ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION ROBERT J. GLADWIN, JUDGE

DIVISION I

TERRY JACKSON

APPELLANT

V.

STATE OF ARKANSAS

APPELLEE

CACR02-1190

June 18, 2003

APPEAL FROM THE DALLAS COUNTY CIRCUIT COURT

[NO. CR-2000-24-5]

HON. LARRY CHANDLER,

JUDGE

AFFIRMED

A Dallas County jury found Terry Jackson guilty of delivery of a controlled substance, and he was sentenced to ten years' imprisonment. On appeal, appellant argues that the trial court erred in allowing the jury to view a videotape during deliberation when, although the videotape had been played to the jury at trial, it had not been introduced into evidence. We affirm.

At trial, the State played a videotape that purported to show a confidential informant's transaction wherein appellant sold the informant three rocks of cocaine. Defense counsel made no objection to the playing of the videotape. In fact, appellant played a videotape made from a portion of the State's videotape during his redirect examination of Stacy Alexander, a private investigator, who cast doubt on the accuracy of what the originalvideotape purported to represent. In her testimony, she described a glitch on the original videotape. In other words, appellant himself made extensive use of the videotape at trial. During jury deliberation, a note was sent to the trial judge requesting that the jury be allowed to view the videotape again. Appellant objected that re-showing the videotape would be prejudicial and noted for the first time that it had not been formally admitted as evidence. The trial court overruled appellant's objection, agreeing with the State's reasoning that, because the jury had already seen the videotape, it could not be prejudicial.

According to Ark. Code Ann. § 16-89-125(d)(3) (1987), "Upon retiring for deliberation, the jury may take with them all papers which have been received as evidence in the cause." Arkansas Code Annotated section 16-89-125(e) (1987) provides that:

After the jury retires for deliberation, if there is a disagreement between them as to any part of the evidence, or if they desire to be informed on a point of law, they must require the officer to conduct them into court. Upon their being brought into court, the information required must be given in the presence of, or after notice to, the counsel of the parties.

On appeal to this court, appellant contends that the trial judge erred in not determining whether there was a disagreement among the jurors prior to their viewing the videotape during deliberation. He also argues that the trial court erred in allowing the State to rest on its mere assertion that there would be no prejudice to him by playing the videotape again.

We are precluded from addressing appellant's arguments on appeal because it was appellant's burden to produce a record sufficient to demonstrate prejudicial error. Ridling v. State, 348 Ark. 213, 72 S.W.3d 466 (2002). Although the videotape was played to thejury at trial, it was never introduced into evidence by any party or proffered by appellant for our review on appeal. Thus, it is not a part of the record on appeal.

Arkansas Rule of Appellate Procedure -- Civil 6(e) (2003) provides:

If any difference arises as to whether the record truly discloses what occurred in the

circuit court, the difference shall be submitted to and settled by that court and the record made to conform to the truth. If anything material to either party is omitted from the record by error or accident or is misstated therein, the parties by stipulation, or the circuit court, either before or after the record is transmitted to the appellate court, or the appellate court on proper suggestion, or on its own initiative, may direct that the omission or misstatement shall be corrected, and if necessary, that a supplemental record be certified and transmitted. All other questions as to form and content of the record shall be presented to the appellate court.

In Simmons v. State, 80 Ark. App. 426, 97 S.W.3d 421 (2003), appellant failed to include a videotape that was essential to our review of his challenge to the sufficiency of the evidence. In that case, we ordered appellant to rebrief and supplement the record based on our interpretation of Rule 6(e). We have since decided that Simmons should have been summarily affirmed because the failure to include the videotape was not the result of error or accident by the court reporter or circuit clerk, as was the type of "error or accident" contemplated by Rule 6(e). See Larry v. Grady School District, ___ Ark. App. ___, ___ S.W.3d ___ (May 14, 2003). In the absence of the videotape, we are unable to determine whether appellant suffered any prejudice, and we are compelled to summarily affirm. Id.; see also Hankins v. Department of Fin. & Admin., 330 Ark. 492, 954 S.W.2d 259 (1997).

Affirmed.

Robbins and Neal, JJ., agree.