                                                          I attest to the accuracy and
                                                           integrity of this document
                                                             New Mexico Compilation
                                                           Commission, Santa Fe, NM
                                                          '00'04- 09:50:58 2013.09.20
Certiorari Denied, August 26, 2013, No. 34,221

       IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

Opinion Number: 2013-NMCA-089

Filing Date: May 29, 2013

Docket No. 31,558

STATE OF NEW MEXICO,

       Plaintiff-Appellant,

v.

SHAWN T. REDD,

       Defendant-Appellee.

APPEAL FROM THE DISTRICT COURT OF McKINLEY COUNTY
Grant L. Foutz, District Judge

Gary K. King, Attorney General
James W. Grayson, Assistant Attorney General
Santa Fe, NM

for Appellant

Paul Kennedy & Associates
Paul J. Kennedy
Arne R. Leonard
Albuquerque, NM

for Appellee

                                         OPINION

WECHSLER, Judge.

{1}     The State appeals from the district court’s order dismissing charges filed against
Defendant Shawn Redd. The district court dismissed the charges because, due to computer
problems, the State lost an audio recording of the alleged victim’s initial interview with the
investigating officer conducted on the day the allegations were reported to the police. We

                                              1
hold that the district court erred in dismissing the charges because the loss of the recording
of the initial interview was not prejudicial to Defendant. Accordingly, we reverse the district
court’s dismissal of Defendant’s charges.

BACKGROUND

{2}     The district court dismissed three counts of criminal sexual penetration of a minor
(CSPM), one count of criminal sexual contact of a minor (CSCM), one count of false
imprisonment, and two counts of intentional child abuse. The charges arose out of
allegations of sexual abuse against Defendant by a ten-year-old victim (the Victim). Two
CSPM counts were based on allegations that Defendant caused Victim to engage in anal
intercourse with Defendant, and the remaining CSPM count was based on an allegation that
Defendant caused Victim to engage in oral penetration. Both child abuse counts were based
on allegations that Defendant anally penetrated Victim.

{3}     On November 5, 2009, Investigator Merle Bates, a deputy sheriff with the McKinley
County Sheriff’s Department, responded to a domestic call at Defendant’s home. Once
Investigator Bates arrived at the residence, he conducted interviews with Victim and
Victim’s mother. Investigator Bates recorded the interviews on a digital recorder and later
transferred the files to his computer. The ten-minute interview Investigator Bates conducted
and recorded with Victim (hereafter referred to as the initial interview) is the subject of this
case.

{4}    In the initial interview, Victim told Investigator Bates that Defendant attempted oral
penetration, but she did not allege any other type of sexual penetration, including anal
penetration. In later interviews and during grand jury testimony, Victim alleged that
Defendant attempted or completed anal penetration, which formed the basis of two of the
CSPM counts and both child abuse counts.

{5}      The district court held a pretrial conference on August 16, 2010, in which Defendant
raised discovery issues, including that the State had not disclosed the audio recording of the
initial interview. The State told the district court that it had only been able to retrieve two
of the ten minutes of the initial interview due to “computer problems” and that Investigator
Bates said that it was impossible to access the remaining eight minutes because the computer
file could not be read. The district court advised Defendant to file a motion so that it could
order Investigator Bates to come before the court and explain the issue with the audio file.

{6}     Defendant filed a motion to compel production of the initial interview and Victim’s
mother’s interview on August 30, 2010. In his motion, Defendant asserted that the initial
interview was lost or destroyed due to a computer difficulty and that the loss of the evidence
violated his right to a fair trial. Defendant stated that the initial interview was critical to his
defense because Victim did not disclose anal penetration or any other type of sexual
penetration to Investigator Bates. Defendant asserted that if the recording could not be
produced, the proper remedy would be for the district court to dismiss the charges with

                                                2
prejudice, and he asked the district court to order that the audio files be provided to
Defendant or that the recording be sent to an expert for analysis. In the alternative,
Defendant asked the district court to suppress the testimony of Victim and any other
testimony the recording of the initial interview would impeach. The State, in its response,
acknowledged that the recording of the initial interview was “damaged,” but argued that
there was no prejudice because Investigator Bates routinely does not ask for details when
interviewing a child victim of sexual abuse, and Investigator Bates could testify as to his
memory of the initial interview.

