                       IN THE COURT OF APPEALS OF IOWA

                                    No. 15-1893
                             Filed December 21, 2016


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

BRADLEY DAVISSON,
     Defendant-Appellant.
________________________________________________________________


       Appeal from the Iowa District Court for Polk County, Richard G. Blane II

(trial), Judge, and Carol S. Egly (motion to dismiss), District Associate Judge.



       A defendant appeals his conviction challenging the court’s denial of his

motion to dismiss and his objection based on prosecutorial misconduct.

AFFIRMED.



       Jamie L. Hunter of Dickey & Campbell Law Firm, P.L.C., Des Moines, for

appellant.

       Thomas J. Miller, Attorney General, and Aaron Rogers, Assistant Attorney

General, for appellee.



       Considered by Vogel, P.J., and Vaitheswaran and McDonald, JJ. Blane,

S.J., takes no part.
                                        2


VOGEL, Presiding Judge.

      Bradley Davisson appeals his conviction for operating a motor vehicle

without owner’s consent, in violation of Iowa Code section 714.7 (2013).

Davisson claims the district court erred in denying his motion to dismiss on

speedy indictment grounds and in overruling his objection to a portion of the

State’s closing argument, which he asserts shifted the burden of proof onto him.

Because the State dismissed the original complaint in furtherance of justice, the

speedy indictment requirements were not violated. Further, the State’s comment

during closing argument regarding a lack of exculpatory evidence did not shift the

burden onto Davisson. We affirm.

      I.     Background Facts and Proceedings

      On April 7, 2015, a truck was reported stolen in Madrid. On April 9, two

Des Moines Police Department officers located a truck that matched the

description of the one reported stolen and had an identical license plate number.

The officers observed the driver, Davisson, exit the truck and enter a

convenience store.     The officers entered the store and arrested Davisson.

Davisson told them he had borrowed the truck from a friend named “Nate.”

      On April 9, the State charged Davisson with theft in the first degree by

preliminary complaint. On May 22, shortly before the speedy indictment period

was set to run, the State file a notice of intent not to prosecute, which requested

the theft charge be dismissed without prejudice due to “a lack of evidence to

continue prosecution.” The district court granted the State’s motion, citing the

reasons in the State’s motion and Iowa Rule of Criminal Procedure 2.33(1). On

June 22, the State by trial information charged Davisson with operating a vehicle
                                          3


without owner’s consent. On July 17, Davisson filed a pro se motion to dismiss,

which was amended through counsel on July 23. Davisson’s motion claimed the

charge fell outside the speedy indictment period allotted by rule 2.33(2)(a). The

State did not file a written resistance; however, the district court allowed the State

to resist orally at the hearing on the motion to dismiss and gave Davisson an

opportunity to respond in writing after the hearing. The district court found the

prior dismissal was in the interest of justice and denied Davisson’s motion to

dismiss.

         Davisson’s case proceeded to a jury trial. Davisson did not testify. In the

rebuttal portion of its closing argument, the State noted that, although Davisson

had told the arresting officers he borrowed the car from someone named Nate,

he did not call anyone by that name to testify at trial. The district court overruled

Davisson’s objection to this statement. On September 17, the jury convicted

Davisson. Davisson appeals.

         II.    Standard of Review

         We review motions to dismiss a trial information for errors at law. State v.

Petersen, 678 N.W.2d 611, 613 (Iowa 2004). We review rulings on evidentiary

objections for an abuse of discretion. State v. Sallis, 574 N.W.2d 15, 16 (Iowa

1998).

         III.   Motion to Dismiss

         Davisson claims the district court erred in denying his motion to dismiss

the State’s trial information. Specifically, he argues the State subverted speedy

indictment rules because dismissal of the theft charge was not “in furtherance of

justice” and he was recharged with the same offense based on the same
                                           4


incident. The State argues the dismissal was appropriate because it was based

on a lack of evidence to prosecute and the State retained the opportunity to

gather more evidence and refile.

