              IN THE COURT OF APPEALS OF NORTH CAROLINA

                                       No. COA18-158

                                Filed: 16 October 2018

Cumberland County, Nos. 14 CRS 57496, 57498, 57500

STATE OF NORTH CAROLINA

             v.

WILLIAM YATES


      Appeal by defendant from judgments entered 23 August 2016 by Judge

Thomas H. Lock in Cumberland County Superior Court. Heard in the Court of

Appeals 4 September 2018.


      Attorney General Joshua H. Stein, by Assistant Attorney General Melissa H.
      Taylor, for the State.

      Mark L. Hayes for defendant-appellant.


      ARROWOOD, Judge.


      William Yates appeals from judgments entered upon his convictions for second

degree kidnapping, communicating threats, assault with a deadly weapon, breaking

or entering, assault on a female, first degree rape, and two counts of first degree

sexual assault. Because a recording equipment malfunction prevented the court

reporter from producing a full transcript of the trial, including crucial portions of the

victim’s testimony such as cross-examination, defendant is entitled to a new trial.

                                  I.       Background
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                                  Opinion of the Court



      On 13 October2014, a Cumberland County Grand Jury returned indictments

charging defendant with felonious breaking or entering, felonious assault inflicting

physical injury by strangulation, misdemeanor assault on a female, first degree

kidnapping, misdemeanor communicating threats, misdemeanor assault with a

deadly weapon, first degree forcible rape, and two counts of first degree sexual

offense. The State moved to join the offenses for trial and the motion was granted on

4 January 2016. Defendant’s case was tried in Cumberland County Superior Court

before the Honorable Thomas H. Lock beginning on 16 August 2016.

      At the end of the State’s evidence, the trial court granted defendant’s motion

to dismiss the felonious assault inflicting physical injury by strangulation charge and

denied defendant’s motion to dismiss any of the other charges. On 19 August 2016,

the jury returned verdicts finding defendant guilty of felonious breaking or entering,

assault on a female, first degree kidnapping, communicating threats, assault with a

deadly weapon, first degree rape, and two counts of first degree sexual offense. Also

on 19 August 2016, the trial court signed an order dismissing the assault inflicting

physical injury by strangulation charge.       The trial court entered a prayer for

judgment continued until 23 August 2016.

      On 22 August 2016, defendant filed a motion for appropriate relief (“MAR”)

seeking to have the verdicts set aside and for a new trial. On 23 August 2016, the

trial court denied defendant’s MAR and entered judgments. The court first arrested



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judgment on the first degree kidnapping conviction in favor of entering judgment for

second degree kidnapping. The court consolidated the second degree kidnapping,

communicating threats, assault with a deadly weapon, breaking or entering, and

assault on a female convictions and entered judgment sentencing defendant to a term

of 35 to 54 months’ imprisonment. The court then entered a separate judgment on

the first degree rape conviction sentencing defendant to a concurrent term of 336 to

464 months’ imprisonment. Lastly, the court consolidated the two first degree sexual

offense convictions and entered a third judgment sentencing defendant to a term of

336 to 464 months’ imprisonment to begin at the expiration of the sentence imposed

for first degree rape. Defendant gave notice of appeal in open court.

                                   II.    Discussion

      On appeal, defendant argues that he has been denied a meaningful appeal

because a portion of the trial transcript is missing and that the trial court erred in

denying his motions to dismiss for insufficiency of the evidence. We grant defendant

a new trial based on the incomplete transcript of the trial proceedings.

                              1.     Missing Transcript

      In the first issue on appeal, defendant points out that a portion of the trial

transcript from 18 August 2016 is missing. Defendant asserts that he is entitled to a

new trial because the incomplete transcript has deprived him of a meaningful appeal.




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                                   Opinion of the Court



      This Court has explained that “[o]ur caselaw contemplates the possibility that

the unavailability of a verbatim transcript may in certain cases deprive a party of its

right to meaningful appellate review and that, in such cases, the absence of the

transcript would itself constitute a basis for appeal.” In re Shackleford, __ N.C. App.

__, __, 789 S.E.2d 15, 18 (2016) (citing State v. Neely, 21 N.C. App. 439, 441, 204

S.E.2d 531, 532 (1974)).

             However, the unavailability of a verbatim transcript does
             not automatically constitute reversible error in every case.
             Rather, to prevail on such grounds, a party must
             demonstrate that the missing recorded evidence resulted
             in prejudice.     General allegations of prejudice are
             insufficient to show reversible error. Moreover, the
             absence of a complete transcript does not prejudice the
             defendant where alternatives are available that would
             fulfill the same functions as a transcript and provide the
             [appellant] with a meaningful appeal.

