Altice, J.
Steven P. Smith was tried in absentia and convicted of Level 6 felony operating while intoxicated (OWI) and found to be a habitual vehicular substance offender (HVSO). He presents two issues for review, which we restate as follows: 1. Did the trial court abuse its discretion by conducting Smith’s jury trial in absentia? 2. Did the trial court commit fundamental error when it informed the prospective jurors that the court had personally advised Smith of the trial date a few weeks prior?
We affirm.
Smith contends that he did not waive his right to be present at trial and that, therefore, the trial court abused its discretion by conducting the jury trial in absentia. We cannot agree, as Smith clearly waived his right to be present.
The United States and Indiana Constitutions afford defendants in a criminal proceeding the right to be present at their trial. U.S. Const. amend. VI; Ind. Const. art. 1, § 13. A criminal defendant may be tried in absentia, however, if the trial court determines that the defendant knowingly and voluntarily waived that right. Jackson v. State, 868 N.E.2d 494, 498 (Ind. 2007),
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Here, the record establishes that Smith knew of his March 5, 2020 trial date, as he was informed of and affirmatively acknowledged that date in open court on February 17, 2020. Further, the trial court had previously advised Smith that if he did not show up for trial, “the State may elect to try you in your absence.” Transcript Vol. II at 23. On March 5, Smith did not appear in court, nor did he contact his attorney or the court. At the time, he also had a pending bench warrant in his probation case, which was issued in February after he failed a drug test. Following his trial in absentia and his subsequent arrest on the two bench warrants, Smith claimed that he did not appear for his jury trial because he was “pretty sick” and later explained that he was “dizzy and, you know, light-headed and didn’t get to trial.” Id. at 227, 230. In other words, Smith was aware of the date of his jury trial but chose not to attend and failed to notify the court of his alleged illness until after his subsequent arrest. On this record, the trial court did not abuse its discretion when it held the jury trial in Smith’s absence because Smith knowingly and voluntarily waived his right to be present.
Next, Smith asserts that the trial court erroneously informed the prospective jurors that it had personally notified Smith of the trial date a few weeks prior. Acknowledging that he did not preserve the issue below, Smith claims that the error was fundamental because it brought attention to his absence and violated “his right against self-incrimination without any adverse comment at trial.”
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Smith has failed to establish error, let alone fundamental error. It is true that the trial court is prohibited under the Fifth Amendment of the United States Constitution, via the Fourteenth Amendment, from commenting at trial on the defendant’s refusal to testify. Ziebell v. State, 788 N.E.2d 902, 913 (Ind. Ct. App. 2003). “Such a comment violates a defendant’s privilege against compulsory self-incrimination if the statement ‘is subject to reasonable interpretation by a jury as an invitation to draw an adverse inference from a defendant’s silence.’” Id. (quoting Boatright v. State, 759 N.E.2d 1038, 1043 (Ind. 2001)).
We agree with the State that the trial court’s comment in no way invited the prospective jurors to draw an adverse inference from defendant’s silence. The trial court simply recognized Smith’s absence – an obvious fact – and informed the prospective jurors that Smith had been advised in open court of the trial date. The court did this to avoid juror speculation about whether Smith had knowledge of the trial. The court then advised the prospective jurors regarding the presumption of innocence and the State’s burden of proof.
The trial court did not mention Smith’s silence, much less invite the jury to misuse it. Therefore, we find no error. Cf. Boatright, 759 N.E.2d at 1043 (finding no error where “[t]he prosecutor’s comment did not focus on, or even mention, Defendant’s decision not to testify”)
Judgment affirmed.
Mathias, J. and Weissmann, J., concur.