{7}      The district court held a motions hearing on January 27, 2011, at which Investigator
Bates testified. He stated that he recorded the initial interview using a digital recorder and
transferred the recording to his computer. His computer crashed in December 2009, and his
hard drive was replaced. Investigator Bates testified that he had only recovered two of the
ten minutes of the initial interview after he hired a private computer company to recover his
data files. He stated that a county information technology employee, John Goins, tried but
could not further recover the remaining eight minutes of the initial interview. Investigator
Bates further testified that it might be possible to send the old hard drive containing the
initial interview, or at least the new hard drive that contained the partially recovered file, to
a computer expert for analysis and that he would be willing to try to find the old hard drive.
The State indicated that it had no objection to sending the hard drive to a computer expert.
The district court directed Defendant to choose an expert and determine the cost and stated
that the district court would determine the action to pursue after receiving this information.

{8}     At the next status conference, on February 7, 2011, defense counsel indicated that
she found an out-of-state company specializing in data recovery and that the cost would be
between $500 and $1800. Defense counsel stated that she accompanied Investigator Bates
to speak with Goins and that Goins indicated that the old hard drive was available to send
to the expert. Defense counsel indicated that she would provide the district court with an
order to sign, ordering the hard drive to be sent to the expert. The district court set a status
conference for March 7, 2011, in order to determine the status of the hard drive.

{9}      On March 4, 2011, Defendant filed a motion to compel production of the hard drive.
The motion indicated that defense counsel and Investigator Bates spoke with Goins, who had
removed the hard drive from Investigator Bates’ computer. Goins initially said that he could
locate Investigator Bates’ hard drive as defense counsel told the district court at the February
7, 2011 hearing, but Goins later told defense counsel that the hard drive was placed
unlabeled with around one hundred other discarded hard drives and that he had not attempted
to find the one belonging to Investigator Bates. Defendant asked the district court to order
the hard drive be turned over to the defense or to dismiss the charges against Defendant.

{10} At the status conference three days later, on March 7, 2011, the district court stated
that it was its understanding that Defendant was going to locate an expert and that the State
would provide the hard drive. Defendant then reiterated what he stated in his motion: that
Goins indicated that Investigator Bates’ hard drive was among one hundred unlabeled hard

                                               3
drives and that Goins had not attempted to locate the hard drive. Defendant stated that he
would ask the district court for an order directing Goins to begin opening the unlabeled hard
drives so that he could locate the one belonging to Investigator Bates. The district court
responded that “the hard drive needs to be produced.” The State likewise asked the district
court for an order. The district court indicated that it would agree to such an order but that
it needed to know how many hard drives Goins would have to analyze and acknowledged
it had no familiarity with recovering data from hard drives and the time it takes. The district
court ultimately directed the State to speak with Goins and determine how long it would take
to find Investigator Bates’ hard drive and if Goins would be willing to do so. The district
court then scheduled another status conference.

{11} At a status conference held on March 21, 2011, the State informed the district court
that Goins indicated that it would not be possible to locate the hard drive, and that he could
not identify Investigator Bates’ hard drive. The State also informed the district court that
Goins told the State that it would be against county protocol to release all the hard drives to
an outside expert for analysis because the hard drives contained confidential information
from various county agencies. Upon questioning by the district court, the State indicated
that its information was based on conversations with Goins. The district court indicated that
if the hard drive was not turned over to Defendant, dismissal might be the only viable option.
Defendant suggested an evidentiary hearing in which Goins could testify about the
possibility of locating the hard drive, and the district court agreed to set a hearing once
Defendant filed whatever motion he deemed appropriate.

