State of Utah, in the interest of S.B., C.R., J.R., and J.F.

----ooOoo----
State of Utah, in the interest of S.B., C.R., J.R., and J.F.,
persons under eighteen years of age.

State of Utah,
Appellee,

v.

T.R.,
Appellant.

MEMORANDUM DECISION
(Not For Official Publication)

Case No. 20010841-CA

F I L E D

May 23, 2002 2002 UT App 178  -----

Third District Juvenile, Salt Lake Department
The Honorable Andrew A. Valdez

Attorneys:
John E. Laherty, Salt Lake City, for Appellant
Mark L. Shurtleff and John M. Peterson, Salt Lake City, for Appellee
Martha Pierce, Salt Lake City, Guardian Ad Litem

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Before Judges Bench, Davis, and Thorne.

PER CURIAM:

This case is before the court on Appellant's motion for a new trial. A transcript of the trial in this matter was requested and this court received certification from the court reporter that a transcript of the trial could not be prepared because of equipment failure. Only one microphone appears to have been recording. Neither the microphone for the judge, nor the microphone for the witnesses was recording. This court then required the parties to attempt to create an agreed upon statement, pursuant to Rule 11(g) of the Utah Rules of Appellate Procedure. However, trial counsel submitted an affidavit indicating that he has invested thirty hours attempting such a statement, but is unable to create a statement of evidence. Also, trial counsel indicates that his recommendation to appellate counsel, based on the evidence presented at trial, was to argue insufficiency of the evidence on appeal.

Appellee argues that Appellant has not followed the procedures outlined in rule 11(g), by not serving Appellee with the statement and presenting the statement of trial counsel to the trial court to settle the matter. However, the statement provided by trial counsel is not a proposed statement of evidence, it is a statement that, under the circumstances, re-creation of the evidence is impossible. Therefore, to present the statement to the trial court would serve no purpose and is not required.

In State v. Tunzi, 2000 UT 38, 998 P.2d 816, the supreme court indicated that, when sufficiency of the evidence is the issue on appeal and an accurate record is critical, and when a major part of the record is missing, the burden and futility of attempting to recreate the record necessitate a new trial. See id. at ¶3. The affidavit of trial counsel demonstrates the impossibility and futility of further attempting to re-create the record in this matter. Appellee does not dispute the condition of the recording asserted by the reporter. Given the circumstances, a new trial is required and is granted by this court. This appeal is accordingly dismissed as a result of this court's ruling.
 
 

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Russell W. Bench, Judge
 
 

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James Z. Davis, Judge
 
 

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William A. Thorne Jr., Judge