(concurring in part and dissenting in part).
[¶ 54.] I concur on Issue 1 but dissent on Issues 2, 3 and 4 because the cumulative error created by the trial court’s rulings on those issues warrants remand to provide Engesser with a fair trial.
ISSUE 2
[¶ 55.] THE TRIAL COURT ABUSED ITS DISCRETION IN ALLOWING THE STATE TO ELICIT STATEMENTS FROM TROOPER FOX THAT THE DEFENDANT WAS LYING.
[¶ 56.] I agree with the majority opinion that Engesser failed to raise his character and reputation objections at trial and therefore waived them on appeal. However,’the majority errs in ending the analysis with this conclusion because En-gesser also raised and properly preserved his objections as to relevance, prejudice, and ultimate issue. Because it was highly prejudicial to allow the State to elicit the Trooper’s opinion that Engesser was lying, the trial court should have excluded the testimony.
[¶ 57.] SDCL 19-12-1, and its counterpart, Rule 401 of the Federal Rules of Evidence (FRE 401), provide that relevant evidence is “evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” Among the Defendant’s statements referred to by Fox was Engesser’s assertion that he was not driving the car. This statement summed up a primary argument by the Defendant at trial. Thus, evidence that the statement was untrue is arguably probative of the issue of guilt and we will assume it was relevant for the purpose of argument. However, even assuming the testimony was relevant, “evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice[.]” SDCL 19-12-3; See also FRE 403.
[¶ 58.] Under SDCL 19-12-3, the trial court may exclude evidence if that evidence, “would provide the jury with an undue tendency to decide the case on an improper basis.” Shamburger v. Behrens, 380 N.W.2d 659, 661 (S.D.1986) (citing State v. Dunton, 396 A.2d 1001 (Me.1979)). The term “prejudice” in this statute “does not mean damage to the opponent’s case that results from the legitimate probative force of the evidence; rather, it refers to the unfair advantage that results from the capacity of the evidence to persuade by illegitimate means.” State v. Holland, 346 N.W.2d 302, 309 (S.D.1984) (citations omitted). Therefore, the simple fact that the *757statements were harmful to the Defendant does not necessarily mean they are unfairly prejudicial. State v. Brings Plenty, 459 N.W.2d 390, 399 (S.D.1990). The language of the rule itself must be kept firmly in mind, the prejudice must substantially outweigh the probative value of the evidence, and the burden is on the opponent to make this showing.
[¶ 59.] We have consistently held that, “it is the function of the jury to resolve evidentiary conflicts, determine the credibility of witnesses, and weigh the evidence.” State v. Raymond, 540 N.W.2d 407, 409-10 (S.D.1995) (quoting State v. Svihl, 490 N.W.2d 269, 274 (S.D.1992) (additional citation omitted)). Generally, “one witness may not testify as to another witness’ credibility or truth telling capacity because such testimony would invade the exclusive province of the jury to determine the credibility of a witness.” McCafferty v. Solem, 449 N.W.2d 590, 592 (S.D.1989).
[¶ 60.] The trial court abused its discretion in allowing this testimony over the objection of prejudice. It is the province of the jury, not the trooper, to ascertain the truth and credibility of Defendant’s statements in the interview. Fox’s testimony took the ultimate question of who was driving at the time of the accident out of the jury’s hands. Further, the tenor of Fox’s testimony indicated that he had specialized knowledge that would give him a greater ability to judge truthfulness than an ordinary person. Specifically, he based his opinions as to the Defendant’s veracity upon his “experience interviewing people.” His statements and the manner in which they were presented gave him “an aura of expertise” that improperly implied to the jury that he spoke the truth of the matter. Raymond, 540 N.W.2d at 410 (stating, “expert testimony particularly courts the [danger of undue prejudice or of confusing the issues or misleading the jury] because of its aura of special reliability and trustworthiness”) (citations omitted). See also, Bowles v. Florida, 381 So.2d 326, 328 (1980) (noting, “[p]olice officers, by virtue of their positions, rightfully bring with their testimony an air of authority and legitimacy. A jury is inclined to give great weight to their opinions as officers of the law”).
[¶ 61.] South Dakota has abolished the ultimate 'issue rule and instead has adopted SDCL 19-15-4, which coincides with FRE 704. The statute provides, “[t]estimony in the form of an opinion or inference otherwise admissible is not objectionable because it embraces an ultimate issue to be decided by the trier of fact.” SDCL 19-15-4. However, in order for such testimony to be admissible it must be relevant and it must help the trier of fact understand the evidence or decide the issues. State v. Guthrie, 2001 SD 61, ¶ 32, 627 N.W.2d 401, 415. Further, “[o]pinions merely telling a jury what result to reach are impermissible as intrusive, notwithstanding the repeal of the ultimate issue rule.” Guthrie, 2001 SD 61, ¶33, 627 N.W.2d at 416 (citation omitted). Although the State did not ask Fox to testify directly as to Engesser’s guilt or innocence, the State did ask whether Engesser was lying. Given that the primary issue in this case was Engesser’s truthfulness regarding the identity of the driver that night, the testimony wrongfully invaded the duty and the province of the jury to determine Enges-ser’s guilt or innocence. These things taken together prejudiced the Defendant’s right to a fair trial.
