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

v. STEVEN RICHARD HOUSER, Appellant. No. 73311-7-1

PUBLISHED OPINION FILED: October 24, 2016 CD O

o G3 

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

### isinapplicablewhere the missing witness'stestimony would necessarily be selfincriminating. 

### Steven Houser appeals his conviction for felonydriving while under the 

### influence of intoxicants(DUI). Heargues hisconviction should be reversed because 

### the trial courtmisapplied the missing witness doctrine and improperly instructed the 

### jury. Housertestified that"Gary" wasdriving when Houser's truck lefttheroad and struck a pole, injuring Houser. Houserdoes notknow where Gary went after the accident. IfGary corroborated Houser's theory of the case, hewould necessarily have incriminated himselfforfailing to remain at the scene of an accident. Therefore, 

### themissing witness instruction should not have beengiven. Because the core of Houser's defense was that he was not driving, we cannot conclude the instruction, inNo. 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 bloodynose 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. Housertold the trooper he had driven offthe road and hit a pole and had walked to the Hathaways' to use their phone. Houser said he had three to 

### fourbeers 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 ifhe was willing to submit tofield sobriety tests. Houser agreed, and the trooper performed the horizontal gaze nystagmus test, which indicated impairment. Houserthen agreed to a voluntary portable breathalyzer 

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

1Report ofProceedings (RP) (Mar. 4, 2016) at 126.No. 73311-7-1/3
wasn't even driving. Mybuddy 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 ofnegotiating the almost 90-degree turn inthe road, Houser's truck had gone straight offthe road, through a fence, and into a large pole. 

### There was damage to the rightside ofthe 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 againstthe passenger side door. There was blood on the steering wheel, whichseemed consistentwith Houser's bloodynose 

### and swollen lip. There was a beer can inside the truck, alongwith a piece ofmail with Houser's name on it. 

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

### applied for a blood draw. Hospital staffexamined Houserandfound broken glass consistentwith the glass found on the driver's sidefloorboard of thetruck inside his shoes. Houser confirmed he had consumed alcohol within the last 24 hours, but 

### denied driving. Houser'sblood drawregistered a blood alcohol contentlevel of0.19. The State charged Houserwith 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. Hisfriends were not there, so Houserwaited 

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

### Houserlived next door to Gary when he was 19, but Houser had notseen Garyin
2RP (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. Housertestified 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 anotherfriend's house, and got into the accident along the way. 

### Houser testified Gary was driving and Houser was in the passenger seatwhen the accident occurred. Houser remembered going off the road, but did not remember 

### getting out ofthetruck. He testified thatGary did not remain in thetruck, butdid not know what happened to him. Houserdid notknow how Gary got out of the truck or 

### whether he was injured. Hetestified he had not been in contactwith Gary since the 

### accident, did notknow howto contacthim, and had nottried to contacthim. None of this information had been provided to the State before Houser testified. After both sides had rested, the State requested a missing witnessjury 

### instruction. Houserobjected, noting he had been unable to conductan investigation 

### tofind Gary. Thetrial courtallowed theinstruction and permitted the Statetoreferto the defense's failure tocall Gary tocorroborate Houser'stheory ofthecase in its closing argument. 

### Thejuryfound Houserguilty. Thecourt imposed a standard range sentence. Houser appeals. ANALYSIS 

### Houser argues his conviction should bereversed because thetrial court 

### misapplied the missing witness doctrine and improperly instructed thejury. 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 ofdiscretion.3 "When a trial court's exercise of its discretion is manifestly unreasonable or based upon untenable grounds or reasons, an abuse ofdiscretion 

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

### thejury.5 The missing witness doctrine permits thejury to infer that evidence or testimony would be unfavorable to a party ifthat "'evidence which would properly be part of a case is withinthe control ofthe 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 

### bythe court, thejudge informs thejurythat ifa person who could have been a witness at the trial is not called to testify, thejury may infer that 

### the person's testimony would have been unfavorable to the party who 

### would naturally have called thatwitness.[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 appliedagainst a criminal defendant."9 The doctrine applies only
3InreDet. 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). 6State 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)). 7Id, 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


### ifseveral requirements have been satisfied.10 The doctrine does notapply where the missing witness's testimony, iffavorable to the party who would naturally have called the witness, would necessarily be self-incriminating.11 Here, Housertestified that Gary was driving, Houserwas inthe passenger seat when the accident occurred, and Gary did not remain in the truck. Houser also testified about his injuries. Thus, ifGary corroborated Houser's testimony, Gary would necessarily have incriminated himselffor failing to remain at the scene ofan accident. Under RCW 46.52.020, the driver of any vehicle involved in an accident resulting in injury to any person "shall... inevery event remain at[ ] the scene of such accident until he or she has fulfilled the requirements of subsection (3) ofthis section." RCW 46.52.020(3) provides in pertinent partthat 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 whetherthe missing witness doctrine

10 State v. Cheatam. 150 Wn.2d at 652-53 (The missing witness doctrine 

### applies only if (1) the absentwitness is particularly withinthe 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 abilityto produce Gary and then concluded, "I think it's appropriate to allowthe 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. IfGary 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 errorwas harmless because the prosecutor reiterated in closing argumentthat the State bore the burden ofproofand that Houser bore no burden. 

### An improper missing witnessjury instruction can be harmless error ifthe jury


### was properly instructed on the State's burden.15 "An erroneous instruction is harmless if, from the record in [the] case, itappears beyond a reasonable doubtthat 

### 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 particularcase.'"16 Here, the core of Houser's defense was that he was not driving. Giving a 

### missing witness instruction and allowingthe prosecutorto comment on Gary's

13 See Montgomery. 163 Wn.2d at 597 (it is errorfor a judge to give a missing witness instruction unless there is evidence supporting each ofthe factors). 14 RP (Mar. 5, 2015) at463-64. 15Montgomery, 163 Wn.2d at 600. 

### 16jd. (alteration inoriginal) (internal quotation marks omitted) (quotingState 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 considerwhat's reasonable to you. Would you, ifyou 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, ifyou weren't the driver, would you have changed that story? Would you have not gone outto try to find witnesses to help support your story 

### what you did that day?[17] 

### Why didn't any ofthose 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 ofthe 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]hythis 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, Iwas 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 Iasked him, well, what happened to Gary afterthe collision? He goes Idon't know. How did he get out? Idon't know. Mr. Hathaway was concerned there was somebody else possibly injured, ifthere was somebody else inthe 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 

### prosecutoremphasized 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, incombination withthe prosecutor's multiple references to Gary's absence, was harmless. We reverse and remand for further proceedings consistentwith this opinion 21

WE CONCUR: 

# yiu^tift.

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