                does not challenge this omission on appeal. To demonstrate undue
                prejudice, a defendant must show "that it could be reasonably anticipated
                that the evidence sought would be exculpatory and material to [his]
                defense" and that when evaluated in the context of the entire record, the
                lost evidence creates a reasonable doubt that was not otherwise present.
                Sparks v. State, 104 Nev. 316, 319,759 P.2d 180, 182 (1988) (quoting
                Boggs v. State, 95 Nev. 911, 913, 604 P.2d 107, 108 (1979)). This court
                reviews a district court's dismissal of a charging document for an abuse of
                discretion. Hill v. State, 124 Nev. 546, 550, 188 P.3d 51, 54 (2008). "An
                abuse of discretion occurs if the district court's decision is arbitrary or
                capricious or if it exceeds the bounds of law or reason."   Nunnery v. State,
                127 Nev. „ 263 P.3d 235, 247 (2011) (quoting Jackson v. State, 117
                Nev. 116, 120, 17 P.3d 998, 1000 (2001)).
                            After a sexual encounter with Scafidi, the alleged victim, S.
                Carter, locked herself in Scafidi's hotel bathroom and dialed 911,
                explaining that she feared Scafidi would hurt her but not alleging sexual
                assault. After responding to the call, police escorted S. Carter to the
                hospital for a sexual-assault examination and to interview her. During
                her hospital interviews with• Detective Pool, S. Carter indicated she had
                been using her phone to text one or more friends shortly before the alleged
                sexual assault. S. Carter's phone had been seized from the hotel room
                while she was at the hospital and was returned to her that afternoon by
                Detective Pool without his first reviewing or recording the text messages.
                The messages were deleted sometime prior to the preliminary hearing and
                are now irretrievable. S. Carter told Detective Pool that she took
                Wellbutrin, and she gave blood and urine samples to be tested for alcohol
                and a variety of illicit drugs, including "roofies," as part of the hospital's

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                   sexual-assault examination. Soon after his arrest, a blood sample was
                   taken from Scafidi in order to test him for sexually transmitted diseases
                   pursuant to NRS 441A.320(1).
                               In his motion to dismiss filed on April 11, 2014, Scafidi
                   claimed that he was unduly prejudiced by the State's failure to preserve S.
                   Carter's blood and urine samples taken by the hospital as part of her
                   sexual-assault examination. The district court found that the samples,
                   which revealed a blood alcohol content of 0.173 and tested negative for
                   illicit drugs, were not tested for Wellbutrin and were destroyed in the
                   hospital's ordinary course of business before the defense was able to have
                   them independently tested. The district court also found that officers were
                   aware that S. Carter was taking Wellbutrin, whose possible side effects
                   include delusions and paranoia, and that she believed she had been
                   drugged. Finally, the district court found that S. Carter's blood alcohol
                   content was inconsistent with her statements that she consumed only four
                   drinks over the course of the evening.
                               Evidence that merely impeaches a witness but does not tend
                   to establish innocence is not exculpatory.     Orfield v. State, 105 Nev. 107,
                   110, 771 P.2d 148, 150 (1989). Although the testing Scafidi sought may
                   have helped his defense, it would not have established his innocence but,
                   at best, would reveal evidence that could be used to impeach S. Carter.
                   Accordingly, S. Carter's biological samples were not exculpatory. Further,
                   a defendant is not unduly prejudiced by the destruction of a biological
                   sample where the test is considered to be generally reliable, regulations
                   ensure proper maintenance of equipment, and there are alternative means
                   to impeach the reliability of the tests.   Hall, 105 Nev. at 9-10, 768 P.2d at
                   350-51. Scafidi did not allege facts that would implicate the first two

