NOT FOR PUBLICATION

THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED BY APPLICABLE RULES.

See Ariz. R. Sup. Ct. 111(c); Ariz. R. Crim. P. 31.24.

MEMORANDUM DECISION

KELLY, Presiding Judge.

¶ 1 After a jury trial, Rodney Watson was convicted of two counts of failure to appear in the first degree. The trial court sentenced him to 7.5 years' imprisonment. On appeal, Watson argues that his non-appearance at two court proceedings did not constitute a public offense, and, even if it did, the charging statute, A.R.S. § 13-2507, is unconstitutionally vague and void as applied to him. He also claims there was insufficient evidence to support the jury's verdicts. We affirm the convictions and sentences.

Factual and Procedural Background

¶ 2 Watson was indicted for felony charges in Cochise County. When he was arraigned on the charges in October 2010, he signed a Notice to Defendant of Effect of Voluntary Absence ("Notice"). The Notice stated,

The Notice also stated, "You shall maintain regular contact with your lawyer so that you will not miss a scheduled court appearance."

¶ 3 Watson subsequently was released from custody on bond, contingent on his compliance with the conditions of release indicated in the release order. The standard conditions stated, "the defendant shall appear for the trial of this matter" and "during the pendency of this case the defendant shall . . . [a]ppear to answer and submit []himself to all further orders and processes of the court having jurisdiction of the case."

¶ 4 Watson appeared for a hearing on April 22, 2011, at which time his trial was set for April 26, 2011. Watson did not appear for trial. On the second day of trial, the court ordered a mistrial and scheduled a hearing for May 20, 2011, to set a new trial date. The minute entry stated that Watson must be personally present for the hearing, but he did not appear.

¶ 5 Watson then was indicted for two counts of failure to appear in the first degree. Count one alleged Watson had failed to appear at the April 26 trial. Count two alleged he had failed to appear at the May 20 hearing to set a new trial. Following a trial, Watson was convicted and sentenced for both counts of failure to appear. Watson timely appealed.

Discussion

¶ 6 Watson argues there was no legal requirement that he appear at the first jury trial or at the hearing to set a new trial date, so his voluntary absence from those proceedings did not violate A.R.S. § 13-2507. "`Interpretation of a statute is a question of law that we review de novo.'" State v. Wiley, 199 Ariz. 242, ¶ 5, 16 P.3d 803, 805 (App. 2001), quoting State v. Jensen, 193 Ariz. 105, ¶ 16, 970 P.2d 937, 939 (App. 1998).

¶ 7 Section 13-2507(A) provides, "A person commits failure to appear in the first degree if, having been required by law to appear in connection with any felony, such person knowingly fails to appear as required, regardless of the disposition of the charge requiring the appearance." In State v. Wiley, the only published case that discusses § 13-2507, Wiley left the courthouse after having been ordered by the trial court in chambers to assemble in the courthouse for sentencing. Id. ¶ 2. After Wiley was indicted for failure to appear in the first degree in violation of § 13-2507(A), he pled guilty. Id. ¶ 3. Wiley then filed a petition pursuant to Rule 32, Ariz. R. Crim. P., which the court denied, concluding that Wiley had an affirmative duty under Rule 7.3(a)(1), Ariz. R. Crim. P., to appear for sentencing.1 Id. ¶¶ 3-4. In his petition for review, Wiley argued § 13-2507 applied only when a duty to appear was imposed by statute, and because he had instead failed to abide by a court order, his conduct did not constitute a public offense. Id. ¶ 3.

¶ 8 We observed that no case law interpreted the "having been required by law to appear" language of the statute but noted that "Section 13-2507 criminalizes `the violation of the formal promise that a released felony-defendant makes to the court to appear as ordered.'" Id. ¶ 5, quoting Rudolph J. Gerber, Criminal Law of Arizona § 13-2507 (2d ed. 1993). Thus, we concluded the court's ruling based on Rule 7.3(a)(1), which "addresses a defendant's obligation to answer and submit to the orders and processes of the court upon having been released on bail or on recognizance," was consistent with the purpose of the statute. Id. ¶¶ 4, 5. We also noted that, "[a]s a practical matter, court appearances must be set by court order." Id. ¶ 6. We thus concluded § 13-2507 "proscribes failing to appear in court in connection with a felony regardless of whether the duty to appear originates in a statute, rule of procedure, court order, or combination thereof." Id. Thus, if Watson had a duty to appear that originated in a court order, then he was "required by law" to appear under the meaning of § 13-2507.

¶ 9 Watson concedes he was ordered to appear at the May 20 hearing to set a new trial date. With respect to the trial, however, Watson argues that neither the release order nor the Notice ordered him "to appear at later hearings," but that he was only ordered to appear on the specific dates scheduled. But the release order specifically directed Watson to appear for the trial and all subsequent court proceedings. It stated, Watson "shall appear for the trial" and "shall . . . [a]ppear to answer and submit []himself to all further orders and processes of the court having jurisdiction of the case."

¶ 10 The most logical construction of the word "shall" in the release order is as a word of command. Cf. State v. Jackson, 210 Ariz. 466, ¶ 21, 113 P.3d 112, 117 (App. 2005) ("The ordinary meaning of `shall' in a statute is to impose a mandatory provision."), quoting HCZ Constr., Inc. v. First Franklin Fin. Corp., 199 Ariz. 361, ¶ 11, 18 P.3d 155, 158 (App. 2001); see also Black's Law Dictionary 1499 (9th ed. 2009) (defining "shall" as "[h]as a duty to" or "is required to"). Thus, we conclude the court's release order required Watson to appear for the trial, whether it took place on the originally stated date of February 22, 2011, or thereafter. Watson offers no support for the proposition that the requirement he appear for trial no longer applied when the trial date was rescheduled to April 26, 2011.

