   IN THE SUPREME COURT OF THE STATE OF WASHINGTON




STATE OF WASHINGTON,                   )
                                       )      No. 91660-8                             .,~"..:.+...,.




                   Petitioner,         )
                                       )
      v.                               )      EnBanc
                                       )
CORY A. SUNDBERG,                      )
                                       )
                   Respondent.         )
                                       )      Filed       MAR 0 3 2016


      JOHNSON, J.-This case asks us to determine whether a prosecutor

commits error when, during closing rebuttal argument, he comments that the

defendant failed to call a witness to corroborate his affirmative defense of

unwitting possession of a controlled substance. We hold that in a criminal

prosecution where the defendant has the burden to establish an affirmative defense,

no error occurs where the prosecutor comments on the defendant's failure to

present evidence or testimony in support of the defe,nse. Thus, we find no error in

this case and reverse the Court of Appeals.

                         FACTS AND PROCEDURAL HISTORY

      Cory Sundberg was charged with and convicted of unlawful possession of a
State v. Sundberg (Cory A.), No. 91660-8


controlled substance (methamphetamine) under RCW 69.50.4013(1). This statute

sets forth a strict liability crime in that knowledge of the possession is not an

element of the offense that the State has to prove. To reduce the harshness of this

offense, courts have created an unwitting possession defense and placed the burden

on the defendant to establish the defense by a preponderance of the evidence. At

trial, the thrust of Sundberg's argument was to assert an unwitting possession

defense, assuming this burden of proof.

       Sundberg was arrested on an outstanding warrant while working on his

foster father's property, where he also resided. Sundberg was performing

maintenance on a shed and cleaning the outside of their mobile home on the day he

was arrested. Before being taken into custody, Sundberg asked the arresting

officer's permission to change out of his work overalls because they were wet from

pressure washing the roof and sides of the house. Despite his request, Sundberg

was transported to jail while wearing the overalls.

        Sundberg was taken to the county jail and given a set of jail clothing. The

clothes Sundberg was wearing were given to a corrections officer for an inventory

 search. In a front bib pocket of the overalls, the corrections officer found a clear

plastic bag containing a white substance. At trial, Sundberg stipulated to the fact

 that the bag found in the front bib pocket of the overalls contained 0.1 grams of

 methamphetamine.

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State v. Sundberg (Cory A.), No. 91660-8


       In his testimony, Sundberg argued unwitting possession, claiming he had no

idea there were drugs in the front bib pocket of his overalls, nor that he knew the

small plastic bag was even there.

       Sundberg testified that a man named Paul Wood-a name the defense

brought up for the first time during Sundberg's trial testimony-helped with work

on the house and shed for roughly six days just prior to the arrest. Sundberg had

put out word that he needed some help and learned about Wood, who was looking

for work, through his neighbors. Sundberg claimed that he occasionally lent Wood

overalls to work underneath Sundberg's house and shed to prevent Wood from

ruining his own clothes, which were not suited for this type of work. Sundberg

estimated that Wood borrowed the overalls four of the six days Wood helped with

work. Sundberg testified that prior to the day of his arrest, he wore the overalls

only once during the period oftime he employed Wood. Sundberg testified that

Wood was not present on the day he was arrested because Sundberg either

dismissed him or because Wood failed to show up that day.

       The prosecl!-tor cross-examined both Sundberg and his foster father about the

existence, duties, and details of Paul Wood as a hired laborer. The prosecutor

inquired into why Sundberg lent Wood his coveralls, why Wood needed to borrow

coveralls, how well Sundberg knew Wood, how close the two lived to each other,

how often Sundberg saw Wood, and if Sundberg could get ahold of Wood if

                                           3
State v. Sundberg (Cory A.), No.   91660~8




needed.

    . In closing argument, Sundberg's attorney asserted it was reasonable to

believe Sundberg did not know the bag with methamphetamine was in the front bib

pocket of his overalls. Sundberg's attorney acknowledged that to successfully raise

an affirmative defense ofumvitting possession of the drugs, he had "to present

enough evidence to show by a preponderance that he didn't know [the

methamphetamine] was there." 1 Verbatim Report ofProceedings (VRP) at 187.

