Tavitas, J.
Carlton Lee Wells appeals his conviction for invasion of privacy, a Class A misdemeanor. On the morning of Wells’ initial jury trial setting, he failed a drug test. The trial court vacated the trial setting, ordered Wells to be tested on a biweekly basis until his rescheduled trial, and explicitly warned Wells that the court would try him in absentia if Wells failed a drug test on the new trial date. On the morning of his rescheduled jury trial, Wells again tested positive for drugs. The trial court ordered Wells’ exclusion from trial and tried him in absentia.
Wells alleges violations of his right to be present for all stages of his trial proceedings pursuant to the Sixth Amendment of the United States Constitution and Article 1, Section 13 of the Indiana Constitution. The record does not support a finding that Wells engaged in disruptive or contumacious conduct or that he otherwise interfered with the trial court’s conduct of the trial on the date in question. We find that the trial court committed fundamental error in excluding Wells from his trial. Accordingly, we reverse and remand to the trial court with instructions to vacate Wells’ conviction.
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Wells argues that, by trying him in absentia, the trial court violated his right to be present at trial under both the Sixth Amendment to the United States Constitution and Article 1, Section 13 of the Indiana Constitution. He maintains that the trial court “could have continued the trial and taken [him] into custody for violating [court] orders and [ ] ma[d]e sure he would not use [marijuana] before trial” but, instead, “denied his ability to be present and participate at trial[.]”
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As a preliminary matter, we note that the instant matter presents a case of first impression. The trial court judge stated on the record that it did not have any caselaw to rely upon in support of her decision that Wells waived his right to be present because he tested above a certain threshold level for THC. While we may not have on-point federal and Indiana caselaw to guide us, we can extrapolate enough from the cases discussed herein to resolve the Sixth Amendment to the U.S. Constitution and Article 1, Section 13 of the Indiana Constitution issues at-bar.
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Here, the State argues that Wells “appeared in court under the influence of a controlled substance for the second time” after being warned of the consequences of doing so and, thereby, “voluntarily waived his right to be [in the courtroom] for his trial.” State’s Br. p. 8. We cannot agree. The instant case is distinguishable from the above-cited cases, each of which involved an unruly defendant, who, “after he [was] warned by the judge that he will be removed if he continue[d[ his disruptive behavior, [ ] nevertheless insist[ed] on conducting himself in a manner so disorderly, disruptive, and disrespectful of the court that his trial c[ould] [ ]not be carried on with him in the court room.” See Allen, 397 U.S. at 343, 90 S. Ct. at 1060-61. Such is not the case here.
The instant record includes no evidence that Wells engaged in any disruptive conduct on the day of his rescheduled trial; and the trial court entered no such findings. We feel compelled to draw a distinction between the defendants’ extremely contumacious and disruptive conduct in Allen and Vaughn and Wells’ failure to pass a pre-trial drug test. To be sure, by failing drug tests administered before his successive jury trial settings, Wells showed flagrant contempt for the trial court’s explicit orders, and the trial court was warranted in imposing contempt sanctions.
As SCOTUS cautioned in Allen, “courts must indulge every reasonable presumption against the loss of constitutional rights.” See Allen, 397 U.S. at 343, 90 S. Ct. at 1060 (quoting Johnson, 304 U.S. at 464). The trial court here did not employ available measures to protect Wells’ fundamental right to be present. Less stringent remedies, rather than automatic ejectment, were available to the trial court that should have been employed before the trial court excluded Wells from his trial. The trial court here failed to employ less severe measures to ensure an orderly courtroom. Furthermore, the trial court failed to identify Wells’ behavior that would indicate that Wells did not have the ability to behave on the day of his trial. Even if Wells exhibited disruptive behavior, as the above-cited cases have pointed out, several options were available to encourage obedience. The all-or-nothing approach is difficult to uphold without the attempt of these less severe options where a fundamental right is at stake.
By excluding Wells from the proceedings, before the application and exhaustion of lesser contempt penalties, the trial court foreclosed Wells from hearing the presentation of evidence against him and assisting with his defense. Moreover, unlike the disruptive defendants in Allen and Vaughn, Wells was denied any opportunity to reclaim his right to be present, which eschews fundamental fairness.
For the foregoing reasons, we find that exclusion from trial violated the Sixth Amendment to the U.S. Constitution and Article 1, Section 13 of the Indiana Constitution. SCOTUS’s admonition that “the contempt remedy should be borne in mind by a judge in the circumstances of” a case like Allen affirms our belief that less extreme instances of misconduct, as here, warrant less extreme sanctions, and certainly not the deprivation of fundamental rights. See Allen, 397 U.S. at 346.
We conclude that Wells has carried his burden of establishing that his exclusion from trial blatantly violated basic and elementary principles, involved substantial potential for harm, and effectuated a denial of fundamental due process. See Isom, 31 N.E.3d at 490. Thus, we conclude that the trial court committed fundamental error in violation of the Sixth Amendment to the U.S. Constitution and Article 1, Section 13 of the Indiana Constitution. Accordingly, we reverse the trial court and remand to the trial court with instructions to vacate Wells’ conviction.
The trial court committed fundamental error in excluding Wells from his trial. We reverse and remand with instructions to vacate Wells’ conviction.
Reversed and remanded.
Mathias, J., and Weissmann, J., concur