dissenting.
[¶ 22] Because the district court proceeded properly, the judgment should be affirmed. Eldin Komad’s argument that the district court violated his constitutional right to be present at trial is without merit. Further, the district court’s actions were consistent with our rules and statutes. I, therefore, respectfully dissent.
I
[¶23] In Fargo Municipal Court, Ko-mad was charged with theft. At a bench *625trial, Komad was found guilty. He appealed to the district court for “trial anew” as provided by N.D.C.C. § 40-18-19.
[¶ 24] On December 12, 2005, at 1:30 p.m., the date scheduled for the “trial anew” on appeal in the district court, Ko-mad’s attorney was present, but Komad was not. Komad’s attorney told the court that Komad had notice of the trial and that Komad, having called earlier that day to say he was “stuck” in Chicago because of bad weather, was “apparently” waiting for a flight. Komad’s attorney said Komad would not be in Fargo until 4:00 p.m. that day.
[¶ 25] Komad’s attorney requested a continuance. The City opposed the continuance, arguing Komad’s excuse was false. The City asked that a bench warrant be issued. The court denied the continuance. The City then moved to dismiss Komad’s appeal. The court stated the trial would proceed or the appeal would be dismissed. Komad’s attorney stated he would proceed with the trial despite Komad’s absence. At the conclusion of the trial anew, the court ruled that the prosecution had met its burden, and judgment of conviction was entered. Komad appealed to this Court.
[¶ 26] The municipal court had jurisdiction under N.D.C.C. § 40-18-01(1). The district court had appellate jurisdiction under N.D. Const, art. VI, § 8, and N.D.C.C. §§ 27-05-06(4) and 40-18-19. Komad’s appeal was timely under N.D.RApp.P. 4(b). This Court has jurisdiction under N.D. Const, art. VI, §§ 2, 6, and N.D.C.C. § 29-28-06.
II
[¶ 27] On appeal to this Court, Komad argues the district court should have delayed the trial anew in district court until he could be present because he has a constitutional right to be present during every stage of trial. The City argues no error occurred because Komad was present at his first trial in municipal court, his absence was voluntary, and the district court judge had the discretion to dismiss the case when Komad failed to appear at the district court appeal.
A
[¶ 28] The right of a defendant to be present at trial is rooted in the Confrontation Clause of the Sixth Amendment to the United States Constitution. City of Mandan v. Baer, 1998 ND 101, ¶ 8, 578 N.W.2d 559. The Sixth Amendment guarantees a criminal defendant the right “to be confronted with the witnesses against him” in all criminal prosecutions. U.S. Const, amend. VI. The North Dakota Constitution also provides: “In criminal prosecutions in any court whatever, the party accused shall have the right ... to appear and defend in person.” N.D. Const, art. I, § 12.
[¶ 29] A fundamental error in Komad’s argument is that he perceives the district court proceeding as being the original trial rather than an appeal. Komad asserts, “He was not present for any part of his trial.” Komad was, in fact, as the record explicitly reflects, present for his trial in municipal court. Komad concedes that the right to be present is not absolute; however, the defendant may waive this right. N.D.R.Crim.P. 43(c)(1) and (2); Baer, at ¶ 9. Rule 43(c), N.D.R.Crim.P., provides, in relevant part:
The further progress of the trial, including the return of the verdict and the imposition of sentence, may not be prevented and the defendant waives the right to be present if the defendant, initially present at trial or having pleaded guilty:
(1) is voluntarily absent after the trial has begun (whether or not the de*626fendant has been informed by the court of the obligation to remain during the trial);
(2) is voluntarily absent at the imposition of sentence;....
Here the defendant was initially present at trial and absented himself from his appeal “trial anew.” Under Rule 43, Komad waived his right to be present.