         Rule 2.33(1) provides:

               The court, upon its own motion or the application of the
         prosecuting attorney, in the furtherance of justice, may order the
         dismissal of any pending criminal prosecution, the reasons therefor
         being stated in the order and entered of record, and no such
         prosecution shall be discontinued or abandoned in any other
         manner. Such a dismissal is a bar to another prosecution for the
         same offense if it is a simple or serious misdemeanor; but it is not a
         bar if the offense charged be a felony or an aggravated
         misdemeanor.

In explaining what grounds qualify for dismissal under rule 2.33(1), our supreme

court has “said that ‘furtherance of justice’ under rule [2.33(1)] includes

‘facilitating the State in gathering evidence, procuring witnesses, or plea

bargaining.’”     State v. Fisher, 351 N.W.2d 798, 801 (Iowa 1984) (citation

omitted). The State requested dismissal based on a lack of evidence, and the

district court cited that reason in granting the motion. A lack of evidence and the

opportunity for further evidence-gathering is a factor our supreme court has

identified as proper grounds for dismissal in furtherance of justice.         See id.

Accordingly, we find the dismissal of the theft charge without prejudice was

appropriate under rule 2.33(1). Because theft in the first degree is a felony,1 the

State was not barred from refiling charges against Davisson at a later date. See




1
    Iowa Code § 714.2(1) (2013).
                                             5


Iowa R. Crim. P. 2.33(1).        Therefore, we affirm the district court’s denial of

Davisson’s motion to dismiss.2

       IV.     Evidentiary Objection

       Davisson also asserts the district court erred in overruling his objection to

a portion of the State’s closing argument. Davisson claims the State committed

prosecutorial misconduct by improperly commenting on his decision not to

present evidence to support his defense, thereby shifting the burden of proof

onto him.3 The State contends there was no misconduct.

       In order to receive a new trial, a defendant must show both misconduct on

the part of the prosecutor and prejudice resulted. State v. Bishop, 387 N.W.2d

554, 562 (Iowa 1986). While our supreme court has expressed concern about

prosecution comments relating to a defendant’s failure to produce evidence, such

comments are generally allowed as long as they do not focus on a defendant’s

decision not to testify. See id. at 563 (“A prosecutor may properly comment upon

the defendant’s failure to present exculpatory evidence, so long as it is not

phrased to call attention to the defendant’s own failure to testify.”). Additionally,

prosecution comments that are aimed at exposing a lack of evidence to support a

defendant’s general theory or a particular proposition are not improper. State v.

2
  Davisson also claims the State procedurally defaulted by not filing a written resistance
to his motion to dismiss. We find the district court did not abuse its discretion in allowing
the State to resist orally at the hearing and allowing Davisson time to submit a written
response.
3
  Davisson cites the Fifth Amendment in his brief and conflates his argument regarding
the shifting of the burden of proof with his decision not to testify. We do not believe the
prosecutor’s comments were a reference to Davisson’s decision not to testify nor could
they be interpreted that way by the jury. A prosecutor’s remarks are improper when “the
prosecutor manifestly intended to refer to the defendant’s silence, or [when] the jury
would ‘naturally and necessarily’ interpret the statement to be a reference to the
defendant’s silence.” State v. Hutchison, 341 N.W.2d 33, 39 (Iowa 1983) (quoting
Catches v. United States, 582 F.2d 453, 458 (8th Cir.1978)).
                                          6

Hanes, 790 N.W.2d 545, 556–57 (Iowa 2010) (citing United States v. Emmert, 9

F.3d 699, 702–03 (8th Cir.1993) and State v. Swartz, 601 N.W.2d 348, 353 (Iowa

1999)).

