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                                                                     New Mexico Compilation
                                                                   Commission, Santa Fe, NM
                                                                  '00'04- 09:22:41 2015.06.03

       IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

Opinion Number: 2015-NMCA-057

Filing Date: March 9, 2015

Docket No. 33,057

STATE OF NEW MEXICO,

       Plaintiff-Appellee,

v.

DAVID HANSON,

       Defendant-Appellant.

APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY
Judith K. Nakamura, District Judge

Hector H. Balderas, Attorney General
Santa Fe, NM
M. Victoria Wilson, Assistant Attorney General
Albuquerque, NM

for Appellee

Jorge A. Alvarado, Chief Public Defender
Santa Fe, NM
Josephine H. Ford, Assistant Appellate Defender
Albuquerque, NM

for Appellant

                                         OPINION

VANZI, Judge.

{1}     Defendant appeals from his conviction for violation of a no-contact provision of a
protective order. The central issue on appeal is whether the trial court erred in admitting
secondary evidence to prove the contents of a series of text messages that Defendant
allegedly sent in violation of the order. We conclude that the State failed to meet its burden
to establish that the originals were lost or destroyed without bad faith before invoking an

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exception to the best evidence rule. The error was not harmless. Since we remand for a new
trial on this ground, we need not reach Defendant’s alternative argument that a new trial
should be granted based on prosecutorial misconduct.

BACKGROUND

{2}      In February 2009, Defendant was restrained from having any contact with Sarah
Myers for a period of six months. Myers contacted police on March 7, 2009, to report that
Defendant violated the order of protection by sending her a series of text messages over the
previous three days. Officer Mark Maycumber responded to the call. At trial, Maycumber
testified that he reviewed Myers’ cell phone and located a total of eight messages from an
unknown number, including two that came in while Maycumber was meeting with Myers.
Maycumber further testified that he attempted to call the originating number without success
and that officers were dispatched to locate Defendant at his last known address, also without
success. For reasons that are not entirely clear, Maycumber instructed Myers to transcribe
a copy of the messages by hand. The handwritten transcript consisted of a purportedly
verbatim entry for each message, including its contents, a time and date stamp, and the
originating phone number. Although Myers did not recognize the phone number and noted
that it did not match Defendant’s known number, the contents of the messages appeared to
contain facts concerning their past relationship, including facts referencing the order of
protection.

{3}     Trial was set to occur in metropolitan court when counsel for Defendant learned that
the State sought to introduce the handwritten transcript into evidence in order to establish
Defendant’s identity as the sender. The parties agreed that this implicated the best evidence
rule, see Rules 11-1001 to -1008 NMRA, but disputed whether an exception was applicable
that would permit the admission of “other evidence of the content of a writing . . . if . . . all
the originals are lost or destroyed, and not by the proponent acting in bad faith[.]” Rule 11-
1004(A). The parties briefed and then argued the issue at a motion hearing and again on the
day of trial. The trial court ultimately concluded that the messages on the phone were lost
or destroyed without bad faith, permitted Myers to read the transcript to the jury, and then
admitted the handwritten transcript into evidence. The jury found Defendant guilty of
violating the order of protection, the district court affirmed the conviction, and Defendant
timely appealed.1

DISCUSSION

{4}     Defendant has contended, below and on appeal, that the best evidence rule and State


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         The State argues that this Court lacks jurisdiction to review the district court’s
disposition of an appeal from the metropolitan court. We recently rejected the State’s
position in State v. Carroll, ___-NMCA-___, ___ P.3d ___, 2014 WL 6765814 (No. 32,909,
Oct. 21, 2013). To the extent that the State asks us to overrule Carroll, we decline to do so.

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v. Chouinard, 1981-NMSC-096, ¶ 23, 96 N.M. 658, 634 P.2d 680, require a new trial
without the improperly admitted transcript. Chouinard sets out a three-part test for due
process when the State fails to preserve evidence. Id. ¶ 16. Since we ultimately agree with
Defendant that the text messages should not have been admitted into evidence according to
the best evidence rule, we do not address the constitutional standards discussed in
Chouinard.