ISS UE 3
[¶ 62.] THE TRIAL COURT ABUSED ITS DISCRETION BY HOLDING THE EXCULPATORY HEARSAY INADMISSIBLE.
[¶ 63.] The trial court found the hearsay testimony inadmissible based on the following factors:
*7581) the affidavit submitted by the civil attorney did not state the time at which the declarant claimed to have seen Finley drive away from the saloon;
2) the proponent was offering the testimony through an attorney for the Defendant;
3) the statement was made by a felon in flight;
4) the statement was unreliable in that it stated that Finley seldom let others drive her car but the Defendant had already admitted he had driven the car earlier on the day of the accident;
5) the statement would come in without the opportunity for the State to cross-examine it;
6) the statement came through a phone call between declarant and witness rather than a face-to-face meeting.
[¶ 64.] The factors that the trial court relied on to exclude this testimony went to the weight of the evidence rather than to its admissibility. First, the fact that there was no indication in the statement as to the time the declarant saw the Defendant and Finley leave the bar simply put the matter of timing to the jury as a question of fact. The determination of time was solely for the jury and a necessary factor for the jury to consider in deciding the value or weight of the testimony. Second, the attorney is an officer of the court who is oath-bound not to commit perjury. There is no indication in the record that he lacked either the ability or the willingness to tell the truth.
[¶ 65.] The third factor the court relied upon, that the statement was made by a felon in flight, was also an issue of weight rather than admissibility. The State would have had ample opportunity to present evidence that the declarant was a felon in flight and the information would have allowed the jury to weigh the credibility of his statement. The fourth factor, that the State would have no opportunity to cross-examine the statement, is equally a question of weight. The State could have brought in witnesses to testify regarding the declarant’s credibility, could have presented evidence that the witness was an attorney for the Defendant and it did introduce Engesser’s statements as to the time he and Finley left the bar and his admission that he had previously driven the car.
[¶ 66.] There were certain “circumstantial guarantees of trustworthiness.” First, the testimony was based on the attorney’s notes taken contemporaneously with the conversation. This information was delivered to the State’s Attorney’s office immediately with a request to investigate the statement. The information was forwarded to the State’s Attorney’s office before criminal charges were even filed. The fact that the State did not follow up with an interview of the declarant does not make the statement less trustworthy. The fact that the attorney forwarded it to the State is an indication of his good faith in coming forward with the evidence at trial.
[¶ 67.] Second, the statement was offered as evidence of two material facts: 1) who was driving that evening, and 2) the habit of Finley to rarely let others drive her car. SDCL 19-16-35(1).
[¶ 68.] Third, Engesser argues, and the record supports that he was unable to secure other, more probative evidence of who was driving that evening, satisfying SDCL 19-16-35(2).
[¶ 69.] Fourth, the general purpose of the rules of evidence is to allow the jury to hear all relevant evidence and to fully inform the jury as to the material issues presented for trial. The jury was perfectly capable of taking into account all of the arguments expressed by the trial court *759and the State was free to assert those arguments.
[¶ 70.] Fifth, notice of intent to offer the evidence was given.
[f 71.] Sixth, the character of the statement is extremely important. Quite clearly, this was potentially exculpatory evidence which the jury should have had the opportunity to weigh against the case presented by the State. There is no indication in the record of an illegitimate motive of the declarant, nor is there an indication of any prior relationship between declarant and witness to color the testimony in any prejudicial manner. This testimony should have been admitted. The court abused its discretion in denying admission of the testimony. This denial also prejudiced the Defendant’s right to a fair trial.
ISSUE 4
[¶ 72,] THE TRIAL COURT ABUSED ITS DISCRETION IN FAILING TO GIVE INSTRUCTIONS ON DUTY TO PRESERVE AND SPOLIATION OF EVIDENCE.
