                                                                  FILED
                                                              FEBRUARY 9, 2017
                                                          In the Office of the Clerk of Court
                                                         WA State Court of Appeals, Division III




            IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
                               DIVISION THREE

STATE OF WASHINGTON,                           )        No. 33828-2-111
                                               )
                     Respondent,               )
                                               )
       V.                                      )         UNPUBLISHED OPINION
                                               )
JEFFREY LEONARD HUESTIES,                      )
                                               )
                     Appellant.                )

       PENNELL, J. -Mr. Huesties was convicted of theft of rental property after he

failed to return a dehumidifier to Pasco Rentals. We affirm.

                                          FACTS

       On October 30, 2014, Jeffrey Huesties, accompanied by another man, rented a

dehumidifier from Pasco Rentals. When Mr. Huesties did not return the dehumidifier,

Pasco Rentals sent Mr. Huesties a certified letter to the address he provided in the rental

contract. The post office attempted to deliver the letter to Mr. Huesties three times, but it

was ultimately returned as unclaimed. On November 19, Pasco Rentals left a voicemail

for Mr. Huesties on his mobile phone. Mr. Huesties called back the following day and

stated he would return the dehumidifier that day. He did not. On November 21, an

employee from Pasco Rentals went to Mr. Huesties 's address and spoke with his mother.

Mr. Huesties's mother did not know where the dehumidifier was.
No. 33828-2-111
State v. Huesties


       Mr. Huesties was charged by information with one count of theft of rental

property. During trial, Mr. Huesties offered an explanation for what happened to the

dehumidifier. He testified he was riding in a truck with two longtime family friends, John

and Lisa, 1 when another friend, Tony Rodriquez, called him. Mr. Huesties testified Mr.

Rodriquez needed a dehumidifier, but was unable to rent one because he lacked valid

identification. Mr. Huesties said he rented the dehumidifier on Mr. Rodriquez's behalf,

believing Mr. Rodriquez would return the dehumidifier and pay for it. Mr. Huesties

testified he met Mr. Rodriquez one month prior to renting the dehumidifier. He did not

know Mr. Rodriquez's last name at the time. He eventually obtained Mr. Rodriquez's

mobile phone number. According to Mr. Huesties, Mr. Rodriquez lived in apartments or

condominiums located on West Sylvester Street in Pasco. Mr. Huesties admitted he did

not provide this address to his attorney until one month before trial. He did not provide

Mr. Rodriquez's address to the State until the morning of trial. A police officer was sent

to investigate the address during trial and contacted the tenant and landlord for the

Sylvester Street address. Mr. Rodriquez was not living at the address, and the current

landlord and tenant had no knowledge of him. It appears the property was in foreclosure


       1
       The State mistakenly refers to Lisa as Sue a few times in the record. As no last
names for these individuals are provided in the record, reference here is made to their first
names. No disrespect is intended by doing so.

                                             2
     No. 33828-2-111
     State v. Huesties


     at the time Mr. Huesties claims Mr. Rodriquez was living there.

                Mr. Huesties acknowledged speaking with Pasco Rentals over the phone about the

     return of the dehumidifier, but claimed he never received the certified letters because the

     post office does not deliver to his home due to his dogs. Mr. Huesties testified he looked

     for Mr. Rodriquez but was unable to find him. He claimed Mr. Rodriquez's mobile

     phone had been disconnected. He also claimed to have gone to Mr. Rodriquez's

     residence, only to learn he had moved out. Mr. Huesties testified he spoke with some of

     Mr. Rodriquez's neighbors but was unable to obtain a forwarding address. He made no

     further efforts to locate Mr. Rodriquez, never returned the dehumidifier, and had no

     further contact with Pasco Rentals. Neither Mr. Rodriquez, John, nor Lisa were called to

     testify.

                Relevant to this appeal, the jury was given the three following instructions:

                Instruction 9

                You may presume intent to deprive if the person who rented or leased the
                property failed to return or make arrangements acceptable to the owner of
                the property or the owner's agent to return the property to the owner or the
                owner's agent within seventy-two hours after receipt of proper notice
                following the due date of the rental, lease, lease-purchase, or loan
                agreement.

