Evans v. State

David Ray EVANS v. STATE of Arkansas

CR 97-445                                          ___ S.W.2d ___

                    Supreme Court of Arkansas
               Opinion delivered January 29, 1998


1.   Appeal & error -- arguments not considered that have not been properly
     abstracted. -- The supreme court will not consider arguments
     that have not been properly abstracted; the appellant is
     required to provide an abstract that contains information from
     the record necessary to an understanding of the questions
     presented to the court for decision.

2.   Appeal & error -- abstracting errors precluded review of issues -- judgment
     affirmed. -- Where appellant's brief was deficient because the
     motion to suppress as abstracted did not provide the basis for
     the suppression, and where appellant's failure to abstract the
     trial court's ruling provided no basis to the supreme court
     for a decision and thus precluded the court from considering
     the issue, the supreme court affirmed.


     Appeal from Sebastian Circuit Court, Fort Smith District; Don
R. Langston, Judge; affirmed.
     James R. Marschewski, for appellant.
     Winston Bryant, Att'y Gen., by:  Mac Golden, Asst. Att'y Gen.,
for appellee.

     Donald L. Corbin, Justice.
     Appellant David Ray Evans appeals the judgment of the
Sebastian County Circuit Court convicting him of the attempted rape
of his stepdaughter and sentencing him to forty-seven years in the
Arkansas Department of Correction.  He was also convicted of sexual
abuse in the first degree and sentenced to an additional twenty
years.  Our jurisdiction is pursuant to Ark. Sup. Ct. R. 1-2(a)(2). 
In one point on appeal, Appellant asserts that the trial court
erred in failing to suppress the statement given by him due to a
violation of Rule 2.3 of the Arkansas Rules of Criminal Procedure. 
We affirm. 
     After receiving information from a Department of Human
Services Sexual Abuse Hotline, a Fort Smith investigator and a
social worker visited Appellant's home on the evening of
February 22, 1996.  Initially, the investigator and social worker
went to the home to interview the entire family.  Due to the
difficulties in conducting an interview at the home, the
investigator elected to move the interviews to the police
department.  After midnight on February 23, 1996, Appellant made a
statement to police wherein he admitted to having sexual contact
with his stepdaughter.  
     Appellant was charged with rape and sexual abuse in the first
degree.  A suppression hearing was held on August 12, 1996, wherein
the trial court allowed the statement into evidence.  The jury
trial was held on August 16, 1996, and Appellant was found guilty
of attempted rape and sexual abuse in the first degree.  Appellant
contends on appeal that his confession should have been suppressed
due to the failure of the investigator to comply with Rule 2.3.
     Rule 2.3 provides:
          If a law enforcement officer acting pursuant to this
     rule requests any person to come to or remain at a police
     station, prosecuting attorney's office or other similar
     place, he shall take such steps as are reasonable to make
     clear that there is no legal obligation to comply with
     such a request.
Appellant argues that the trial court erred in denying his motion
to suppress his statement.  We do not address the merits of this
argument, as Appellant has failed to abstract the motion properly
and failed to demonstrate that he obtained a ruling from the trial
court on his motion to suppress.
     This court has repeatedly maintained that it will not consider
arguments that have not been properly abstracted.  See, e.g., Lewis
v. State, 330 Ark. 618, 955 S.W.2d 904 (1997); Richmond v. State,
326 Ark. 728, 934 S.W.2d 214 (1996); Wallace v. State, 326 Ark.
376, 931 S.W.2d 113 (1996).  We have stated that it is a
fundamental rule that the appellant is required to provide an
abstract that contains information from the record necessary to an
understanding of the questions presented to the court for decision. 
Ark. Sup. Ct. R. 4-2(a)(6); Richmond, 326 Ark. 728, 934 S.W.2d 214. 
Appellant's brief is deficient, as the motion to suppress as
abstracted does not provide the basis for the suppression.  In
addition, Appellant's failure to abstract the trial court's ruling
provides no basis to this court for a decision, and thus, precludes
us from considering the issue.  McGhee v. State, 330 Ark. 38, 954 S.W.2d 206 (1997).  Under these circumstances, we affirm.  Ark.
Sup. Ct. R. 4-2(b)(2).