State of Iowa v. Bradley Davisson ( 2016 )


Menu:
  •                        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 self-
    propelled 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.