dissenting with separate opinion.
I respectfully dissent. The trial court determined that the cumulative effect of the missing instrumentality alleged to have been used in Durrett's act (the van), the missing alleged victim, and the unavailability of the lead investigating officer endangered Durrett's fundamental due process rights. I fail to see how we are in a position to determine that the trial court's decision "is clearly against the logic and effect of the facts and cireumstances," which is the standard we must apply when reviewing the trial court's dismissal. State v. Fettig, 884 N.E.2d 341, 343 (Ind.Ct.App.2008), reh'g denied.
The investigating police officer determined that it was necessary to impound the van for investigation, but then permitted the van to be sold months later. The majority has concluded that "even if the van was available, it would not tend to establish Durrett's innocence." Op. at 454. In my opinion, that is merely speculation. Without the van, we cannot ascertain what may or may not be confirmed by its condition after the incident. If the condition of the van was to discredit a material witness' account of the events, the trier of fact may also find reason to discredit other testimony by that same witness. Moreover, Dur-rett's counsel never had the opportunity to inspect the van as it was sold for parts prior to criminal charges being filed against her.
As for Uphold, not only was the State unable to locate her at the time of the trial, but she also failed to appear for a scheduled deposition. Undoubtedly, Uphold has a perspective of the incident that no other witness shares. It is possible that her testimony would demonstrate that the driver of the van would not have been able to see her when she was struck.
*458Finally, Officer Pulfer likely knows more about the versions of events given by the witnesses at the time of the incident than anyone else. Without his testimony it will be difficult, if not impossible, for Durrett's counsel to ascertain whether a witness' testimony at trial is significantly different then their account shortly after the incident.
Can we be certain that Durrett would have developed exculpatory evidence from the van, the alleged victim, or Officer Pul-fer? No. But for the same reason, we can only speculate that she would not, and, therefore, I cannot agree that the trial court's dismissal was clearly against the logic and effects of the facts and circumstances.