[¶ 30] The Federal courts, with their corresponding Rule 43, have held that a defendant’s constitutional rights have not been violated when a defendant had notice of the trial and failed to appear, including subsequent trials, and the court can proceed without the defendant’s presence. For example, in United States v. Barton, 647 F.2d 224, 238 (2d Cir.1981), the court held that the defendant voluntarily waived his right to be present at trial when the week prior to trial he had surgery that, although needed, the defendant had known about for seventeen months:
It is beyond dispute that a defendant has a constitutional right to be present at the trial of charges against him. Taylor v. United States, 414 U.S. 17, 94 S.Ct. 194, 38 L.Ed.2d 174 (1973). It is well settled, however, that this right may be waived if the defendant voluntarily and deliberately absents himself from the trial without good cause. E.g., United States v. Reed, 639 F.2d 896 (2d Cir.1981); United States v. Pastor, 557 F.2d 930 (2d Cir.1977); United States v. Tortora, 464 F.2d 1202 (2d Cir.), cert. denied, 409 U.S. 1063, 93 S.Ct. 554, 34 L.Ed.2d 516 (1972). In the present case, the parties had agreed on November 14, 1979, that the voir dire would begin on January 8, 1980. Barton’s attorney stated that Barton had no objection, and thereafter informed Barton of the date on which trial was to begin. Nonetheless, less than one week before trial, Barton elected to undergo spinal surgery. At the hearing on Barton’s severance motion Barton’s physician testified that, while medically necessary, the operation was not performed on an emergency basis; that he had diagnosed Barton’s condition in August 1978, some 17 months earlier, and had several times thereafter unsuccessfully urged Barton to undergo surgery. He stated that Barton’s request for surgery in January 1980 came “out of the blue.”
Id.; see also State v. Dwight, 378 N.J.Super. 289, 875 A.2d 986, 989 (Ct.App.Div.2005) (the defendant’s notice of time and location of the first trial, for which he was absent and which ended in a mistrial, gave him notice of the second trial, in which he was absent but convicted, so his constitutional rights were not violated).
[¶ 31] Komad had been present throughout his trial in municipal court, and he had his full right to confront the witnesses against him. Furthermore, the evidence in the record reflects that he was not denied similar opportunities in his district court appeal, except as a result of his own actions. Therefore, Komad’s claim that he had a constitutional right to be present at his district court appeal fails.
[¶ 32] Even viewing the trial anew in district court as an original proceeding, under Rule 43, N.D.R.Crim.P., and consistent with the defendant’s constitutional rights, the district court could properly have proceeded in Komad’s absence.
B
[¶ 33] The constitutional right to be present applies to trials, however, and not to appeals. There is no constitutional right to a state court appeal. Martinez v. Court of Appeal of California, 528 U.S. 152, 160, 120 S.Ct. 684, 145 L.Ed.2d 597 (2000); State v. Causer, 2004 ND 75, ¶ 22, 678 N.W.2d 552. Furthermore, there is no constitutional right of a defendant-ap*627pellant to be present for an appeal. Martinez, at 163, 120 S.Ct. 684 (“a lay appellant’s rights to participate in appellate proceedings have long been limited by the well-established conclusions that he has no right to be present during appellate proceedings”).
[¶ 34] In City of Minot v. Davis, this Court unanimously held, “A trial anew in district court, by virtue of a right of appeal and a statute directing the procedure upon appeal, is not the exercise of original jurisdiction by the district court.” 84 N.W.2d 891, syll. 1 (N.D.1957). This Court explained:
The defendant was found guilty in Police Magistrate’s Court of the City of Minot, of violating a city ordinance. He appealed from the judgment of the Police Magistrate to the District Court of Ward County. Upon motion of the city this appeal was dismissed by the district court and defendant has appealed to this court from the order of dismissal.
The motion to dismiss and the district court’s order of dismissal were based upon the ground that the only appeal from police magistrate’s court provided by the legislature requires a complete new trial in district court; that this new trial is an exercise of original and not appellate jurisdiction; that under Section 113 of the North Dakota Constitution the police magistrate has exclusive original jurisdiction of all cases arising under city ordinances; that an appeal by the method granted violates Section 113 of the Constitution and there being no other appellate procedure provided for with respect to police magistrate’s court, no constitutional right of appeal from a judgment of that court exists.
Section 114 of the North Dakota Constitution provides:
Appeals shall lie from the county court, final decisions of justices of the peace and police magistrates in such cases and pursuant to such regulations as may be prescribed by law.
