Man who missed trial loses OWI appeal

A man convicted of a drunken driving charge despite not being present at his own trial has failed to convince the Indiana Court of Appeals that his convictions should be overturned.

Steven Smith was convicted of Level 6 felony operating while intoxicated after he was pulled over while driving a moped in August 2019. Goshen Police Officer Austin Eberage observed Smith changing lanes without signaling and noted that Smith was “extremely wobbly” at a red light.

Rather than pulling over to the right when Eberage initiated the stop, Smith crossed the center line into the oncoming traffic lane before parking in the grass. When he approached Smith, Eberage smelled alcohol and saw that his eyes were bloodshot.

Smith failed the field sobriety test but refused to submit to the chemical test. He was arrested on an OWI charge and was alleged to be a habitual vehicular substance offender.

The Elkhart Superior Court scheduled Smith’s trial for Feb. 6, 2020, telling Smith, “If you don’t show up, the State may elect to try you in your absence.” When the trial was rescheduled to March 5, the trial judge asked, “You’re acknowledging you have to be here March 5, sir?” Smith responded, “Yeah.”

But Smith did not appear on March 5, and his counsel had not seen him that morning. The judge allowed the trial to continue, informing prospective jurors that the court had “personally advised Mr. Smith of his trial date in open court a few weeks ago.”

Smith was found guilty as charged and was sentenced to six years in prison. The Court of Appeals affirmed his convictions Wednesday.

“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,” Judge Robert Altice wrote. “We cannot agree, as Smith clearly waived his right to be present.

“… 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,’” Altice wrote. “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.”

Smith also claimed fundamental error in the trial court’s statement to prospective jurors that the court had “personally advised” him of his trial date, but the COA likewise rejected that argument.

“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,” Altice wrote. “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,” the judge concluded. “Therefore, we find no error.”

The case is Steven P. Smith v. State of Indiana, 20A-CR-1014.