This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2000).







State of Minnesota,





Nathan Webb Clay,




Filed November 6, 2001

Foley, Judge


Winona County District Court

File No. K9991196


Mike Hatch, Attorney General, 525 Park Avenue, Suite 500, St. Paul, MN  55103; and


Richard F. Blahnik, Winona City Attorney, Bruce A. Nelson, Assistant City Attorney, 177 Main Street, Suite 206, P.O. Box 167, Winona, MN  55987-0167 (for respondent)


John M. Stuart, State Public Defender, 2829 University Avenue Southeast, Suite 600, Minneapolis, MN  55414-3230; and


Robert M. Waterman, Special Assistant State Public Defender, 1740 Marion Street, No. 5, Roseville, MN  55113 (for appellant)


            Considered and decided by Shumaker, Presiding Judge, Schumacher, Judge, and Foley, Judge.

U N P U B L I S H E D   O P I N I O N

FOLEY, Judge

            Appellant challenges his conviction for gross misdemeanor DWI, arguing that he is entitled to a new trial due to the accidental destruction of the court reporter’s notes, thereby precluding preparation of the entire transcript and thus preventing meaningful appellate review.  Because appellant failed to cooperate in reconstructing the record as provided for in Minn. R. Civ. App. P. 110.03, we affirm.


During the evening of August 27, 1999, appellant Nathan Clay was driving his vehicle and injured a pedestrian as he was leaving a nearby pub.  The pedestrian, whom appellant knew, was holding onto appellant’s car through an open rear window and when appellant accelerated, she fell.  Officer Winter of the Winona Police Department arrived on the scene and, believing appellant to be under the influence of alcohol, placed him under arrest.

            Following a jury trial, appellant was convicted of driving under the influence of alcohol, refusal to submit to alcohol testing, reckless driving, and driving with a suspended license.  In connection with his appeal, appellant requested copies of all pretrial, trial, and post-trial transcripts.  Shortly thereafter, appellant was notified that the county courthouse had sustained significant water damage after a ceiling collapsed, breaking water pipes and subsequently flooding the building.  As a result, some of the court reporter’s notes were destroyed and transcripts of the pretrial hearings and the first day of trial could not be produced.  However, transcripts of final arguments, jury instructions, verdict, new trial motion hearings, and the sentencing hearing were not destroyed and were available to appellant.  In spite of this, only the sentencing hearing transcript, along with the district court file, were made available to this court.

            An affidavit of the city attorney submitted to this court states that the city attorney offered to work with appellant to prepare a statement of the record as provided for in Minn. R. Civ. App. P. 110.03 when a transcript cannot be produced.  Appellant declined.  Both parties discussed this at oral arguments.

            Appellant asserts that he is entitled to a new trial because the unavailable transcripts preclude meaningful appellate review and deny him effective counsel. Respondent State of Minnesota asserts that appellant’s failure to provide an adequate record requires dismissal of the appeal or, in the alternative, that it would be prejudiced by having to re-try the case.


            The Minnesota Supreme Court has made it clear that a convicted defendant is entitled to at least one right of review by an appellate court.  State. v. Knaffla, 309 Minn. 246, 252, 243 N.W.2d 737, 741 (1976).  This court has held that a reviewing court cannot consider a sufficiency-of-evidence issue unless provided with a complete trial transcript.  State v. Palmer, 391 N.W.2d 857, 859 n.1 (Minn. App. 1986).

            When no transcript is available, this court has affirmed the district court’s conviction.  State v. Heithecker, 395 N.W.2d 382, 383 (Minn. App. 1986).  This reflects the general rule that when the record on appeal is inadequate, relief cannot be granted, and the district court’s order must be affirmed.  See State v. Anderson, 351 N.W.2d 1, 2 (Minn. 1984) (affirming conviction where defendant provided no record showing prejudice that would entitle him to a new trial).

            The supreme court has recognized, however, that under the procedural rules “a transcript is important to, but not always essential for, a meaningful appeal.”  Hoagland v. State, 518 N.W.2d 531, 535 (Minn. 1994).  The criminal rules provide that

[t]he record on appeal shall consist of the papers filed in the trial court, the offered exhibits, and the transcript of the proceedings, if any.  * * * 

In lieu of the record as defined by this rule, the parties may * * * file with the clerk of trial court a statement of the case showing how the issues presented by the appeal arose and were decided in the trial court, stating only the claims and facts essential to a decision.  If the statement is accurate, it, together with such additions as the trial court may consider necessary to present the issues raised by the appeal, shall be approved by the trial court and shall be the record on appeal.


