concurring and dissenting:
T42 I agree, consistent with the analysis and result in Part I of the majority opinion, that we have jurisdiction to hear defendant Dustyn Harris's appeal. I also agree with the standard articulated in Part II of the majority opinion for reviewing a district court's determination of whether legal necessity justifies the declaration of a mistrial. Undertaking the required independent assessment of the cireumstances precipitating the declaration of mistrial in this case, however, I cannot agree that either of Harris's proposed curative alternatives was a reasonable alternative to a mistrial.
T 43 In concluding that Harris's first offer to waive his right to a record and proceed *1263with trial was a reasonable alternative, the majority reasons that a defendant's offer to waive his or her right to a record should, as a general rule, constitute a reasonable alternative to a mistrial unless the waiver would unduly prejudice the State. The majority further reasons that, in determining whether a defendant's waiver will result in undue prejudice, the State must bear the burden of justifying its refusal to proceed with the trial without a record. I disagree with both of these assertions.
T 44 First, neither of the cases upon which the majority relies supports the conclusion that a defendant's offer to waive his or her right to a record during an ongoing criminal trial may, standing alone, constitute a reasonable alternative to a mistrial. In State v. Verikokides, 925 P.2d 1255 (Utah 1996), we held that a defendant forfeited his right to a complete record on appeal where portions of the trial transcript, all trial exhibits, and various attorney files had been lost or destroyed in the seven-year period during which the defendant had fled the jurisdiction. Id. at 1255-58. Similarly, in Emig v. Hayward, 703 P.2d 1043 (Utah 1985), we held that a defendant essentially waived his right to a complete record on appeal where a court reporter's notes were misplaced during the nineteen months in which the defendant delayed filing his opening appellate brief, Id. at 1045, 1048-49. Relying on these cases, the majority reasons that Harris's waiver "should have been permissible because it involved an after-the-fact evaluation where it was evident that the waiver would not prejudice the State."
45 The difficulty with the majority's conclusion is that the underlying rationale for allowing the defendants' unilateral waivers in Verikokides and Emig does not apply to situations in which a defendant offers to waive his or her right to a record during an ongoing criminal trial. In both Verikokides and Emig, the defendants were deemed to have unintentionally waived their rights to a record during the appellate process, not during the trial itself. In those cases, no waiver was "exercised" until the defendant's appeal before this court-well after the trial below had concluded and a court could ascertain that the defendant, as the sole appellant, was the only party who could be negatively impacted by the missing record. As a result, it was possible to make an "after-the-fact evaluation" that the State was not prejudiced by the unilateral waiver. Because Harris's offer to waive his right to a record arose in the context of an underlying criminal trial, I cannot reach the same conclusion here.
1 46 Admittedly, the State did not and does not argue that proceeding without a complete record would have prejudiced its ability to a meaningful appeal, had any error involving the missing portion of the record been discovered later in the proceedings. Nevertheless, I believe that the possibility of such prejudice would have made it unreasonable for Judge Cornaby to accept Harris's waiver offer and proceed with the trial over the State's objection. An appellant has the burden of ensuring that the record contains the materials necessary to support issues raised on appeal; therefore, when an appellant fails to provide an adequate record on appeal, we must presume that the missing portions support the action of the district court. State v. Theison, 709 P.2d 307, 309 (Utah 1985). Because at the time Harris offered to waive his right to the record it would have been impossible to know which party, if either, might have been an appellant for purposes of a potential appeal, or how the incomplete record would impact the State if either party were to appeal, Judge Cornaby could not have reasonably concluded, as we did in Veri-kokides and Emig, that Harris's waiver would not prejudice the State. For waiver to have presented a viable alternative to a mistrial, both parties would have to have knowingly and affirmatively waived their right to the record. Because it is evident that the State did not consent to a waiver of the record in this case-and in fact vigorously opposed it-Harris's unilateral offer, standing alone, was an unreasonable alternative to a mistrial under the cireumstances.
