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Bens v. State

Court of Appeals of Arkansas, Division II

September 4, 2019

ANTHONY BENS APPELLANT
v.
STATE OF ARKANSAS APPELLEE

          APPEAL FROM THE GRANT COUNTY CIRCUIT COURT [NO. 27CR-18-7] HONORABLE CHRIS E WILLIAMS, JUDGE.

          Tara Ann Schmutzler, for appellant.

          Leslie Rutledge, Att'y Gen., by: Michael L. Yarbrough, Ass't Att'y Gen., for appellee.

          BART F. VIRDEN, Judge.

         A Grant County jury found appellant Anthony Bens guilty of possession of a firearm by certain persons for which he was sentenced as a habitual offender to seven years' imprisonment.[1] Bens argues that the evidence was insufficient to support his conviction. Because of briefing deficiencies, we are unable to reach the merits of his argument and instead order rebriefing.

         I. Abstracting Issues

         The appellant shall create an abstract of the material parts of all the transcripts (stenographically reported material) in the record. Ark. Sup. Ct. R. 4-2(a)(5). Information in a transcript is material if it is essential for the appellate court to confirm its jurisdiction, to understand the case, and to decide the issues on appeal. Ark. Sup. Ct. R. 4-2(a)(5). The abstract shall be an impartial condensation, without comment or emphasis, of the transcript. Ark. Sup. Ct. R. 4-2(a)(5)(B).

         A DVD of Bens's encounter with law enforcement officers was played for the jury. The audio portion of the DVD was transcribed by the court reporter. Instead of abstracting the transcript, appellate counsel summarized the video in a third-person narrative that is, at times, misleading. For example, appellate counsel's summary provides that

Mr. Bens told another officer that he has no business looking in his car. The officer explained that it's in plain sight and that Mr. Bens doesn't need to go back to the car, and ordered Mr. Bens to put his hands behind his back and that there was a gun in the "damn car" too (R. 197). Mr. Bens explained that the gun is his wife's gun and that he wasn't going for the gun when the officers' [sic] pulled up (R. 197).

         Appellate counsel's summary was taken from the following exchange in the record between two unidentified officers and Bens:

Defendant: Man [inaudible] you ain't got no business looking in my car.
Officer: Yeah, it's in plain sight.
Officer: Plain view sight. Don't go in that car. Do not go in that car. No. Out of it now. Put your hands behind your back. Put your hands behind your back right now. ...

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