Id. at __, 789 S.E.2d at 18 (internal quotation marks, citations, and emphasis

omitted).

      To determine whether the right to a meaningful appeal has been lost, our

Courts conduct a three-step inquiry. First, we must determine whether defendant

has “made sufficient efforts to reconstruct the [proceedings] in the absence of a

transcript.” Id. at __, 789 S.E.2d at 18. Second, we must determine whether those

“reconstruction efforts produced an adequate alternative to a verbatim transcript—

that is, one that would fulfill the same functions as a transcript . . . .” Id. at __, 789

S.E.2d at 19 (internal quotation marks and citation omitted).          Third, “we must


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                                   Opinion of the Court



determine whether the lack of an adequate alternative to a verbatim transcript of the

[proceedings] served to deny [defendant] meaningful appellate review such that a

new [trial] is required.” Id. at __, 789 S.E.2d at 20.

      In the present case, the court reporter delivered a three volume transcript of

the trial proceedings to defendant. Volume I of the transcript includes the trial court

proceedings on 16 and 17 August 2016, during which the court heard pretrial

motions, conducted jury selection, and began to hear the State’s evidence. At the time

the trial was adjourned for the evening on 17 August 2016, the State was conducting

its direct examination of the alleged victim. Upon releasing the alleged victim from

the witness stand, the trial court instructed her “to return in the morning.” Volume

I of the transcript ends with a note indicating “[t]he trial adjourned at 5:04 p.m.,

August 17, 2016, and reconvened at 9:30 a.m., August 18 2016.” Volume II of the

transcript, however, begins with a note indicating that “[t]he hearing convened at

11:08 a.m., August 18, 2016[.]” At that time, the State called its next witness.

      There is no record of what happened in court on 18 August 2016 from 9:30 a.m.

to 11:08 a.m.    In place of a verbatim transcript, defendant’s appellate counsel

prepared and delivered a narrative form transcript. The narrative form transcript

states only that “[b]etween 9:30 AM and 11:08 AM on 18 August 2016, trial

proceedings occurred which included, at minimum, the cross examination of the

State’s witness[, the alleged victim].” However, given how the proceedings ended on



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                                   Opinion of the Court



17 August 2016, it is likely the State also continued its direct examination of the

alleged victim during that time. It is also possible that other witnesses testified.

      Regarding the first two inquiries set out in Shackleford, defendant contends

that he made sufficient efforts to reconstruct the missing portion of the transcript

and that the alternative is inadequate. We agree.

      Defendant’s appellate counsel included with the narrative form transcript a

“certificate of transcript” that was verified and notarized. The certificate explains

that the missing portion of the transcript is the result of a recording malfunction and

that, after neither the court reporter nor her supervisor could recover any recording

of the proceedings from 9:30 a.m. to 11:08 a.m. on 18 August 2016, this Court granted

a motion to prepare the transcript in narrative form. The certificate then details

counsel’s efforts to reconstruct the missing portion of the transcript.

      Those efforts began with the mailing of a letter to the presiding judge, the

prosecutor, the court reporter, and defense attorneys on 18 October 2017 requesting

that they share their recollection of what occurred during the portion of the trial for

which there is no transcript. None of those parties involved in the trial responded to

the letter. A follow up email was sent to the prosecutor, the court reporter, and

defense attorneys on 13 November 2017 with the original letter attached.               The

presiding judge was omitted from the email because his email address was unknown.

The email once more requested assistance in reconstructing the missing transcript.



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                                  Opinion of the Court



Again, there was no response.       The certificate further explains that the only

information defendant’s appellate counsel has about the unrecorded portion of the

trial is that cross-examination of the alleged victim did take place. Counsel was able

to speak with the prosecutor by telephone on 22 August 2017 and the prosecutor

confirmed that defense counsel did cross-examine the alleged victim.

      Comparing these efforts by defendant’s appellate counsel to reconstruct the

missing transcript to those efforts determined to be sufficient in State v. Hobbs, 190

N.C. App. 183, 660 S.E.2d 168 (2008), and Shackelford, we hold the efforts in the

present case were sufficient.

      In Hobbs, in which the transcripts of the evidentiary phase of the defendant’s

trial were unavailable for the defendant’s appeal, the defendant’s appellate counsel

contacted the defendant’s trial counsel, the prosecutor, and the presiding judge in an

attempt to reconstruct the transcript. 190 N.C. App. at 186-87, 660 S.E.2d at 170-71.