                Instruction 10

I               "Proper notice" means a written demand by the owner or the owner's agent

j                                                     3

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      No. 33828-2-III
      State v. Huesties
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l            made after the due date of the rental, lease, lease-purchase, or loan period,
             mailed by certified or registered mail to the renter, lessee, or borrower at:
'I           (a) The address the renter, lessee, or borrower gave when the contract was


l
             made; or (b) the renter, lessee, or borrower's last known address if later
             furnished in writing by the renter, lessee, borrower, or the agent of the
             renter, lessee, or borrower.

l            Instruction 12
1l
,l          If a person who could have been a witness at the trial is not called to testify,
'i
            you may be able to infer that the person's testimony would have been
            unfavorable to a party in the case. You may draw this inference only if you
1           find that:
            ( 1) The witness is within the control of, or peculiarly available to, that
            party;
            (2) The issue on which the person could have testified is an issue of
            fundamental importance, rather than one that is trivial or insignificant;
            (3) As a matter of reasonable probability, it appears naturally in the interest
            of that party to call the person as a witness;
            (4) There is no satisfactory explanation of why the party did not call the
            person as a witness; and
            (5) The inference is reasonable in light of all the circumstances.

      Clerk's Papers at 48-49, 51.

            Defense counsel stated on the record that he had no objections to any of the jury

      instructions. The trial court did not specify whether instruction number 12 applied to

      Lisa, John, Mr. Rodriquez, or some combination of the three. The prosecutor argued the

      missing witness inference as to all three during closing arguments. The jury found Mr.

      Huesties guilty. Mr. Huesties appeals.



                                                   4
No. 33828-2-III
State v. Huesties


                                       ANALYSIS

Sufficiency of evidence

       Mr. Huesties was charged with two alternative means for committing theft of

rental property: (1) wrongfully obtaining the rental property, and (2) exerting

unauthorized control over the rental property. He challenges the sufficiency of the State's

evidence as to the first means. Mr. Huesties's conviction can be affirmed if there is

sufficient evidence to support the theory that he wrongfully obtained the rental property.

See State v. Ortega-Martinez, 124 Wn.2d 702, 707-08, 881 P .2d 231 ( 1994 ).

       The evidence provided at least two ways that the jury could find Mr. Huesties

wrongfully obtained the dehumidifier. First, the agreement with Pasco Rentals required

Mr. Huesties to use the dehumidifier at the address listed on the agreement. Mr.

Rodriguez's address was not listed. Given this circumstance, even taking Mr. Huesties's

testimony as true, the jury was provided sufficient evidence to find wrongful acquisition.

Second, the State supplied ample reasons to discredit Mr. Huesties's testimony. 2 Based

on the contradictions in Mr. Huesties's testimony, the jury could infer Mr. Huesties's true



      2
        Mr. Huesties's explanation of the incident is undermined by his limited
information about Mr. Rodriguez, the lack of corroborating evidence regarding Mr.
Rodriguez's purported address, and Mr. Huesties's apparent evasion of Pasco Rentals'
attempts to reclaim the dehumidifier.

                                             5
No. 33828-2-111
State v. Huesties


intent upon renting the dehumidifier was not to lend it to Mr. Rodriguez, but to retain it

indefinitely. Under either assessment of Mr. Huesties's testimony, the State presented

sufficient evidence to support the theory that the property was wrongfully retained.

Reversal is unwarranted.

Ineffective assistance of counsel

       Mr. Huesties contends his defense counsel was ineffective for failing to object to

jury instructions 9, 10 and 12. An ineffective assistance of counsel claim may be raised

for the first time on appeal. State v. Kyllo, 166 Wn.2d 856, 862, 215 P .3d 177 (2009).

