What is the Court of Appeals to do when the correctness of the trial court order being appealed turns on whether or not a certain document was presented to the trial court, but that document does not appear in the record on appeal?  That is the question that confronted the Court in State v. Cobb.  And in a split decision issued on Wednesday, the majority presumed that the record on appeal was correct and thus the trial court had erred.

At issue in Cobb was a $30,000 appearance bond that a criminal defendant had forfeited for failing to appear.  A bail agent moved to set aside the forfeiture on the ground that “the defendant [had] been surrendered by a surety on the bail bond as provided by G.S. 15A-540, as evidenced on the attached ‘Surrender Of Defendant By Surety’ (AOC-CR-214).”  However, attached to the motion was not the Form CR-214, but rather a computer printout related to criminal charges against the defendant that were separate and apart from the charge for which he had forfeited his bond.  A hearing was held on the motion to set aside the forfeiture and over the objection of the Watuaga County Board of Education (which was apparently a judgment creditor of the defendant and was seeking to collect all or part of the forfeited bond) the trial court set aside the forfeiture.  The order entered by the trial court read in pertinent part, “that the moving party has established one or more of the reasons specified in G.S. 15A-544.5 for setting aside the forfeiture” and the motion “is allowed and the forfeiture is set aside.”

The Board appealed from that order, and argued that because the bail agent had not attached the Form CR-214, the trial court erred in holding that section 15A-544.5 had been satisfied.  This section of the North Carolina General Statutes provides the only method for setting aside a bond forfeiture and provides seven bases for doing so, one of which is that the defendant had been surrendered by a surety.  However, the record on appeal contained no evidence that the defendant had, in fact, been surrendered by a surety.  Nor were there any facts in the record to support any of the six other possible grounds for setting aside the forfeiture.  Thus, Judge Bryant, joined by Judge Inman, concluded that the record before the Court supported the conclusion that the trial court lacked the statutory authority to set aside the bond forfeiture and the Court vacated the set aside order.

Judge Zachary dissented on the basis that because the record on appeal was devoid of any information concerning what evidence was actually before the trial court at the hearing on the motion to set aside the forfeiture, it must be presumed that the trial court acted correctly.  In the dissent’s view, the issue before the Court of Appeals was not whether the correct form was attached to the motion for set aside, but rather whether the trial court’s order was correct in light of the evidence adduced at the hearing.  That evidence may have consisted of testimony or other documentary evidence presented to the trial court, but the appellate record contained nothing to indicate what had occurred at the hearing.  Thus, according to the dissent, unless the record reveals otherwise, it must be presumed that the proceedings in the trial court were conducted correctly.

Interestingly, both the majority and the dissent pointed to the settling of the record on appeal in support of their respective positions.  The majority noted that the appellant in this case compiled a proposed record on appeal, the appellee failed to provide any comment on the proposed record within the allotted time period, and the record became settled by operation of the Rules of Appellate Procedure.  The unstated implication is that if the record was not complete, and there was additional material that needed to be in the record to support the trial court’s order, it was the appellee’s responsibility to ensure that was in the record.  The dissent, on the other hand, noted that it is the appellant’s responsibility to compile a complete record.  And in light of the fact that the correctness of the trial court’s order would necessarily require a review of what transpired at the hearing, the dissent suggests that the appellant should have included in the record a “transcript of the hearing conducted by the trial court, a reconstruction by the parties of the events that transpired at the hearing, an affidavit attesting to the testimony and documentary evidence proffered before the trial court, or any other evidence from which we might determine what evidence was presented by the parties at the hearing.”

So where does the correct presumption lie?  Is it, as the majority held, with the record on appeal constituting the appropriate lens through which to view the trial court’s decision?  Or is it, as the dissent opined, with the trial court having ruled correctly unless affirmatively shown otherwise by the record on appeal?  Weigh in with your thoughts in the comments below.  And regardless, this case is a good reminder for both appellants and appellees to make sure that whatever you will need to argue your case finds its way into the record on appeal.

–Patrick Kane