147 Additionally, even if it were possible for a court to determine that, at the time it *1264was offered, Harris's waiver would not have prejudiced the State, I can find no support for the majority's implication that the State must justify its refusal to proceed in the criminal prosecution of a defendant without a record. I acknowledge that the State's objection to Harris's waiver offer may have been driven, to a greater or lesser extent, by less-than-altruistic motives. However, it is evident from the record that the State articulated at least some legitimate concerns relating to the missing portion of the record. Specifically, the prosecution feared that if Harris were convicted, the decision to press forward without a critical portion of the record would lead to either an ineffective assistance of counsel or a plain error claim on appeal, and would ultimately result in the case being remanded for a new trial. Given the vital role a record plays for both parties on appeal, it is not surprising that the State would be concerned about the missing record, and would decline to continue with the trial without a complete record of the proceedings. Thus, because there was a possibility that an incomplete record could have compromised the State's ability to successfully defend against any challenge to Harris's conviction on appeal, I do not agree that imposing Harris's unilateral waiver offer on the State would have been a reasonable alternative.
Jake SAVAGE, Jana Savage, and Jake Savage as guardian for and on behalf of John Doe, Plaintiffs and Appellants, v. UTAH YOUTH VILLAGE, a Utah Corporation, Defendant and Appellee48 I also disagree that Harris's second proposal-that the parties simply reexamine the State's first witness on the record or begin the proceedings over again-was a reasonable alternative to a mistrial under the circumstances. The majority acknowledges that even if the parties had simply repeated their opening statements and re-examined the first witness on the record, it would have been impossible to similarly recreate jury voir dire. Uunlike the majority, I find it neither unreasonably speculative nor particularly improbable that this missing record could have resulted in prejudice to the State. Our recent decision in West v. Holley, 2004 UT 97, 103 P.3d 708 illustrates that appeal-able issues relating to jury selection not only can and do occur, but also may not be readily identifiable as appealable until later in the proceedings. If the trial had proceeded (over the State's objection) without a record and the State had discovered a prejudicial problem during the trial relating to jury selection, such as that one of the jurors was biased, the State would have been unable to effectively challenge that issue on an interlocutory appeal. See Theison, 709 P.2d at 309. In my view, the possibility of such an occurrence would have made continuing on with the trial an unreasonable alternative.
' 49 In reaching this conclusion, I acknowledge that any deficiency in the record with respect to voir dire may have been cured by other mechanisms. For example, as the majority points out, the State could have renewed a motion for a mistrial if an appeal-able issue relating to voir dire had arisen later in the proceedings. Alternatively, as Harris argues on appeal, any issue relating to the missing portion of the record could likely have been remedied through reconstruction of the record. See Utah R.App. P. 11. The problem with these curative alternatives is that neither was offered to Judge Cornaby at the time he was forced to render a decision, and both are being addressed for the first time on appeal.
1150 The majority correctly observes that the cireumstances under which a district court must declare a mistrial often oceur unexpectedly and require a trial judge to make prompt determinations as to whether legal necessity mandates the declaration of a mistrial. See supra 188 ("We recognize events that bring about the specter of a mistrial typically occur without warning and within the charged environment of a trial."). The same is not true when such an issue is raised on appeal, where it may be possible for this court to devise, at our leisure, a reasonable curative alternative in the months (and quite possibly years) following a mistrial. I would decline to assume the proverbial role of armehair quarterback by considering alternatives that were not presented to the trial judge within that charged trial environment. Instead, I would limit my evaluation of the reasonableness of any proposed cura*1265tive alternatives to those that either were actually presented or should have been plainly obvious at the time the trial judge rendered his or her decision. Because neither the possibility of a renewed motion for a mistrial nor reconstruction of the record was offered to Judge Cornaby as an alternative to a mistrial or plainly obvious, either standing alone or in conjunction with Harris's other proposed alternatives, I would conclude that Judge Cornaby did not abuse his discretion in rejecting Harris's alternatives as unreasonable under the cireumstances.
151 To summarize, based on an independent examination of the alternatives offered during the proceedings below, I believe there was a possibility that the acceptance of either of Harris's proposed alternatives over the State's objection could have resulted in unfair prejudice to the State. On one hand, if Harris had been convicted and had subsequently challenged his conviction based on the inadequacy of the record below, the fact that the trial had continued without a record might have unfairly limited the State's ability to defend against that challenge on appeal. On the other hand, if a prejudicial error relating to the missing record had arisen during the course of the proceedings, the State would have been effectively precluded from successfully appealing that error on an interlocutory appeal. In my view, Judge Cornaby did not abuse his discretion in declaring a mistrial when confronted with the possibility of such prejudice. Consequently, because I do not agree that Judge Cornaby abused his discretion, I would conclude that Judge Young was correct in determining that the protection against double jeopardy does not prohibit the State from retrying Harris on the distribution charge.
1 52 Associate Chief Justice WILKINS concurs in Justice DURRANT®S concurring and dissenting opinion.