Our review is de novo. State v. Sutherby, 165 Wn.2d 870, 883, 204 P.3d 916 (2009). To

demonstrate ineffective assistance of counsel, Mr. Huesties must show: ( 1) counsel's

performance was deficient, and (2) counsel's errors were serious enough to prejudice the

defendant. State v. Thomas, 109 Wn.2d 222, 225-26, 743 P.2d 816 (1987); Stricklandv.

Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984).

       Jury instructions 9 and 10

       To be convicted of theft of rental equipment a defendant must have "intent to

deprive" the owner of the rental property. RCW 9A.56.096(1). Jury instruction 9 is

based on a portion of the theft of rental equipment statute that allows a jury to presume a

defendant's intent to deprive the owner of the rental property if the renter does not make


                                             6
No. 33828-2-III
State v. Huesties


.arrangements to return the rental property within 72 hours of receipt of "proper notice."

RCW 9A.56.096(2)(a). Jury instruction 10 is based on the portion of the statute that

defines "proper notice" as a written demand by the rental company made after the due

date of the rental period sent by certified or registered mail to either the renter's address

listed on the rental contract, or to the renter's last known address provided in writing to

the rental company. RCW 9A.56.096(3).

       Defense counsel likely should have objected to instructions 9 and 10 under State v.

Fleming, 155 Wn. App. 489, 497-98, 228 P.3d 804 (2010). Nevertheless, the failure to do

so was not prejudicial. Unlike Fleming, the undisputed evidence in this case showed Mr.

Huesties received actual notice the dehumidifier was past due during a phone call with the

rental company. 3 This is stronger evidence of actual notice than receipt of a written

document. In addition, the evidence was that Mr. Huesties personally promised to return

the dehumidifier the same day as his phone call. Yet he failed to do so. Mr. Huesties's

omission is more indicative of mendacity than the failure to respond to a written notice.

Any error in providing instructions 9 and 10 was not prejudicial.




       3
        In Fleming, the rental agency attempted to make phone contact, but there were
never any conversations or messages. 155 Wn. App. at 494.

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No. 33828-2-111
State v. Huesties


       Jury instruction 12

       The missing witness doctrine was properly applied in this case. The witnesses at

the heart of the dispute, John, Lisa, and Mr. Rodriguez, were unknown to either the State

or Pasco Rentals. Instead, they were peculiarly available to Mr. Huesties. All three

potential witnesses were important, in that they could have corroborated Mr. Huesties's

defense and rehabilitated his credibility. Given the difficult nature of Mr. Huesties's

defense and the lack of any explanation regarding why the three witnesses were not called

to testify, it would have been in Mr. Huesties's interest to call the witnesses. The

inference permitted by the missing witness instruction was permissible. 4

       Citing State v. Blair, 117 Wn.2d 479, 816 P.2d 718 (1991), Mr. Huesties contends

the missing witness instruction was improper because Mr. Rodriguez would have had to

incriminate himself had he been called as a witness. We are unpersuaded. As an initial

point, Mr. Huesties's argument is completely inapplicable to his friends John and Lisa. In

addition, Mr. Rodriguez's testimony would not necessarily have been incriminating. Mr.

Rodriguez did not sign the rental agreement. He may not have known its terms. In

addition, Mr. Rodriguez might have had an innocent explanation for what happened to the




       4
       Because the instruction was permissible, the prosecutor did not engage in
misconduct by arguing from the instruction.

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II   No. 33828-2-111
I    State v. Huesties
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     dehumidifier. It is, of course, entirely possible that Mr. Rodriguez's testimony would
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     have been self-incriminatory. But this possibility is not sufficient to preclude a missing

     witness inference. Blair, 117 Wn.2d at 489-90.

            Since none of the limitations on the missing witness doctrine apply here, a defense

     objection to instruction 12 would almost certainly have been overruled. See State v.

     McFarland, 127 Wn.2d 322,337 n.4, 899 P.2d 1251 (1995). Mr. Huesties's ineffective

     assistance claim fails.

                                          CONCLUSION

            The judgment and sentence of the trial court is affirmed.

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

     Washington Appellate Reports, but it will be filed for public record pursuant to RCW

     2.06.040.


                                               Pennell, J.
     WE CONCUR:




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