¶ 11 Watson argues, however, without elaboration, that if we construe the release conditions to be "orders" to appear, Rule 9.1, Ariz. R. Crim. P., would be rendered meaningless. We find no merit in his contention. Rule 9.1 provides that "a defendant may waive the right to be present at any proceeding by voluntarily absenting himself . . . from it" and allows the court to infer that a defendant's absence is voluntary in certain circumstances. The rule does not provide a defendant with the right to be absent in violation of a court order, cf. State v. Mumford, 136 Ariz. 465, 466-67, 666 P.2d 1074, 1075-76 (App. 1982) (rejecting claim of "absolute right to be absent" under Rule 9.1 and concluding although defendant may waive right to be present, court is not required to accept waiver), or allow a defendant to absent himself without consequences. The rule and the statute serve different but not conflicting purposes: Rule 9.1 addresses a court's ability to proceed in a defendant's absence, see State v. Tudgay, 128 Ariz. 1, 2, 623 P.2d 360, 361 (1981), while § 13-2507 "provide[s] a mechanism for securing a released criminal defendant's appearance in court, thus facilitating the setting of reasonable bail or release on recognizance," Wiley, 199 Ariz. 242, ¶ 5, 16 P.3d at 805.

¶ 12 In this case, the court specifically ordered Watson to appear at the trial and all subsequent court proceedings. Under Rule 9.1, Watson could absent himself voluntarily and waive his rights to confrontation and due process, see State v. Sainz, 186 Ariz. 470, 472, 924 P.2d 474, 476 (App. 1996), but he still could be prosecuted for failure to appear. The purposes of both Rule 9.1 and § 13-2507 would be served; the trial could properly proceed in his absence, and his violation of a court order that was intended to secure his appearance could be punished. Our conclusion that the release order imposed on Watson a duty to appear does not render Rule 9.1 meaningless. Watson's conviction for failure to appear for the trial was proper.

¶ 13 With respect to his failure to appear for the hearing to set trial, Watson argues that he did not receive actual notice of the hearing to set a new trial date, and therefore, he should not have been convicted for failure to appear at that proceeding. He contends, without citation to authority, that it is "fundamental that if an order to do an act is issued, a person may only be charged with violation of that order if he knows of it." However, Watson waived any right to notice of the hearing to set a new trial date by voluntarily absenting himself from the first trial.2 Cf. State v. Love, 147 Ariz. 567, 570, 711 P.2d 1240, 1243 (App. 1985) (defendant who fled state before trial and failed to maintain contact with attorney waived right to notice of state's intention to seek penalty enhancement). Despite a warning in the Notice that "[t]he court may set other proceedings including a trial in your absence and without further notice to you," Watson failed to maintain contact with his attorney, as was his duty. Id. At the hearing, his attorney stated he had no information concerning Watson's whereabouts. And he does not argue that his attorney, who was present for both days of trial, was unaware of the date of the new trial. Thus, although Watson may not have had actual notice of the new trial date, he was aware that further proceedings could be set in his absence without additional notice to him directly. We see no error in Watson's conviction for failure to appear at the hearing to set a new trial date.

¶ 14 Watson raises for the first time on appeal an argument that § 13-2507 is unconstitutionally vague and void as applied to him. On appeal, we review claims not raised in the trial court for fundamental error. See State v. Henderson, 210 Ariz. 561, ¶ 19, 115 P.3d 601, 607 (2005); State v. Gendron, 168 Ariz. 153, 154, 812 P.2d 626, 627 (1991) (failing to raise an issue at trial waives all but fundamental error). Watson has the burden to show both that the error was fundamental and that it caused him prejudice. See Henderson, 210 Ariz. 561, ¶ 20, 115 P.3d at 607.

¶ 15 Although Watson recites the standard of review for fundamental error cases in his statement of the standards of review, he provides no argument that his conviction under the statute constituted fundamental error or that the error caused him prejudice. Thus, his argument that the statute is constitutionally flawed is waived. See State v. Moreno-Medrano, 218 Ariz. 349, ¶ 17, 185 P.3d 135, 140 (App. 2008); see also Ariz. R. Crim. P. 31.13(c)(1)(vi).

¶ 16 Watson also challenges the sufficiency of the evidence presented at trial. We review de novo the claim that there was not substantial evidence to support the jury's verdicts. State v. Bible, 175 Ariz. 549, 595, 858 P.2d 1152, 1198 (1993). "Reversible error based on insufficiency of the evidence occurs only where there is a complete absence of probative facts to support the conviction." State v. Soto-Fong, 187 Ariz. 186, 200, 928 P.2d 610, 624 (1996), quoting State v. Scott, 113 Ariz. 423, 424-25, 555 P.2d 1117, 1118-19 (1976). When addressing a challenge to the sufficiency of the evidence, we view the facts in the light most favorable to sustaining the verdict and resolve all inferences against the defendant. State v. Spears, 184 Ariz. 277, 290, 908 P.2d 1062, 1075 (1996).

¶ 17 Watson argues "there was not presented at trial any evidence to support a claim that [he] was required to appear." The release order, Notice, and minute entry from the second day of trial on the underlying offenses were admitted as exhibits at Watson's trial on the failure to appear charges. As noted above, the release order compels Watson to appear for the trial and all further court proceedings, and the minute entry for the second day of the underlying trial reflects the trial court's order that Watson appear for the hearing to set a new trial date. Accordingly, we find the state produced sufficient evidence that Watson was required to appear for the original trial and the hearing to set a second trial.

Disposition

¶ 18 For the foregoing reasons, we affirm Watson's convictions and sentences.