State v Parks, (05-987) 02/07/2006

Appeal by defendant from judgments entered 11 and 12 April 2005 by Judge W. Russell Duke, Jr. in Wilson County Superior Court. Heard in the Court of Appeals 23 January 2006.

Attorney General Roy Cooper, by Assistant Attorney General Tina Lloyd Hlabse, for the State.

Paul T. Cleavenger for defendant-appellant.

MARTIN, Chief Judge.

Defendant Tony Azento Dashone Parks was indicted for felony possession of cocaine, possession with intent to sell or deliver cocaine, and sale of cocaine. On 21 March 2005, defendant's case was called for trial. After the jury was impaneled, the court recessed for lunch. At 2:03 p.m., court reconvened; however, defendant was not present. Upon inquiry by the court, defendant's attorney stated that he had spoken to defendant during the lunch recess. Counsel offered to look for defendant, but the court declined. Upon inquiry in the absence of the jury, a deputy informed the court that he had “looked in the courthouse to see if [defendant] was in the courthouse.” While doing so, he spoke witha fellow deputy who operated the metal detector at the front of the courthouse. That deputy stated that he had seen defendant leave the building with a woman approximately thirty minutes earlier and that he had not returned. Another deputy informed the court that at approximately 1:25 p.m., he had seen defendant walking towards the staircase and overheard him say, “Fuck this. Fuck this shit. I'm gone.” Defendant then proceeded to talk to a lady he was with and walk down the stairs. The court issued a warrant for defendant's arrest. Defendant's counsel moved for a continuance. The trial court denied the continuance, finding that defendant's absence from trial was voluntary, and proceeded with the trial. Defendant was convicted of possession with intent to sell or deliver cocaine and the sale of cocaine .
Defendant was subsequently arrested, and a sentencing hearing was conducted. He was sentenced to sixteen to twenty months imprisonment and a consecutive term of ten to twelve months imprisonment. Defendant's second term was suspended, and he was placed on probation for thirty months. Defendant appeals.

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     Defendant argues that the trial court abused its discretion by denying his motion for a continuance. Defendant contends the court should have continued the case to allow counsel to make contact with him and determine his whereabouts.
    After careful review of the record, briefs and contentions of the parties, we find no error. A defendant's voluntary and unexplained absence from court subsequent to the commencement oftrial constitutes a waiver of his right to confrontation. State v. Skipper, 146 N.C. App. 532, 535, 553 S.E.2d 690, 692 (2001) (citing State v. Wilson, 31 N.C. App. 323, 229 S.E.2d 314 (1976); State v. Mulwee, 27 N.C. App. 366, 219 S.E.2d 304 (1975)). “'Once trial has commenced, the burden is on the defendant to explain his or her absence; if this burden is not met, waiver is to be inferred.'” Id. (quoting State v. Richardson, 330 N.C. 174, 178, 410 S.E.2d 61, 63 (1991) (footnote omitted)). Here, the trial court denied defendant's motion to continue when he did not return for trial after a recess. “A motion for a continuance is addressed to the sound discretion of the trial court and will not be overturned absent an abuse of discretion.” State v. McClain, 169 N.C. App. 657, 665, 610 S.E.2d 783, 788 (2005) (citing State v. Boggess, 358 N.C. 676, 685, 600 S.E.2d 453, 459 (2004)). The trial court investigated defendant's whereabouts and determined that his absence was voluntary. In light of the deputies' reports regarding defendant's comments upon leaving the courthouse, the trial court could properly conclude that defendant had voluntarily absented himself from trial. Accordingly, we find the trial court did not abuse its discretion by denying the motion for continuance.
    No error.
    Judges BRYANT and GEER concur.
     Report per Rule 30(e).

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