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

STATE OF WASHINGTON,                            No. 73311-7-1

                                                                                   CD
                    Respondent,                                                    O




           v.



STEVEN RICHARD HOUSER,                          PUBLISHED OPINION                  o

                                                                                   G3
                    Appellant.                  FILED: October 24, 2016


       Verellen, C.J. — A missing witness instruction should be used sparingly and

is inapplicable where the missing witness's testimony would necessarily be self-

incriminating.

       Steven Houser appeals his conviction for felony driving while under the

influence of intoxicants (DUI). He argues his conviction should be reversed because

the trial court misapplied the missing witness doctrine and improperly instructed the

jury. Houser testified that "Gary" was driving when Houser's truck left the road and
struck a pole, injuring Houser. Houser does not know where Gary went after the

accident. If Gary corroborated Houser's theory of the case, he would necessarily

have incriminated himselffor failing to remain at the scene of an accident. Therefore,

the missing witness instruction should not have been given. Because the core of
Houser's defense was that he was not driving, we cannot conclude the instruction, in
No. 73311-7-1/2



combination with the prosecutor's multiple references to Gary's absence, was

harmless.


      Therefore, we reverse Houser's conviction and remand for a new trial.

                                       FACTS


      Around 9:00 p.m. on May 19, 2013, Steven Houser knocked on the door of

Sherry and Frank Hathaway's Deming, Washington home. Houser appeared "a little

disabled" to Sherry, and had a bloody nose and a swollen lip.1 Sherry called 911

while Frank went outside with Houser. Houser told Frank he put his truck in a ditch

about a mile up the road. He seemed excited and somewhat disoriented. He

answered only some of Frank's questions and gave slow responses.

       Emergency medical technicians arrived shortly after and attended to Houser.

State Patrol Troopers Eric Magnussen and Travis Lipton arrived about 30 minutes

later. Trooper Magnuson noticed Houser had a swollen lip, bloodshot, watery eyes,

and a flushed face. Houser told the trooper he had driven off the road and hit a pole

and had walked to the Hathaways' to use their phone. Houser said he had three to

four beers that night and that he had been drinking all the way from a friend's house

to the scene of the accident.

       Trooper Magnuson asked Houser if he was willing to submit to field sobriety

tests. Houser agreed, and the trooper performed the horizontal gaze nystagmus test,

which indicated impairment. Houser then agreed to a voluntary portable breathalyzer

test. When the troopers arrested him, Houser became agitated and hostile, yelling, "I



       1 Report of Proceedings (RP) (Mar. 4, 2016) at 126.
No. 73311-7-1/3



wasn't even driving. My buddy was driving" and that they could not prove Houser

was the driver.2

       The troopers drove to the accident site. They did not see anyone on the road

along the way. Instead of negotiating the almost 90-degree turn in the road,

Houser's truck had gone straight off the road, through a fence, and into a large pole.

There was damage to the right side of the truck, the left front quarter panel, and the

bumper. There was glass on the driver's side floorboard that appeared to have come

from the broken driver's side window. The passenger side window was also broken,

and a large fence post was wedged up against the passenger side door. There was

blood on the steering wheel, which seemed consistent with Houser's bloody nose

and swollen lip. There was a beer can inside the truck, along with a piece of mail

with Houser's name on it.

         After impounding the truck, the troopers took Houser to the hospital and

applied for a blood draw. Hospital staff examined Houser and found broken glass

consistent with the glass found on the driver's side floorboard of the truck inside his

shoes.     Houser confirmed he had consumed alcohol within the last 24 hours, but

denied driving. Houser's blood draw registered a blood alcohol content level of 0.19.
         The State charged Houser with felony DUI. Houser was the only defense

witness. He testified that on the afternoon of May 19, 2013, he bought beer at a gas

station and drove to his friends' house. His friends were not there, so Houser waited

for them in his truck. As he was waiting, Houser saw Gary walking down the road.

Houser lived next door to Gary when he was 19, but Houser had not seen Gary in


         2 RP (Mar. 4, 2015) at 177; RP (Mar. 5, 2015) at 354.
No. 73311-7-1/4



about 15 years. Houser and Gary decided to drive and find some marijuana for Gary.

