Cite as

ARKANSAS COURT OF APPEALS DIVISION I No. CR-13-204

TRENTON HOLLEY Opinion Delivered November 13, 2013 APPELLANT APPEAL FROM THE FAULKNER V. COUNTY CIRCUIT COURT [NO. 23CR-11-448]

STATE OF ARKANSAS HONORABLE CHARLES E. APPELLEE CLAWSON, JUDGE

REMANDED TO SETTLE AND SUPPLEMENT THE RECORD; REBRIEFING ORDERED

BRANDON J. HARRISON, Judge

A Faulkner County jury found Trenton Holley guilty of sexual assault in the second

degree. He was sentenced to seventeen years in the Arkansas Department of Correction.

Holley argues on appeal that the circuit court erred in denying his motion to suppress

statements made during his custodial interrogation and that the circuit court erred in

admitting certain evidence during the sentencing phase. We cannot decide the merits of

Holley’s appeal at this point because his brief and the record have not been prepared as the

Arkansas Supreme Court Rules and the Administrative Orders of the Supreme Court require.

We first address Holley’s brief. One problem is that his entire abstract is single spaced,

which violates Ark. Sup. Ct. R. 4-1(a) (2013). Second, Holley has failed to abstract material

portions of the pretrial hearings and the hearing that he notes in his argument. Ark. Sup. Ct.

R. 4-2(a)(5) (2013). Third, Holley’s argument section cites predominantly to the record and Cite as

not to the abstract and addendum as required by Ark. Sup. Ct. R. 4-2(a)(7).

Moreover, Holley’s addendum does not include the audio CDs that were played to the

jury. Rule 4-2(a)(8)(A)(i) requires that the addendum contain the CDs if they are essential

to our understanding of the case. The CDs are essential to the understanding of this case and

to this court’s ability to make a decision on the merits. Furthermore, we have stated before

that when an audio recording has been played to the jury and the recording relates to a point

on appeal, then abstracting of the recorded testimony is deferred only if the recorded

statement is completely incomprehensible. Dillard v. State,

. There has

been no such assertion by the parties in this case. This leads us to the record deficiency that

requires a remand to settle the record.

In the absence of a proper waiver, Administrative Order No. 4(a) imposes a duty on

the 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)

(2013). Therefore we remand this case to the circuit court to settle the record by requiring

that a verbatim transcription be made of any audio recording that was played at trial. The

record on appeal must be supplemented with the transcript of the audio material within thirty

days of this opinion’s date. See Patton v. State,

; Dillard, supra. Holley

must then include, in his substituted brief, an abstract of the transcribed audio recordings. See

Copeland v. State,

.

Finally, Holley’s brief includes an “Appendix” in addition to his addendum. Our rules

do not recognize appendices. Ark. Sup. Ct. R. 4-2. The appendix seems to consist of

2 Cite as

unredacted transcripts of three audio exhibits that were played to the jury. But the transcripts

in Holley’s appendix are not in the record. We will not consider material outside of the

record and this material must be removed from the brief. See Lowe v. State,

.

We strongly encourage Holley—before filing a substituted brief—to review our rules

and avoid any other deficiencies besides the ones we have pointed out. After the record is

settled and the supplemental record has been filed in this court, Holley will have fifteen days

to file a substituted brief. Ark. Sup. Ct. R. 4-2(b)(3). The State may revise or substitute its

brief within fifteen days of the filing of Holley’s substituted brief, or it may rely on its

previously filed brief.

Remanded to settle and supplement the record; rebriefing ordered.

GRUBER and WHITEAKER, JJ., agree.

Blagg Law Firm, by: Ralph Blagg and Nicki Nicolo, for appellant.

Dustin McDaniel, Att’y Gen., by: Eileen W. Harrison, Ass’t Att’y Gen., for appellee.

3