Opinion
21869.
July 24, 1998.
April 17, 2000.
Certiorari to the Intermediate Court of Appeals, HPD NO. 9810064.
Order Vacating February 29, 2000 Opinion Filed by the Intermediate Court of Appeals and Affirming the Judgment, Conviction, and Sentence.
Bryan K. Sano, Deputy Prosecuting Attorney, for petitioner-appellee, on the writ.
It appears from the record on appeal that: (1) the April 8, 1998 transcript is not part of the record; (2) a motion to supplement the record with the April 8, 1998 transcript was filed, but denied without prejudice to the filing of a subsequent motion to supplement; (3) appellant failed to file the subsequent motion; and (4) the Intermediate Court of Appeals acknowledged, in its February 29, 2000 opinion, that the April 8, 1998 transcript was unavailable.
When an appellant desires to raise any point on appeal that requires the consideration of the oral proceedings before the court appealed from, the appellant bears the burden to show error by reference to matters in the record, and he or she has the responsibility of providing the relevant transcript. See Hawai`i Rules of Appellate Procedure Rule 10 (1999); see also Union Building Materials Corp. v. The Kakaako Corp., 5 Haw. App. 146, 151, 682 P.2d 82, 87 (1984) (citing State v. Goers, 61 Haw. 198, 600 P.2d 1142 (1979)). Respondent-appellant Tan T. Hoang has failed to meet his burden. Without the April 8, 1998 transcript, the Intermediate Court of Appeals did not, and this court does not, have a basis upon which to review the point of error raised in the present appeal. See Bettencourt v. Bettencourt, 80 Haw. 225, 231, 909 P.2d 553, 559 (1995) (affirming the sanctions imposed by the family court because, where the appellant failed to include the relevant transcripts, the appellate court has no basis upon which to review appellant's point of error); see also Lepere v. United Public Workers, Local 646, AFL-CIO, 77 Haw. 471, 473, 887 P.2d 1029, 1031 (1995); Union Building Materials Corp., 5 Haw. App. at 152, 682 P.2d at 88; Tradewinds Hotel, Inc. v. Cochran, 8 Haw. App. 256, 266, 799 P.2d 60, 66 (1990) (court is unable to review asserted errors where appellant has failed to provide transcript of proceedings below)). Therefore,
IT IS HEREBY ORDERED that (1) the February 29, 2000 opinion filed by the Intermediate Court of Appeals is vacated and (2) the judgment, conviction, and sentence from which this appeal is taken is affirmed.