{5}      The best evidence rule states that “[a]n original writing . . . is required in order to
prove its content” unless a statute or rule provides otherwise. Rule 11-1002. We review the
trial court’s decision to exclude or admit evidence for an abuse of discretion. State v. Lopez,
2009-NMCA-044, ¶ 12, 146 N.M. 98, 206 P.3d 1003. “An abuse of discretion occurs when
the ruling is clearly against the logic and effect of the facts and circumstances of the case.”
Id. (internal quotation marks and citation omitted).

{6}     The text messages at issue in this case are “writings” for purposes of the rule. See
Rule 11-1001(A) (defining a writing to consist “of letters, words, numbers, or their
equivalent set down in any form”). As a practical matter, the best evidence rule infrequently
applies, since a witness can typically testify based on independent firsthand knowledge of
an event, even though a writing recording facts related to the event may also be available.
See 2 Kenneth S. Broun, McCormick on Evidence § 234, at 135 (7th ed. 2013). In this case,
however, the State had no evidence that Defendant sent the text messages, other than the
content of the messages, which apparently referenced facts related to Defendant’s
relationship with Myers. The State’s theory at trial relied on the contents of the writings
themselves, which were introduced as substantive evidence through Myers’ handwritten
transcript. Thus an original writing was required unless otherwise provided by statute or rule.
Rule 11-1002; see also 3 Barbara E. Bergman et al., Wharton’s Criminal Evidence § 15:4,
at 785 (15th ed. 2014) (“[T]he test is whether the party seeking to prove a fact is trying to
prove what a particular writing . . . says or shows.”).

The Handwritten Transcript Was Secondary Evidence

{7}     Since only secondary evidence is subject to exclusion under the best evidence rule,
we first pause to clarify that the handwritten transcript was neither an original nor an
admissible duplicate. An “original” is defined as “the writing . . . itself or any counterpart
intended to have the same effect by the person who executed or issued it.” Rule 11-1001(D).
In the specific context of electronically stored information, “ ‘original’ means any
printout—or other output readable by sight—if it accurately reflects the information.” Id. A
“duplicate” is “a counterpart produced by a mechanical, photographic, chemical, electronic,
or other equivalent process or technique that accurately reproduces the original.” Rule 11-
1001(E). A duplicate is typically admissible to the same extent as an original. Rule 11-1003.

{8}     The New Mexico Rules of Evidence, promulgated in 1973, were patterned after the
draft of proposed federal rules that had been recently submitted for congressional approval.
State v. Martinez, 2008-NMSC-060, ¶ 25, 145 N.M. 220, 195 P.3d 1232. Thus, our rules

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“generally follow the federal rules of evidence[.]” Estate of Romero ex rel. Romero v. City
of Santa Fe, 2006-NMSC-028, ¶ 8, 139 N.M. 671, 137 P.3d 611. The text of New Mexico’s
best evidence rule was and remains virtually identical to its federal counterpart, which was
designed to codify the common law’s recognition that the written word occupies a “central
position” in the law. See 2 Broun, supra, § 232, at 128. History’s earliest articulations of the
requirement prohibited the admission of legal documents copied by scriveners of the “Bob
Cratchit sort,” who transcribed by hand, and “not always under the best of conditions.” Id.
§ 236, at 145. Thus, from its inception, the rule has protected against the fraudulent or
negligent omissions and inaccuracies that inhere in subsequently made, handwritten copies.
See, e.g., Seiler v. Lucasfilm, Ltd., 808 F.2d 1316, 1318-19 (9th Cir. 1986) (holding that
after-the-fact reconstructions of drawings constituted secondary evidence).

{9}     While modern copying methods, which are typically mechanical or photographic,
have led to the recognition that reliable duplicates are admissible to the same extent as
originals, see Fed. R. Evid. 1003, the federal rules have retained the “Bob Cratchit” rationale
and have never permitted subsequently transcribed, manual copies to pass as duplicates. See
Fed. R. Evid. 1001(e) advisory committee’s note (stating that subsequent, manual copies,
“whether handwritten or typed, are not within the definition”); 2 Broun, supra, § 236, at 145.
We find no basis to diverge in our application of New Mexico’s rule. The requirement of an
original writing continues to serve its purpose by setting a clear, minimal threshold to ensure
accuracy, prevent fraud, and guard against intentional or unintentional misrepresentation
through the introduction of selected portions of a comprehensive set of writings to which the
opponent has no access. See generally 2 Broun, supra, § 232, at 128-29; Seiler, 808 F.2d at
1319 (discussing the modern justifications for the rule). Accordingly, we conclude that
Myers’ hand drafted transcripts of the text messages are secondary evidence. An exception
to the best evidence rule was therefore required for their admission.

