May 29, 2013 – State v. Redd, No. 31,558

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INTHE COURT OF APPEALS OF THE STATE OF NEW MEXICO
Opinion Number:
Filing Date: May 29, 2013
NO. 31,558

STATE OF NEW MEXICO,
Plaintiff-A ppellant,

V.

SHAWN'T. REDD,
Defendant-A ppellee.

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

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

for Appellant

Paul Kennedy & Associates
Paul J. Kennedy

Ame 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 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.

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{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

3
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 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.

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{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

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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

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hundred unlabeled hard 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

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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

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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 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

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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

10
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 commingled with other hard

11
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

12
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

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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 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.

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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

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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. 	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

16
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

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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. 	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

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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

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(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

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witness. An initial statement to investigators made 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.

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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

22
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, 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,

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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,

24
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 instruction explaining the circumstances of the lost
recording. However, in its order granting the motion to dismiss, the district court did

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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, 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. 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

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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:

JONATHANB. SUTIN, Judge

CYNTHIA A. FRY, Judge

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