FROM THE LOGAN COUNTY CIRCUIT COURT, NORTHERN DISTRICT [NO.
42PCR-15-80] HONORABLE JERRY D. RAMEY, JUDGE
Calhoun Giattina, PLLC, by: Robert E. Hodge III, for
Rutledge, Att'y Gen., by: Pamela Rumpz, Ass't
Att'y Gen., for appellee.
PHILLIP T. WHITEAKER, JUDGE.
Daniel Honey was convicted of one count of rape and one count
of second-degree sexual assault by a Logan County jury. On
appeal, Honey argues that the Logan County Circuit Court
erred in denying his motion for mistrial, which he made in
response to allegedly improper cross-examination by the
State. Due to deficiencies in his record, addendum, and
abstract, however, we are unable to reach the merits of his
argument at this time.
was charged with two counts of rape based on allegations that
he inserted his finger into the vagina and anus of a
seven-year-old child. Before trial, Honey filed a motion for
discovery, to which the State responded. Honey later filed a
separate request for discovery pursuant to Ark. R. Crim. P.
17.1, specifically asking the State to disclose "all
evidence the Prosecution anticipates will be used against
Defendant pertaining to character and to that of other
crimes, wrongful conduct, or acts, including, but not limited
to, evidence allowed under Rule 404(b) of the Arkansas Rules
of Evidence." The State did not file a response to this
trial, Honey testified in his own defense. During the
State's cross-examination, the prosecutor asked Honey
about allegations that he had touched the leg of another
little girl in a parking lot. Honey denied the allegation,
and the State then asked again whether anything
"happened in the parking lot with the young lady that
fell on a bike, and some allegations of you rubbing on
counsel objected, saying that "nothing about a bike or a
young lady" had been disclosed during discovery. The
State responded that it was "just cross-examination,
it's just things that I've picked up in talking to
witnesses." Defense counsel responded that if the
prosecution had notes of those conversations, those notes
should have been provided during discovery so that he could
have anticipated the State's cross-examination. The
prosecutor replied that there were no notes and reiterated
that these were "just things that I've picked up in
talking with witnesses." Defense counsel subsequently
moved for a mistrial. The circuit court denied the motion for
mistrial but instructed the jury that it was to disregard any
allegations or inference regarding the girl on the bike.
the prosecutor passed the witness, defense counsel asked to
approach and argued to the court that he had specifically
filed a pretrial motion for discovery of Rule 404(b)
evidence. Counsel contended that the prosecutor's failure
to disclose Honey's alleged wrongful conduct was itself
wrongful conduct that could not be cured with an instruction
from the court. Counsel therefore again asked for a mistrial,
which the circuit court again denied.
jury went on to convict Honey of one count of rape and one
count of second-degree sexual assault. He was sentenced to
forty years in the Arkansas Department of Correction on the
rape conviction and twenty years on the sexual-assault
conviction. Honey filed a timely notice of appeal, and he now
argues to this court that the circuit court erred in denying
his motion for mistrial. As noted above, however, we are
unable to address the merits of Honey's argument at this
time due to deficiencies in his record, addendum, and
first address the deficiencies in Honey's record. At the
conclusion of Honey's trial, the circuit court read from
verdict forms that the jury foreman handed to the bailiff.
Those verdict forms, however, were not included in the record
of the proceedings. If anything material to either party is
omitted from the record by error or accident, this court can
sua sponte direct that the omission be corrected and that a
supplemental record be certified and transmitted. Ark. R.
App. P.-Civ. (6)(e) (as made applicable to criminal cases by
Ark. R. App. P.-Crim. 4(a)); see also Phillips v.
State, 2015 Ark.App. 138, at 1-2; Whitson v.
State, 2013 Ark.App. 730. Accordingly, we remand this
case to the circuit court to settle and supplement the record
with the verdict forms. Honey has thirty days from the date
of this opinion to file a supplemental record with this
second deficiency flows from the first one. Because the
verdict forms were not a part of the record, they were not
included in the addendum. Arkansas Supreme Court Rule
4-2(a)(8)(A)(i) (2016), however, requires that jury-verdict
forms be included in the addendum when there is a jury trial.
See also Lacy v. State, 2017 Ark.App. 509. Thus,
once the record is settled and supplemented, Honey shall
supplement the addendum to include the verdict forms.
third deficiency pertains to Honey's abstract. At
present, Honey's abstract consists of the State's
questions to him on cross-examination, his answers, and the
colloquy between the court and counsel about the mistrial
motion. Honey asserts that his abstract contains all the
pertinent information to support his arguments on appeal. The
State, however, argues that if the denial of Honey's
mistrial motion was in error, any such error was harmless.
This court has stated that when a prosecutor's statement
is potentially prejudicial, we may still conduct a
harmless-error review and affirm if the evidence of guilt is
overwhelming. See, e.g., Kennedy v. State,
2009 Ark.App. 638, at 4. Here, the State has not provided a
supplemental abstract to this court; rather, it cites
directly to the record, concluding that there was
"overwhelming" evidence of guilt.
true that an appellate court may go to the record to affirm.
See Hosey v. Burgess, 319 Ark. 183, 890 S.W.2d 262
(1995). We must, however, be able to understand the totality
of the evidence in order to conduct a harmless-error review.
See Scamardo v. State, 2012 Ark.App. 78, at 2
(ordering rebriefing where appellant raised
"compelling" evidentiary arguments but abstract did
not contain sufficient information to discern whether any
error was harmless); see also Lacy, supra
(ordering rebriefing where the argument on appeal was that
juror misconduct caused appellant's substantial rights to