State v. Tilton

Oral Argument Date: 10/17/2002 Concurring: Faith Ireland, Barbara a Madsen, Bobbe J Bridge, Charles W. Johnson, Gerry L Alexander, Richard B Sanders, Susan Owens, Mary Fairhurst En Banc Nathaniel E. Tilton, a juvenile, was charged with sexually molesting his younger brother. The younger boy testified that his older brother was asleep, and while sleeping had grabbed the younger boy's 'private parts.' At trial the court tape recorder was accidentally not turned on when Tilton began to testify.1 Consequently, none of Tilton's direct testimony, and only a small portion of his cross-examination, was recorded. Tilton contends he was prejudiced by an incomplete record on review. Tilton asserts that the reconstructed record was not sufficiently complete to enable him to effectively identify and argue issues on appeal, particularly a claim for ineffective assistance of counsel based on his counsel's failure to raise diminished capacity or an intoxication defense. We agree with Tilton and vacate his conviction and remand for a new trial. FACTS