{12} Defendant filed a motion to dismiss on June 1, 2011. In his motion, Defendant
argued that the initial interview was critical to his defense because the “only consistency in
[Victim]’s . . . version of events is the[] inconsistency.” Defendant specifically pointed out
that Victim disclosed anal penetration in her pre-trial interview and during grand jury
testimony and said that she told Investigator Bates about anal penetration, which differed
from Investigator Bates’ report from the initial interview. Defendant’s motion characterized
the conclusion of the January 27, 2011 hearing as the district court “order[ing] the State to
produce the crashed hard drive . . . for inspection and analysis by an expert” and argued that
“the State has failed to comply with the [district court’s] order compelling the production of
the crashed hard drive for analysis by a defense expert.” The motion to dismiss included an
affidavit from a computer expert that it is “reasonably likely” or “most likely” that a
professional data recovery specialist could recover the entire initial interview from the hard
drive. The State responded, arguing that issues regarding credibility and inconsistent
versions of events should be decided by the jury, that it did not intentionally destroy
evidence, that Investigator Bates engaged in his best efforts to retrieve the lost recording of
the initial interview, and that dismissal was an inappropriate remedy under the circumstances
in this case.

{13} The district court held an evidentiary hearing on the motion to dismiss on July 21,
2011. At the hearing, Goins testified that he attempted to recover data from Investigator
Bates’ hard drive by “slav[ing]” it to another machine, in other words, by connecting it to

                                              4
another computer and attempting to read the data on the other computer. He testified that
other companies specialize in advanced data recovery and may have other methods of
recovering data that he did not. Goins stated that he placed Investigator Bates’ old hard
drive in the “junk pile,” or a trash can, once he removed it from Investigator Bates’ computer
and that he does not label hard drives he puts in the trash can. Goins testified that he
received a request from Investigator Bates and Defendant to locate Investigator Bates’
original hard drive. He spent most of one day trying to access ten hard drives of the roughly
one hundred that were saved in one trash bin, he saw information on two that did not match
the data on Investigator Bates’ hard drive, and he informed Investigator Bates that the drive
could not be located at that point.

{14} Richard Chavez testified that he is an employee with two companies that specialize
in data recovery. He testified that Investigator Bates brought his computer to one of Chavez’
stores and asked Chavez to do everything possible to fix his computer and recover the lost
data. Chavez used his experience and a software program to recover between ten and
fourteen gigabytes of data and testified that he was not aware of any more sophisticated
software that he could have used to recover more data. Chavez testified that Investigator
Bates’ computer had faulty memory due to a manufacturer’s defect and that the defect
caused data to become corrupted when it was saved onto the computer. He stated that more
sophisticated techniques could be used to retrieve more data when a drive is not physically
working but that Investigator Bates’ computer suffered defective memory that corrupted the
data as it was saved.

{15} After the testimony, Defendant argued that dismissal was the only appropriate
remedy based on (1) the legal analysis for lost or destroyed evidence, and (2) the State’s
failure to comply with the district court’s order to produce the evidence, in particular to find
the hard drive and notify the district court how long it would take to search the approximate
one hundred unlabeled hard drives to determine which hard drive belonged to Investigator
Bates. The State conceded that it breached a duty to preserve but argued that the appropriate
remedy was admitting the loss of the initial interview and the circumstances to the jury and
permitting Investigator Bates to disclose to the jury that Victim did not disclose anal
penetration in the initial interview.

{16} The district court issued an order granting Defendant’s motion to dismiss. The
district court stated that the initial interview contained inconsistencies with other statements
made by Victim. It concluded that the lost initial interview was material and that the loss
was prejudicial to Defendant. Additionally, the district court’s order contains language
indicating that the dismissal was, at least partially, based on a discovery sanction for the
State’s inability or refusal to locate Investigator Bates’ hard drive and turn it over to
Defendant. In its findings granting the motion to dismiss, the district court stated, apparently
based on its oral directive at the January 27, 2011 hearing, that “[p]rior to January [2011],
as well as after January 2011, the [district court] directed the State to identify the hard
drive.” Additionally, the order contained findings that “[f]rom January 2011 until July 2011,
the State spent only eight hours trying to identify the correct hard drive after it was

                                               5
commingled with other hard drives, and examined only ten percent of the hard drives in the
trash can.” Further, “[t]o [the] date of this order, the State has not identified [Investigator]
Bate[s’] hard drive.” There was no express finding of bad faith or intentional conduct on the
part of the State.

