¶1 dissents.
¶2 I would sustain the first assignment of error. The trial court instructed the jury, in part, that to find the defendant guilty they must find that "the defendant was notified and had knowledge of the date and time of the court appearance or the defendant recklessly absented himself from the jurisdiction of the court such that notice was impossible" (Emphasis added.) The court also stated to the jury that under Crim. R. 49 "notice to an attorney is notice to the defendant when he is represented."
¶3 The defendant presented evidence that his mother received a telephone call from the public defenders office on Friday advising that defendant was due in court the following Monday. The mother testified that she told the caller that she didn't know how to get in touch with defendant because, although defendant calls her, she didn't know if he would call that weekend.
¶4 Based on the record, it is possible that the jury convicted the defendant because it was undisputed that defendant's attorney was given notice of the hearing date. If the jury followed the court's instruction that notice to the attorney was notice to the defendant, a conviction was assured.
¶5 If the court's application of Crim. R. 49 stands, a client may be convicted for failure to appear even though his attorney for whatever reason, fails to communicate the notice to the client. I cannot approve such a result.