Responses were received from the defendant’s trial counsel and the presiding judge

indicating they either had little memory of the proceedings or had no notes. Id. 186-

87, 660 S.E.2d 171. There was no indication of a response from the prosecutor. Id.

at 187, 660 S.E.2d at 171. Although noting in a footnote that “the precise burden

imposed upon appellants for reconstructing the records has not been defined[,]” Id. at

187 n.3, 660 S.E.2d at 171 n.3, this Court held as follows:

             Although the better practice would have been for
             defendant’s appellate counsel to follow up with the


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                                  Opinion of the Court



             prosecutor via telephone after failing to receive a response
             from her letters, the State has advanced no argument in its
             brief to this Court that the letters were not received.
             Accordingly, defendant satisfied his burden of
             demonstrating the absence of available alternatives to the
             missing transcripts.

Id. at 187, 660 S.E.2d at 171.

      Similarly in Shackleford, in which the transcript of the respondent’s

involuntary commitment hearing was unavailable for the respondent’s appeal, the

respondent’s appellate counsel sent letters to those parties present at the hearing,

including the judge, deputy clerk, respondent’s counsel, respondent, and others,

seeking assistance in reconstructing the hearing transcript. __ N.C. App. at __, 789

S.E.2d at 17-18. The respondent’s trial counsel provided notes from the hearing, but

otherwise the responses from those present at the hearing were not helpful. Id. at

__, 789 S.E.2d at 18. Relying on Hobbs, this Court explained that “[the r]espondent’s

appellate counsel took essentially the same steps as the appellants’ attorney in

Hobbs. Therefore, we similarly conclude that [r]espondent has satisfied his burden

of attempting to reconstruct the record.” Id. at __, 789 S.E.2d at 19.

      In this case, defendant’s appellate counsel’s efforts to reconstruct the missing

portion of the transcript emulated those efforts determined to be sufficient in Hobbs

and Shackleford and included a follow-up communication that this Court noted in

Hobbs was “better practice.” Thus, we hold defendant has met his burden.




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                                    Opinion of the Court



       Notwithstanding the efforts of defendant’s appellate counsel, defendant was

unable to produce an adequate alternative to a verbatim transcript. As detailed

above, the reconstructed transcript provides only that “[b]etween 9:30 AM and 11:08

AM on 18 August 2016, trial proceedings occurred which included, at minimum, the

cross-examination of the State’s witness[, the alleged victim].”

       In Shackleford, this Court described an “adequate alternative to a verbatim

transcript” as “one that ‘would fulfill the same functions as a transcript . . . .’ ” Id. at

__, 789 S.E.2d at 19 (quoting State v. Lawrence, 352 N.C. 1, 16, 530 S.E.2d 807, 817

(2000)). This Court also noted that “in virtually all of the cases in which we have held

that an adequate alternative to a verbatim transcript existed, the transcript of the

proceeding at issue was only partially incomplete, and any gaps therein were capable

of being filled.” Id. at __, 789 S.E.2d at 19 (emphasis omitted). Shackleford, however,

was distinguishable from those cases in which only part of the transcript was missing

because in Shackleford, “the transcript of the entire proceeding is unavailable, and

the only independent account of what took place at the hearing consists of five pages

of bare-bones handwritten notes that—in addition to not being wholly legible—clearly

do not amount to a comprehensive account of what transpired at the hearing.” Id. at

__, 789 S.E.2d at 19-20 (emphasis omitted).                Thus, this Court concluded in

Shackleford that the notes from the respondent’s trial counsel did not constitute an




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                                   Opinion of the Court



adequate alternative to a verbatim transcript of the hearing. Id. at __, 789 S.E.2d at

20.

      Although only a portion of the transcript was missing in this case, unlike those

cases referenced in Shackleford in which gaps in the transcripts were capable of being

filled, see id. at __, 789 S.E.2d at 19 (citing In re Bradshaw, 160 N.C. App. 677, 587

S.E.2d 83 (2003), State v. Owens, 160 N.C. App. 494, 586 S.E.2d 519 (2003), and State

v. Hammonds, 141 N.C. App. 152, 541 S.E.2d 166 (2000), as examples of cases where

it was possible to reconstruct an incomplete transcript), there was no way to

reconstruct the missing portion of the transcript in the present case.          Despite

sufficient efforts to reconstruct the transcript, defendant’s appellate counsel was only

able to verify that cross-examination of the alleged victim did take place. Without

any suggestion as to the substance of the missing testimony, the alternative produced

by defendant’s appellate counsel does not fulfill the same functions as a transcript

and is not an adequate alternative.

      Having determined defendant made sufficient efforts to reconstruct the

missing portion of the transcript and that the alternative is inadequate, we turn to

the final step of the inquiry, “whether the lack of an adequate alternative to a

verbatim transcript of the [trial] served to deny [defendant] meaningful appellate

review such that a new [trial] is required.” Id. at __, 789 S.E.2d at 20.




