State v Lane, (04-75) 10/19/2004

Appeal by Defendant from judgment entered 1 August 2003 by Judge Dwight L. Cranford in Superior Court, Wayne County. Heard in the Court of Appeals 11 October 2004.

Attorney General Roy Cooper, by Assistant Attorney General John G. Barnwell, for the State.

Paul T. Cleavenger for defendant-appellant.

WYNN, Judge.

    Defendant John C. Lane, Jr. appeals from his conviction of assault with a deadly weapon inflicting serious injury and his subsequent sentencing as an habitual felon. Defendant contends the trial court erred in failing to declare a mistrial and in sentencing him as an habitual felon. For the reasons stated herein, we find no error by the trial court.
    On 4 March 2002, the Wayne County grand jury indicted Defendant on a charge of assault with a deadly weapon with intent to kill inflicting serious injury and also indicted him for being an habitual felon. The trial court heard two motions in Defendant's case before recessing for the day on 29 July 2003. Defendant was present when his case was called for trial on themorning of 30 July 2003. After the jury was selected and impaneled, the State began presenting its evidence.
    When trial resumed on the morning of 31 July 2003, Defendant was not present. At 10:02 a.m., the trial court stated for the record that an individual had reported earlier that morning that Defendant was ill and was receiving treatment at the hospital. The trial court subsequently determined “that it appears that the defendant is willfully evading his responsibility to be here - his right to be in court - during this trial and the trial will proceed in his absence, subject to a later determination as to his condition.” The State then continued with the presentation of its evidence until the lunch recess at approximately 12:06 p.m.
    Defendant was again present when court resumed at 2:14 p.m. following the lunch recess. He testified during a voir dire that he had gone to the emergency room after becoming ill from something he had eaten earlier that morning. Although he stated the emergency physician instructed him “just to drink liquids and stuff[,]” Defendant admitted the trial judge had observed him eating half of a hot dog in the parking lot. After hearing Defendant's testimony, the trial court stated the trial would proceed. The trial court told defense counsel that
        at anytime before this trial is over, you can supply me with a statement from a doctor . . . as to what time [defendant] presented himself and as to what the diagnosis was and what the objective signs of any illness were . . . sufficient to satisfy me that it's a bonafide illness, then I'll look at whatever you're able to present.

After the State concluded its presentation of evidence, Defendantmade a motion to dismiss the charge. The trial court denied the motion.
    Defendant presented one witness and also testified on his own behalf. He renewed his motion to dismiss at the close of all the evidence, and the trial court denied the motion. During the charge conference, defense counsel provided a hospital emergency department note regarding Defendant's visit to the emergency room. The note indicated Defendant had gone to the hospital at about 6:00 a.m. on 31 July 2003 complaining of cramping pain, nausea, vomiting and diarrhea. A physician noted that Defendant appeared well with stable vital signs and that he appeared comfortable. He was administered saline and exhibited no vomiting at the hospital. Defendant was discharged on clear liquids with a prescription for nausea medication as required. The trial court found that when court resumed at 2:00 p.m. on 31 July 2003, “defendant was present and appeared to be comfortable and in good shape, showing no signs of illness.” After further finding that Defendant was present on the morning of 1 August 2003 for the continuation of the trial, the trial court ordered that the trial continue.
    The trial court subsequently submitted the charge to the jury. After the jury found Defendant to be guilty of the lesser included offense of assault with a deadly weapon inflicting serious injury, Defendant pled guilty to his habitual felon status. The trial court then sentenced him to a term of ninty-three to 121 months' imprisonment. From the judgment of the trial court, Defendant appealed.    _______________________________________________________
    Defendant contends on appeal the trial court erred by (1) failing to declare a mistrial and (2) in sentencing him as an habitual felon. We find no error by the trial court.
    In his first argument, Defendant contends the trial court erred by not declaring a mistrial upon learning that his absence was due to a medical condition for which he had received treatment. He argues he was denied his constitutional right to be present at his trial. Defendant's argument is not persuasive.
    In noncapital felony trials, the right to confrontation found in both the federal and state constitutions “is purely personal in nature and may be waived by a defendant.” State v. Richardson, 330 N.C. 174, 178, 410 S.E.2d 61, 63 (1991). “A defendant's voluntary and unexplained absence from court subsequent to the commencement of trial constitutes such a waiver[,]” and the defendant bears the burden of explaining the absence. Id. If the defendant fails to meet this burden, “waiver is to be inferred.” Id.
    Defendant was present during all of the proceedings on 30 July 2004. He did not directly notify his counsel or the trial court of the reason for his absence when the trial resumed on the morning of 31 July 2003. A physician in the emergency department note described Defendant as appearing well and comfortable with stable vital signs. Defendant exhibited no vomiting at the hospital and was only administered saline while there. The trial court further observed that when court resumed after the lunch recess on 31 July 2003, “defendant was present and appeared to be comfortable and ingood shape, showing no signs of illness.” Defendant was not present for approximately two hours of the State's evidence on the morning of 31 July 2003.
    “Denial of a motion to continue that raises a constitutional question may be grounds for a new trial only when a defendant shows that the denial was erroneous and that his case was prejudiced thereby.” Id. at 181, 410 S.E.2d at 65. Given the description in the emergency room note of Defendant's condition during his absence from the morning session of court and the trial court's observation of Defendant's condition during the afternoon session and the next morning's session, Defendant has shown no abuse of discretion by the trial court. Because the trial court's ruling was not erroneous, we do not reach the issue of possible prejudice to Defendant as a result of his absence from court. This assignment of error is overruled.
    Defendant further argues the trial court committed plain error by using a possession of cocaine charge as a felony in establishing his habitual felon status. However, our Supreme Court has already ruled on this issue. State v. Jones, 358 N.C. 473; 598 S.E.2d 125 (2004). Accordingly, this argument is without merit. Because Defendant has neither cited authority nor stated any reason or argument in support of his remaining assignment of error, it is deemed abandoned. N.C. R. App. P. 28(b)(6).
    No error.
    Judges TYSON and GEER concur.
    Report per Rule 30(e).

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