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                factors, and as in Hall, Scafidi has other means of impeaching the
                accuracy of the blood tests that were performed. Scafidi also failed to
                present any evidence indicating a correlation between the possible levels
                of Wellbutrin in S. Carter's blood and potential side effects, either with or
                without the consumption of alcohol. Scafidi thus failed to demonstrate
                that S. Carter's Wellbutrin levels would have created a reasonable doubt
                that did not otherwise exist. See Sparks, 104 Nev. at 319, 759 P.2d at 182.
                We therefore conclude that the district court abused its discretion in
                granting the motion.
                            In his motion to dismiss filed on May 15, 2014, Scafidi claimed
                that he was unduly prejudiced by the State's failure to preserve his blood
                sample. The district court found that Scafidi's blood was drawn and
                placed into evidence. The district court also found that Scafidi told police
                that "roofies" were involved; alcohol exaggerates the drug's effects, which
                include impaired judgment, loss of inhibition, confusion, and memory
                impairment; and that the presence of alcohol or drugs in Scafidi's blood
                would have implicated his state of mind.
                            The record does not support the district court's finding that
                Scafidi's blood was collected as, or placed into, evidence. Rather, Scafidi's
                blood was drawn pursuant to NRS 441A.320(1) to screen for sexually
                transmitted diseases. Accordingly, Scafidi's sample was not evidence in
                the possession of the State. Further, "[at is not sufficient that the showing
                disclose merely a hoped-for conclusion from examination of the destroyed
                evidence." Boggs, 95 Nev. at 913, 604 P.2d at 108. And Scafidi's motion
                described merely a hoped-for conclusion that testing of his blood would
                reveal a "plausible" plot by S. Carter to gain financially from falsely



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                accusing him of sexual assault. We therefore conclude that the district
                court abused its discretion in granting the motion.
                              Finally, in his motion to dismiss filed on November 22, 2013,
                Scafidi argued that he was unduly prejudiced by Detective Pool's failure to
                preserve S. Carter's text messages because they were foreseeably
                exculpatory. The district court found that Detective Pool knew of the text
                messaging and seized S. Carter's phone, and that the messages were
                relevant to the issue of whether S. Carter did or could have consented to
                Scafidi's actions.
                              The record supports the district court's findings that the
                evidence was foreseeably exculpatory. Detective Pool acknowledged at the
                evidentiary hearing the importance of the element of consent in sexual-
                assault cases in general and testified that S. Carter's text messages,
                including their coherence, could be indicative of whether she consented to
                the sexual encounter with Scafidi. S. Carter never said why she felt afraid
                of Scafidi but that she "willingly" went with him to his hotel room.
                Detective Pool also testified that S. Carter reported telling Scafidi, "No,"
                but always in a joking or laughing manner and that in his initial interview
                with her, she did not allege any facts that would constitute a crime.
                Looking at the entire record, there was sufficient evidence of consent and
                thus reason to preserve evidence of S. Carter's state of mind that the
                district court's finding of foreseeable exculpability was not arbitrary or
                capricious.
                              However, we cannot determine whether the district court
                abused its discretion when it concluded that dismissal was warranted.
                The district court dismissed the charges against Scafidi because it
                concluded that the cumulative effect of the destroyed pieces of foreseeably

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                exculpatory evidence rendered a curative jury instruction insufficient to
                overcome the prejudice. In light of the above findings that only the text
                messages were foreseeably exculpatory, we reverse the district court's
                decision and remand this matter for the district court to consider whether
                the appropriate remedy is to dismiss the information or to give a curative
                jury instruction.   See Sanborn v. State, 107 Nev. 399, 407-08, 812 P.2d
                1279, 1285-86 (1991) (discussing when each remedy is appropriate).
                Accordingly, we
                              ORDER the judgment of the district court REVERSED AND
                REMAND this matter to the district court for proceedings consistent with
                this order.




                                                   Ppo,,
                                                   Parraguirre




                cc:   Hon. Michael Villani, District Judge
                      Attorney General/Carson City
                      Clark County District Attorney
                      Potter Law Offices
                      Eighth District Court Clerk




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