                                                                                                     FILED
                                                                                                COURT OF APPEALS
                                                                                                   DIVISION 1
                                                                                            21} 15 FEB 10   AM 8: 56
                                                                                            STA                 TON

      IN THE COURT OF APPEALS OF THE STATE OF WASHY

                                            DIVISION II

    STATE OF WASHINGTON,                                                  No. 45081 -0 -II


                                   Respondent,


          v.




    CORY SUNDBERG,                                                  UNPUBLISHED OPINION


                                   Appellant.


         WoRSwIcK, J. —       Cory Sundberg appeals his conviction for unlawful possession of a

controlled substance. He argues that the prosecutor committed misconduct by shifting the burden

of proof in closing argument, and by arguing that Sundberg should have called a witness.

Holding that the prosecutor committed misconduct, we reverse Sundberg' s conviction and

remand. 1

                                                 FACTS


A.       Arrest


         Sundberg lived with his elderly foster father, Wes Rider, and worked on maintenance

projects around their mobile home. Sundberg said he employed a neighbor named Paul Wood to

help with maintenance projects. To protect his clothing, Wood borrowed a pair of Sundberg' s




1
    Sundberg also argues that the trial court erred in denying his motion for a new trial. Because
                                                               do   not address   this issue.
we reverse     Sundberg' s   conviction on other grounds, we
No. 45081 -0 -II




bib overalls to perform work under a shed. The day before Sundberg' s arrest, Wood left the

jobsite and did not return the following day or any day thereafter.

           A law enforcement officer came to the mobile home and arrested Sundberg on an

outstanding warrant. On the day of his arrest, Sundberg was pressure washing the mobile home

and was wearing the overalls he had previously lent to Wood.

           During the arrest, Sundberg requested permission to change clothing. Sundberg said the

reason for the request was that his overalls were wet up to the knee from power washing, and

that the officers had disconnected the shoulder straps of the overalls, leaving them hanging

below his waist. The arresting officer declined Sundberg' s request to change clothing.

           Officers performed an inventory search of Sundberg' s clothing at the jail, which revealed

a small " baggie" of methamphetamine in the bib pocket of his overalls. The State charged


Sundberg in an amended information with one count of unlawful possession of a controlled

substance, methamphetamine.2

B.         Trial


           Sundberg argued an unwitting possession defense, claiming he did not know there was

methamphetamine in the overalls.3 The methamphetamine was in a narrow pocket on the bib of




2 RCW 69. 50. 4013( 1).

3
    The   jury   instructions included   an   instruction   on   unwitting   possession, which read: "   A person is
not guilty of possession of a controlled substance if the possession is unwitting. Possession of a
controlled substance is unwitting if a person did not know that the substance was in his
possession, or did not know the nature of the substance. The burden is on the defendant to prove
by a preponderance of the evidence that the substance was possessed unwittingly.

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No. 45081 -0 -II




the overalls, which Sundberg testified that he did not use. He argued that it was impossible to

know whether Sundberg' s employee Paul Wood, who had borrowed the overalls, was the true

source of the methamphetamine, but that in any event Sundberg did not know it was there.

        In closing argument, Sundberg argued that it was reasonable to believe that Sundberg did

not know about the methamphetamine in his bib pocket, because of the narrow width of the


pocket and the small size of the " baggie" of methamphetamine. He also reminded the jury that

Wood had been       helping Sundberg, and, " We know very little                about   Paul Wood." Verbatim


Report of Proceedings ( VRP) at 184. However, he did not explicitly argue that Wood had put

the methamphetamine in the overalls.


