(dissenting).
[¶ 36.] I dissent because 1) the State’s destruction of material evidence prejudiced Defendant and denied him his right to a fair trial and 2) the Court’s adoption and reiteration of a “bad faith” standard on the issue of spoliation is inconsistent with notions of fairness and justice.
[¶ 37.] The only material element at issue in the intentional destruction of property charge against Defendant was the amount of damage to the window frame, if any. The only evidence of this was the vehicle. Without notifying Defendant or his counsel, and with full knowledge that Defendant was being charged with felony destruction of property, the police department had the vehicle repaired, destroying any chance Defendant had to defend himself on this vital element. There is no question that this violated SDCL 23A-37-14 and -15. The photographs, as noted by the majority opinion, did not “accurately and correctly represent the property” in accord with SDCL 23A-37-14 and law enforcement failed to notify the Defendant that the property was to be repaired. SDCL 23A-37-15. The majority opinion must again rely on the bad faith requirement in order to affirm the conviction. This is fundamentally unfair.
[¶ 38.] Allowing the State to rely upon this evidence essentially places the burden on the Defendant to disprove the State’s estimate for repairs without any evidence because the State has destroyed that evidence. This is precisely the type of situation foreseen in Justice Stevens’ concurring opinion in Arizona v. Youngblood and reiterated in my dissent in State v. Engesser. This is the case “in which the defendant is unable to prove that the State acted in bad faith but in which the loss or destruction of evidence is nonetheless so critical to the defense as to make a criminal trial fundamentally unfair.” Youngblood, 488 U.S. at 61, 109 S.Ct. at 339, 102 L.Ed.2d at 291 (Stevens, Justice concurring).
[¶ 39.] The majority opinion notes that it cannot find prejudice in this case because the jury was able to weigh the testimony of Defendant’s repair person against that of the individual who actually repaired the car. This assertion bypasses the critical issue: by destroying the evidence before Defendant could get an estimate, the State took the issue of credibility and weight of evidence out of the hands of the jury. How? By creating a situation where only one witness (the State’s repair person) could possibly know the extent of the damage and the need and cost of the re*267pairs. The only thing Defendant could do was attempt to refute that evidence with pictures that failed to accurately depict the damage. What else could the jury do? It would have been unreasonable to accept the Defendant’s witness over the State’s witness because the State’s witness saw the evidence before it was repaired.
[¶ 40.] Perhaps most offensive is that the State was allowed to use Defendant’s inability to examine the evidence against him. In cross-examining the Defendant’s witness on valuation, the State asked the following series of questions:
Mr. Kosel: (Defense Attorney) Your Honor, maybe ... we’d stipulate to the fact that the State had the car fixed before the Defense even had an opportunity to have anyone else look at it.
Court: So stipulated?
State: Yeah, I’ll stipulate to that. So that would make a difference, then, in the estimates, wouldn’t it?
Witness: Yes.
State: You wouldn’t recommend that anybody come into court and give an estimate of damage without actually looking at the vehicle—
Witness: Correct
State: — would you?
Witness: No.
State: Because they might be misled themselves.
Witness: Uh-huh.
State: Okay, so in fairness, in accuracy, if you sir, having 22 years in the business, wanted to give an estimate of the damage, you’d want to see it with your own eyes.
Witness: Yes.
State: Because of the uniqueness of damage to a vehicle.
Witness: Yeah, no accident — No two accidents are the same[.]
To allow the State to intentionally damage the evidence in violation of the statute and allow the State to actually use the Defendant’s lack of access against him is intolerable. The State is benefiting from its own wrong.
[¶ 41.] Due process requires that a criminal defendant have a fair opportunity to defend against the State’s charges. Chambers % Mississippi, 410 U.S. 284, 294, 98 S.Ct. 1038, 1045, 35 L.Ed.2d 297, 308 (1973). See also State v. Lamont, 2001 SD 92, ¶ 16, 631 N.W.2d 603, 608-9(“[w]hen a defendant is denied the ability to respond to the State’s case against him, he is deprived of his fundamental constitutional right to a fair opportunity to present a defense.” (citation omitted)). This Defendant was denied the opportunity and ability to defend against this charge and for that reason, this Court should reverse the conviction for felony intentional destruction of property, and remand for a fair trial with proper instructions on the State’s duty not to destroy evidence. Engesser, 2003 SD 47, 661 N.W.2d 739 (Sabers, Justice, dissenting).