[¶ 73.] It is well established that “[a] criminal defendant is entitled to an instruction on his theory of the case when evidence exists to support his theory.” State v. Charles, 2001 SD 67, ¶ 19, 628 N.W.2d 734, 738 (citing State v. Charger, 2000 SD 70, ¶ 40, 611 N.W.2d 221, 229). Jury instructions are adequate when “they give the full and correct statement of the law applicable to the case.” State v. McVay, 2000 SD 72, ¶ 18, 612 N.W.2d 572, 576 (citation omitted). Although errors in instructing the jury do not invariably rise to a constitutional level, “if the error goes to the heart of a defendant’s theory of defense it can infringe upon defendant’s rights to due process and jury trial.” Miller v. State, 338 N.W.2d 673, 676 (S.D.1983) (citing Zemina v. Solem, 438 F.Supp. 455 (D.S.D.1977) aff'd, 573 F.2d 1027 (8th Cir.1978)). When there is evidence to support a criminal defendant’s theory of the case, he or she is entitled to an instruction on the theory. Charger, 2000 SD 70, ¶ 40, 611 N.W.2d at 229. Applying this analysis, we should hold that it was abuse of discretion to refuse to give the proposed instructions.
[¶ 74.] We have held that spoliation of evidence creates an inference or presumption that the evidence would not have supported the charges against the defendant. State v. Kietzke, 85 S.D. 502, 515, 186 N.W.2d 551, 558 (1971) (citing 22A CJS Criminal Law § 596, at page 377; State v. Oster, 232 Or. 396, 376 P.2d 87; People v. Foreman, 112 Cal.App.2d 616, 246 P.2d 979; Bruck v. State, 244 Ind. 466, 193 N.E.2d 491; United States v. Remington, 191 F.2d 246 (2nd Cir.1951), cert. denied, 343 U.S. 907, 72 S.Ct. 580, 96 L.Ed. 1325; Wigmore on Evidence, 3rd Edition, § 291). See also State v. Johnson, 509 N.W.2d 681, 687 (S.D.1993) (quoting Kietzke and stating, “[ejvidence which is destroyed before it is inventoried or chemically analyzed (spoliation [sic] of the evidence) ‘creates an inference or presumption that it would not have supported the charges against the defendant.’ ”)
[¶ 75.] The theory of the defense was that Engesser was not driving the car at the time of the accident. Because both occupants of the car had injuries resulting in bleeding, there may have been blood or other trace evidence in the car that could have supported this theory. Any such evidence may have been destroyed by the State’s failure to protect it from degradation. The State’s expert testified,
its my understanding that the initial impact in an automobile is where trace evidence of significance can be interpreted, that is the deposition of that trace *760evidence, it can be correlated back to where the occupants were.
Three weeks had elapsed since the accident by the time the State’s expert arrived to look at the vehicle. Throughout that time, the car was exposed to the elements which may have destroyed the viability of any blood or trace evidence within the car. The expert testified that proper preservation of the evidence would have been to store it in a place protected from the elements. He further testified that his decision not to test the blood evidence was based at least in part upon the failure to preserve the evidence.
[¶ 76.] The State’s primary objection to these jury instructions was that they would be tantamount to directing a verdict for the Defendant. By its own words, the State acknowledges that failure to give the instructions probably would have led the jury to a different verdict. Under these circumstances, denial of the instructions substantially prejudiced the Defendant’s right to a fair trial.
[¶ 77.] Here, there was degradation of potentially exculpatory evidence because the State failed to take the smallest steps to preserve that evidence. Despite the fact that Defendant was prejudiced by the State’s inaction, the majority not only affirms the trial court’s decision to deny the spoliation instruction, but would make it nearly impossible for a criminal defendant to ever be entitled to an instruction regarding adverse inferences. The majority relies on Arizona v. Youngblood and several state court decisions stemming from Youngblood to hold that absent intentional and bad faith destruction of evidence by the State, a defendant is not entitled to an instruction for spoliation. That simply ignores the State’s affirmative duty to preserve evidence. Such a bright line rule essentially prohibiting an instruction on spoliation goes beyond even what the United States Supreme Court held in Youngblood.10
[¶ 78.] As a threshold matter, the majority’s determination that the failure to preserve the evidence was unintentional is not supported by the record. Trooper Fox indicated that he was well aware of the potential evidentiary value of blood splatter in the vehicle. Despite this awareness, Trooper Fox made the conscious decision to leave the vehicle out of doors and exposed to the elements. Moreover, the fact that Trooper Fox was not motivated by a desire to destroy evidence should not be the only determinative factor. Rather, the Court should at least consider the trooper’s knowledge that exposure to the elements would destroy evidence and the minimal amount of effort it would have taken for the State to preserve the evidence. Furthermore, the State forensic expert’s testimony that “no evidentiary value existed in the form of biological evidence” is based on his evaluation which occurred after the car had been exposed to the elements for three weeks and thus does not support the majority’s position that the Defendant has shown no prejudice.