His attorney also asserted that "[t]he only evidence we have that [Sundberg] did

not know that the methamphetamine was in his pocket was his own words." 1 VRP

at 187. Additionally, despite the extensive cross-examination concerning Wood,

Sundberg's attorney explained in closing argument that very little was known

about Paul Wood-only that he was hired as a laborer to help Sundberg for

roughly a week, that he borrowed Sundberg's overalls to protect his clothes, and

that Wood was not present on the day Sundberg was arrested.

        The claimed error on appeal occurred where, in the State's rebuttal closing

 argument, the prosecutor attacked Sundberg's affirmative defense. The State argued,

 "[T]his enigmas [sic], mysterious man named Paul Wood-he might as well be

 called John Doe." 1 VRP at 195. The State focused on what little was known about

 Wood:

        I asked [Sundberg] okay, tell us about Paul Wood; describe him for

                                             4
State v. Sundberg (Cory A.), No. 91660-8


       us, do you know him, how do you know him. [Sundberg] says he sees
       him about twice a 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.

1 VRP at 195 (emphasis added). Sundberg objected to the prosecutor's argument,

and the court overruled the objection. The prosecutor continued by saying

Sundberg's testimony "was obviously designed to tell a story to corroborate his

defense. And again, it was his burden. He didn't bring in Paul Wood." 1 VRP at

196 (emphasis added).

       Out of the presence of the jury, Sundberg asked the court to instruct the jury

to disregard the State's argument that Sundberg failed to call Wood to testify.

Sundberg argued the State's comments were improper unless the prosecutor asked

for a missing witness instruction. The State did not propose such an instruction.

The court denied Sundberg's request to disregard the State's argument for two

reasons. First, the court found no misconduct in the State's closing argument, and

second, Sundberg failed to identify case law to warrant such an instruction.

Sundberg was convicted.

        Sundberg moved for a new trial, arguing prosecutorial misconduct pursuant

to CrR 7.5(a)(2). 1 The court denied Sundberg's motion, ruling that there was no

        1
          CrR 7.5(a)(2) provides, "Grounds for New Trial. The court on motion of a defendant
may grant a new trial for any one of the following causes when it affirmatively appears that a
substantial right of the defendant was materially affected: ... (2) Misconduct of the prosecution
or jury."


                                                5
State v. Sundberg (Cory A.), No. 91660-8


prosecutorial misconduct concerning the missing witness, Paul Wood. The court

also ruled that the defense did not meet its burden of showing, to a substantial

likelihood, that the jury verdict would have been affected.

       In an unpublished opinion, the Court of Appeals reversed Sundberg's

conviction, holding that while the prosecutor's comments did not improperly shift

the burden of proof, they did impermissibly invoke the missing witness doctrine.

State v. Sundberg, noted at 185 Wn. App. 1051 (2015). The court held that the

prosecutor's comments on the defense's failure to call Wood to testify did not

improperly shift the burden of proof from the State to Sundberg because an attack

on Sundberg's evidence was proper where he had the burden to prove his

affirmative defense of unwitting possession by a preponderance of the evidence.

Nonetheless, the court held that the prosecutor committed misconduct by

improperly invoking the missing witness doctrine, which created a substantial

likelihood the jury verdict was affected. We granted the State's petition for review.

State v. Sundberg, 184 Wn.2d 1001, 357 P.3d 666 (2015).

                                           ANALYSIS

       For a prosecutor's comments to rise to the level of misconduct, they must be

both improper and prejudicial. State v. Thorgerson, 172 Wn.2d 438, 442, 258 P.3d

43 (2011). Improper comments become prejudicial ifthere is a substantial

likelihood that the prosecutor's comments affected the jury's verdict. Thorgerson,

                                              6
      State v. Sundberg (Cory A.), No. 91660-8


      172 Wn.2d at 442-43.

             In a criminal prosecution, the State must prove "'beyond a reasonable doubt

      ... every fact necessary to constitute the crime with which [a defendant] is

      charged."' State v. W.R., 181 Wn.2d 757,762, 336 P.3d 1134 (2014) (alterations in

      original) (quoting In re Winship, 397 U.S. 358, 364, 90S. Ct. 1068, 25 L. Ed. 2d

      368 (1970)). A corollary rule founded on the concern for a defendant's right to due

.t;   process under the Sixth Amendment to the federal constitution is that a prosecutor

      may not comment on a 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); see Winship, 397 U.S. at 364.