Section 40-1819, NDRC 1943, as amended by Chapter 266, Laws of N.D. 1955, provides for appeals from police magistrate’s court. Section 33-1240, NDRC 1943, provides that such an appeal transfers the action to the district court for trial anew. The question before us here is whether such a trial, upon appeal, by the district court is an exercise of original jurisdiction and therefore, in a case arising under a municipal ordinance, in. violation of Section 113 of the Constitution which vests exclusive original jurisdiction in such matters in police magistrate’s court.
Recently, in the Matter of the Estate of Nystuen, N.D., 80 N.W.2d 671, we had occasion to consider this precise question. In the Nystuen case, the question arose in connection with a trial anew in the district court upon an appeal from county court in a probate matter of which, by Section 111 of the Constitution, the county court has exclusive original jurisdiction. In that case we gave the question extended consideration and reaffirmed the decision of this court in the Matter of Peterson’s Estate, 22 N.D. 480, 134 N.W. 751, which held that a trial anew in district court, by virtue of a right of appeal and a statute directing the procedure upon appeal, is not the exercise by the district court of original jurisdiction. This is the settled law of this state. It follows that'the order of the district court dismissing defendant’s appeal was in error. The order is therefore reversed.
Id. at 891-92. Thus, this Court has clearly held that the proceeding in district court after conviction in municipal court is appellate in nature, not an original proceeding.
*628[¶ 35] The fact that the rule provides for a “trial anew” does not change the proceeding from an appeal into an original trial. In an appeal from a judgment of a municipal court, the evidence is “heard anew” because the evidence is not recorded or transcribed in municipal court. N.D.C.C. §§ 27-01-01, 40-18-19; see also City of Bismarck v. Uhden, 513 N.W.2d 373, 380 (N.D.1994) (the appeal procedure under N.D.C.C. § 40-18-19 is “cumbersome and duplicative,” but must be for trial anew because municipal courts are not courts of record). This Court long provided for a “trial de novo” or a “trial anew” on appeal to it. See Herbert L. Meschke & Ted Smith, The North Dakota Supreme Court: A Century of Advances, 76 N.D. L.Rev. 217, 277-82 (2000) (detailing the history of “trial anew” in North Dakota and the elimination of the practice on appeal to the Supreme Court). This Court just recently eliminated a “procedure similar to the former trial de novo” for appeals of juvenile cases. Adoption of S.R.F., 2004 ND 150, ¶ 7, 683 N.W.2d 913; see also N.D.R.Civ.P. 52, Explanatory Note (“Subdivision (a) was further amended, effective March 1, 2004, to provide that findings of fact in juvenile matters, including referee findings adopted by the district court, are not to be set aside unless clearly erroneous.”). Although in neither of these cases did the Court hear new witnesses, it decided the facts itself on the basis of the transcribed testimony and submitted exhibits. That practice did not change the status of a case before this Court to an exercise of original trial jurisdiction; the posture of the case was still that of an appeal.
C
[¶ 36] Although not necessary to the resolution of this case, the history of the statute and the rule also do not support Komad’s position.
[¶ 37] Before our statutes provided for the appeal to district court as provided by the Rules of Criminal Procedure, the statutes themselves provided for the procedure on appeal to the district court. North Dakota Century Code § 40-18-19 (1968) provided:
An appeal may be taken to the district court from any judgment in a municipal judge’s court in the same form and manner as appeals are taken and perfected from a judgment of conviction of a defendant in justice court, and in accordance with sections 33-12-34, 33-12-35, and 33-12-39, and shall be tried in the district court in accordance with sections 33-12-40 and 33-12-41, and bail shall be taken in accordance with sections 33-12-36 and 33-12-37, and witnesses may be placed under bond as provided for in section 33-12-38. On all appeals from a determination in a municipal judge’s court the district court shall take judicial notice of all the ordinances of the city.