The State Did Not Prove the Originals Were Destroyed Without Bad Faith

{10} Rule 11-1004(A) provides an exception when “all the originals are lost or destroyed,
and not by the proponent acting in bad faith.” The State correctly acknowledges that it bore
the burden to establish that (1) the originals were lost or destroyed, and (2) their loss or
destruction was not the result of bad faith. See Lopez, 2009-NMCA-044, ¶ 14 (requiring the
proponent “to either produce the original writings or explain why they were unavailable”);
Di Palma v. Weinman, 1911-NMSC-036, ¶ 10, 16 N.M. 302, 121 P. 38 (stating that the
proponent must establish destruction and also “remove[], to the satisfaction of the judge, any
reasonable suspicion of fraud” (internal quotation marks and citation omitted)), aff’d,
Weinman v. De Palma, 232 U.S. 571 (1914); Palatine Ins. Co. v. Santa Fe Mercantile Co.,
1905-NMSC-026, ¶ 6, 13 N.M. 241, 82 P. 363 (concluding that secondary evidence was
improper when the proponent failed to show “why an original of the same could not be
produced”); Kirchner v. Laughlin, 1892-NMSC-001, ¶ 6, 6 N.M. 300, 28 P. 505 (rejecting
the notion that contents of a writing “may be shown by parol, in the absence of proof that
proper efforts had been made to produce it”).


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{11} Our cases have not previously articulated any special requirements for proving that
original documents have been lost or destroyed. Like its federal counterpart, New Mexico’s
best evidence rule specifically allocates to the court the responsibility of determining
“whether the proponent has fulfilled the factual conditions for admitting [secondary]
evidence[.]” Fed. R. Evid. 1008; Rule 11-1008. In the federal system, the trial court makes
this determination in accordance with the requirements for deciding preliminary questions
of fact. See Fed. R. Evid. 1008 advisory committee’s note (stating that most preliminary
questions of fact, including the question whether the loss of originals has been established,
are for the judge “under the general principles announced in [Fed. R. Evid.] 104”). Thus, the
issues of loss or destruction and absence of bad faith are foundational questions for the trial
court to determine in accordance with Rule 104 before admitting secondary evidence to the
jury. See Fed. R. Evid. 1008; 31 Charles Alan Wright & Victor James Gold, Federal
Practice & Procedure §§ 8014, at 448-49, 8064, at 580-81 (1st ed. 2014).

{12} As we see no reason to deviate from the general standards for establishing
admissibility here, we apply the same burden of proof that governs other foundational issues.
See Rule 11-104(A) NMRA. Thus, as in the federal courts, the “lost or destroyed” exception
requires the proponent of secondary evidence in New Mexico to establish preliminary facts
by a preponderance of the evidence. State v. Martinez, 2007-NMSC-025, ¶ 19, 141 N.M.
713, 160 P.3d 894 (stating that the burden to establish admissibility under Rule 11-104(A)
requires that “the trial court need only be satisfied by a preponderance of the evidence that
the foundational requirement has been met”); 31 Wright & Gold, supra, § 8014, at 449
(stating that the standard is “preponderance of the evidence” and “the burden is not sustained
where the proponent merely casts doubt as to the existence of the original”).