{17} The State appeals the district court’s order granting the motion to dismiss and makes
several arguments as to why the district court abused its discretion. It argues that dismissal
was not an appropriate remedy under a lost or destroyed evidence analysis because (1) the
evidentiary value of the lost recording was minimal, and Defendant failed to establish
materiality and prejudice due to the lost recording, and (2) dismissal is not a proper remedy
when raised pre-trial. The State also contends that the district court erred to the extent that
it granted Defendant’s motion to dismiss as a discovery sanction for failure to provide the
hard drive to Defendant because (1) the district court never ordered the State to produce the
hard drive, (2) Defendant failed to show actual prejudice, and (3) the district court failed to
consider less severe sanctions.

STANDARD OF REVIEW

{18} We review a district court’s remedy for lost or destroyed evidence for an abuse of
discretion. See State v. Duarte, 2007-NMCA-012, ¶¶ 5, 11, 140 N.M. 930, 149 P.3d 1027.
Likewise, “[s]anctions for violations of discovery orders are discretionary” and will not be
reversed absent an abuse of that discretion. State v. Bartlett, 109 N.M. 679, 680, 789 P.2d
627, 628 (Ct. App. 1990). “An abuse of discretion occurs when the ruling is clearly against
the logic and effect of the facts and circumstances of the case.” Duarte, 2007-NMCA-012,
¶ 3 (internal quotation marks and citation omitted). Additionally, we view the evidence and
the inferences drawn from that evidence in favor of the district court’s ruling. See Mathis
v. State, 112 N.M. 744, 747-48, 819 P.2d 1302, 1305-06 (1991).

BASIS FOR GRANTING THE MOTION TO DISMISS

{19} As an initial matter, the parties dispute the type of analysis this Court should apply
to the order dismissing this case. Both parties point out the distinction between cases in
which evidence is lost or destroyed and cases in which a district court sanctions the state for
a bad faith or intentional violation of a discovery order. In State v. Chouinard, 96 N.M. 658,
661, 634 P.2d 680, 683 (1981), our Supreme Court formulated a three-part test to determine
the appropriate remedy for lost or destroyed evidence. Under this test, in evaluating whether
the district court abused its discretion in dismissing the case for lost or destroyed evidence,
we look to whether (1) the state breached a duty or intentionally deprived the defendant of
evidence, (2) the lost or destroyed evidence is material, and (3) the defendant suffered
prejudice. See id. The purpose of this test is to assure that the district court arrived at a
determination that will serve the ends of justice. Id.

{20} In contrast, as a general rule, a district court may impose sanctions against the state
for a failure to comply with a discovery order. See Mathis, 112 N.M. at 747, 819 P.2d at

                                               6
1305. Our Supreme Court has clarified that dismissal for the violation of a discovery order
requires (1) culpable state conduct such as “bad faith, willful non-compliance, or flat-out
disregard for a discovery order”; ( 2) tangible prejudice to the defendant as a result of the
deprivation of the evidence; and (3) a consideration of lesser sanctions. State v. Harper,
2011-NMSC-044, ¶¶ 16-18, 27, 150 N.M. 745, 266 P.3d 25. We initially discuss discovery
sanctions as they apply to this case and then address the Chouinard test for lost or destroyed
evidence.

{21} The district court’s order dismissing the charges did contain the following findings
regarding the production of the hard drive:

       4.      Prior to January 2011, as well as after January, the [district court]
               directed the State to identify the hard drive.

       5.      . . . Defendant requested the hard drive be identified so that
               Defendant’s expert could attempt to retrieve the lost portion of the
               [initial] interview.