             One exception to this rule is that if the defendant testifies about an

      exculpatory theory or defense that could have been corroborated by an available

      witness, then, in limited circumstances, the State may call attention to the

      defendant's failure to offer corroborating evidence. State v. Blair, 117 Wn.2d 479,

      481, 816 P.2d 718 (1991). In the case before us, the State's actions fall into exactly

      this classification.

              Here, the defendant testified and was cross-examined, so no concerns under

      the Fifth Amendment to the federal constitution exist, as may arise where

      comments are made concerning a defendant's exercise of the right to remain silent

       or the choice not to testify. Similarly, as the Court of Appeals correctly recognized,

                                                  7
State v. Sundberg (Cory A.), No. 91660-8


the Sixth Amendment concerns implicated-which can arise where the State

improperly shifts its burden to the defendant-are not applicable here. A defendant

who asserts an unwitting possession defense bears the burden to present evidence

in support of the defense. The Court of Appeals, however, concluded that the

prosecutor's comments improperly (and inferentially) invoked the missing witness

doctrine, requiring reversal. We disagree.

       The missing witness doctrine is a well-established rule that permits the jury

to infer that evidence or testimony would be unfavorable to a party if that

'"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 [, that party] fails to do so."'

Blair, 117 Wn.2d at 485-86 (quoting State v. Davis, 73 Wn.2d 271, 276, 438 P.2d

185 (1968)). Where the missing witness instruction is requested by a party and

given by the court, the judge informs the jury that if a person who could have been

a witness at the trial is not called to testify, the jury may infer that the person's

testimony would have been unfavorable to the party who would naturally have

called that witness.

        It should be noted that the constitutional principles underlying the Fifth and

 Sixth Amendments, along with other concerns, significantly limit the

circumstances where the missing witness instruction may be used. These




                                             8
State v. Sundberg (Cory A.), No. 91660-8


limitations are expressed in Blair and Washington Practice2 and were analyzed in

$tate v. Montgomery, 163 Wn.2d 577, 596-601, 183 P.3d 267 (2008) (reversing

defendant's conviction finding the instruction was erroneously given to the jury).

Here, unlike Montgomery, no missing witness instruction was given and Sundberg

testified at trial.

       In Blair, a case similar to the facts here-where the jury was not given the

missing witness instruction and the prosecutor's arguments were challenged as

being improper-the missing witness doctrine was analyzed and no error was

found. Although that case did not involve an affirmative defense, the defendant

testified, and we held that it was proper for the prosecutor in challenging the

defendant's testimony to comment on the defendant's failure to produce

testimonial evidence to support a defense theory. In Blair, the defendant

challenged his conviction of unlawful delivery of a controlled substance, arguing

that the prosecutor committed reversible error by commenting during closing

argument on the defendant's failure to call certain witnesses. The defendant in that

case was arrested in his apartment, where sheets of paper with handwritten notes

on them were seized by the police. During trial, the prosecution witnesses

described the sheets of paper as '"crib' notes or sheets, of a kind commonly found


        2
          11 WASHINGTON PRACTICE: WASHINGTON PATTERN JURY lNSTRUCTIONS:·CRIMINAL
5.20, at 177 (3d ed. 2008).


                                           9
State v. Sundberg (Cory A.), No. 91660-8


at locations where drugs are sold and constituting a 'crude business ledger."' Blair,

117 Wn.2d at 482. The sheets contained lists of people, generally by first name

onlyl with corresponding numbers across from the names. The defendant testified,

claiming most of the names and numbers on the sheets of paper indicated personal

loans and amounts owed to him for card games, travel arrangements, rent, and a

medical appointment. In closing argument, the prosecutor referred to the sheets,

saymg:

              "those people weren't brought in to tell you those were
              gambling debts for you to evaluate the contents of their
              testimony or their demeanor."

                      " ... ask yourselves that if this were true that these
               were gambling debts and you were in the defendant's
               shoes and you knew who all these people were ...
               wouldn't the first thing that would cross your mind be to
               bring in the friends that he says he loaned money to, say,
               'Joe, I need you to come in'?"
                      "And if Joe doesn't want to come in, he'd want to
               subpoena him and Sam and Fred and Paul and everybody
               else that's on that list and say, 'Well, what's this for?'
               'Well, it's a gambling debt.' And ifhe didn't do that,
               couldn't you infer that their answer wouldn't have been,
               'It was a loan. It's a gambling debt'?"

