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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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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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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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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) (nonprecedential) (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