        Here, Davisson takes issue with prosecutor’s statement during closing

arguments referring to his claim that he borrowed the truck from a person named

Nate:

        We have subpoena power and we bring people in, people that
        exist, to testify about this.       Defense counsel also has an
        opportunity, if they bring forth an idea like mistake of fact, to bring
        people in, to subpoena people, to subpoena people like Nate. . . .
        It’s kind of hard to subpoena someone who doesn’t really exist.

Viewing this statement in the context of the trial, we do not believe the prosecutor

shifted the burden of proof unto Davisson by commenting on his failure to

present exculpatory evidence. The complainant testified that despite Davisson’s

claims at the time of his arrest, she never gave permission to anyone named

Nate to drive her truck.      The prosecutor’s comment in his rebuttal closing

argument simply noted that Davisson failed to challenge the complainant’s claim

by providing any evidence to the contrary. The prosecutor’s comment did not call

attention to Davisson’s decision not to testify. See Bishop, 387 N.W.2d at 563.

Davisson relies on some broad language in Hanes—“[i]t is improper for the State

to shift the burden to the defense by suggesting the defense could have called

additional witnesses.” Hanes, 790 N.W.2d at 556. However, he fails to note that

language was tempered in Hanes by the court’s approval of situations where the

prosecutor generally references “an absence of evidence supporting the

defense’s theory of the case.”       Id. at 557.    We conclude the prosecutor’s
                                            7


comment was not improper as it did not shift the burden of proof onto Davisson,

nor refer to Davisson’s decision not to testify.4

       V.      Conclusion

       Because we conclude the district court did not err in denying Davisson’s

motion to dismiss and did not abuse its discretion in overruling Davisson’s

objection based on prosecutorial misconduct, we affirm.

       AFFIRMED.

       Vaitheswaran, J., concurs; McDonald, J., concurs specially.




4
  Even if the prosecutor’s comment was improper, we find that Davisson was not
prejudiced by them. See id. at 562. The State presented evidence that Davisson did not
have permission from the car’s owner to drive the vehicle and that Davisson was found
in possession of the car. This evidence alone was sufficient for the jury to convict
Davisson of operating a motor vehicle without owner’s consent. See Iowa Code § 714.7
(“Any person who shall take possession or control of any railroad vehicle, or any self-
propelled vehicle, aircraft, or motor boat, the property of another, without the consent of
the owner of such, but without the intent to permanently deprive the owner thereof, shall
be guilty of an aggravated misdemeanor.”).
                                        8


MCDONALD, Judge. (concurring specially)

      I concur in the majority’s resolution of Davisson’s speedy trial claim. I

respectfully dissent from the majority’s conclusion the prosecutor did not err in

commenting on Davisson’s decision to not call a particular witness. However,

like the majority, I conclude Davisson failed to establish the prosecutor’s

comments denied Davisson a fair trial. I thus concur in the judgment.

                                        I.

      The majority sets forth one of the prosecutor’s comments and arguments

to the jury regarding the missing witness, but there were many more, including

the prosecutor’s comparison of this defendant to Keyser Soze. I need not set

forth all of the comments and arguments in full herein because the gist is the

same. At issue is the prosecutor’s argument to the jury that Davisson should

have called a witness, Nate, to corroborate Davisson’s statement Nate gave

Davisson permission to operate the victim’s vehicle.        Also at issue is the

prosecutor’s further argument the jury could infer Nate did not exist or Nate’s

testimony would have been inculpatory rather than exculpatory.           Davisson

argues the prosecutor’s comments constituted misconduct and infringed several

constitutional rights, specifically improper comment on the defendant’s invocation

of the privilege to not testify, violation of the right to have guilt or innocence

determined solely on the basis of the evidence introduced at trial, and reversal of

the presumption of innocence and burden of proof on an element of the offense.

See State v. Graves, 668 N.W.2d 860, 876 (Iowa 2003) (discussing the right to

have guilt determined based on evidence introduced); State v. Bishop, 387

N.W.2d 554, 562–63 (Iowa 1986) (discussing the privilege against self-
                                        9

incrimination); State v. Hill, No. 12-0860, 2013 WL 2370714, at *6 (Iowa Ct. App.

