Lagoy v. State
Annotate this Case
Download PDF
Cite as 2010 Ark. App. 509
ARKANSAS COURT OF APPEALS
DIVISION III
CACR09-730
No.
Opinion Delivered
RUTH ANN LAGOY
APPELLANT
V.
June 23, 2010
APPEAL FROM THE STONE COUNTY
CIRCUIT COURT
[NO. CR-08-2]
HONORABLE JOHN DAN KEMP,
JUDGE
STATE OF ARKANSAS
APPELLEE
REBRIEFING ORDERED
LARRY D. VAUGHT, Chief Judge
On December 5, 2008, appellant Ruth Lagoy was tried by jury on the charge of battery
in the first degree and tampering with physical evidence. She was convicted of the battery after
the jury heard evidence from the victim, Donald Daum, that Lagoy raised a gun, shot him in the
head, and that he felt the sting of the bullet. During trial, an audio recording of a statement that
Lagoy gave to police was introduced into evidence as “State’s Exhibit Seven.” The audio
recording was played in open court but not transcribed into the record. In her directed-verdict
motion on the battery charge, Lagoy alleged that she acted in self defense as shown by her
statement to police. This justification argument is also the primary focus of Lagoy’s pro se points
on appeal.
Pursuant to Anders v. California, 386 U.S. 738 (1967), and Rule 4-3(k) of the Rules of the
Cite as 2010 Ark. App. 509
Arkansas Supreme Court and Court of Appeals, Lagoy’s counsel filed a motion to withdraw,
arguing that an appeal in this case is wholly without merit. This type of motion must be
accompanied by an abstract and brief referring to everything in the record that might arguably
support an appeal, including all motions, objections, and requests decided adversely to appellant,
and a statement of reasons why none of those rulings would be a meritorious ground for
reversal. Ark. Sup. Ct. R. 4-3(k). Lagoy was provided with a copy of her counsel’s brief and was
notified of her right to file a list of points on appeal within thirty days, which she has done.
However, we are not able to reach the merits of the case or consider counsel’s motion
to withdraw because the abstract is incomplete. It is well-settled law that the record on appeal
is confined to that which is abstracted, and failure to abstract a critical matter precludes this
court from considering the issue on appeal. Edwards v. State, 321 Ark. 610, 906 S.W.2d 310
(1995). In this case, the substance of Lagoy’s tape-recorded, statement is not included in the
abstract. As such, we are unable to consider the contents of the tape in order to determine
whether Lagoy suffered prejudice in the denial of her directed-verdict motion, as we do not
know the specifics of her justification claim.
Although Lagoy’s counsel moved our court for leave not to abstract the audiotape
exhibit—asserting Rule 4-2(a)(6) of the Supreme Court Rules, which provides that exhibits need
not be abstracted where it is impractical to do so or where our court has waived the
requirement—the motion was denied. This denial was predicated on our supreme court’s
directive regarding audiotape-abstracting procedure. Our supreme court has held “only if the
-2-
Cite as 2010 Ark. App. 509
statement is completely incomprehensible should abstracting be deferred.” Hodge v. State, 329
Ark. 57, 57–58, 945 S.W.2d 384, 384 (1997).
As such, because the requirement that the audiotape be abstracted was not waived—to
the contrary; it was specifically denied—we order rebriefing, allowing Lagoy’s counsel thirty
additional days in which to file a substituted brief, abstract, and addendum to cure any and all
deficiencies. Ark. Sup. Ct. R. 4-2(b)(3).
Rebriefing ordered.
GRUBER and BROWN, JJ., agree.
-3-
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.