### FILED FEBRUARY 9, 2017 In the Office ofthe Clerk ofCourt WA State Court ofAppeals, Division III
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION THREE STATE OF WASHINGTON, Respondent, V. JEFFREYLEONARD HUESTIES, Appellant. ) 

### ) ) ) ) ) ) ) ) No. 33828-2-111

UNPUBLISHED OPINION

PENNELL, J. -Mr. Huesties was convicted oftheft ofrental property after he failed to return a dehumidifierto Pasco Rentals. We affirm. 

### FACTS On October 30, 2014, Jeffrey Huesties, accompaniedby another man, rented a dehumidifier from PascoRentals. When Mr. Huesties did notreturn the dehumidifier, Pasco Rentals sent Mr. Huesties a certified letter to the address heprovided intherental contract. Thepostoffice attemptedto deliverthe letter to Mr. Huesties three times, but it
was ultimately returned as unclaimed. OnNovember 19, Pasco Rentals left a voicemail for Mr. Huesties onhis mobile phone. Mr. Huesties calledbackthe following day and stated he wouldreturn the dehumidifierthat day. He did not. OnNovember 21, an employee from PascoRentals wentto Mr. Huesties's address and spoke withhis mother. Mr. Huesties's mother did notknowwherethe dehumidifierwas.No. 33828-2-111 State v. Huesties
Mr. Huesties was chargedby information with one count oftheft ofrental property. During trial, Mr. Huesties offered an explanation for whathappened to the dehumidifier. He testified he was riding in a truck with two longtime family friends, John and Lisa, 1when 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 priorto 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 oftrial. A police officerwas sent to investigate the address during trial and contactedthe 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 ofhim. It appears theproperty was in foreclosure

1The 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

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at the time Mr. Huesties claims Mr. Rodriquez was living there. Mr. Huesties acknowledged speaking with Pasco Rentals overthe phone about the return ofthe dehumidifier, but claimed he neverreceived 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 claimedto 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, neverreturned the dehumidifier, and had no further contact with Pasco Rentals. NeitherMr. Rodriquez, John, norLisawere calledto testify.Relevant to this appeal, thejurywas given the three following instructions: Instruction 9 You may presume intent to deprive ifthe person who rented or leased the property failed to return or make arrangements acceptable to the owner of the property orthe owner's agent to return the propertyto the owner orthe owner's agent within seventy-two hours after receipt ofpropernotice following the due date ofthe rental, lease, lease-purchase, or loan agreement. Instruction 10 "Propernotice" means a written demand by the owner orthe owner's agent 3.~ 1 

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made after the due date ofthe rental, lease, lease-purchase, orloanperiod, mailedby certified orregistered mail to the renter, lessee, orborrower at: (a) The address the renter, lessee, orborrower gave when the contractwas made; or (b) the renter, lessee, orborrower's last known address iflater furnished in writing by the renter, lessee, borrower, orthe agent ofthe renter, lessee, orborrower. Instruction 12 Ifa person who could have been a witness at the trial is not calledto testify, 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 ifyou find that: (1) The witness is within the control of, orpeculiarly available to, that party; (2) The issue on which the person could have testified is an issue of fundamental importance, ratherthan one that is trivial or insignificant; (3) As a matter ofreasonable probability, it appears naturally in the interest ofthatpartyto call the person as a witness; (4) There is no satisfactory explanation ofwhy the party did not call the person as a witness; and (5) The inference is reasonable in light ofall the circumstances. Clerk's Papers at 48-49, 51. Defense counsel stated on the record that he had no objections to any ofthejury instructions. The trial court did not specify whether instruction number 12 applied to Lisa, John, Mr. Rodriquez, or some combination ofthe three. The prosecutor argued the missing witness inference as to all three during closing arguments. Thejury found Mr. Huesties guilty. Mr. Huesties appeals.