May 30, 2013) (Potterfield, J., dissenting) (discussing presumption of innocence

and burden of proof).

                                        II.

      “A prosecutor ‘is not an advocate in the ordinary meaning of the term.’”

Graves, 668 N.W.2d at 870 (quoting 63C Am. Jur. 2d Prosecuting Attorneys § 1

(1997)). The prosecutor owes a duty to do justice for the accusers and the

accused.   See id.      “The prosecutor’s duty to the accused is to ‘assure the

defendant a fair trial’ by complying with ‘the requirements of due process

throughout the trial.’” Id. (quoting DeVoss v. State, 648 N.W.2d 56, 64 (Iowa

2002)).

      To establish a due process violation, the defendant must establish

prosecutorial misconduct or prosecutorial error. See id. at 869. “Prosecutorial

misconduct includes those statements where a prosecutor intentionally violates a

clear and unambiguous obligation or standard imposed by law, applicable rule or

professional conduct, as well as those situations where a prosecutor recklessly

disregards a duty to comply with an obligation or standard.”        See State v.

Schlitter, 881 N.W.2d 380, 394 (Iowa 2016) (quotations omitted). Prosecutorial

error occurs “where the prosecutor exercises poor judgment and where the

attorney has made a mistake based on excusable human error, despite the

attorney’s use of reasonable care.” Id. (quotations omitted). “Evidence of the

prosecutor’s bad faith is not necessary, as a trial can be unfair to the defendant

even when the prosecutor has acted in good faith.” Graves, 668 N.W.2d at 869.
                                        10


      Whether the claim is one for prosecutorial misconduct or prosecutorial

error, the defendant must establish the misconduct or error “resulted in prejudice

to such an extent that the defendant was denied a fair trial.”       Id.; see also

Schlitter, 881 N.W.2d at 394 (concluding the Graves standard applies whether

the claim is prosecutorial misconduct or prosecutorial error). The prosecutor can

deny the accused a fair trial in a variety of ways. See Schlitter, 881 N.W.2d at

393 (identifying a “range of trial conduct” constituting prosecutorial misconduct).

Whatever the conduct, “it is the prejudice resulting from misconduct, not the

misconduct itself, that entitles a defendant to a new trial.” State v. Piper, 663

N.W.2d 894, 913 (Iowa 2003), overruled on other grounds by State v. Hanes,

790 N.W.2d 545 (Iowa 2010).

                                        A.

      I first address whether the prosecutor engaged in misconduct or error.

The relevant constitutional terrain has been well traversed but not well marked.

The cases are in conflict, and the parties are left to perambulate with little

guidance.

      The State relies on two precedents for the proposition the prosecutor’s

argument constituted fair comment and was not improper. In State v. Bishop, the

court stated, “A prosecutor may properly comment upon the defendant’s failure to

present exculpatory evidence, so long as it is not phrased to call attention to the

defendant’s own failure to testify.” 387 N.W.2d at 656 (quotation omitted). In

State v. Craig, the prosecutor asked the jury why the defendant failed to have

certain witnesses testify on his behalf. 490 N.W.2d 795, 797 (Iowa 1992). Citing

Bishop, the Craig court concluded the argument “amounted to fair comment.” Id.
                                         11

       The defendant relies on a more recent precedent, State v. Hanes, 790

N.W.2d 545 (Iowa 2010). In that case, the prosecutor argued the defendant

should have called certain witnesses, stating “[i]f there was anything the defense

really wanted from either one of these individuals that they felt was beneficial or

helpful to the defendant, they could have called them.” Hanes, 790 N.W.2d at

556. The court stated “[i]t was not proper for the State to attempt to shift the

burden to the defense to call the witnesses or to suggest the jury could infer from

the defense’s failure to call the witnesses that they would not have said anything

helpful to the defense.”   Id. at 557.    Hanes did not attempt to reconcile its

conclusion with Bishop or Craig. Indeed, the court did not cite or mention Bishop

or Craig.

