State v. Cutri

WOLLHEIM, J. Appellant appeals from an order adjudicating him to be a mentally ill person and committing him to the Mental Health Division. Appellant contends that, because there is no record of the oral testimony at the hearing below, the finding of mental illness and order of commitment must be reversed. The state argues that the lack of a transcript does not entitle appellant to an automatic reversal without his having made the showing required under ORS 19.420(3). On de novo review, State v. O’Neill, 274 Or 59, 545 P2d 97 (1976), we affirm. The record consists of the order of commitment and the exhibits admitted during the hearing. For some unknown reason, and through no fault of appellant, no transcript or audio recording of the oral testimony given at the civil commitment hearing exists. We do not know if it was never recorded or if it was recorded and then subsequently lost or destroyed. We have no affidavits indicating that the proceeding was initially recorded. At oral argument, counsel for appellant stated that she attempted to ascertain from appellant’s trial counsel what might have happened to the transcript, if one ever existed, as well as information about what actually occurred at the hearing. According to appellate counsel, trial counsel was uncooperative and thus no light was shed on the whereabouts of the transcript, if one exists, or what transpired at the hearing. On appeal, appellant argues that, because there is no transcript of the oral testimony at the underlying civil commitment proceeding and because ORS 426.1601 mandates that a record be made of those proceedings, that constitutes a “fatal flaw” requiring reversal. The state asserts that ORS 19.420(3) controls the effect of a lost record on appeal. The state argues that, because appellant has made no effort to make the showing required under ORS 19.420(3), the mere absence of a transcript does not entitle appellant to reversal. [628] After argument in this case, we decided State v. Obalo, 179 Or App 684, 41 P3d 458 (2002). That case involved an extension of a civil commitment order. The record of the hearing in that case was on three tapes, the first of which was blank, so the transcript did not include the first part of the hearing. As in this case, the appellant in Obalo argued that the incomplete record violated ORS 426.160 and required reversal. We rejected the appellant’s contention that the incomplete record required reversal. We held that, even if ORS 426.160 was violated, “ORS 19.420(3) governs how we and the parties are to address the gap.” Obalo, 179 Or App at 687. Because the appellant failed to make the required showings under ORS 19.420(3), “[w]e [did] not believe that it [was] necessary * * * to resolve whether the gap in the record constitutes a violation of ORS 426.160.” Obalo, 179 Or App at 687. This case is similar to Obalo-, therefore, we do not address ORS 426.160, as appellant has failed to make the showings required by ORS 19.420(3), which provides: “Whenever it appears that an appeal cannot be prosecuted, by reason of the loss or destruction, through ho fault of the appellant, of the reporter’s notes or audio records, or of the exhibits or other matter necessary to the prosecution of the appeal, the judgment appealed from may be reversed and a new trial ordered as justice may require.” The Supreme Court has held that to prevail under ORS 19.420(3), the appellant “must show that he has made every reasonable effort to secure a substitute for the missing portion of the record and, in addition, make ‘at least a prima facie showing of error, or unfairness in the trial, or that there had been a miscarriage of justice.’ ” Ethyl Corp. v. Jalbert, 270 Or 651, 655, 529 P2d 368 (1974) (quoting Hoffart v. Lindquist & Paget Mortg. Co., 182 Or 611, 616-17, 189 P2d 592 (1948)). Here, while it is arguable whether appellant has made every reasonable effort to secure a substitute for the missing record, appellant has failed to make a prima facie [629] showing of error, or unfairness at trial, or that there has been a miscarriage of justice. Affirmed. Footnotes [1] ORS 426.160 requires a judge who presides at a commitment hearing to “cause to be recorded in the court records a full account of proceedings had at all hearings * *