        In rebuttal closing, the State argued that Sundberg' s story about Wood borrowing the

overalls did not make sense: it was summer, so Wood would not have needed the extra layer of

clothing for warmth. Nor should someone doing manual labor need to borrow his employer' s

work clothes. The State also argued that it did not make sense that a methamphetamine addict


would leave methamphetamine in someone else' s clothing. The State reminded the jury of the

State' s burden to prove each element beyond a reasonable doubt. Then it argued that Sundberg

had not carried his burden of proving the affirmative defense of unwitting possession by a

preponderance of the evidence:


        Now it' s the defendant'           s   burden — and this is the reason I asked the defendant

        these questions. I asked him okay, tell us about Paul Wood; describe him for us,
        do you know him, how do you know him. He says he sees him about twice a



Preponderance of the evidence means that you must be persuaded, considering all of the
evidence   in the   case,   that it   is   more   probably true than   not   true."   CP at 93.




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No. 45081 -0 -II




           week.   He   says   he   can get a   hold   of   him.   Why   isn' t he here   testifying? It' s their
           burden. He'   s not      here. There'   s no evidence ...      that   he ...   even exists.



VRP   at   195.    Sundberg objected. The court overruled the objection without comment. The State

continued, arguing:


           Sundberg is also inherently biased. He has a stake in the outcome. That gives
           him bias to lie. His testimony was obviously self -serving. It was obviously
           designed to tell a story to corroborate his defense. And again, it was his burden.
           He didn' t bring in Paul Wood.

VRP at 195 -96 ( emphasis added).


           Outside the presence of the jury, Sundberg requested an instruction telling the jury to

disregard the State' s argument that Sundberg should have called Paul Wood to testify. The court

denied the request for a curative instruction, finding that there was neither prosecutorial

misconduct nor basis in the case law for a curative instruction.


C.         Motion for New Trial


           The jury found Sundberg guilty of unlawful possession of a controlled substance.

Sundberg moved for a new trial based on prosecutorial misconduct. The trial court denied

Sundberg' s motion for a new trial, finding that there had been no prosecutorial misconduct.

                                                            ANALYSIS


           Sundberg argues that the prosecutor' s closing argument constituted misconduct because it

shifted the burden of proof by misapplying the missing witness doctrine. We disagree that the

prosecutor' s argument shifted the burden of proof, because Sundberg had the burden of proving

his affirmative defense of unwitting possession. However, we agree that the prosecutor' s

argument improperly invoking the missing witness doctrine constituted misconduct.


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No. 45081 -0 -II




                                          I. STANDARD OF REVIEW


        To prevail on a claim of prosecutorial misconduct the defendant must establish that the

prosecutor' s conduct was both improper and prejudicial. State v. Finch, 137 Wn.2d 792, 839,

975 P. 2d 967 ( 1999) ( plurality    opinion).    The defendant must demonstrate a substantial


likelihood that the    misconduct affected      the   verdict   in   order   to   receive a new   trial.   137 Wn.2d at


839.


        We review a prosecutor' s allegedly improper conduct in the context of the total

argument, the issues in the case, the evidence addressed in the argument, and the jury

instructions. State    v.   Dhaliwal, 150 Wn.2d 559, 578, 79 P. 3d 432 ( 2003).               A prosecutor has wide


latitude in making arguments to the jury and may draw reasonable inferences from the evidence.

State v. Thorgerson, 172 Wn.2d 438, 448, 258 P. 3d 43 ( 2011).

                                           II. No BURDEN SHIFTING


        The State generally may not comment on the defendant' s lack of evidence, because the

defendant has no duty to present evidence. State v. Cheatam, 150 Wn.2d 626, 652, 81 P. 3d 830

 2003); State   v.   Fleming,   83 Wn.   App.   209, 215, 921 P. 2d 1076 ( 1996). It is misconduct to


imply that the defendant is required to provide evidence, or that the jury should convict the

defendant because he has presented little evidence. State v. Jackson, 150 Wn. App. 877, 885 -86,

209 P. 3d 553 ( 2009).       But the State is entitled to show that an exculpatory theory the defendant

raises lacks evidentiary support. A "prosecutor can question a defendant' s failure to provide

corroborative evidence        if the defendant testified   about an      exculpatory theory that           could   have
No. 45081 -0 -II




been   corroborated       by    an available witness."     State v. Barrow, 60 Wn. App. 869, 872, 809 P. 2d

209 ( 1991).


