dissenting.
Because the admission into evidence of the police sketch copies in this case violated the best evidence rule of former OCGA § 24-5-4 (a),15 and because the erroneous admission of the copies likely contributed to the jury’s verdict under the circumstances of this case, I *296cannot agree with the majority’s conclusion that any error in the admission of the sketch copies was harmless. I therefore must respectfully dissent.16
As an initial matter, I disagree with the majority that the question “whether a police pencil sketch is a ‘writing’ under the old best evidence rule is a close [one]” (Maj. Op. at 289) such that it is not clear whether or not the trial court erred in admitting the police sketch copies into evidence in violation of best evidence rule of former OCGA § 24-5-4 (a).17 In order to conclude that the former best evidence rule has no application to the police sketch copies here, we would have to accept the unreasonable proposition that police sketches are more akin to “photographs” than “writings.” Compare Smith v. State, 236 Ga. 5 (2) (222 SE2d 357) (1976) (best evidence rule was not applicable to photograph of police lineup) with People v. Garcia, 201 Cal. App. 3d 324 (1988) (police sketch was a “writing” for purposes of the best evidence rule, but color copy of sketch was nevertheless admissible at trial based on California statutes modeled after Federal Rules of Evidence). Indeed, as the majority correctly concedes, “a [police] sketch, like a handwritten document, is produced by a writing implement and is based on [a sketch] artist’s subjective interpretation of information supplied to the artist as she draws on the page.” (Emphasis supplied.) Maj. Op. at 289. In other words, a person actually has to write something down in order to create the sketch. With respect to a photograph, on the other hand, one obviously need not “write” anything down to produce it, as a photograph is a direct image captured by a mechanical device that is created entirely *297independently of any writing implement being placed on a page by one’s hand. For these reasons, I do not believe that it can be stated in any reasonable way that a sketch is more like a “photograph” than a “writing” under former OCGA § 24-5-4 (a). This is especially true where, as here, the statute itself does not specifically limit or define the meaning of the term “writing.”18 Slakman v. Continental Cas. Co., 277 Ga. 189, 191 (587 SE2d 24) (2003). (“[Fjundamental rules of statutory construction ... require us to construe a statute according to its terms [and] to give words their plain and ordinary meaning”); Allen v. Wright, 282 Ga. 9, 12 (1) (644 SE2d 814) (2007) (“This Court may construe statutes to avoid absurd results.”).
Furthermore, contrary to the majority’s concerted effort to portray the erroneous admission of the police sketch copies as harmless due to the supposedly “overwhelming” evidence of guilt in this case, a straightforward review of the close nature of the evidence here19 reveals that it is simply not the case that “it is highly probable that the error [in admitting the sketch copies] did not contribute to the verdict.” (Emphasis supplied.) Lindsey v. State, 282 Ga. 447, 450 (651 SE2d 66) (2007). The case against Boothe was entirely circumstantial, and, as explained more fully below, while the circumstantial evidence was certainly sufficient to sustain Boothe’s convictions, a de novo review of the evidence reveals that it was by no means overwhelming such that it would have rendered harmless the erroneous admission of the police sketch copies here. See, e.g., Littles v. State, 236 Ga. 651 (4) (224 SE2d 918) (1976).
