## Facts

- Christopher K. Espiritu previously had a brief dating/sexual relationship with the complainant.
- On December 4, 2002, the complainant went home with Derek Liburd and had sex.
- A motion detector light activated; the complainant then saw Espiritu outside with a gun.
- Liburd struggled with Espiritu and ran upstairs.
- The complainant testified Espiritu held a gun to her cheek and threatened that she would die and that they would both die.
- During the police investigation, the complainant showed officers four text messages on her phone that she said were from Espiritu.
- By trial about two years later, the complainant no longer had the phone, had ended her cell service, and no printout of the messages existed.
- Over a defense best-evidence objection, the trial court admitted the complainant’s testimony describing the contents of the text messages.

## Issues

1. Whether the complainant’s oral testimony about the contents of purported text messages was inadmissible under the best-evidence rule absent production of the phone or a printout.
2. Whether the prosecutor misstated the law on attempted murder’s intent element in closing argument and, if so, whether the trial court’s failure to correct the misstatement required reversal.
3. Whether any reversible error affected all counts or only the attempted-murder-related counts.

## Decision

- The Hawaiʻi Supreme Court affirmed the admission of the complainant’s testimony about the text messages as permissible secondary evidence.
- The court held that text messages are “writings” for best-evidence purposes, but secondary evidence was admissible because the originals were unavailable without bad faith by the State.
- The court vacated the convictions for attempted second-degree murder (Count 1) and carrying/using a firearm in the commission of a separate felony (Count 2).
- The court ordered a new trial on Counts 1 and 2 because the prosecutor’s misstatement of the law on intent in closing argument, left uncorrected by the court, created a substantial risk the jury applied an erroneous legal standard.
- The conviction for place to keep a firearm (Count 3) was left intact.

## Legal Principles

- Electronic text messages qualify as “writings” subject to the best-evidence rule.
- When an original writing is lost or unavailable without bad faith by the proponent, other evidence of the writing’s contents may be admitted under the rule permitting secondary evidence.
- A prosecutor’s misstatement of law on a material element during closing argument can require reversal when the trial court does not adequately cure the error and there is a reasonable possibility the jury convicted under an incorrect standard.
- When a tainted conviction is the predicate felony for a related firearm offense, the related firearm conviction may also be vacated.

## Conclusion

The court permitted secondary evidence of unavailable text messages under the best-evidence rule but vacated and remanded for a new trial on attempted murder and the related firearm count because an uncorrected prosecutorial misstatement of the intent element created a significant risk of a legally improper verdict.


State v. Espiritu, 176 P.3d 885 (Haw. 2008)