         Defendants are required to prove affirmative defenses by a preponderance of the

evidence.   State    v.   Lively,   130 Wn.2d 1, 13, 921 P. 2d 1035 ( 1996). It does not shift the burden of


proof to require a defendant who raises the unwitting possession defense to prove that defense by

a preponderance of the evidence. State v. Bradshaw, 152 Wn.2d 528, 538, 98 P. 3d 1190 ( 2004).


         Here, Sundberg claims that the State' s rebuttal argument shifted the burden of proof. But

Sundberg had the burden of proving his affirmative defense of unwitting possession by a

preponderance of          the   evidence.   Bradshaw, 152 Wn.2d         at   538. Thus, his argument fails.


                           III. PROSECUTOR VIOLATED MISSING WITNESS DOCTRINE


A.       Missing Witness Doctrine Inapplicable

         In general, the State may not comment on the defendant' s lack of evidence, because the

defendant has no duty to present evidence. Cheatam, 150 Wn.2d at 652. The missing witness

doctrine is an exception: it applies where a party has failed to produce evidence within its

control, including the testimony of a potential witness. State v. Blair, 117 Wn.2d 479, 485 -86,

816 P. 2d 718 ( 1991).           Where it applies, the doctrine permits the jury to infer that the missing

evidence or    testimony         would   have been      unfavorable   to the party   who    failed to   produce   it. 117


Wn.2d at 485 -86. Therefore, it permits a prosecutor to comment on the defense' s failure to

produce   exculpatory           evidence   in limited   circumstances. "     There are, however, limitations on the


doctrine which are particularly important when a criminal defendant' s failure to call particular

witnesses   is the   subject of prosecutorial comment."               117 Wn.2d      at   488.
No. 45081 -0 -II




           The missing witness doctrine allows the State to comment on a criminal defendant' s

failure to       produce a witness             only   where: (   1) the absent witness is particularly within the

defense'    s    ability to    produce, ( 2)        the missing      testimony is       not   merely   cumulative, ( 3)   the


witness' s absence            is   not otherwise explained, (            4) the witness is not incompetent or his testimony

privileged, and ( 5) the testimony does not infringe on the defendant' s constitutional rights.

Cheatam, 150 Wn.2d                  at   652 -53.     The doctrine does not apply where the missing witness' s

testimony, if favorable to the party who would naturally have called the witness, would

necessarily be          self -incriminatory.           Blair, 117 Wn.2d          at   490 -91.   Finally, the State may comment

on the defendant' s failure to call a witness only where the defendant has unequivocally implied

that the missing witness would have corroborated his theory of the case. State v. Contreras, 57

Wn. App. 471, 476, 788 P. 2d 1114 ( 1990).

           Here, the missing witness doctrine did not apply for two reasons. First, Wood' s

testimony could only have been favorable to Sundberg if Wood testified that he was the source

of   the   methamphetamine.                   Said another way, Wood' s testimony would have been favorable to

Sundberg only if Wood testified that he committed the crime of unlawful possession of a

controlled substance by possessing the methamphetamine and placing it in Sundberg' s pocket.

Thus, his testimony would have been necessarily self incriminatory
                                                     -             and privileged. Blair, 117
Wn.2d       at   490 -91; State          v.   Dixon, 150 Wn.        App. 46,    55, 207 P. 3d 459 ( 2009).        Second, Sundberg

had not unequivocally implied that Wood would have corroborated his testimony. Contreras, 57

Wn.    App.       at   476.   Sundberg          explicitly   said   it   was   impossible to know       whether   Wood     was   the
No. 45081 -0 -II




source of the methamphetamine. For these reasons, the missing witness doctrine did not apply

and the prosecutor was not entitled to invoke it.