Blair, 117 Wn.2d at 483-84. In closing rebuttal argument, the prosecutor

 continued, "'Why not put or bring them all in and settle the matter? There's a

 reason for that, and the reason is simple. He couldn't bring those people in to say

 what he wanted them to say."' Blair, 117 Wn.2d at 484.



                                             10
State v. Sundberg (Cory A.), No. 91660-8


       We held in Blair that "[t]he prosecutor was entitled to argue the reasonable

inference from the evidence presented'' because the defendant specifically testified

about the notations on the sheets of paper. Blair, 117 Wn.2d at 491. Notably, we

found no error occurred and no constitutional concerns were implicated. Our

reasoning in Blair relied on Court of Appeals' decisions (State v. Contreras, 57

Wn. App. 471, 788 P.2d 1114 (1990), and State v. Barrow, 60 Wn. App. 869, 809

P.2d 209 (1991)) to conclude that-in limited situations where a defendant actually

testifies-prosecutors are permitted to comment on a defendant's failure to

produce corroborative evidence to support their testimony and that such comments

do not improperly shift the burden of proof. The same reasoning applies equally

here, where Sundberg testified about Woods and was cross-examined.

       A defendant bears the responsibility of proving an affirmative defense by a

preponderance of the evidence, and no error occurs where the prosecutor attacks

such evidence or a lack thereof. This distinction is especially pertinent here, where

the prosecutor's arguments related directly to the cross-examination of the

defendant concerning Paul Wood. The missing witness doctrine plays no part in

such circumstances. Additionally, while Blair recognized and discussed limitations

applicable to the missing witness doctrine when the State would commit error in

commenting on the defendant's evidence, those limitations are irrelevant here.

 Significantly, Blair found no constitutional error occurred. This conclusion is

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State v. Sundberg (Cory A.), No. 91660-8


supported by the reasoning in other cases.

       In Contreras, the Court of Appeals correctly held that it is permissible for a

prosecutor to inquire into a defendant's failure to present evidence that would

corroborate defense testimony:

              When a defendant advances a theory exculpating him, the
       theory is not immunized from attack. On the contrary, the evidence
       supporting a defendant's theory of the case is subject to the same
       searching examination as the State's evidence. The prosecutor may
       comment on the defendant's failure to call a witness so long as it is
       clear the defendant was able to produce the witness and the
       defendant's testimony unequivocally implies the uncalled witness's
       ability to corroborate his theory of the case.

Contreras, 57 Wn. App. at 476. While Contreras differs in that it involves a

defendant who failed to call an alibi witness to testify, the rationale applies to our

case nonetheless. Here, Sundberg-by tacitly pointing the finger at Paul Wood-

was in the unique situation specified in Contreras. Sundberg was the only party

able to produce Woods, and Woods, if called, could at least to some degree

corroborate Sundberg's theory of unwitting possession.

        rn·another case factually and procedurally similar to the one here, the Court

of Appeals reaffirmed a prosecutor's argument challenging a defendant's lack of

corroborative testimony evidence. Barrow, 60 Wn. App. 869. This case involved a

defendant charged with unlawful possession of a controlled substance (a narcotics

pipe that contained cocaine residue). Like our case, Barrow raised an affirmative


                                           12
 State v. Sundberg (Cory A.), No. 91660-8


 defense of unwitting possession. Barrow testified that the pipe was his brother's,

 that he "had surreptitiously taken the pipe from his brother in hopes of using it to

 get high with somebody, and that he therefore had not known the pipe contained

 cocaine residue." Barrow, 60 Wn. App. at 871. During closing argument, the

 prosecutor questioned whether Barrow's testimony was believable and repeatedly

 asked, "'Where is his brother'" who could corroborate Barrow's defense. Barrow,

. , 60 Wn. App. at 871. The court held that such comments were acceptable,

 reasoning that "a prosecutor can question a defendant's failure to provide

 corroborative evidence if the defendant testified about an exculpatory theory that

 could have been corroborated by an available witness." Barrow, 60 Wn. App. at

 872. Here, Sundberg testified asserting an affirmative defense and was questioned

 extensively about Paul vVood during cross-examination. We hold no error

 occurred.




                                            13
State v. Sundberg (Cory A.), No. 91660-8


       We reverse the Court of Appeals.




WE CONCUR:




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