The record reveals that Gertsch, the State’s only witness who saw two men near the victim’s home on the night of the murder, did not identify Boothe at trial as one of the men whom she saw, but only testified that she was confident at the time that she gave her description of the two men to the police that the sketches looked like the men whom she saw. Accordingly, regardless of whether or not the *298police sketch of the Caucasian male at the scene looked exactly like Boothe, because Gertsch herself could not identify Boothe at trial as one of the perpetrators, it was reasonable for the jury to conclude that the sketch itself was the most detailed physical description available to it that could be analyzed to determine whether Boothe was one of the men at the scene of the crime on the evening that the victim was murdered. In this sense, it cannot be assumed, as the majority has done, that “the sketches of the two men Gertsch saw in the vicinity of the crime scene were not important inculpatory evidence at trial.” If anything, where, as here, the State’s main witness could not provide a consistent description of Boothe on her own, it would only become more likely, rather than less likely, that the jury would consider the sketch of a Caucasian male seen on a dark night to be another important link connecting Boothe to the crime. Indeed, the sketches represented Gertsch’s recollection of the appearance of the two individuals whom she saw at a time when their appearance was freshest in her mind. Thus, her inability to provide a consistent description of Boothe at trial at a much later time may have only made it more reasonable, rather than less so, for the jury to thoroughly consider any details in the sketch of the Caucasian male itself that may have shown that Boothe was the man depicted therein.20
In this connection, without the improperly admitted sketch copies, the only evidence that could have connected Boothe directly to the murder scene was the circumstantial evidence of one strand of hair on a mask found on Halloween night outside of the home (that had also been handled by a firefighter and placed on a utility box before being collected as evidence) and his nDNA being found inside *299the blue latex glove that was trapped within the bandages that were binding the victim’s face. And, with respect to that evidence, although it definitely made Boothe’s presence at the house on the night of the murder more likely, it did not automatically place Boothe at the victim’s home at that time, as other testimony revealed that Boothe had been to the victim’s home on several occasions to do repair work and painting, and that he used latex gloves at the house in connection with his work.21 In light of these other explanations being given for Boothe’s DNAbeing at the victim’s home, the importance of the police sketch as another means of connecting Boothe to the murder scene only becomes more pronounced. While I would completely agree with the majority that, even without the sketch copies, the circumstantial evidence was sufficient to sustain the convictions — and I obviously do not (and need not) imply in any way that Boothe would have been automatically “acquitted” if the sketch copies had not been admitted into evidence — I simply do not believe that, based on a plain reading of the evidence in this case, “it is highly probable that the error [in admitting the sketch copies] did not contribute to the verdict.” (Emphasis supplied.) Lindsey, supra, 282 Ga. at 450. Accordingly, I believe that the admission of the copies of the police sketches in violation of the best evidence rule of former OCGA § 24-5-4 (a) amounted to reversible error here, and Boothe is entitled to a new trial.
I am authorized to state that Justice Benham joins in this dissent.
*300Decided July 1, 2013. Stanley W. Schoolcraft III, for appellant. Tracy Graham-Lawson, District Attorney, Frances C. Kuo, Jason B. Green, Kathryn L. Powers, Elizabeth A. Baker, Assistant District Attorneys, Samuel S. Olens, Attorney General, PaulaK Smith, Senior Assistant Attorney General, Andrew G. Sims, Assistant Attorney General, for appellee.As the majority correctly acknowledges, because this case was tried before January 1, 2013, our new Evidence Code does not apply. See Ga. L. 2011, pp. 99, 214, § 101. Under our new Evidence Code, the ‘best evidence rule” has been modified to allow for the admission into evidence of duplicates consistent with the Federal Rules of Evidence. Fed. R. Evid. 1003. Indeed, assuming without deciding that a police sketch would qualify as a “writing” subject to the best evidence rule under the new Evidence Code (see current OCGA § 24-10-1001 (lj), “[a] duplicate shall be admissible to the same extent as an original unless: (1) A genuine question is raised as to the authenticity of the original; or (2) A circumstance exists where it would be unfair to admit the duplicate in lieu of the original.” OCGA § 24-10-1003.
Although I believe that Boothe’s conviction must be reversed under the state of the law as it existed at the time that Boothe was tried and found guilty, I must emphasize that, in light of the fact that any retrial of Boothe would take place after January 1,2013, his new trial would be subject to the new Evidence Code under which there may very well be no error here at all.
As the majority correctly notes, pursuant to former 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.” In this regard, when secondary evidence such as a copy of a writing is introduced, “[t]he function of the trial court is not to determine the worthiness or credibility of the secondary evidence, but is only to determine whether what is offered as evidence is the best form accessible to the court.” (Citation omitted.) Mulkey v. State, 155 Ga. App. 304, 307 (270 SE2d 816) (1980). Here, the “writing” at issue consists oí two police sketches, and, it is undisputed that the State did nothing to account for the whereabouts of the original sketches when it introduced the copies of them at trial. Regardless of the credibility of the sketch copies themselves, the existence of original sketches would indicate that the copies were not the best form of evidence available to the trial court. Accordingly, under former OCGA § 24-5-4 (a), the trial court erred in admitting into evidence copies of the police sketches here when the State did not do anything to account for the whereabouts of the original sketches, if indeed the sketches themselves qualify as “writings” under former OCGA § 24-5-4 (a). See id. (“The best evidence which exists of a writing sought to be proved shall be produced, unless its absence shall be satisfactorily accounted fori') (emphasis supplied).