       6.      From January 2011 until July 2011, the State spent only eight hours
               trying to identify the correct hard drive after it was commingled with
               other hard drives, and examined only ten percent of the hard drives
               in the trash can.

       7.      To date of this order, the State has not identified [Investigator]
               Bate[s’] hard drive.

These findings stop short of finding that (1) the district court issued a discovery order
compelling the State to turn over Investigator Bates’ hard drive, and (2) the State willfully
did not comply with or intentionally disregarded such a discovery order or otherwise failed
to find the hard drive in bad faith. To be sure, these findings indicate a level of frustration
from the district court. Additionally, as Defendant points out, at times during the
proceedings, the district court questioned the State’s efforts to locate the hard drive.
However, it is dispositive that the district court never issued an unambiguous order requiring
the State to turn over the hard drive to Defendant.

{22} As we have discussed, at the January 27, 2011 hearing, the district court told
Defendant to determine the cost and identify an expert and that the issue of turning over the
hard drive could be discussed at a later time upon receipt of that information. At the
February 7, 2011 status conference, Defendant indicated that he would present an order to
the district court to sign compelling production of the hard drive, but such an order does not
appear in the record. At the March 7, 2011 status conference, the State likewise asked for
an order compelling the production, but the district court indicated that it needed to know
the number of hard drives that Goins would have to analyze and acknowledged that it had
no familiarity with the process for recovering data from hard drives or the time that it takes.

                                              7
At the March 21, 2011 status conference, once the State indicated that Goins was unable or
unwilling to locate the hard drive, the district court directed Defendant to file whatever
motion he deemed necessary. Defendant subsequently filed his motion to dismiss. Under
these circumstances, the district court did not unambiguously order the State to produce the
hard drive before dismissing the case, and the State therefore could not have intentionally
disregarded or defied a discovery order. See Harper, 2011-NMSC-044, ¶ 27 (reversing the
suppression of witness testimony because, among other reasons, the district court did not
unambiguously order the state to produce the witness for a witness interview).

{23} Additionally, it is unclear to what extent the district court granted the motion to
dismiss as a discovery sanction for the failure of the State to produce the hard drive. As we
have discussed, and as the State points out, the district court’s order lacks any specific
finding of bad faith, willful noncompliance, or intentional disregard of a discovery order to
produce the hard drive. On this basis alone, the district court’s order is an abuse of
discretion in dismissing the case to the extent it did so as a discovery sanction for the State’s
failure to provide the hard drive to Defendant. Cf. State v. Hill, 2005-NMCA-143, ¶¶ 22-23,
138 N.M. 693, 125 P.3d 1175 (reversing a district court’s dismissal of charges because the
district court’s finding did not indicate that it applied all three prongs of the test for lost or
destroyed evidence). To the extent that the district court dismissed Defendant’s charges for
the failure of the State to produce Investigator Bates’ hard drive in defiance of a discovery
order to produce the hard drive, the district court abused its discretion. We thus turn to
whether the district court abused its discretion in dismissing the charges against Defendant
under the framework for lost or destroyed evidence based on the lost or destroyed eight
minutes of the recording of the initial interview.

LOST OR DESTROYED EVIDENCE

{24} From the order granting the motion to dismiss, it appears that the district court
granted the motion based on the Chouinard line of cases for lost or destroyed evidence. The
district court made findings, although conclusory, that the lost audio recording of the initial
interview was material and that the loss was prejudicial to Defendant. In evaluating whether
the district court abused its discretion under Chouinard, we look to whether (1) the State
breached a duty or intentionally deprived Defendant of the recording of the initial interview,
(2) the lost or destroyed recording of the initial interview is material to the defense, and (3)
whether Defendant suffered prejudice. See Chouinard, 96 N.M. at 661, 634 P.2d at 683.
The purpose of this test is to assure that the district court arrived at a determination that will
serve the ends of justice. Id.

{25} The State concedes that the first prong of the test is met because the State is required
to disclose statements made by any anticipated State witness. See Rule 5-501(A)(5) NMRA.
The State challenges the district court’s determination as to the second and third prongs of
the Chouinard test. As to materiality, Defendant primarily contended in the district court
that the initial interview was material because Victim did not disclose anal penetration in the
initial interview in contrast to subsequent interviews in which she disclosed anal penetration.