4No. 33828-2-III State 

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### Sufficiency of evidence ANALYSIS

Mr. Huesties was charged with two alternative means for committingtheft of rental property: (1) wrongfully obtaining the rental property, and (2) exerting unauthorized control overthe rental property. He challenges the sufficiency ofthe State's evidence as to the first means. Mr. 

### Huesties's conviction can be affirmed ifthere 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 thejury 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, thejurywas 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, thejury could infer Mr. 

### Huesties's true

2 Mr. 

### Huesties's explanation ofthe incident is undermined by his limited information about Mr. Rodriguez, the lack ofcorroborating evidence regarding Mr. 

### Rodriguez's purported address, and Mr. Huesties's apparent evasion ofPasco Rentals' attempts to reclaim the dehumidifier. 

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### State v. Huesties
intent upon renting the dehumidifier was not to lend it to Mr. Rodriguez, butto retain it indefinitely. Under either assessment of

### Mr. Huesties's testimony, the Statepresented sufficient evidence to support the theory thatthe property was wrongfullyretained. Reversal is unwarranted. 

### Ineffective assistance of counsel Mr. Huesties contends his defense counsel was ineffective for failing to objectto jury instructions 9, 10 and 12. An ineffective assistance ofcounsel claim may be raised for the first time on appeal. 

### State v. Kyllo, 166 Wn.2d 856, 862, 215 P.3d 177 (2009). Ourreview is de novo. 

### State v. Sutherby, 165 Wn.2d 870, 883, 204 P.3d 916 (2009). To demonstrate ineffective assistance ofcounsel, 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 1 0 To be convicted oftheft ofrental equipment a defendant musthave "intentto deprive" the owner ofthe rental property. RCW 9A.56.096(1). Jury instruction 9 is based on a portion ofthe theft ofrental equipment statute that allows ajuryto presume a defendant's intent to deprive the owner ofthe rental property ifthe renter does not make
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### State v. Huesties

.arrangements to return the rental property within 72 hours ofreceipt of"propernotice." RCW 9A.56.096(2)(a). Jury instruction 10 is based on theportion ofthe statute that defines "propernotice" as a written demand by the rental company made afterthe due date ofthe rental period sent by certified orregistered mail to eitherthe renter's address listed on the rental contract, orto the renter's lastknown address provided in writingto 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 notprejudicial. Unlike

### Fleming, the undisputed evidence inthis case showed Mr. Huesties received actual notice the dehumidifier was past due during a phone call withthe rental company. 3 This is stronger evidence ofactual notice than receipt ofa written document. In addition, the evidence was thatMr. Huesties personallypromisedto return the dehumidifierthe same day as his phone call. Yet he failed to do so. Mr. Huesties's omission is more indicative ofmendacitythan the failure to respond to a written notice. Any error in providing instructions 9 and 10 was notprejudicial.

3 In

### Fleming, the rental agency attempted to make phone contact, but there were never any conversations ormessages. 155 Wn. App. at 494. 7No. 33828-2-111 

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### Jury 

### instruction 12 The missing witness doctrine was properly applied in this case. The witnesses at the heart ofthe dispute, John, Lisa, and Mr. Rodriguez, were unknown to eitherthe State
orPasco Rentals. Instead, they werepeculiarly 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 ofMr. Huesties's defense and the lack ofany explanation regarding whythe 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 improperbecause Mr. Rodriguez would have hadto incriminate himselfhad 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 nothave known its terms. In addition, Mr. Rodriguez mighthave had an innocent explanation for whathappenedto the

4 Because the instruction was permissible, the prosecutor did not engage in misconduct by arguing from the instruction. 8

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### dehumidifier. It is, ofcourse, entirelypossible that Mr. Rodriguez's testimony would have been self-incriminatory. But this possibility is not sufficientto preclude a missing witness inference. Blair, 

### 117 Wn.2d at 489-90. Since none ofthe 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 Thejudgment and sentence ofthe trial court is affirmed. A majority ofthe panel has determined this opinion will not be printed in the Washington Appellate Reports, but it will be filed for public record pursuantto RCW 2.06.040. Pennell, 

### J. WE CONCUR:

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