I note that my analysis here has nothing to do with whether or not a police sketch constitutes a “writing” for purposes of our new Evidence Code, as the new Code specifically defines “writing” or “recording” as “letters, words, or numbers, or their equivalent, set down by handwriting, typewriting, printing, photostating, magnetic impulse, or mechanical or electronic recording or other form of data compilation.” OCGA § 24-10-1001 (1).
The close nature of the evidence is perhaps underscored by the fact that the jury in Boothe’s first trial seemed to struggle to reach a verdict. Indeed, Boothe was originally indicted for malice murder; three counts of felony murder (with burglary, robbery, and arson as the underlying felonies); three counts of burglary; and one count each of robbery, aggravated assault, arson, false imprisonment, and kidnapping. Prior to his first trial, a nolle prosequi was entered with respect to the felony murder count based on robbery, one of the burglary counts, and the robbery count. And, at his first trial, the trial court directed a verdict in Boothe’s favor on the kidnapping charge, and the jury acquitted Boothe of aggravated assault and arson. The jury could not reach a verdict on the remaining counts, and a mistrial was declared.
The majority is incorrect in its conclusion that a comparison of Boothe’s driver’s license photo to the sketch copy of the Caucasian male would “at best.. . serve[ ] only to not exclude [Boothe] as a potential perpetrator.” Maj. Op. at 290. Specifically, the majority argues that, because Boothe’s September 21, 2007, driver’s license photograph “shows that [Boothe] is a white man who, in the time period of the crimes, had long dark brown or black hair, a thick mustache, and a beard” (Maj. Op. at 290 (emphasis supplied)), and because the police sketch copy depicts a “white man with long, straight, sandy-brown hair and no mustache” (Id.), the sketch copy would “at best... serve[ ] only to not exclude [Boothe] as a potential perpetrator, to the extent he is a white man who had long hair.” The majority’s analysis, however, is flawed. For one thing, the driver’s license photo represents the defendant as he appeared over a month before the crime took place, and the majority completely discounts the fact that men can, and in fact often do, shave. I do not believe that reasonable jurors would ignore this fact as the majority has. The reasonable thing for the jury to have done would have been to compare the driver’s license photo to the sketch copy to try to figure out what Boothe would have looked like without a mustache and beard. Finally, because the witness who helped the police to create the sketch only saw the white perpetrator at night and could not give entirely consistent accounts of his appearance, it would not have been unreasonable for the jury to conclude that the sketch copy represented the best depiction of Boothe that could have been created under the circumstances. Accordingly, the majority’s conclusion that the sketch “at best... served only to not exclude [Boothe] as a potential perpetrator” is unpersuasive.
Much of this testimony concerned work that Boothe had apparently done at the victim’s home in 2005 and 2006. However, the record does not show definitively that Boothe ceased working at the victim’s home after that time period and did not work at her home closer to the date of the murder. Indeed, when Boothe’s work partner was asked directly about whether Boothe had worked with him at the victim’s home outside of 2005 and 2006, he stated, without limiting his testimony to specific dates, that there were indeed “other times” that Boothe had gone to the home with him to work on the victim’s car and do painting and other remodeling work at her house. This witness also did not “know” whether Boothe worked at the victim’s home after 2006, which left open the question whether Boothe could have worked at the victim’s home of his own accord closer to the date of the murder. Although the majority would seek to limit the time period in which Boothe may have worked at the victim’s home to sometime before mid-2007, doing so, at best, requires the majority to make unwarranted assumptions that do not represent the fairest reading of the record, and, at worst, requires the majority to erroneously “assum[e] that [the jury] took the most pro-guilt possible view of every bit of evidence in the case.”Maj. Op. at 289. Indeed, even though the jury was authorized to conclude that Boothe did not work at the victim’s home closer to the date of the murder, which would have made it less likely for his uncorrupted DNA samples to be found at the crime scene had he not been involved in the murder, it can just as easily be said that Boothe did continue to work at the victim’s home on his own closer to the time of the murder, which could have allowed the jurors to conclude that a reasonable explanation existed for his DNA to be present at the crime scene outside of the reasons given by the State. Thus, at a minimum, to the extent that the question remained open regarding Boothe’s continued presence at the victim’s home to do handyman work there, the physical depiction of a Caucasian perpetrator as shown in the copy of the police sketch would only become more likely to contribute to the jury’s deliberations.