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                                   STATE V. YATES

                                  Opinion of the Court



      Defendant argues the incomplete transcript in this case has denied him

meaningful appellate review because the missing transcript includes, at the very

least, the cross-examination of the alleged victim, whom defendant contends is the

State’s chief witness and only eyewitness. Defendant contends that without the

alleged victim’s testimony the State could not present a prima facie case, and without

a complete transcript of the alleged victim’s testimony, or an adequate alternative,

there is no way to identify specific errors below to raise on appeal. Defendant,

however, has identified potential issues based on pretrial motions, testimony, and

closing arguments. These potential issues include the admission of Rule 404(b)

evidence that defendant sought to exclude through a motion in limine, the admission

of cyber evidence, the admission of evidence of jail records regarding visitation,

telephone calls, deposits, and emails related to defendant that the defense sought

through a subpoena and were the subject of an objection and motion to quash by the

State, and the admission of evidence of criminal charges against the alleged victim

that could have been used to attack her credibility that was the subject of a motion

for discovery by defendant, a motion in limine by the State, and pre-trial arguments

on admissibility that led the trial court to reserve its ruling for trial. Defendant

contends that references to particular evidence in the closing arguments, or

alternatively, the lack of references to particular evidence, calls into question what

rulings the trial court made regarding the above evidence during the unrecorded



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                                   Opinion of the Court



portion of the trial. Defendant, however, is unable to identify specific errors because

there is no transcript.

      In response to defendant’s argument, the State asserts “[it] is the appellant’s

responsibility to make sure that the record on appeal is complete and in proper

form[,]” In re L.B., 184 N.C. App. 442, 453-54, 646 S.E.2d 411, 417-18 (2007), and that

defendant must “demonstrate that the missing recorded evidence resulted in

prejudice. General allegations of prejudice are insufficient to show reversible error[,]”

State v. Quick, 179 N.C. App. 647, 651, 634 S.E.2d 915, 918 (2006) (citations omitted).

The State argues defendant’s contention that there may have been appealable issues

that were not transcribed is not enough because the “allegation does not allege

specific prejudice as required.” The State claims defendant’s argument is based on

conjecture and speculation.

      In Shackleford, this Court rejected a similar argument that the respondent had

not demonstrated prejudice because he had not identified specific errors. __ N.C.

App. at __, 789 S.E.2d at 21. As in this case, the respondent in Shackleford was

“expressly contending that the unavailability of a transcript prejudiced him by

depriving him of the ability to determine whether any potentially meritorious issues

exist for appellate review.” Id. at __, 789 S.E.2d at 21. This Court explained that

             an appellant would never be able to show prejudice in cases
             where . . . the absence of a transcript renders the appellant
             unable to determine whether any errors occurred in the
             trial court that would necessitate an appeal in the first


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                                   Opinion of the Court



             place. In such cases, the prejudice is the inability of the
             litigant to determine whether an appeal is even
             appropriate and, if so, what arguments should be raised.

Id. at __, 789 S.E.2d at 21. This Court ultimately held that the respondent in

Shackleford had demonstrated prejudice and was unable to obtain meaningful

appellate review. Id. at __, 789 S.E.2d at 21.

      Here, defendant’s argument is that he has been denied meaningful appellate

review as a result of the incomplete transcript because he does not know with

certainty what happened during the cross-examination of the alleged victim, a critical

stage of the trial. Thus, defendant cannot identify errors below that may have

affected the outcome of his trial. As stated in Shackleford, this inability to identify

potential meritorious issues is the prejudice defendant has shown.

      Nevertheless, based on the record available in this case, defendant has

identified potential issues related to the admissibility of specific evidence which was

the subject of pretrial motions and arguments that were likely addressed by the trial

court during the portion of the trial that was not transcribed.       Given that the

transcript is unavailable, this is the best defendant could do after defendant’s

appellate counsel’s efforts to reconstruct the transcript were fruitless. Because the

lack of a complete transcript has prevented defendant from identifying errors below,

defendant has been prejudiced and has been denied meaningful appellate review.

Therefore, defendant is entitled to a new trial.

                              2.      Motion to Dismiss

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                                   Opinion of the Court



      Defendant also argues the trial court erred in denying his motions to dismiss

for insufficiency of the evidence. However, because defendant is entitled to a new

trial and any review of the record evidence by this Court would be a review of an

incomplete transcript of the evidence presented below, we do not address this issue

further.

                                  III.    Conclusion

      Because meaningful appellate review is impossible in this case absent a

verbatim transcript of the trial below, defendant is entitled to a new trial.

      NEW TRIAL.

      Judges BRYANT and HUNTER, JR. concur.




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