Houser testified Gary drove Houser's truck because Houser had already been

drinking beer. After getting some marijuana, they drove to a grocery store and

Houser continued to drink beer. They then began driving to another friend's house,

and got into the accident along the way.

       Houser testified Gary was driving and Houser was in the passenger seat when

the accident occurred. Houser remembered going off the road, but did not remember

getting out of the truck. He testified that Gary did not remain in the truck, but did not
know what happened to him. Houser did not know how Gary got out of the truck or

whether he was injured. He testified he had not been in contact with Gary since the

accident, did not know how to contact him, and had not tried to contact him. None of

this information had been provided to the State before Houser testified.

       After both sides had rested, the State requested a missing witness jury

instruction. Houser objected, noting he had been unable to conduct an investigation
to find Gary. The trial court allowed the instruction and permitted the State to refer to
the defense's failure to call Gary to corroborate Houser's theory of the case in its

closing argument.

       The jury found Houser guilty. The court imposed a standard range sentence.

       Houser appeals.

                                       ANALYSIS

       Houser argues his conviction should be reversed because the trial court
misapplied the missing witness doctrine and improperly instructed the jury. We agree
with Houser.
No. 73311-7-1/5



       We review the trial court's decision to give a missing witness instruction for an

abuse of discretion.3 "When a trial court's exercise of its discretion is manifestly

unreasonable or based upon untenable grounds or reasons, an abuse of discretion

exists."4 We review de novo whether legal error in jury instructions could have misled

the jury.5

       The missing witness doctrine 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.6

       Where the missing witness instruction is requested by a party and given
       by the court, the judge informs the jury that ifa 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.[7]

       The missing witness "instruction should be used sparingly."8 The limitations

on the application of the missing witness doctrine "are particularly important when, as

here, the doctrine is applied against a criminal defendant."9 The doctrine applies only


       3 InreDet. ofAlsteen. 159 Wn. App. 93, 99, 244 P.3d 991 (2010).
       4 State v. Powell. 126 Wn.2d 244, 258, 893 P.2d 615 (1995).
       5 State v. Montgomery. 163 Wn.2d 577, 597, 183 P.3d 267 (2008).
        6 State v. Sundberq, 185 Wn.2d 147, 153, 370 P.3d 1 (2016) (quoting State v.
Blair, 117 Wn.2d 479, 485-86, 816 P.2d 718 (1991)).
        7 Id, at 154.
       811 Washington Practice: Washington Pattern Jury Instructions:
Criminal 5.20 note on use at 177 (3d ed. 2008) (emphasis added); see also 5 Karl
B. Tegland, Washington Practice: Evidence Lawand Practice § 402.8, at 291 (6th
ed. 2016) (The missing witness "requirements are sufficiently rigorous to make the
rule rarely applicable in practice, especially in criminal cases.").
        9 Montgomery. 163 Wn.2d at 598.
No. 73311-7-1/6



if several requirements have been satisfied.10 The doctrine does not apply where the

missing witness's testimony, iffavorable to the party who would naturally have called

the witness, would necessarily be self-incriminating.11

       Here, Houser testified that Gary was driving, Houser was in the passenger

seat when the accident occurred, and Gary did not remain in the truck. Houser also

testified about his injuries. Thus, if Gary corroborated Houser's testimony, Gary

would necessarily have incriminated himself for failing to remain at the scene of an

accident. Under RCW 46.52.020, the driver of any vehicle involved in an accident

resulting in injury to any person "shall... in every event remain at[ ] the scene of

such accident until he or she has fulfilled the requirements of subsection (3) of this

section." RCW 46.52.020(3) provides in pertinent part that the driver "shall give his

or her name, address,. . . and shall render to any person injured in such accident

reasonable assistance."

