
    Dia Armon WALTON v. STATE.
    CR-02-2198.
    Court of Criminal Appeals of Alabama.
    April 30, 2004.
    Eric Lance Guster, Birmingham, for appellant.
    William H. Pryor, Jr., atty. gen., and Robin Blevins Scales, asst. atty. gen., for appellee.
   McMILLAN, Presiding Judge.

AFFIRMED BY UNPUBLISHED MEMORANDUM.

SHAW, J., concurs.

COBB, J., concurs in the result, with opinion.

BASCHAB and WISE, JJ., concur in 'the result.

COBB, Judge

(concurring in the result).

The unpublished memorandum affirming Dia Armón Walton’s conviction states that there is no transcript of the pretrial hearing on the alleged unavailability of the child victim to testify at trial. In determining whether the trial court correctly adjudged the child victim unavailable, the memorandum, therefore, reviews the testimony of the psychiatrist given at trial. I believe that, in evaluating the correctness of a trial court’s ruling that a child victim is unavailable, only evidence of that unavailability presented at the pretrial hearing should, be considered; any further evidence of the child’s unavailability produced later at trial should not be used to evaluate the initial, pretrial determination. See C.L.Y. v. State, [Ms. CR-02-0100, August 29, 2003] — So.2d - (Ala.Crim.App. 2003) (Cobb, J., dissenting). Therefore, because the transcript of those pretrial proceedings is not before us and because the appellant has the duty to provide a complete record on appeal, I believe we cannot review Walton’s argument that the child victim was actually available to testify. Thus I concur in the result.  