        The prosecutor' s argument called for the jury to infer that Wood would have contradicted

Sundberg' s defense if Sundberg had called him. The prosecutor said that Sundberg " says he sees

 Wood] about twice a week. He says he can get a hold of him. Why isn' t [Wood] here

testifying? It'   s   their burden. He'   s not    here."   VRP at 195. This argument implied that Sundberg

would have called Wood had his testimony favored Sundberg. The prosecutor continued,

arguing that Sundberg " is also inherently biased. He has a stake in the outcome. That gives him

bias to lie. His testimony was obviously self -serving. It was obviously designed to tell a story to

corroborate   his defense. And       again,   it   was   his burden. He didn' t   bring   in Paul Wood." VRP at


195 -96. With this argument, the prosecutor implied that Sundberg' s biased testimony would not

have been corroborated by Wood' s testimony.

        Taken as a whole, this argument improperly invoked the missing witness doctrine. It

asked the jury to infer that the missing testimony would have been unfavorable to Sundberg.

Blair, 117 Wn.2d at 485 -86. The prosecutor was not entitled to argue this inference. Blair, 117

Wn.2d at 489 -91; Dixon, 150 Wn. App. at 55; Contreras, 57 Wn. App. at 476.

B.      Violation ofMissing Witness Doctrine Constituted Misconduct

        A prosecutor commits misconduct by violating the missing witness doctrine. State v.

Carter, 74 Wn.        App.   320, 332, 875 P. 2d 1 ( 1994). To prevail on a claim of prosecutorial


misconduct where, as here, the appellant objected to the conduct, an appellant must show that the


conduct was both improper and prejudicial. State v. Emery, 174 Wn.2d 741, 760, 278 P. 3d 653


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No. 45081 -0 -II




 2012). Prejudice in this context is a substantial likelihood that the misconduct affected the


verdict. Finch, 137 Wn.2d at 839. Even improper prosecutorial remarks in direct response to


defense counsel' s arguments are not grounds for reversal where they do not go beyond what is

necessary to respond to the defense, and neither bring before the jury matters not in the record,

nor create incurable prejudice. State v. Francisco, 148 Wn. App. 168, 178 -79, 199 P. 3d 478

 2009).   Here, the prosecutor' s invocation of the missing witness doctrine was improper. See

Carter, 74 Wn. App. at 332. The prosecutor' s argument was not in direct response to

Sundberg' s argument. Francisco, 148 Wn. App. at 178 -79.

          In addition, there is a substantial likelihood that the improper invocation of the missing

witness doctrine affected the verdict. The State presented strong evidence that Sundberg

possessed methamphetamine: an inventory search of the overalls he wore revealed

methamphetamine. But Sundberg' s possession of the methamphetamine was not the issue in

dispute, because Sundberg argued the affirmative defense of unwitting possession. This defense

relied heavily on Sundberg' s testimony that Paul Wood had worn the overalls in the days prior to

Sundberg' s arrest, suggesting that the overalls had been out of his control and he did not know

they contained methamphetamine. Despite the fact that Wood was not an available witness

under the missing witness doctrine, the prosecutor improperly urged the jury to infer that Wood

would contradict Sundberg' s defense. This suggestion so fundamentally compromised

Sundberg' s unwitting possession defense that there is a substantial likelihood the prosecutor' s

misconduct affected the verdict. There is a substantial likelihood the jury rejected Sundberg' s

unwitting possession defense based on the improper inference the prosecutor invoked.


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No. 45081 -0 -I1




        Because the prosecutor committed misconduct by improperly invoking the missing

witness doctrine, and because there is a substantial likelihood that this improper argument

affected the verdict, we reverse Sundberg' s conviction and remand for a new trial.

        A majority of the panel having determined that this opinion will not be printed in the

Washington Appellate Reports, but will be filed for public record in accordance with RCW


2. 06. 040, it is so ordered.




 We concur:




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