       Subsequent cases have not reconciled the apparent conflict between

Bishop/Craig and Hanes.      See, e.g., State v. Carey, No. 12-1423, 2014 WL

955917, at *3 (Iowa Ct. App. Mar. 12, 2014) (holding prosecutor’s argument that

the defendant had ability to subpoena witnesses and would have if the witnesses

would have testified favorably was fair comment); State v. Fuentes, No. 12-1141,

2013 WL 5762878, at *2 (Iowa Ct. App. Oct. 23, 2013) (stating prosecutor may

have made improper argument but preserving claim of ineffective assistance of

counsel); Hill, 2013 WL 2370714, at *5 (holding there was no due process

violation).

       Because the case law has not been reconciled, the parties are left to blaze

their own trails.   The defendant contends Hanes is controlling and Hanes

implicitly overruled the Bishop/Craig cases. The defendant’s argument has some

purchase. In a different case, the State referred “to the Hanes language on
                                        12

burden shifting as an ‘undeveloped departure’ from established case law.” State

v. Singh, No. 10-1583, 2011 WL 5387279, at *5 (Iowa Ct. App. Nov. 9, 2011). To

some extent, the State makes the same argument here, arguing Hanes is an

outlier and should be ignored. The State also argues, among other things, the

relevant language is Hanes is obiter dicta.

      For the purposes of resolving this appeal, it is unnecessary to wander

through the constitutional woods in search of a trail that leads to a resolution of

this apparent conflict; there are non-constitutional landmarks that guide us. I

begin with the underlying evidentiary question preliminary to the constitutional

questions—what inference or inferences can be drawn from the failure to

produce a relevant witness?      In non-criminal proceedings, “[w]hen relevant

evidence is within the control of a party whose interest is affected, a court may

infer that the evidence, if not produced, would be unfavorable to that party.”

Hamer v. Iowa Civil Rights Comm’n, 472 N.W.2d 259, 262 (Iowa 1991).              In

criminal proceedings, controlling authority provides “the jury may draw an

inference that the testimony of an uncalled witness would have been adverse to

one of the parties. However such a rule is to be applied with caution and there

must be a reason for such a supposition and a factual area within which it may

logically operate.” State v. Turley, 239 N.W.2d 544, 545 (Iowa 1976); see also

State v. Schlick, 257 N.W.2d 59, 63 (Iowa 1977) (recognizing the jury may draw

an inference the testimony of an uncalled witness would be adverse to the party

who fails to call such witness); State v. Parker, 151 N.W.2d 505, 512–13 (Iowa

1967) (stating “[u]nder some circumstances the jury may properly draw an

inference that the testimony of an uncalled witness would have been adverse to
                                        13


one of the parties” but stating the rule “is to be applied with caution”) (quotation

omitted); State v. Cotton, 33 N.W.2d 880, 890 (Iowa 1948) (“Where evidence

which would properly be part of a case is within the control of the party whose

interest it would naturally be to produce it, and, without satisfactory explanation,

he fails to do so, the jury may draw an inference that it would be unfavorable to

him.”) (quotation omitted). For example, an inference should not be drawn where

there is some other explanation for the witness’s absence.            See State v.

Williams, 155 N.W.2d 526, 530 (Iowa 1968). By way of another example, “no

presumption arises when it is shown that the witness is equally available to either

party or when the testimony that could be elicited from such witness would

merely be cumulative.” Parker, 151 N.W.2d at 513.

