Rule 111(c), Rules of the Arizona Supreme Court
Appeal from the Superior Court in Pima County No. CR20182556001 The Honorable Javier Chon-Lopez, Judge The Honorable Kimberly H. Ortiz, Judge
Kristin K. Mayes, Arizona Attorney General Alice M. Jones, Deputy Solicitor General/Section Chief of Criminal Appeals By Jacob R. Lines, Assistant Attorney General, Tucson Counsel for Appellee
James Fullin, Pima County Legal Defender By Robb P. Holmes, Assistant Legal Defender, Tucson Counsel for Appellant
Judge O'Neil authored the decision of the Court, in which Vice Chief Judge Staring and Judge Sklar concurred.
MEMORANDUM DECISION
O'NEIL, JUDGE
¶1 After a jury trial in his absence, Robert Jacques was convicted of driving under the influence, criminal damage, and aggravated assault as a dangerous offense. Jacques appeals his convictions and sentences, asserting that the trial court abused its discretion when it denied his motion to continue the trial and wrongfully determined that he was voluntarily absent despite a medical condition he maintains "prevented his timely return to Pima County for his trial." We affirm.
Background
¶2 We view the facts in the light most favorable to sustaining the verdicts, resolving all inferences against Jacques. See State v. Felix, 237 Ariz. 280, ¶ 30 (App. 2015). One morning in January 2018, Jacques "was driving hard" through Tucson when he ran a red light and struck a taxi cab. The impact "snapped" the taxi driver's collarbone "clean in half," "slammed [his] head sideways," resulted in a concussion, and caused "overwhelming pain in the entire left side of [his] body." The taxi cab suffered at least $10,000 in damage.
¶3 After the collision, Jacques "took off . . . speeding" from the intersection, but he stopped when "[h]is car broke down." Jacques later told an investigating officer that "he did not need any medical attention," but the officer thought "he looked a little confused or distraught." He was also shirtless, with "red watery bloodshot eyes" and "slurred speech," and an officer discovered eighteen beer cans inside Jacques's vehicle-sixteen of which were open and empty. After obtaining a search warrant, officers arranged to have Jacques's blood drawn at a hospital. Test results later showed that Jacques had a 0.274 blood alcohol concentration.
¶4 A resident of New Mexico, Jacques requested and received permission from the trial court to leave Arizona pending trial. The court set a jury trial for March 2019. After the trial date was continued to a date in November 2019, Jacques attended a settlement conference on September 30, 2019. Jacques had entered the settlement conference "hoping for something probation available," but the prosecutor indicated that a plea offer would require a term of imprisonment. The settlement judge set a change of plea hearing two weeks later, on October 14, 2019, which was the date when a plea offer extended by the state would expire. Jacques was not present at the hearing, apparently having already returned to New Mexico. His attorney advised the court that Jacques was rejecting the plea offer. The court affirmed the trial date on Jacques's request.
¶5 The day after the change of plea hearing, on October 15, Jacques filed a motion to continue the jury trial on the basis that he was "suffering from a conjunctival lesion on his right eye" that was causing him "headaches" and "pain." He stated he "may be medically unable to travel," but "[e]ven if he is physically able to travel, he very likely will not be able to fully participate in his defense." Jacques provided a "referral for consultation" as an attachment to his motion, which listed a "conjunctival lesion right eye causing pain" as the reason for the referral. Jacques's presence was waived at a hearing on the motion later that month, but through his attorney, Jacques conceded "it can be argued that, well, if he can't drive to Arizona he can fly here." Counsel argued that he was more concerned about what would happen if Jacques "gets up on the stand and he's on pain medication and his eye is drooping and he has something coming out of his eye, I think that hurts his credibility." The trial court granted the continuance over the state's objection, but the court cautioned Jacques that "this can't be continued for medical reasons any further." The court reset the trial date for January 7, 2020.
¶6 Jacques filed another motion to continue in late December. He asserted that his medication was "impairing his ability to think and react" and that "[t]he pain and discomfort from his eye condition, and the side effects of the medication," were "infringing on his ability to fully participate in trial." In support of his motion, Jacques attached a referral to a dermatologist of a "[s]kin lesion," described as a "[d]isorder of the skin and subcutaneous tissue." With trial pending on January 7, the trial court heard Jacques's motion at a hearing the preceding Friday, on January 3. Jacques was not present for the hearing. Through his attorney, Jacques asserted he had "lesions on and around his eyes," was "in some pain," and was "taking medication" that "ma[de] him feel loopy." He raised an additional concern that he might "expose" others "to his eye lesions." He also argued "[h]e needs to safely drive here." The court denied the motion and affirmed the trial.
