State v. Barnett

JOHN E. PARRISH, Judge,

concurring in part and concurring in result reached.

I concur in the principal opinion’s holding that the trial court did not commit reversible error when, after the first time the jury was polled, it declined to accept the tendered verdicts and caused the jury to resume deliberations. I concur in the rationale by which that conclusion was reached. I concur in the result reached with respect to appellant’s other complaints for the following reasons.

Apart from his complaint that a mistrial was not declared after the jury was first polled, appellant’s point relied on is not concise in identifying events that occurred at trial that produced trial court error. As the principal opinion points out one may infer from the argument in appellant’s brief that he believes the trial court conferred with or instructed the jury a second time. The trial transcript lends no credence to that belief. Either the trial court did not communicate with or otherwise instruct the jury a second time or, if it did, that communication or instruction is not disclosed by the transcript or legal file that makes up the record that is before this court. If the event occurred it was appellant’s obligation to make a record of the event at the time it occurred and to furnish that record on appeal. State v. Jennings, 815 S.W.2d 434, 443 (Mo.App.1991). In the absence of such a record this court could not base a finding of error or prejudice based on the event. State v. McCrary, 963 S.W.2d 674, 678-79 (Mo. App.1998).