Davis v. State, 285 Ga. 343, 349 (9) ( 676 SE2d 215) (2009). See also Champion v. State, 260 Ga. App. 12, 14 (2) ( 579 SE2d 35) (2003). Accordingly, Johnson's due process rights were not violated, and the ground on which he sought to exclude photographs of the baseball cap is without merit.

Pretermitting whether the open-container evidence possessed an apparent exculpatory value so as to make it constitutionally material, Monroe has not shown that the police acted in bad faith in failing to preserve it. Id. Cf. Champion v. State , 260 Ga.App. 12, 14-15 (2), 579 S.E.2d 35 (2003) (rejecting contention of accountant charged with "manipulation of deposit records" to facilitate stealing cash that lost financial records were material because they "would have shown that certain expenses were paid in cash and thereby explained the missing money"). So he has not shown that the trial court erred by allowing the officers to testify about this evidence.

It is unclear from the record if the loss of the vehicle was due to intentional conduct or if it was the result of negligence, mistakes and misunderstandings. Indeed, in the converse situation involving the loss of evidence by the state due to mistake or negligence, such action has been found not to rise to the level of bad faith. See Fincher v. State, 276 Ga. 480, 484(5), 578 S.E.2d 102 (2003) ; Brannan v. State, 275 Ga. 70, 73–74(2)(c), 561 S.E.2d 414 (2002) (vehicle impounded by state lost when towing company under contract with police released vehicle to lienholder, which repaired and resold it); Champion v. State, 260 Ga.App. 12, 14(2), 579 S.E.2d 35 (2003). Regardless, since Moceri himself did not destroy the evidence, any bad faith of others must somehow be imputed to him in order to justify the trial court's imposition of the ultimate sanction of excluding his sole defense.

Under these circumstances, the jury was authorized to find Rogers guilty of the two counts of theft by taking. See Champion v. State, 260 Ga. App. 12, 14 (1) ( 579 SE2d 35) (2003). See id.; Stack-Thorpe v. State, 270 Ga. App. 796, 802-803 (5) ( 608 SE2d 289) (2004).

In light of the trial court's ruling as well as the fact that Robbins was afforded the opportunity to cross-examine the victim at trial, we conclude that there was no error in the trial court's refusal to dismiss the case. See Champion v. State, 260 Ga. App. 12, 15 (2) ( 579 SE2d 35) (2003). Judgment affirmed. Johnson, P.J., and Ellington, J., concur.

In such cases it is not necessary that the circumstances remove every possibility of the defendant's innocence.Champion v. State, 260 Ga. App. 12, 14 ( 579 S.E.2d 35) (2003). Judgment affirmed in part and reversed in part.