☢ test - Í

authenticated an unsigned copy of the affidavit that he presented to the judge in order to obtain the search warrant for Appellant's house and testified that he specifically remembered being sworn in by the judge, signing the original affidavit while in the judge's presence, and seeing the judge sign the original affidavit. Furthermore, the top of the search warrant, which was signed by the judge, states that the attesting officer made the affidavit before the judge.”). Brinkley v. State, 301 Ga.App. 827, 689 S.E.2d 116 (December 31, 2009). Trial court erred in considering secondary evidence of defendant’s prior conviction in aggravation of sentence, absent showing of unavailability of certified copy of original under best evidence rule. State here sought to prove defendant’s prior guilty plea to second degree murder in Maryland through the testimony of the ADA who handled the prosecution and through “three exhibits allegedly relating to the Maryland case: an uncertified copy of the indictment; a document entitled ‘State's Version of Offense that had been prepared by the Maryland district attorney's office ‘primarily for parole purposes so that ... the parole authority would have information concerning the offense rather than just the title of the offense’; and a computer print-out of the purported case procedural history.” The Georgia prosecutor explained that no certified copy of the Maryland conviction was available because “the actual records were destroyed by a private records retention company;” but no evidence was presented to substantiate that contention. “[T]he state can introduce secondary documentary evidence or parol testimony to prove the prior conviction, if the state shows that the original record of the conviction was lost, destroyed, or inaccessible and cannot be produced despite the state's exercise of due diligence. See, e. g., Lumley v. State, 280 Ga.App. 82, 82-83 (633 S.E.2d 413) (2006); Summerour v. State, 211 Ga.App. 65, 66(1) (438 S.E.2d 176) (1993). See also OCGA §§ 24-5-2 (‘In order to admit secondary evidence, it shall appear that the primary evidence for some sufficient cause is not accessible to the diligence of the party.’); 24-5-4(a) (‘The best evidence which exists of a writing sought to be proved shall be produced, unless its absence shall be satisfactorily accounted for.’).” Here, however, “the state failed to present any competent evidence that the original record of the prior conviction had been destroyed and that a certified copy of it could not be obtained despite the due diligence of the state. Compare Roberts v. State, 282 Ga. 548, 553(11) (651 S.E.2d 689) (2007); Summerour, 211 Ga.App. at 66(1). The trial court therefore erred in ruling that the state could use secondary documentary evidence to prove the prior conviction in lieu of a certified copy of the original record.” Mayberry v. State, 301 Ga.App. 503, 687 S.E.2d 893 (November 23, 2009). At defendant’s trial for kidnapping with injury, aggravated sodomy, and related offenses, no ineffective assistance where defense counsel didn’t make a best evidence objection as to sexually violent song lyrics found in defendant’s car “because he cannot show prejudice. He failed to prove that if his attorney had made the objection, the State could not have introduced the original lyrics.” Smith v. State, 294 Ga.App. 692, 670 S.E.2d 191 (November 19, 2008). Witness’s testimony about contents of letters didn’t violate best evidence rule. “The ‘best evidence rule applies only ... where the contents of the writings are in issue.’ Pryor v. State, 238 Ga. 698, 707(9) (234 S.E.2d 918) (1977), overruled on other grounds in Drinkard v. Walker, 281 Ga. 211, 217 (636 S.E.2d 530) (2006) and overruled on other grounds, Montes v. State, 262 Ga. 473, 474-475 (421 S.E.2d 710) (1992). Here, there was no contest concerning the contents of the letter.” Roberts v. State, 282 Ga. 548, 651 S.E.2d 689 (October 9, 2007). No best evidence violation, as absence of the original writing was satisfactorily explained. “In the present case, the State presented evidence that the original of the letter was lost during a relocation of the district attorney’s office, and authenticated the photocopy with the testimony of the deputy who had intercepted and read the original letter.” Lumley v. State, 280 Ga.App. 82, 633 S.E.2d 413 (June 22, 2006). Defendant’s DUI conviction reversed; trial court erred in denying defendant’s best evidence objection to the copy of the intoxilyzer report tendered into evidence. “Under OCGA § 24-5-4(a), ‘[t]he best evidence which exists of a writing sought to be proved shall be produced, unless its absence shall be satisfactorily accounted for.’ ‘When a writing is lost, destroyed, or inaccessible, the party who desires to offer the contents of such writing, must account for his inability to produce it despite the exercise of due diligence.’ Eley v. State, 266 Ga.App. 45, 49(4) (596 S.E.2d 660) (2004). Moreover, ‘[m]erely asserting the loss, without showing diligence in attempting to provide the writing, will not do.’ (Punctuation omitted.) Id. Here, the State provided no evidence to explain the absence of the original intoxilyzer printout. And the prosecutor apparently made no effort – much less a diligent one – to ascertain the original’s whereabouts. Under these circumstances, the trial court erred in admitting the copy of the report over objection. See Garrett v. State, 156 Ga.App. 33(2) (274 S.E.2d 80) (1980) (‘Since there is no evidence whatsoever accounting for the absence of the original ... the trial court erred in admitting [the photostatic copy].’). And, other than the copy of the report, there was no competent evidence admitted to establish Lumley’s blood-alcohol content. [Cit.]”