Allen v. State

Shannon ALLEN v. STATE of Arkansas

CR 96-628                                          ___ S.W.2d ___

                    Supreme Court of Arkansas
               Opinion delivered November 11, 1996


1.   Appeal & error -- petition for review -- action taken upon
     granting petition. -- Upon the grant of a petition for review
     following a decision by the court of appeals, the supreme
     court reviews the case as though the appeal was originally
     filed with the supreme court. 

2.   Appeal & error -- record on appeal limited to that which is
     abstracted -- court will examine transcript of trial only in
     order to affirm. -- An abstract must contain those parts of
     the record that are necessary to an understanding of the
     issues presented to the appellate court for decision; the
     record on appeal is limited to that which is abstracted; the
     court will not examine the transcript of a trial to reverse a
     trial court; however, it will do so to affirm. 

3.   Appeal & error -- abstract repeatedly deficient -- transcript
     references throughout the argument no substitute for a proper
     abstract. -- Appellant's abstract was deficient where none of
     the State's case-in-chief nor discussions and objections
     concerning instructions were summarized in the abstract; an
     abstract must include all material necessary to an
     understanding of all questions presented to the appellate
     court for decision; the argument made to the trial court and
     the trial court's ruling are vital to a review of the ruling
     by the appellate court; scattering transcript references
     throughout the argument is not a substitute for a proper
     abstract. 


     Appeal from Garland Circuit Court; Tom Smitherman, Judge;
affirmed.
     Daniel D. Becker and Ann C. Hill , for appellant.
     Winston Bryant, Att'y Gen., by:  J. Brent Standridge, Asst.
Att'y Gen., for appellee.

     Robert H. Dudley, Justice.
     Shannon Allen was charged with burglary.  His abstract
reflects that, before trial, he submitted proposed jury
instructions to the trial court.  The case went to trial, but 
appellant's abstract does not include a summary of the State's
evidence.  Following the State's case-in-chief, the trial court
reviewed the proposed jury instructions.  The abstract reflects
that the trial court ruled that it would instruct on residential
burglary, but would not instruct on the lesser-included offense of
criminal trespass.  The abstract does not contain a summary of the
ruling, and it does not give the reasons stated by the trial court
for the ruling.  After the hearing on instructions, appellant took
the witness stand.  His testimony is the only testimony summarized
in the abstract.  The abstract does not disclose whether there was
any additional discussion of instructions at the close of the case. 
The abstract reflects only that the trial court instructed the jury
on the offense of residential burglary.  Appellant was convicted of
burglary.
     Appellant appealed to the Arkansas Court of Appeals and argued
that the trial court erred in refusing to give the lesser-included
instruction of criminal trespass.  The court of appeals reversed
and remanded.  Allen v. State, 53 Ark. App. 225, 920 S.W.2d 860
(1996).  The State filed a petition for review, which this court
granted.  Upon the grant of a petition for review following a
decision by the court of appeals, we review the case as though the
appeal was originally filed with this court.  Armer v. State, 326
Ark. 7, ___ S.W.2d ___ (1996).  Upon such review, we affirm the
judgment of conviction because the abstract is flagrantly
deficient.
     Rule 4-2(a)(6) of the Rules of the Supreme Court provides that
an abstract must contain those parts of the record that are
necessary to an understanding of the issues presented to the
appellate court for decision.  We have often written that the
record on appeal is limited to that which is abstracted.  Taylor v.
State, 299 Ark. 123, 771 S.W.2d 742 (1989).  We will not examine
the transcript of a trial to reverse a trial court.  However, we
will do so to affirm.  Haynes v. State, 314 Ark. 354, 862 S.W.2d 275 (1993).  
     There must be a rational basis in the evidence to warrant the
giving of an instruction.  Brown v. State, 325 Ark. 504, ___ S.W.2d
___ (1996).  Here, none of the State's case-in-chief is summarized
in the abstract.  The trial court ruled on the proffered
instructions after the State rested its case.  The discussions and
objections concerning instructions are not abstracted.  We are
informed only that appellant submitted three proposed instructions
on lesser-included offenses and that the trial court ruled that it
would instruct on burglary, but not any lesser-included offenses. 
An abstract must include all material "necessary to an
understanding of all questions presented to the Court for
decision."  Ark. R. Sup. Ct. 4-2(a)(6).  We have said that the
argument made to the trial court and the trial court's ruling are
"vital" to a review of the ruling by this court.  Watson v. State,
313 Ark. 304, 854 S.W.2d 332 (1993).  Here, the abstract gives us
only the three proffered instructions, part of appellant's
testimony, and the result of the instruction conference.  We do not
have sufficient material to fully understand the issue.  Appellant
quoted part of his argument to the trial court and the trial
court's comments in the argument section of his brief, but we have
stated that scattering transcript references throughout the
argument is not a substitute for a proper abstract.  Moncrief v.
State, 325 Ark. 173, 925 S.W.2d 776 (1996); Watson v. State, 313
Ark. 304, 854 S.W.2d 332 (1993). 
     The court of appeals' opinions in this case confirm that
appellant's abstract is not sufficient to give an understanding of
the trial below and the issues presented on appeal.  The majority
opinion held that appellant's abstract was sufficient, but the
majority opinion contains five statements of fact that are not
found in the abstract.  The dissenting opinion quotes directly from
the transcript of the instruction conference to show that only the
State's evidence had been introduced when the trial court
considered the instructions.  The trial judge stated, "I'm just
going to instruct at this time on residential burglary."  The
abstract did not reflect this and appellant does not discuss it. 
Yet, one of the primary issues would be whether appellant waived
the issue by not renewing it, or whether the court had a duty to
change its ruling on its own motion, an issue we cannot reach
because none of this is reflected in the abstract.  
     Affirmed.