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 selfpropelled 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.