{13} The required foundation may be established by introducing circumstantial evidence
that a diligent effort was made to obtain the originals or by eliciting direct testimony from
a witness who caused their loss or destruction. 2 Broun, supra, § 237, at 150-51; see
Sylvania Elec. Prods., Inc. v. Flanagan, 352 F.2d 1005, 1008 (1st Cir. 1965) (finding
secondary evidence inadmissible where the plaintiff introduced “little if any evidence”
related to the extent of the search for the missing originals); United States v. Bennett, 363
F.3d 947, 954 (9th Cir. 2004) (concluding that secondary evidence of GPS data was
impermissible where the government failed to offer “any record evidence that it would have
been impossible or even difficult to download or print out the data” from the device); Cross
v. United States, 149 F.3d 1190, 1998 WL 255054, at *4-5 (10th Cir. 1998) (non-
precedential) (finding that sworn testimony that IRS agents undertook a diligent search for
a missing form was sufficient to establish that the original was lost or destroyed); United
States v. McGaughey, 977 F.2d 1067, 1071-72 (7th Cir. 1992) (en banc) (permitting the
affidavit of an investigator to establish that continued search would be futile); United States
v. Cambindo Valencia, 609 F.2d 603, 633 (2d Cir. 1979) (admitting secondary evidence
where a witness testified that the original document was either given to the opponent or lost);
United States v. Standing Soldier, 538 F.2d 196, 203 (8th Cir. 1976) (concluding that sworn
testimony that an investigator attempted to locate a missing original by contacting the FBI
was sufficient to establish that the original was lost or destroyed).

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{14} Considering Rules 11-1004(A) and 11-1008 along with these analogous cases
interpreting and applying its federal counterpart, we find one aspect of this case to be both
curious and dispositive. The State did not introduce any evidence that the messages were
erased from the phone. When Defendant first objected to the admission of the transcript on
August 26, 2009, counsel for the State contended that she did not bring “the actual phone
with the text message[s]” because she was “unable to get a printout” of the messages.
Although counsel’s statement is insufficient to establish the necessary foundation for
secondary evidence, it is also factually incomplete insofar as it appears to raise the
possibility that the messages were still on Myers’ phone at the time but were in some manner
unsuitable to whatever printing technology was available to the State. Myers then testified
at the August 26 hearing and again at trial, but the State did not attempt to ask any questions
or inquire regarding the existence or destruction of the messages.

{15} On appeal, the State asserts, without any citation to the record, that “ Myers and
Officer Maycumber both testified that . . . Myers deleted the original text messages from her
phone.” While we agree with the State that “testimony from a witness who destroyed the
document” is sufficient to support a finding that loss or destruction has occurred, see 2
Broun, supra, § 237, at 150-51, we have scoured the record without locating any such
testimony. Since “[t]he mere assertions and arguments of counsel are not evidence,” Muse
v. Muse, 2009-NMCA-003, ¶ 51, 145 N.M. 451, 200 P.3d 104, we cannot speculate or
conclude that the State met its burden to establish by a preponderance of the evidence that
the messages on the phone were destroyed without bad faith. See State v. Gardner, 1998-
NMCA-160, ¶ 5, 126 N.M. 125, 967 P.2d 465 (“We review rulings upon the admission or
exclusion of evidence under an abuse of discretion standard, but when there is no evidence
that necessary foundational requirements are met, an abuse of discretion occurs.” (citation
omitted)).

{16} The district court did not hold the State to account for failing to meet its fundamental
evidentiary burden under Rules 11-1004 and 11-1008. Defendant has, however, argued that
the messages were erased in bad faith. Neither the trial court, the district court, nor this Court
can meaningfully consider that claim in the absence of evidence establishing whether the
messages were erased, and if so, who erased them and why. In light of the standards
discussed in this Opinion, it was error to admit the handwritten transcript under the “lost or
destroyed” exception to the best evidence rule under these circumstances. Because the
State’s case relied entirely on the content of the inadmissible transcript to link Defendant to
the violation of the protective order, the error was not harmless. See State v. Tollardo, 2012-
NMSC-008, ¶ 36, 275 P.3d 110 (stating that “a non-constitutional error is harmless when
there is no reasonable probability the error affected the verdict” (emphasis, internal quotation
marks, and citation omitted)). The trial court erred in admitting the handwritten transcript
into evidence to prove the contents of the text messages that Myers received.

CONCLUSION

{17}    We reverse the district court’s order affirming Defendant’s conviction for violation

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of the protective order and remand to the metropolitan court for a new trial.

{18}   IT IS SO ORDERED.

                                             ____________________________________
                                             LINDA M. VANZI, Judge

WE CONCUR:

____________________________________
M. MONICA ZAMORA, Judge

____________________________________
J. MILES HANISEE, Judge




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