       Commencing from this well-established landmark, I next address two

secondary questions also preliminary to the constitutional questions—who makes

the preliminary determination an inference can be drawn from the absence of a

witness and how is the inference presented to the jury? In State v. Langlet, 283

N.W.2d 330 (Iowa 1979), the supreme court concluded the threshold

determination was a question of law for the court and, if the foundation for such

an inference had been laid, the court was to instruct the jury on the issue:

             As in instances of other sought-after inferences, it is the
       court’s function to determine whether a jury could appropriately
       deduce from the underlying circumstances the adverse fact sought
       to be inferred, leaving it for the jury to say whether the inference
       actually ought to be drawn in the particular case. The noncalling
       party’s explanation suffices, and the missing witness rule is
       properly rejected, where the trial judge is “satisfied that the
       circumstances thus offered would, in ordinary logic and
       experience, furnish a plausible reason for nonproduction.”
             Where there are such reasons (for nonproduction), and they
       are produced and satisfy the trial judge on plausibleness, the judge
                                        14


       should decline a request for a missing witness instruction, and
       should also forbid adverse comment to the jury on the absence of
       the witness.

283 N.W.2d at 335–36 (quotation and citation omitted). This is consistent with

the law from other jurisdictions. For example:

              Before a party may argue an adverse inference as to an
      absent witness, counsel must seek permission from the court, and
      the court must determine (1) that the witness in question is
      peculiarly available to the party against whom the inference is
      sought, and (2) that the witness’ testimony would have elucidated
      the transaction at issue. Argument by counsel and instructions by
      the trial judge regarding the inferences to be drawn as to an absent
      witness are prohibited if either condition is not met.
              In addition, this exercise of discretion must itself be based on
      a firm factual foundation and be exercised in an informed and
      rational manner if it is to withstand appellate scrutiny. The party
      seeking the missing witness inference must establish the two
      foundation conditions to the court’s satisfaction. And even if the
      evidentiary predicates are established, the trial court still has
      considerable latitude to refuse to give a missing witness instruction,
      where it determines from all of the circumstances that the inference
      of unfavorable testimony is not a natural or reasonable one.

Carr v. United States, 531 A.2d 1010, 1012 (D.C. 1987) (quotations omitted).

      The Langlet formulation sets forth what is commonly known as the

missing-witness rule. The classic statement of the rule was set forth in Graves v.

United States, 150 U.S. 118, 121 (1893): “The rule, even in criminal cases, is

that, if a party has it peculiarly within his power to produce witnesses whose

testimony would elucidate the transaction, the fact that he does not do it creates

the presumption that the testimony, if produced, would be unfavorable.” Graves

referred to the rule as creating a “presumption.” Id. Modern cases characterize

the rule as authorizing only a permissive inference.       See Commonwealth v.

Dorman, 547 A.2d 757, 762–63 (Pa. Super. Ct. 1988) (“The instruction on

missing witnesses is essentially a comment on the evidence; the inference itself
                                          15


is the natural inference that a party’s failure to call a witness in certain

circumstances suggests that he was afraid to do so, which in turn suggests that

the testimony would have been unfavorable.”).

      A majority of state and federal courts have, like Iowa, adopted some

formulation of the rule. See State v. Tahair, 772 A.2d 1079, 1082 (Vt. 2001)

(“For more than one hundred years, this Court—in conformity with most other

state and federal courts—has approved a ‘missing witness’ instruction.”); State v.

Malave, 737 A.2d 442, 446–47 (Conn. 1999). However, some jurisdictions have

moved away from the rule in criminal proceedings:

