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State v. Justice11/16/2005
transcript for purposes of review. Specifically, under App.R. 9(C), appellant could have submitted a narrative transcript of the proceedings, subject to objections from appellee and approval from the trial court. Also, under App.R. 9(D), the parties could have submitted an agreed statement of the case in lieu of the record. The record in this matter indicates appellant did not attempt to avail himself of either App.R. 9(C) or 9(D).
{ } Instead, appellant claims he is entitled to a new trial. Appellant argues he could not comply with App.R. 9(C) because of the length of delay previously encountered in the case and due to the fact that the prosecutor involved in the case is no longer employed at the prosecutor's office. As an appellate court, App.R. 9 does not explicitly provide us with the authority to grant a new trial. State v. Jones (1994), 71 Ohio St.3d 293, 298, 1994-Ohio-162. Pursuant to Knapp, supra, an appellant is entitled to a new trial where, after an evidentiary hearing, a record cannot be settled and it is deemed that the appellant is not at fault. Id. In Knapp, the Court concluded that absent fault on the part of the appealing party, a new trial should be granted if, after all reasonable solutions are exhausted, an appellate record could not be compiled. Id.
{ } In the matter currently before the Court, based upon the affidavit of Cheri Shaw, it appears that it was not appellant's fault that the audiotape is inaudible and that certain portions of Trooper Lanning's testimony were not recorded. However, the record indicates appellant did not attempt to avail himself of App.R. 9(C) or 9(D). Appellant's failure to avail himself of these rules precludes a finding of prejudice. See Stark v. Haser (Sept. 2, 2004), Delaware App. No. 03CAF11057, 2004-Ohio-4641, at 32.
{ } Appellant's sole assignment of error is overruled.
{ } For the foregoing reasons, the judgment of the Fairfield County Municipal Court, Fairfield County, Ohio, is hereby affirmed.
By: Wise, J. Boggins, P. J., and Gwin, J., concur.
JUDGMENT ENTRY
For the reasons stated in our accompanying Memorandum-Opinion, the judgment of the Municipal Court of Fairfield County, Ohio, is affirmed.
Costs assessed to Appellant.
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