State v. Rucker, 2003 UT App 450 (Utah App. 12/26/2003)

• Decision Date: 26 December 2003
• Docket Number: Case No. 20030304-CA.
• Citation: 2003 UT App 450
• Parties: State of Utah, Plaintiff and Appellee, v. Jaren Rucker, Defendant and Appellant.
• Court: Utah Court of Appeals

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2003 UT App 450

State of Utah, Plaintiff and Appellee, v. Jaren Rucker, Defendant and Appellant.

Case No. 20030304-CA.

Court of Appeals of Utah.

Filed December 26, 2003.

(Not For Official Publication)

Appeal from the Third District, Salt Lake Department, The Honorable Anthony B. Quinn.

Vanessa M. Ramos-Smith, Salt Lake City, for Appellant.

Mark L. Shurtleff and Laura B. Dupaix, Salt Lake City, for Appellee.

Before Judges Billings, Bench, and Davis.

MEMORANDUM DECISION

PER CURIAM:

This case is before us on Appellant's motion to supplement the record and on the State's motion for summary affirmance.

Following a jury trial in May of 1992, Jaren Rucker was convicted of aggravated assault, a third degree felony; failure to respond to an officer, a class A misdemeanor; and driving under the influence, a class B misdemeanor. Before sentencing, Rucker fled to Guam, where he remained for nine years. He was sentenced on March 31, 2003, over eleven years after his trial. He filed an appeal; however, the district court notified him that trial transcripts were not available because the audio tapes were destroyed after expiration of the nine-year retention period. Rucker seeks a remand "to re-create a record through testimony as well as alternative sources in order to pursue his issues on appeal." He challenges the sufficiency of the evidence supporting his conviction, and also claims that trial counsel was ineffective in failing to assert self-defense.

Although a defendant who absconds after conviction does not forfeit the right to an appeal, that right may be lost if "the State can show that it has been prejudiced by the defendant's absence and the consequent lapse of time." State v. Tuttle, 713 P.2d 703, 705 (Utah 1985). Accordingly, where a defendant's seven-year absence following conviction "greatly increased the risk and . . . the likelihood that records would be lost or destroyed" and "indirectly resulted in the impossibility of appellate review," the Utah Supreme Court denied a new trial and affirmed the conviction. State v. Verikokides, 925 P.2d 1255, 1256 (Utah 1996); see also State v. Morello, 927 P.2d 646, 648 (Utah Ct. App. 1996) (concluding defendant bore risk of loss where delay resulted in destruction of transcript). In addition, the Utah Supreme Court rejected reconstruction as an adequate remedy where a major portion of the record was missing. See State v. Tunzi, 2000 UT 38,¶3, 998 P.2d 816 (rejecting reconstruction where transcript of second day of jury trial was missing).

The destruction of records necessary to allow appellate review occurred during Rucker's absence. But for that absence, it appears that an appeal could have been pursued before the records were destroyed. His motion provides no details about the proposed means...