                                                8
Defendant argued that the inconsistency between the initial interview and subsequent
interviews bears on the credibility of Victim and is exculpatory in the sense that it does not
support any allegation of anal penetration, which formed the basis of four counts of the
indictment.

{26} The State contends that the district court abused its discretion in finding materiality
because (1) Victim disclosed oral penetration and identified Defendant as the perpetrator,
and therefore the initial interview did not fully support a claim of innocence; (2) the initial
interview was not exculpatory because the hearsay rules prevent Defendant from introducing
the statement as substantive evidence for the truth of the matter asserted; and (3) although
the initial interview could be used to impeach Victim and question her credibility, it did not
rise to the level of “material” as defined by our Supreme Court under the framework for lost
or destroyed evidence because it was simply cumulative impeachment evidence in view of
numerous inconsistencies made during her interviews with the safe house, her grand jury
testimony, and her pre-trial interview. Our Supreme Court has defined “material” as a “
‘reasonable probability that, had the evidence been disclosed to the defense, the result of the
proceeding would have been different. A ‘reasonable probability’ is a probability sufficient
to undermine confidence in the outcome.’ ” State v. Fero, 107 N.M. 369, 371, 758 P.2d 783,
785 (1988) (quoting United States v. Bagley, 473 U.S. 667, 682 (1985) for the definition of
materiality from the United States Supreme Court’s test for due process analysis for
undisclosed evidence).

{27} We do not agree with the State that Victim’s initial statement to Investigator Bates
was not material because its only purpose was to impeach Victim’s testimony and challenge
her credibility. The State primarily cites State v. Boeglin, 105 N.M. 247, 254, 731 P.2d 943,
950 (1987) and United States v. Cooper, 654 F.3d 1104, 1120 (10th Cir. 2011), for the
proposition that “cumulative impeachment evidence” is not material under our standard.
However, both cases are distinguishable. Boeglin involved a case in which the defendant
claimed that the state knowingly used false evidence after trial in a different procedural
posture than this case. 105 N.M. at 253-54, 731 P.2d at 949-50. In Boeglin, the state
conceded and disclosed to the jury that the transcript at issue was erroneous because it was
missing information, and the district court instructed the jury to rely upon the actual tapes
and not on the transcript with the missing information. Id. at 254, 731 P.2d at 950. Our
Supreme Court considered the alleged omission in the “context of the entire record” and
determined that it was not material because its only purpose was to bolster the defendant’s
credibility “generally” and to attack the credibility of the two investigators conducting the
interview. Id.

{28} Cooper addressed a situation in which the district court suppressed testimony that a
government witness prepared false or fraudulent tax returns, which the defendant intended
to use for impeachment purposes. 654 F.3d at 1122. The Tenth Circuit held that the
testimony was not “material” because it was only for impeachment and the witness was not
a crucial or critical witness to the government’s claim. Id. at 1123. In this case, we cannot
say that Victim is not a crucial or critical witness. An initial statement to investigators made

                                               9
by an alleged victim shortly after the incident in question and which the defendant wishes
to use to attack the alleged victim’s credibility is material under the second prong of the
Chouinard test. See Bartlett, 109 N.M. at 681, 789 P.2d at 629 (holding that a tape recorded
statement made to investigators after the incident in which the alleged victim described the
perpetrator was material because it bore on the credibility of the alleged victim); see also
Smith v. Cain, __ U.S. __, 132 S. Ct. 627, 629-30 (2012) (holding that notes from the
investigating investigator that the only eyewitness could not describe the perpetrator was
material).