Minn. R. Crim. P. 28.02, subd. 8.  Furthermore, Minn. R. Crim. P. 28.02, subd. 9, incorporates

[t]he Rules of Civil Appellate Procedure to the extent applicable [to] govern the transcript of the proceedings and the transmission of the transcript and record to the Court of Appeals.


The appellate rules address the problem of an unavailable trial transcript as follows:

            If no report of all or any part of the proceedings at a hearing or trial was made, or if a transcript is unavailable, the appellant may prepare a statement of the proceedings from the best available means, including recollection.  The statement is not intended to be a complete re-creation of testimony or arguments.

            Appellant shall file the original proposed statement with the trial court administrator and the clerk of the appellate courts * * * within 15 days after filing the notice of appeal.  * * *  Respondent may file * * * objections or proposed amendments, and serve a copy on appellant.

            The trial court may approve the statement submitted by appellant, or modify the statement based on respondent’s submissions or the court’s own recollection of the proceedings.  The statement as approved by the trial court shall be included in the record.


Minn. R. Civ. App. P. 110.03.  Here, appellant did not attempt to reconstruct the record and declined the state’s proposal to assist in doing so.  Appellant argues that where counsel is not identical for both the trial and the appeal, in the absence of the trial transcript, counsel is reduced to merely speculating as to what transpired during the proceedings.

Both parties cite Hoagland to support their arguments.  In Hoagland, the defendant was deprived of a transcript due to a judicial employee’s error and because of the trial judge’s death, and the transcript could not be reconstructed in the manner permitted by Minn. R. Civ. App. P. 110.03.  Hoagland, 518 N.W.2d at 532, 533-34.  The supreme court did not grant the appellant a new trial, however.  Rather, the court “remanded for a determination of whether a new trial would be unduly prejudicial to the state.”  Id. at 537.  The court noted that had it been possible to reconstruct the record, “we would not be ordering the case remanded for a determination of prejudice.”  Id. at 535.

            Here, the district court judge is available; both the prosecuting attorney and appellant’s trial attorney are available to be interviewed; the arresting officer, though no longer in Winona, may be available; and the transcript of the parties’ final arguments, as well as the court’s instruction to the jury are also available, so that a meaningful record can be reconstructed as provided for in the rules of procedure. Appellant argues that this is insufficient where counsel is not identical for both the trial and the appeal.  The supreme court declined to make this distinction in Hoagland, as we do here.  See Hoagland, 518 N.W.2d at 535 (despite fact that defendant had new counsel for appeal, reconstruction of record, had it been possible, was preferable to remanding for determination of prejudice).

            Appellant further contends that where counsel appears for the first time on appeal, reconstruction of the record would violate the professional rules of ethics because counsel is placed in the position of depending on people adverse to his client’s position. Appellant argues that such a position impedes the duty of counsel to provide competent representation and obviates counsel’s role as an advocate.  We are cited to no authority that would find an ethical violation if an attorney follows the rules of the court by attempting to reconstruct the record for appeal.

            Rule 110.03 was not written to trap attorneys into violating the code of professional responsibility or abrogating their responsibilities as an advocate.  With respect to the time limitations of rule 110.03, appellant’s counsel made no effort to obtain consent from opposing counsel or an order from the trial court, detailing the exceptional circumstances that would almost certainly support an exception and allow time for counsel to perfect an appeal.

“Failure to follow Rule 110.03 may result in dismissal of the appeal or affirmance of the [district] court’s actions.”  Schmuckler v. Creurer, 585 N.W.2d 425, 429 (Minn. App. 1998) (citing Kuehl V. National Tea Co., 310 Minn. 48, 51, 245 N.W.2d 235, 238 (1976)), review denied (Minn. Dec. 22, 1998).  Significant to our decision today is the fact that appellant failed to cooperate in any way to reconstruct the record as provided for in Rule 110.03, and we therefore affirm.


* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.