Defense says reconstructed record in State v. Barnes is ‘woefully inadequate’; state argues circumstantial evidence suffices

At an appellate oral argument, defense attorney Chris Gibson told the court that the agreed, reconstructed record in State v. Barnes is "woefully inadequate" for meaningful appellate review and urged the court to reverse and dismiss the convictions or, alternatively, remand for a new trial.

Gibson said appointed appellate counsel cannot evaluate potential errors — including a juror-challenge issue under GR 37, alleged prosecutorial misconduct, and possible ineffective assistance of trial counsel — because the reconstruction, based on judge's and counsel notes, lacks necessary detail. He noted the trial occurred in May 2023 and sentencing in July 2023, with reconstruction taking place roughly a year and a half later, which he said undermines counsel's ability to recall specifics.

"The state failed to present sufficient evidence," Gibson argued, saying the record does not show whether the parties were married and that the absence of evidence they were not married is a "fatal flaw" for one abuse-related count; he asked the court to consider dismissal with prejudice if the court deems the reconstructed report insufficient.

Responding for the state, Tim Higgs acknowledged the limited reconstruction but told the panel that the alleged child victim testified she had used the substance "every day since the first time," arguing her testimony would allow a factfinder to identify the substance as methamphetamine and that any absence of a chemical test goes to weight, not admissibility. On the marital element, Higgs said circumstantial evidence in the recreated record supports the inference that the parties were not married.

Higgs also described the practical difficulty of recreating an entire lost record: "Most of the record that we were able to recreate is, you know, the judge's notes," he said, adding that the prosecutor had little to contribute from memory or notes.

The bench questioned whether agreeing to the best recollection of the parties necessarily means agreeing the record is sufficient for appellate review, and whether, even if the reconstructed record supports convictions, other potential errors remain reviewable. Gibson said the adequacy of the record and unresolved issues such as juror No. 3 under GR 37 mean the matter may require remand so appointed counsel can examine potential errors; he said his client would prefer dismissal but recognized the court must weigh remedies.

The transcript briefly records the bench referring to the respondent as "Mr. Hicks," but the attorney who spoke to the court identified himself earlier as Tim Higgs.

The court concluded the parties' allotted time and recessed briefly. The panel did not indicate a decision during the argument; further action will follow in the court's ruling.