{29} We thus turn to whether Defendant suffered prejudice by the loss of the recording
of the initial interview with Investigator Bates. See Chouinard, 96 N.M. at 661, 634 P.2d
at 683. In the district court, Defendant argued that the loss of the recording was prejudicial
because it was the most contemporaneous account of the allegations against Defendant, it
was inconsistent with later accounts Victim gave investigators, and the later accounts
occurred only after Victim had the opportunity to talk with her mother. Defendant also
contends that the initial interview was “extremely critical” to the defense because Victim
was the only eyewitness to the alleged crimes and there was no inculpatory physical
evidence against Defendant. The district court found that the loss of the initial interview
prejudiced Defendant without elaborating upon its finding.

{30} On appeal, the State contends that the district court erred in finding prejudice because
(1) Defendant did not need the recording to establish the inconsistency because Investigator
Bates could have testified that Victim did not disclose anal penetration in the initial
interview, and (2) the district court could have considered a stipulation or instruction to the
jury regarding the contents of the initial interview and explaining the circumstances
regarding the lost recording. The State points out that Defendant conceded at the January
27, 2011 hearing that Investigator Bates took “copious notes,” that Investigator Bates
testified that his report contained everything said during the initial interview, and that
Investigator Bates listened to the recording several times before the file was corrupted to
ensure his report was accurate. Investigator Bates further testified that he would testify at
trial that Victim did not disclose anal penetration during the initial interview.

{31} When evaluating prejudice, we examine “the importance of the missing evidence to
[the] defendant[] and the strength of the other evidence of [the] defendant’s guilt.” Bartlett,
109 N.M. at 681, 789 P.2d at 629. Because the district court granted the motion to dismiss
and the case did not proceed to trial, we focus on the importance of the missing evidence to
Defendant’s case. Cf. id. (focusing on the importance of the missing evidence to the
defendant’s case because the jury failed to reach a verdict and therefore the strength of the
other evidence was not evident).

{32} This Court has examined the prejudice prong in a similar case involving a similar
piece of missing evidence. In Bartlett, the state charged the defendant with criminal sexual
penetration, and the investigating officer interviewed the alleged victim on two occasions.
Id. at 680, 789 P.2d at 628. The state failed to produce the recording of the first interview,

                                             10
and the district court dismissed the charge against the defendant after a first trial resulted in
a mistrial and the state indicated that it intended to retry the defendant. Id. Although this
Court characterized the dismissal as a discovery sanction, we applied the Chouinard test for
lost or missing evidence in determining whether the district court abused its discretion in
dismissing the charge. Bartlett, 109 N.M. at 680, 789 P.2d at 628. We held that the
recording of the interview was “important to [the] defendant[, but not] so important as to
deprive [the] defendant of a fair trial.” Id. at 681, 789 P.2d at 629. We concluded that the
defendant “was still able to vigorously raise and pursue” mistaken identity and fabrication
defenses by pointing out discrepancies in the description contained in the initial police
report, testimony at the preliminary hearing, and testimony at the first trial. Id. at 682, 789
P.2d at 630. Additionally, the defendant cross-examined the victim and the investigating
officer at the first trial about the inconsistency and “extensively argued” the issues regarding
the missing interview. Id. We therefore held that the district court abused its discretion in
dismissing the charge. Id.

{33} Similarly, in Duarte, 2007-NMCA-012, ¶¶ 1, 4-5, the state lost a videotape showing
the defendant taking a second set of field sobriety tests, and the defendant moved to suppress
all evidence that the videotape may have impeached or for dismissal of the charge. Applying
Chouinard, this Court held that the defendant was not prejudiced by the loss of the
videotape. Duarte, 2007-NMCA-012, ¶¶ 9-11. We reasoned that (1) the defendant was able
to cross-examine the officer about the lost video and to argue its significance to the jury,
including attacking the officer’s credibility and reliability; (2) the defendant had the officer’s
report at his disposal and the report contained information relating to the field sobriety tests;
and (3) there was other evidence of the defendant’s guilt including his breath alcohol content
reading. Id. ¶ 11.