       Houser objected to the missing witness instruction.12 The trial court was thus

obligated to make a careful inquiry into whether the missing witness doctrine




       10 State v. Cheatam. 150 Wn.2d at 652-53 (The missing witness doctrine
applies only if (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 satisfactorily explained, (4) the witness is not incompetent or his
testimony privileged, and (5) the testimony does not infringe on the defendant's
constitutional rights); Montgomery, 163 Wn.2d at 598-99.
       11 State v. Blair. 117 Wn.2d 479, 489-90, 816 P.2d 718 (1991); State v.
Gregory, 158 Wn.2d 759, 846, 147 P.3d 1201 (2006), overruled on other grounds by
State v.W.R.. Jr.. 181 Wn.2d 757, 336 P.3d 1134 (2014).
       12 Houser's objection adequately apprised the trial court that he disputed the
instruction; his specific objection focused on his inability to locate Gary. See
RP(Mar. 5, 2015) at 463.
No. 73311-7-1/7



applied.13 But here, the trial court considered Houser's ability to produce Gary and

then concluded, "I think it's appropriate to allow the instruction," without engaging in

any other inquiry.14 The premise of a missing witness instruction is that there is no

reasonable explanation why the party did not produce a favorable witness. That

premise completely fails when the missing witness's favorable testimony necessarily

would be self-incriminating. If Gary corroborated Houser's testimony, he would

necessarily have implicated himself. Because Gary's absence was satisfactorily

explained, the missing witness instruction should not have been given.

       The State asserts any error was harmless because the prosecutor reiterated in

closing argument that the State bore the burden of proof and that Houser bore no

burden.

       An improper missing witness jury instruction can be harmless error if the jury

was properly instructed on the State's burden.15 "An erroneous instruction is

harmless if, from the record in [the] case, it appears beyond a reasonable doubt that

the error complained of did not contribute to the verdict obtained. Whether a flawed

jury instruction is harmless error depends on the facts of a particular case.'"16

       Here, the core of Houser's defense was that he was not driving. Giving a

missing witness instruction and allowing the prosecutor to comment on Gary's



      13 See Montgomery. 163 Wn.2d at 597 (it is error for a judge to give a missing
witness instruction unless there is evidence supporting each of the factors).
       14 RP (Mar. 5, 2015) at 463-64.
       15 Montgomery, 163 Wn.2d at 600.
       16 jd. (alteration in original) (internal quotation marks omitted) (quoting State v.
Carter, 154 Wn.2d 71, 81, 109 P.3d 823 (2005)).
No. 73311-7-1/8



absence here substantially undercut Houser's defense. During rebuttal closing

argument, the prosecutor argued,

      You can consider what's reasonable to you. Would you, if you think
      you are fine, you admit to driving and talking to law enforcement... but
      then the moment you get arrested knowing you are in trouble, if you
      weren't the driver, would you have changed that story? Would you
      have not gone out to try to find witnesses to help support your story
      what you did that day?[17]

      Why didn't any of those witnesses'181 come to you and tell you anything
      that corroborates his story? Why didn't he do that? Nothing. There is
      no evidence but what he told you that supports his story.



            Look at the instructions in terms of the missing witness that didn't
      come to testify. No evidence to support what he is claiming and having
      654 days to try to find somebody or try to find the supposed Gary that
      he said was the driver.[19]

      [W]hy this is the first time ever in almost two years we have ever heard
      about Gary, why no one has contacted law enforcement to admit, hey, I
      am a witness; hey, I was the driver. No one has come forward. Ifthey
      had, they normally would have followed up on that investigation. There
      is no evidence that there is nobody else there. When I asked him, well,
      what happened to Gary after the collision? He goes I don't know. How
      did he get out? I don't know. Mr. Hathaway was concerned there was
      somebody else possibly injured, if there was somebody else in the car.
      But there wasn't.[20]

      While there was evidence sufficient to support a conviction, there was not

overwhelming evidence of guilt. Therefore, we cannot conclude the missing witness



      17RP(Mar. 6, 2015) at 540-41.
      18 While there were arguably references made to other missing witnesses, the
prosecutor emphasized Gary's absence. Because Gary's testimony would
necessarily be self-incriminating, the instruction should not have been given.
      19RP(Mar. 6, 2015) at 545-46.
      20 Id. at 551.
No. 73311-7-1/9



instruction, in combination with the prosecutor's multiple references to Gary's

absence, was harmless.

      We reverse and remand for further proceedings consistent with this
          21
opinion




WE CONCUR:




                                        yiu^tift.




       21 Accordingly, we need not address the other issues Houser raises on appeal.
