NMCA: Testimony about threatening text did not violate best evidence rule where victim’s phone could not be unlocked

Thomas Stevenson appealed his conviction for shooting into a motor vehicle. He argued that the victim’s nephew’s testimony about a threatening text that Stevenson allegedly sent to the victim was inadmissible under the best evidence rule, because the State should have offered the original text instead.

In State v. Stevenson, in a unanimous opinion by Judge Julie Vargas, the Court of Appeals held that under the exception to the rule for lost or destroyed evidence, the State showed that it had made diligent efforts to unlock the victim’s telephone, but had been unable to do so. The nephew’s testimony was therefore properly admitted.

The Court also rejected claims: (1) that the jury had received extraneous information during its deliberations, because the defendant’s evidence failed to show that any such thing occurred; (2) that the prosecution committed a Brady violation by failing to disclose that one of its witnesses had been arrested for fraud, where the defendant failed to articulate any such claim or present the evidence needed to support the claim in his motion for a new trial; and (3) that although the district court erred by excluding evidence of the victim’s prior violent acts in support of the defendant’s self-defense claim, the defendant had failed to show that he was prejudiced.

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