      It is one thing for this court to employ a judicial guideline in
      determining the sufficiency of evidence, or to say that a matter may
      be the legitimate subject of comment by counsel for one party or
      another, or to indicate that a circumstance may be considered by
      the trier of fact; it is quite another thing, however, for a trial court to
      instruct a jury that an adverse presumption arises from the failure of
      one or the other of the parties to a criminal proceeding to call a
      particular witness. We do not believe a missing-witness
      presumption instruction has any place in a criminal case. If its use
      is permitted, both the prosecution and the defense, against the risk
      of having the instruction granted at the request of the opposing
      party, would be required to call all witnesses possibly having some
      knowledge of the case, even though their testimony might be
      merely cumulative. This is not required of the prosecution, and it
      should not be required of the defense.
              Furthermore, and of special significance, use of the
      instruction against the defense would run head on into the
      presumption of innocence to which every accused is entitled and
      upon which juries are universally instructed. The burden is upon the
      prosecution to prove its case against the accused. The defense
      need not prove anything; it may rely upon the presumption of
      innocence. To tell a jury that the failure of the defense to call a
      material witness raises an adverse presumption against the
      accused is to weaken, if not neutralize, the presumption of
      innocence which, if given its full strength, might be sufficient to tip
      the scales in favor of acquittal.
                                        16

Russell v. Commonwealth, 223 S.E.2d 877, 879 (Va. 1976); see, e.g., State v.

Cobb, 743 A.2d 1, 135 n.4 (Conn. 1999) (Berdon, J., dissenting) (collecting

cases); Malave, 737 A.2d at 447 (abandoning rule in criminal cases); see also

Hill, 2013 WL 2370714, at *6 (Potterfield, J., dissenting) (arguing comment

regarding absent witness violated the presumption of innocence and relieves the

State of its burden of proof); Tahair, 772 A.2d at 1085–86 (collecting cases and

rejecting the rule in criminal cases). I need not consider whether Iowa should

continue to adhere to or abandon the missing-witness rule in criminal cases.

Neither party has briefed the issue. Further, controlling authority has adopted

and applied the rule. See Langlet, 283 N.W.2d at 335–36; Schlick, 257 N.W.2d

at 63; Turley, 239 N.W.2d at 545. This court is not at liberty to overrule supreme

court precedent. See State v. Beck, 854 N.W.2d 56, 64 (Iowa 2014).

      The contours of the rule in Iowa are not well developed. One court has

set forth what appears to be a commonly accepted version of the rule:

      The missing witness rule provides that a negative inference may be
      drawn from the failure of a party to call a particular witness who
      was in his control. However, each of the following circumstances
      represents an exception to that rule:
              1. The witness is so hostile or prejudiced against the party
      expected to call him that there is a small possibility of obtaining
      unbiased truth;
              2. The testimony of such a witness is comparatively
      unimportant, cumulative, or inferior to that already presented;
              3. The uncalled witness is equally available to both parties;
              4. There is a satisfactory explanation as to why the party
      failed to call such a witness;
              5. The witness is not available or not within the control of the
      party against whom the negative inference is desired; and
              6. The testimony of the uncalled witness is not within the
      scope of the natural interest of the party failing to produce him.
                                        17

Dorman, 547 A.2d at 762–63 (quotation omitted). The foregoing formulation is

not an exhaustive list of the situations where a missing-witness instruction might

be proper. “The propriety of such an instruction depends on the facts of each

particular case.” Id.

       Applying the rule to the facts of this case, here the prosecutor did not lay

the foundation to establish an adverse inference could be drawn from the

witness’s absence.      Nor did the district court instruct the jury that such an

inference could be drawn. In the absence of either, pursuant to Langlet, the

prosecutor was prohibited from arguing an adverse inference from the witness’s

absence. See 283 N.W.2d at 335–36. Establishing the necessary foundation to

allow the district court to exercise its gatekeeping function is not trivial. The

adverse inference argued to the jury is essentially the creation of evidence by the

absence of evidence. The fact the defendant failed to call a witness has no

probative value in and of itself—the witness could not have been called for any

one of a variety of reasons or for no reason at all. The fact the defendant failed

to call a witness could have probative value, however, if the proper foundation

were laid to establish the witness was not called under circumstances from which

an adverse inference could be drawn. Where, as here, the prosecutor comments

on an absent witness without laying the foundation to establish an adverse

inference could be drawn—viz., the absence of the witness has probative

value—the prosecutor is effectively making an argument regarding “evidence”

not supported by the record. See Arnold v. United States, 511 A.2d 399, 415

(D.C. 1986) (stating “the courts have established these requirements to eliminate

the risk that a missing witness argument may add a fictitious weight to one side
                                         18


or another of the case because in a sense it creates evidence from the absence

of evidence”) (quotation omitted); State v. Fowler, 785 P.2d 808, 813 (Wash.