{34} In this case, the district court abused its discretion in dismissing the charges against
Defendant due to the lost audio recording of the initial interview because the loss of the
recording of the initial interview was not prejudicial to Defendant. First, the record reveals
that Defendant had other means to point out the inconsistencies between the initial interview
and her later statements and interviews. Investigator Bates testified that his police report on
the incident contained the contents of the initial interview, that he listened to the initial
interview several times while preparing his report, and that he would testify that Victim did
not reveal anal penetration during the initial interview. Defendant initially conceded that
Investigator Bates took “copious notes” of the initial interview. The actual recording was
therefore unnecessary for Defendant to prove that particular inconsistency to the jury and
for Defendant to impeach Victim. See Bartlett, 109 N.M. at 682, 789 P.2d at 630 (holding
that the defendant suffered no prejudice from the loss of evidence because the defendant
could use the police reports and cross-examinations of the investigating officer and the
victim to establish the inconsistency between the victim’s description of the perpetrator).
Second, the district court should have considered other alternatives to dismissal that would
have ameliorated any prejudice suffered by Defendant. At the March 7, 2011 hearing, the
district court suggested that the loss of the initial interview could be resolved by a
stipulation. At the evidentiary hearing, the State agreed that it would consent to a jury

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instruction explaining the circumstances of the lost recording. However, in its order granting
the motion to dismiss, the district court did not address either alternative or why they would
be inadequate given the circumstances of the case. Third, as we stated in Duarte, reversal
is not mandated unless the lost evidence materially affected a determination of guilt or
innocence. 2007-NMCA-012, ¶ 11. Given that Defendant only sought to use the initial
interview as impeachment evidence and because Defendant had other means to introduce the
contents of the initial interview into evidence, the ultimate remedy of dismissal was not
appropriate. See Chouinard, 96 N.M at 661, 634 P.2d at 683 (stating that the three-part test
for a remedy for lost or destroyed evidence is intended to serve the ends of justice). We note
that it would have been helpful for us to have findings by the district court explaining its
findings of prejudice for our appellate review.

{35} Defendant argues that Smith, ___ U.S. ___, 132 S. Ct. 627 is controlling in this case.
In Smith, the United States Supreme Court held that witness statements made to an
investigating detective that the state failed to disclose to the defendant were material because
the defendant could have used the statements to impeach the witness. Id. ___, 132 S. Ct. at
629-30. However, Smith involved a claim for post-conviction relief, and the defendant was
convicted without being aware of the statements that he could have used to impeach the
witness. Id. In this case, although evidence regarding Victim’s initial interview is material
to Defendant in order to impeach Victim, Defendant had alternative means to present
inconsistencies to the jury, and he will not be deprived of presenting a defense based on the
loss of the recording. It is on the basis of the absence of prejudice, not materiality, that we
base our conclusion that the district court abused its discretion in dismissing the charges.

{36} Because we have concluded that the district court abused its discretion in finding
prejudice against Defendant for the loss of the initial interview to the extent that it dismissed
the case and, therefore, reverse on this ground, we need not address the State’s argument that
dismissal is not an available remedy when an issue of lost or destroyed evidence is raised
pretrial.

CONCLUSION

{37} We hold that the district court abused its discretion in dismissing the charges against
Defendant due to the lost audio recording of the initial interview because the loss of the
recording of the initial interview was not prejudicial to Defendant. Accordingly, we reverse
the district court’s dismissal of Defendant’s charges.

{38}    IT IS SO ORDERED.

                                                _____________________________________
                                                JAMES J. WECHSLER, Judge

WE CONCUR:


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____________________________________
JONATHAN B. SUTIN, Judge

____________________________________
CYNTHIA A. FRY, Judge

Topic Index for State v. Redd, No. 31,558

APPEAL AND ERROR
Standard of Review

CRIMINAL LAW
Child Abuse and Neglect
Criminal Sexual Penetration
False Imprisonment
Sexual Exploitation of Children
Sexual Offences

CRIMINAL PROCEDURE
Dismissal of Charges
Prejudice
Sanctions

EVIDENCE
Disclosure
Discovery
Lost Evidence
Prejudicial Evidence
Taped Evidence

JUDGES
Abuse of Discretion




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