                                    Cite as 2017 Ark. 296

                SUPREME COURT OF ARKANSAS
                                       No.   CR-16-800

VIRGINIA ANN HYATT                                  Opinion Delivered   November 2, 2017
                               APPELLANT
                                                    APPEAL FROM THE MILLER
V.                                                  COUNTY CIRCUIT COURT
                                                    [NO. 46CR-14-8]

STATE OF ARKANSAS                                   HONORABLE RANDY WRIGHT,
                                  APPELLEE          JUDGE

                                                    REMAND TO SETTLE THE
                                                    RECORD .


                            KAREN R. BAKER, Associate Justice


       On February 8, 2016, appellant, Virginia Ann Hyatt, was convicted by a Miller

County Circuit Court jury of one count of capital murder in the December 3, 2013 death of

Patricia Wheelington and was sentenced to life imprisonment without the possibility of

parole. On February 29, 2016, Hyatt timely filed her notice of appeal. On appeal, Hyatt

raises one point: the circuit court erred by denying Hyatt’s motion to direct a verdict of not

guilty based on insufficiency of the direct and circumstantial evidence to prove that Hyatt

caused the death of Wheelington with premeditated and deliberate purpose. However, based

on the record before the court, we are unable to reach the merits of this case and remand the

matter to the circuit court to settle the record.

       In this case, it is impossible to determine from the record what was in front of the jury.

The State introduced multiple surveillance videos and photographs in its case-in-chief, State’s
                                   Cite as 2017 Ark. 296

Exhibits nos. 191–196. However, State’s exhibit no. 191 is only in the record and not the

addendum, and the record is absent evidence that exhibit no. 191 was shown to the jury.

Further, the record is absent evidence that the EZ Mart video, State’s exhibit no. 194 showing

the car that was alleged to be similar to Hyatt’s, was introduced or shown to the jury because

the video submitted in the record and the addendum are indecipherable. Also, the still photos

from the EZ Mart surveillance photos, exhibits no. 195 and no. 196 are not consistent with

the testimony regarding the photos.

       Accordingly, pursuant to Ark. R. App. P.–Crim. 4(a) and Ark. R. App. P.–Civ. 6(e),

we remand the matter to settle the record. Under Rule 6(e), the circuit court may settle any

difference that “arises as to whether the record truly discloses what occurred in the circuit

court.” The rule further provides that the circuit court can correct omissions from the

record by error or accident or misstatements therein. See McGehee v. State, 328 Ark. 404, 943

S.W.2d 585 (1997). Here, it is unclear what information is contained in the videos and

photos and whether that evidence was presented to, or considered by, the jury. We have

explained that it is not the purpose of settling the record to introduce evidence that was not

introduced at trial. Tackett v. First Sav. of Ark., 306 Ark. 15, 810 S.W.2d 927 (1991)

(discussing Ark. R. App. P. –Civ. 6(e), the predecessor to our current Ark. R. App. P.–Civ.

6(e)). Therefore, we remand this matter to the circuit court to settle the record.

       Remanded to settle the record.

       Phillip A. McGough, P.A., by: Phillip A. McGough, for appellant.

       Leslie Rutledge, Att’y Gen., by: Adam Jackson, Ass’t Att’y Gen., for appellee.


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