State v. Cosby

719 S.W.2d 478, 1986 Mo. App. LEXIS 4821

Opinion

SMITH, Judge.

Defendant was convicted by a jury of tampering in the first degree, a Class C felony and sentenced by the court to three years imprisonment.

His only point on appeal is that the trial court erred in not declaring a mistrial after it had proceeded on the second day of trial in defendant’s absence. On the first day of trial, scheduled to begin in the morning, defendant, who was on bond, did not appear until 2:00 p.m. On the second day, trial was to resume at 9:30 a.m. Defendant was not present and after a 10 minute wait the trial was recommenced. Defendant arrived at 10:45. His only excuse was that he had to take a bus.

It is the duty of a defendant on bond to “be present at all times when he may anticipate that proceedings may take place.” State v. McCrary, 287 S.W.2d 785 (Mo.1956) [3-5]. A defendant who voluntarily absents himself from his trial is held to have waived his right to be present. State v. Fulsom, 557 S.W.2d 671 (Mo.App.1977) [3, 4]. When a defendant free on bond fails to appear there is a rebuttable presumption that he has voluntarily waived his right to be present. State v. White, 669 S.W.2d 220 (Mo.App.1983) [1]. Defendant’s explanation did not serve to rebut the presumption, particularly when coupled with his prior failure to timely appear.

Judgment affirmed.

SNYDER, C.J., and CARL R. GAERT-NER, P.J., concur.