NOT DESIGNATED FOR PUBLICATION

ARKANSAS COURT OF APPEALS

JOSEPHINE LINKER HART, JUDGE

DIVISIONS I & II

SHAWN STARKS

APPELLANT

V.

STATE OF ARKANSAS

APPELLEE

CACR00-39

February 7, 2001

APPEAL FROM THE PULASKI COUNTY CIRCUIT COURT

[NO. CR 99-954]

HONORABLE JOHN W. LANGSTON,

CIRCUIT JUDGE

REBRIEFING ORDERED

After finding appellant, Shawn Starks, guilty of the crimes of possession of a controlled substance, marijuana, with the intent to deliver, possession of drug paraphernalia, and maintaining a drug premises, a jury fixed his sentence of incarceration in the Arkansas Department of Correction at seven, five, and six years respectively. The trial court determined that the sentences should run consecutively, and thus, appellant was sentenced to serve a total of eighteen years. On appeal, Starks abstracts only the suppression hearing and argues for his sole point of reversal that the trial court erred by denying his motion to suppress evidence seized pursuant to a warrantless search of a residence. In response, the State argues for the first time on appeal that Starks failed to prove that he had standing to challenge the search of the residence.

The only evidence presented at the suppression hearing was the testimony of Ty Tyrell, a patrolman with the Little Rock Police Department. According to Tyrell, he was

called to a shooting at a residence located at 905 Adams on February 9, 2000, at 8:15 p.m. Upon his arrival, Tyrell observed numerous holes in both the window glass and a wall of the house stemming from bullets entering and exiting the house. He was met at the front door by a bystander, Marcus Allen, who opened the door and pointed toward the back, stating, "He's in the back."

Tyrell entered the residence and saw Starks shot in the neck and lying in the doorway of a bedroom off of a hallway. Tyrell found a nine millimeter pistol in the living room. In the bedroom, he found a small child. An empty cloth pistol case was on the floor of the bedroom. Tyrell testified that he did not know who owned the home and that after Starks was taken from the scene, he found a .40 caliber shell casing in the kitchen. He began looking for but never recovered a .40 caliber pistol, because he thought the gun could still be on the premises and he was concerned that children would be reentering the residence.

He entered the bedroom and noticed that one corner of the bed was not laying flat. When he investigated, he found a silver shoe box that was holding up the corner of the bed. He testified that the box was underneath the mattress so that you could not see it unless you were on that side of the bed. He further testified that he could see it when he went to the gun case. He opened the box and found what appeared to be cocaine and marijuana. He further testified that the box could not be completely closed because it was full and that a plastic bag was hanging outside the box. Starks neither cross-examined Tyrell about the ownership or occupancy of the residence nor presented testimony establishing his right to occupy the premises.

Starks argues on appeal that the trial court erred by denying his motion to suppress evidence seized pursuant to a warrantless search of a residence. Citing Richard v. State, 64 Ark. App. 177, 179-80, 983 S.W.2d 438, 440 (1998), and Ramage v. State, 61 Ark. App. 174, 176-77, 966 S.W.2d 267, 268-69 (1998), the State argues for the first time on appeal that Starks failed to establish that he had standing to challenge the search. As we have stated in both Richard and Ramage, a defendant has the burden of establishing that he has standing to challenge a search and seizure on Fourth Amendment grounds by showing that he has a reasonable expectation of privacy in the area searched, and the State may raise standing as an issue for the first time on appeal. The only evidence presented at the supression hearing was the testimony of Tyrell, who testified that he did not know who owned the home. His testimony did not establish that Starks had any reasonable expectation of privacy in the residence.

However, rather than affirming the trial court's denial of Starks's motion to suppress evidence seized from the residence based on the conclusion that Starks failed to meet his burden of proving that he had standing to challenge the search of the residence, we remand for rebriefing. Certain aspects of the case are troubling. We note that the State is raising standing for the first time on appeal, and we have previously stated in Ramage and Richard that the State may do so. Nevertheless, there is testimony given by Tyrell at the trial which seems to establish that appellant had a reasonable expectation of privacy, and thus, standing was not an issue at trial. At the trial, Tyrell testified that when he spoke with Starks, Starks was "able to respond to my questions about his name, his date of birth, this being his house,the basic things." This testimony suggests that Starks did have standing to challenge the search of the residence. However, neither this testimony nor any of the trial testimony was abstracted by Starks, precluding this court from considering the testimony.

Rather than affirming this case for noncompliance with our abstracting requirements found in Rule 4-2(a)(6) of the Rules of the Arkansas Supreme Court, pursuant to Rule 4-2(b)(3), we allow Starks's counsel to conform to Rule 4-2(a)(6) by providing, at his own expense, a substituted brief and abstract that includes not only the above-referenced testimony but also all of the trial testimony. See Brinker v. Forrest City Sch. Dist. No. 7, 342 Ark. 646, 29 S.W.3d 740 (2000). We determine that rebriefing is necessary in this case because the State raised the standing issue for the first time on appeal. The State will be afforded an opportunity to revise or supplement its brief. Starks's counsel is given thirty days to provide a substituted brief and abstract.

Rebriefing ordered.

Jennings, Robbins, Griffen, Crabtree, and Baker, JJ., agree.