¶7 Jacques failed to appear for trial. His attorney again argued Jacques's "medication [was] having an impact on him" and he was "in physical pain." According to his attorney, Jacques had acknowledged "taking the bus" was "an option," but he did not "feel he c[ould] sit here and pay attention to the trial," "listen to all the evidence," or "testify competently" due to his condition. The trial proceeded in Jacques's absence. Jacques was found guilty on all counts. More than six months later, he was taken into custody. The court imposed concurrent sentences for all counts, the longest of which was five years. Our jurisdiction over his appeal is provided in A.R.S. §§ 12-120.21(A)(1), 13-4031, and 13-4033.
Discussion
¶8 Jacques asserts on appeal that the trial court abused its discretion by denying his motion to continue the trial, committing structural error by depriving Jacques of the right to be present at trial. Our state and federal constitutions each guarantee a criminal defendant the right to be present at trial. State v. Reed, 196 Ariz. 37, ¶ 3 (App. 1999); see also U.S. Const. amend. VI; Ariz. Const. art. II, § 24. A defendant may, however, voluntarily waive that right. Reed, 196 Ariz. 37, ¶ 3. Rule 9.1, Ariz. R. Crim. P., permits a trial court to "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." A "defendant bears the burden of overcoming th[is] inference" by demonstrating that the absence was not voluntary. State v. Sainz, 186 Ariz. 470, 473 n.2 (App. 1996); see also State v. Suniga, 145 Ariz. 389, 391-92 (1985). We review for an abuse of discretion both the denial of a motion to continue, State v. Forde, 233 Ariz. 543, ¶ 116 (2014), and the determination that a defendant's absence was voluntary, State v. Bishop, 139 Ariz. 567, 569 (1984).
¶9 The trial court had discretion to deny the motion to continue here. The only factual support for Jacques's motion was the October referral for evaluation and treatment of an "[u]nspecified disorder of conjunctiva" and the dermatology referral for a "[s]kin lesion." The court had little information to identify any medication or its side effects. Aside from his attorney's indication that Jacques had reported being in "some pain" and taking an unknown medication that made him "feel loopy," little in the record suggests that whatever condition affected Jacques's eye would have impaired his participation at trial.
¶10 Jacques did not attend the October change of plea hearing, where his attorney rejected the plea offer on his behalf. He first raised his eye condition as grounds to delay trial the next day, with the trial date only three weeks away. The trial court granted that continuance, allowing for a two-month delay. At the January hearing on his motion to continue, although Jacques's attorney suggested that "it would be best to reset this until late March or early April," the record contains little support to conclude that Jacques was likely to recover in that time. Indeed, concerning the severity of the condition, its effects on Jacques, and the effects of any medication, the record is limited primarily to Jacques's bare assertions as communicated through counsel in his absence. In denying the motion to continue, the court reasonably noted the difficulty in considering that motion without "seeing him here today."
¶11 Had Jacques appeared for trial, the trial court could have evaluated his condition, determined whether the condition would interfere with his participation at trial, and considered whether any reasonable accommodations were necessary to enable his meaningful participation. If Jacques was unable to attend trial, it was his burden to show that his absence was involuntary. State v. Davis, 108 Ariz. 335, 336 (1972). Apart from counsel's general assertions, the record contains no support for his claim that his condition prevented him from driving. Even if Jacques had been unable to drive, he acknowledged that he could have taken a bus, and his attorney conceded he could travel by an airplane. There is no reason to believe his condition prevented him from obtaining a ride by other means. Jacques consistently expressed that his larger concern was not his ability to attend trial but his capacity to pay attention, participate, and testify.
¶12 Jacques had actual notice of the date and time of the trial. He acknowledged that the trial could go forward in his absence. He bore the burden, therefore, to overcome the presumption that his absence was voluntary. Suniga, 145 Ariz. at 391-92; Ariz. R. Crim. P. 9.1. The trial court did not abuse its discretion by determining that Jacques had failed to satisfy that burden.
Disposition
¶13 We affirm Jacques's convictions and sentences.