[¶ 79.] The majority’s determination that a criminal defendant must prove bad faith destruction of evidence to be entitled to an instruction on spoliation is not in accord with due process. This Court has consistently held that the State has a duty to preserve and hand over to the defen*761dant evidence gathered in the course of an investigation when that evidence is material either to guilt or punishment. See e.g. State v. Lyerla, 424 N.W.2d 908, 910 (S.D.1988) (citations omitted). The prosecution’s good or bad faith is irrelevant to that duty. Id. It violates principles of fundamental fairness to impose upon the defendant this added burden of proving bad faith when the State fails to preserve potentially exculpatory evidence. This is particularly true in a case such as this where the State’s burden to preserve the evidence is so slight. Simply throwing a tarp over the top of the vehicle or parking it in an enclosed area could have preserved some or all of the evidence. The State failed to do even this, and that failure removed a possible defense. When the State’s negligence directly affects such a crucial piece of evidence, the defendant should be entitled to some remedial sanction by the trial court.
[¶ 80.] Other state courts have declined to adopt the bad faith standard of Young-blood and this Court should follow suit. For example, the Supreme Court of Alaska pointed out “The Youngblood decision could have the unfortunate effect of encouraging the destruction of evidence to the extent that evidence destroyed becomes merely ‘potentially useful’ since its contents would be unprovable.” Thorne v. Dept. of Public Safety, 774 P.2d 1826, 1381 (1989). See also, Torres v. State, 962 P.2d 3 (1998); Lolly v. State, 611 A.2d 956, 960 (Del.1992); Commonwealth v. Henderson, 411 Mass. 309, 582 N.E.2d 496, 497 (1991). Furthermore, as Justice Stevens pointed out in his concurring opinion in Young-blood, there may be cases “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.” 488 U.S. at 61, 109 S.Ct. at 339, 102 L.Ed.2d at 291.
[¶ 81.] This bright line test is inconsistent with due process. Requiring a showing of bad faith in order to be permitted an adverse inference instruction precludes the instruction in nearly every case unless State actually admits to bad faith destruction. See e.g. Lolly, 611 A.2d at 960 (rejecting the bright line bad faith test and noting that “short of an admission by the police, it is unlikely that a defendant would ever be able to make the necessary showing to establish the required elements for proving bad faith”). Furthermore, requiring a showing of bad faith in order to receive the instruction is not entirely consistent with Youngblood. There the Supreme Court held that there was no violation of due process when the state failed to preserve evidence. However, in that case, the trial court had instructed the jury that if it found that the state lost or destroyed evidence, it could infer that the true facts were against the state’s interest. Youngblood, 488 U.S. at 60-61, 109 S.Ct. at 338, 102 L.Ed.2d at 291. In other words, the trial court in Youngblood allowed redress for the defendant where the state had failed in its duty to preserve material evidence. The Supreme Court did not hold that a defendant was not entitled to a jury instruction on spoliation absent a showing of bad faith. Rather than adopting this bright line rule for every case, this Court should allow redress for the defendant who is denied the opportunity to examine and present potentially exculpatory evidence.
[¶ 82.] The majority is imposing a specific intent requirement of bad faith. This is totally unwarranted. Spoliation of food occurs if one fails to refrigerate it. Spoliation of evidence occurs if one fails to protect it from the elements. That is exactly what happened here. There should be no requirement that a defendant prove the State spoiled evidence with specific intent to deny the defense the use of it. The defense was entitled to the instruction.
*762[¶ 83.] Due process requires that the defendant be accorded “a meaningful opportunity to present a complete defense.” California v. Trombetta, 467 U.S. 479, 485, 104 S.Ct. 2528, 2532, 81 L.Ed.2d 413, 419 (1984). The Defendant in this case was not afforded that opportunity, nor was he allowed the jury instruction which would have corrected the State’s error in failing to preserve potentially exculpatory evidence.
[¶ 84.] We have held that cumulative errors on the part of a trial court may support a holding by the reviewing court that a defendant did not receive his or her constitutionally guaranteed right to a fair trial. McDowell v. Solem, 447 N.W.2d 646 (S.D.1989). See also State v. Bennis, 457 N.W.2d 843 (S.D.1990); State v. Dokken, 385 N.W.2d 493 (S.D.1986). The question is whether, on a review of the entire record, Engesser had a fair trial. The trial court’s rulings on Issues 2, 3 and 4 constitute cumulative error in this case and this Court should remand for a fair trial.
[¶ 85.] AMUNDSON, Retired Justice, joins this dissent on Issues 2 and 4.
. In Youngblood, the Supreme Court held that "unless a criminal defendant can show bad faith on the part of the police, failure to preserve potentially useful evidence does not constitute a denial of due process of law.” 488 U.S. at 58, 109 S.Ct. at 337, 102 L.Ed.2d at 289. The Court did not address whether the defendant was entitled to an instruction on spoliation or any other redress.