THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED BY APPLICABLE RULES. See Ariz. R. Supreme Court 111(c); ARCAP 28(c); Ariz. R. Crim. P. 31.24

MEMORANDUM DECISION.

HALL, Judge.

¶1 Defendant, Christopher Todd Olson, appeals from his conviction for one count of aggravated assault, a class two felony, and the sentence imposed. For the reasons set forth below, we affirm.

FACTS AND PROCEDURAL HISTORY

¶2 The facts relevant to the issue raised on appeal are as follows. On July 27, 2009, Mark Jimenez conducted surveillance as a loss prevention officer for a convenience store. At approximately eight o'clock that evening, he observed two men, who had arrived in the same vehicle, enter the store. He then observed one of the men, Jesse Arce, "pocket a few items" and he "stopped him." As Jimenez and his surveillance partner tackled Arce to the ground, the other man, defendant, ran out of the store toward his parked vehicle.

¶3 Meanwhile, Officer Alfonso Flores of the Phoenix Police Department arrived at the convenience store to respond to a report of a domestic violence incident involving a man allegedly hitting a woman in the convenience store parking lot. While investigating the report of domestic violence and speaking with the suspect and victim, Officer Flores heard a commotion at the doors of the convenience store. The officer could see "at least a fight going on" and he "could tell these guys were loss prevention," so he ran toward the convenience store to assist. At that point, "[s]omeone advised" Officer Flores "that there was another guy that was shoplifting with the guy they had on the ground here and they pointed [him] in the direction" defendant ran. Officer Flores walked toward defendant's vehicle and yelled "[p]olice" and "[s]top" as defendant's car approached. Defendant's vehicle did not slow down and Officer Flores jumped out of the way, not realizing he had been struck. Officer Flores then reported defendant's vehicle information to dispatch. After he had relayed the information, Officer Flores "started feeling, you know, that the vehicle actually did strike [his] body." He noted a "stinging to [his] left hand . . . that [he] didn't have before that shift." Officer Flores' hand continued to hurt "even the day after" the incident.

¶4 On August 12, 2009, defendant was charged by information with one count of aggravated assault, a class two dangerous felony, alleging that he, "using a vehicle, a deadly weapon or dangerous instrument, intentionally, knowingly, or recklessly caused a physical injury to OFFICER ALFONSO FLORES, a peace officer engaged in official duties[.]" The State also alleged that defendant had six prior historical felony convictions.

¶5 After a six-day trial, the jury found defendant guilty as charged. At the sentencing hearing, defendant admitted having two prior historical felony convictions and the trial court sentenced him to a presumptive term of 15.75 years imprisonment.

¶6 Defendant timely appealed. This court has jurisdiction pursuant to the Arizona Constitution, Article 6, Section 9, and Arizona Revised Statutes (A.R.S.) sections 12-120.21(A)(1) (2003), 13-4031, and -4033 (2010).

DISCUSSION

¶7 As his sole issue on appeal, defendant contends that the trial court erred by denying his request for a one-day continuance mid-trial. The State argues that defendant waived this claim by failing to raise the issue below. In addition, the State asserts that, even absent a waiver, defendant's absence was voluntary and the trial court did not err by proceeding with the trial in his absence.

¶8 At the commencement of the second day of trial, after a jury had been impaneled the previous day, defense counsel informed the court off-the-record that defendant was ill and the following exchange then took place:

The trial court then informed defendant that he was permitted to go home, but ordered that he "stop on the way home" and submit to a drug test. The following day, defendant appeared for trial, stating that he was feeling better, and the trial court noted for the record that defendant's drug test was negative.

¶9 "An accused's right to be present at trial is protected both by the Sixth Amendment to the federal constitution as incorporated and applied to the states through the Fourteenth Amendment and by article II, section 24 of the Arizona Constitution." State v. Garcia-Contreras, 191 Ariz. 144, 146, ¶ 8, 953 P.2d 536, 538 (1998) (internal quotation omitted). A defendant, however, may voluntarily relinquish the right to attend trial. Id. at 147, ¶ 9, 953 P.2d at 539. "The finding of voluntary absence, and, therefore, the existence of a waiver of the right to be present, is basically a question of fact." State v. Bishop, 139 Ariz. 567, 569, 679 P.2d 1054, 1056 (1984) (quoting Brewer v. Raines, 670 F.2d 117, 120 (9th Cir. 2002)). When a defendant had personal knowledge of the time of the proceeding, his right to be present, and was warned the proceeding would continue in his absence, he bears the burden "to show that his absence was involuntary." State v. Hall, 136 Ariz. 219, 222, 665 P.2d 101, 104 (App. 1983). We will affirm a trial court's finding of voluntary absence absent an abuse of discretion. Bishop, 139 Ariz. at 569, 679 P.2d at 1056.

¶10 Defendant does not dispute that he was aware that his trial would continue in his absence. Instead, citing Garcia-Contreras, 191 Ariz. at 146, 953 P.2d at 536, he contends that the trial court forced him "to choose between two equally objectionable alternatives," namely, attending trial while ill or forgoing his right to attend trial, and therefore his absence from trial must be deemed involuntary.

¶11 We conclude defendant failed to meet his burden of proving that his absence was involuntary. Although he informed the trial court that he was feeling ill and stated he had a temperature of 103 degrees, he did not substantiate this claim with any evidence. Nor did defendant or his attorney assert that he was unable to participate in the proceedings or otherwise assist his attorney. Even though the record supports an inference that defendant's appearance or demeanor suggested that his health was impaired (otherwise, the court would not have ordered him to submit to a drug test), we will not presume from this sparse record that any illness from which he may have been suffering was so substantial that he was compelled to forego his right to be present. We further note that defendant's attorney did not join in defendant's request for a continuance, and neither defendant nor his counsel objected to the trial proceeding in his absence. Finally, defendant never subsequently requested a hearing to determine whether his temporary absence from trial was involuntary.

¶12 We also conclude defendant's reliance on Garcia-Contreras is misplaced. In that case, the supreme court held it was structural error to require a defendant to choose between attending trial in prison garb or absenting himself from the proceedings. 191 Ariz. at 149, ¶ 22, 953 P.2d at 541. Because a defendant has a constitutional right not to be compelled to appear before a jury in prison attire, State v. Jeffers, 135 Ariz. 404, 416, 661 P.2d 1105, 1117 (1983), Garcia-Contreras did not need to assert, much less demonstrate, that he would have been harmed by appearing at trial in his prison clothing. Here, however, defendant needed to substantiate his claim of illness and explain how it prevented him from attending and adequately participating in the trial proceedings. Because he did not do so, we conclude the trial court did not abuse its discretion by denying his request for a continuance.

CONCLUSION

¶13 For the foregoing reasons, we affirm defendant's conviction and sentence.

PATRICK IRVINE, Presiding Judge and JOHN C. GEMMILL, Judge, concurring.