The statutes specifically provided that if the defendant failed to appear in district court when he was required’ to do so, the appeal would be affirmed summarily. Section 33-12-41, N.D.C.C. (1960), incorporated by reference in the statute above, provided:
No appeal from the judgment of a county justice in a criminal action shall be dismissed. If the appeal is not taken in time or if the defendant fails to appear in the district court when his presence is required, the judgment of the justice shall be affirmed summarily and entered as the judgment of the district court and carried into effect as such.
[¶ 38] In 1968-1969, when the new Rules of Criminal Procedure were being developed, the discussion turned to appeals from municipal court to the district court and reflected a consensus that the proce*629dural aspects should be governed by rules as opposed to statutes. Because there were not yet Rules of Appellate Procedure, the provisions were put into the criminal rules but were specifically labeled as applying to appeals to district court.
[¶ 39] The minutes of the Joint Committee of the Judicial Council and the State Bar Association for the Adoption of Rules of Criminal Procedure, February 20, 1969, at page 16, reflect:
Mr. Sand also read the comments accompanying the draft. He then moved the adoption of Rule 37(a)(1) as read.
Mr. Persinger seconded the motion.
Mr. Sand said that he thinks that unless we have new appellate rules, we should have something in our criminal rules relating to appellate procedures.
The minutes of the Joint Committee of the Judicial Council and the State Bar Association for the Adoption of Rules of Criminal Procedure, May 15, 1969, at page 3, reflect:
Mr. Sand said that his thinking, in developing Rule 37, was that what may be appealed is a matter that should be covered by statute, but that procedure to be followed in making an appeal is properly governed by a rule.
The committee specifically labeled Rule 37 as governing appeals to district court. The committee’s discussion, at page 4, reflects why the title is relevant:
Judge Burdick objected to the wording of the headings of certain subsections of Rule 37, stating that they were not part of the rule but simply headings. Mr. Sand noted that there is a difference between the titles of statutes and those of rules, in that the titles of statutes are composed by persons other [than] those who adopt the statutes, but in the case of rules, the titles are written by the composers of the rules.
[¶ 40] The minutes reflect that the committee considered the provision providing for summary affirmance of the appeal in district court if the defendant-appellant failed to appear. The minutes of the Joint Committee of the Judicial Council and the State Bar Association for the Adoption of Rules of Criminal Procedure, July 10, 1969, at page 5, reflect:
Mr. Sand asked: Should anything be said in this rule about § 33-12-41, Appeal not dismissed — When judgment affirmed? He read the section:
33-12^41. Appeal not dismissed— When judgment affirmed. — No appeal from the judgment of a county justice in a criminal action shall be dismissed. If the appeal is not taken in time or if the defendant fails to appear in the district court when his presence is required, the judgment of the justice shall be affirmed summarily and entered as the judgment of the district court and carried into effect as such.
Mr. Sand asked: By adopting the rule are we abrogating this section?
Judge Muggli asked: Should another subsection be added to the rule providing for abandonment of appeal?
Judge Burdick said he would favor marking § 33-12-41 for revision but basically to be retained.
Judge Muggli said he would like to have a similar section that would apply.
[¶ 41] The committee ultimately decided the statutory provision should be retained and listed the section as having been considered but not superceded. See N.D.R.Crim.P. 37, Explanatory Note. Thus the history reflects the drafters’ specific intent that if a defendant-appellant fails to appear in district court, the appeal should be affirmed summarily. Even though, after the unification of the courts over the decades, section 33-12-41 is no longer in the Century Code, it continues to be referenced in the North Dakota Rules of Criminal Procedure. Id.
*630D
[¶ 42] The defendant-appellant had been present throughout his municipal court trial. Under Rule 43 and consistent with constitutional rights, the defendant having been present at trial and having not appeared, the district court could proceed. The words and history of Rule 37 and the statute reflect that the district court proceeding was a first-level appellate proceeding. There was no constitutional right to a state court appeal and no constitutional right for a defendant to be present on appeal. The rulemaking history reflects a specific intent that in the absence of the defendant-appellant, the appeal could have been affirmed summarily. Because the district court could have proceeded or affirmed summarily, it did not err by doing the former.
Ill
[¶ 43] The criminal judgment of the district court should be affirmed.
[¶ 44] DANIEL J. CROTHERS, dissents.