December 21, 2016
STATE OF IOWA, Plaintiff-Appellee,
BRADLEY DAVISSON, Defendant-Appellant.
from the Iowa District Court for Polk County, Richard G.
Blane II (trial), Judge, and Carol S. Egly (motion to
dismiss), District Associate Judge.
defendant appeals his conviction challenging the court's
denial of his motion to dismiss and his objection based on
prosecutorial misconduct. AFFIRMED.
L. Hunter of Dickey & Campbell Law Firm, P.L.C., Des
Moines, for appellant.
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.
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.
Background Facts and Proceedings
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."
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 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.
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.
Standard of Review
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).
Motion to Dismiss
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 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.
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.
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,  the State was not barred from refiling
charges against Davisson at a later date. See Iowa
R. Crim. P. 2.33(1). Therefore, we affirm the district
court's denial of Davisson's motion to
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. The State contends there was no
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. 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)).
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.
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 comment
was not improper as it did not shift the burden of proof onto
Davisson, nor refer to Davisson's decision not to
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.
Vaitheswaran, J., concurs; McDonald, J., concurs specially.
MCDONALD, Judge. (concurring specially)
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.
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- 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).
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)).
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.
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).
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.
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."
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.
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).
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 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.
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 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.
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
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
Where there are such reasons (for nonproduction), and they
are produced and satisfy the trial judge on plausibleness,
the judge 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
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).
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 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
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
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).
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
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
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.
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 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.
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,
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).
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 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
foregoing reasons, I respectfully concur in the judgment.
 Iowa Code § 714.2(1)
 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
 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)).
 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