Heath v. State

2016 Ark. App. 47

• Court: Court of Appeals of Arkansas
• Decided: January 27, 2016
• Docket: CR-15-455
• Status: Published

Opinion

Cite as 2016 Ark. App. 47

ARKANSAS COURT OF APPEALS DIVISION I No. CR-15-455

LASHAWN HEATH Opinion Delivered January 27, 2016 APPELLANT APPEAL FROM THE CRITTENDEN V. COUNTY CIRCUIT COURT [NO. CR-2009-1680]

STATE OF ARKANSAS HONORABLE RANDY F. APPELLEE PHILHOURS, JUDGE

REMANDED TO SETTLE AND SUPPLEMENT THE RECORD; REBRIEFING ORDERED

RITA W. GRUBER, Judge

In November 2010, Lashawn Heath was sentenced to 120 months’ suspended

imposition of sentence (SIS) on one count of residential burglary. In November 2014, the

State filed a petition for revocation in which it alleged that Heath had violated conditions of

the suspension, including a requirement that he lead a law-abiding life. The circuit court

conducted a revocation hearing and found at the conclusion of the hearing that Heath had

violated conditions by committing or attempting to commit residential burglary. On January

30, 2015, the circuit court revoked Heath’s SIS and sentenced him to 180 months’

imprisonment in the Arkansas Department of Correction. Heath appeals, contending that the

State failed to prove the required element of intent for residential burglary. We remand to

the trial court to settle and supplement the record, and we order rebriefing.

Both parties refer on appeal to a police officer’s formal interview of Heath. Although Cite as 2016 Ark. App. 47

the video recording of the interview was played at the revocation hearing, the record before

us shows no transcription of the interview. Nor do the addendum and abstract in Heath’s

brief include the video itself or an abstract of the interview. Administrative Order No. 4 of

the Arkansas Supreme Court provides, “Unless waived on the record by the parties, it shall

be the duty of any circuit court to require that a verbatim record be made of all proceedings

. . . pertaining to any contested matter before the court or the jury.” Ark. Sup. Ct. Admin.

Order No. 4(a) (2015). See Williams v. State, 362 Ark. 416, 208 S.W.3d 761 (2005) (noting

the circuit court’s duty to require a verbatim record of a videotaped custodial statement played

to the jury). When an audio recording has been played in the proceedings below and the

statement is a point on appeal, abstracting is deferred only if the statement is completely

incomprehensible. Dillard v. State, 2012 Ark. App. 503, at 2 (citing Hodge v. State, 329 Ark.

57, 945 S.W.2d 384 (1997)).

We remand to the circuit court to settle the record. The court shall require a verbatim

transcription of the recording as it was played to the court, and the record shall be

supplemented by the addition of the transcript within thirty days of this opinion. After

settlement of the record and the filing of a supplemental record with this court, Heath is given

fifteen days to file a substituted brief, addendum, and abstract. See Ark. Sup. Ct. R. 4-2(b)(3)

(2015) (allowing a party who files a deficient brief opportunity to file a conforming brief). We

strongly encourage counsel, before resubmitting his brief, to carefully examine the record and

review our rules to ensure that no additional deficiencies are present. Once his substituted

brief has been filed, the State will be afforded an opportunity to revise or supplement its brief

2 Cite as 2016 Ark. App. 47

in the time prescribed by the clerk.

Remanded to settle and supplement the record; rebriefing ordered.

WHITEAKER and HOOFMAN, JJ., agree.

Tyler Ginn, for appellant.

Leslie Rutledge, Att’y Gen., by: Kristen C. Green, Ass’t Att’y Gen., for appellee.