1990) (holding adverse inference argument without prior judicial determination

was improper comment on facts not in the record). The prosecutor is forbidden

from arguing evidence not in the record. See Graves, 668 N.W.2d at 879. Given

the foregoing, I must conclude the prosecutor erred in commenting on the

absence of the witness and erred in urging the jury to draw an adverse inference

from the same without laying the necessary foundation and without seeking an

instruction on the issue.

       Given my conclusion, I need not address whether the missing witness rule

is unconstitutional as applied in criminal proceedings or whether the prosecutor’s

comment violated constitutional principles.     It should be noted, however, the

Supreme Court has concluded the permissive inference instruction does not

impermissibly relieve the State of its burden of proof or violate the presumption of

innocence:

       The most common evidentiary device is the entirely permissive
       inference or presumption, which allows—but does not require—the
       trier of fact to infer the elemental fact from proof by the prosecutor
       of the basic one and which places no burden of any kind on the
       defendant. . . . Because this permissive presumption leaves the
       trier of fact free to credit or reject the inference and does not shift
       the burden of proof, it affects the application of the “beyond a
       reasonable doubt” standard only if, under the facts of the case,
       there is no rational way the trier could make the connection
       permitted by the inference.

Cty. Court of Ulster Cty. v. Allen, 442 U.S. 140, 157 (1979).
                                           19


                                           B.

         I next address whether the prosecutor’s error deprived the defendant of a

fair trial. In making the determination, we look to the Graves factors, among

other things. See Graves, 668 N.W.2d at 869 (“In determining prejudice the

court looks at several factors within the context of the entire trial. We consider

(1) the severity and pervasiveness of the misconduct; (2) the significance of the

misconduct to the central issues in the case; (3) the strength of the State’s

evidence; (4) the use of cautionary instructions or other curative measures; and

(5) the extent to which the defense invited the misconduct.”) (quotation and

citations omitted).

         In looking at the totality of the circumstances, including the Graves factors,

I am not convinced the prosecutor’s comments deprived the defendant of a fair

trial.   The prosecutor’s comments were isolated. See State v. Greene, 592

N.W.2d 24, 32 (Iowa 1999) (“Whether the incident was isolated or one of many is

also relevant; prejudice results more readily from persistent efforts to place

prejudicial evidence before the jury.”); State v. Anderson, 448 N.W.2d 32, 34

(Iowa 1989) (“Prejudice can, but usually does not, result from isolated

prosecutorial misconduct.”). The prosecutor’s comment was effectively rebutted

by Davisson’s counsel’s closing statement. See State v. Jackson, 839 N.E.2d

362, 374 (Ohio 2006) (finding defendant failed to establish prejudice because, in

part, “[d]efense counsel directly rebutted the prosecution’s” statement during

defendant’s closing argument.”). The district court properly instructed the jury on

the burden of proof. See Anderson, 448 N.W.2d at 33–34 (“We do not overlook

the prosecutor’s conduct, but must also consider the whole trial, including the
                                       20


court’s admonition to the jury.”). We assume the jurors abide by the district

court’s instructions. See State v. Caringello, 288 N.W. 80, 83 (Iowa 1939). Plus,

the State’s case was strong and straightforward, including testimony from the

owner who unequivocally denied knowing the missing witness and the defendant

and denied giving either permission to operate her motor vehicle. See Greene,

592 N.W.2d at 32.

                                       III.

      For the foregoing reasons, I respectfully concur in the judgment.
