Court of Appeals Division I
State of Washington

Opinion Information Sheet

			

       IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

STATE OF WASHINGTON,                        )       DIVISION ONE 
                                            )
              Respondent,                   )       No. 65817-4-I
                                            )
          v.                                )       UNPUBLISHED OPINION
                                            )
ROBERT NATHAN GUERRERO,                     )
                                            )
              Appellant.                    )       FILED:  March 5, 2012
________________________________)

       Dwyer, C.J.  --  Robert Guerrero was convicted of forgery and attempted 

theft in the first degree arising from an incident in which he presented a false

court order that purported to dismiss several charges against him.  Guerrero 

contends that the prosecutor committed reversible misconduct by noting during 

closing argument that Guerrero's former attorney -- the person who Guerrero 

argued was actually responsible for the forgery -- conveniently could not be 

found during the investigation of the incident.  Because the prosecutor's remarks 

neither constituted misconduct nor resulted in prejudice, we affirm Guerrero's 

convictions.

                                            I

       In 1983, Guerrero pleaded guilty to two counts of rape in the first degree 

and one count of assault in the second degree.  Guerrero was sentenced in  

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February 1984 by the Honorable James McCutcheon.  The judgment and 

sentence was signed by Judge McCutcheon, defense attorney Wes Hohlbein, 

and Deputy Prosecuting Attorney (DPA) Jeff Baird.  Guerrero was granted a 10

year deferred sentence. 

       Guerrero complied with the conditions of his deferred sentence, and his

supervision by the Department of Corrections was terminated on March 18, 

1994.  In 2004, however, Guerrero was charged with failing to register as a sex 
offender.  Although Guerrero was acquitted of this charge,1 his offender level 

was changed, he lost his job, and he subsequently encountered significant 

difficulties obtaining new employment. 

       Guerrero thereafter petitioned the sentencing court for an order

dismissing the 1983 charges and for relief from the requirement that he register 

as a sex offender.  Guerrero argued that the 1994 order terminating supervision 

by the Department of Corrections effectively operated as an order of dismissal. 

The State opposed Guerrero's petition.  

       On September 21, 2005, just one day prior to a hearing on the petition, 

Guerrero's attorney faxed to the State a copy of a document purporting to be an 

"order of dismissal" that had been entered on February 27, 1994.  The document

was signed by Judge McCutcheon, Hohlbein, and DPA Baird, the same 
individuals who had signed the 1984 judgment and sentence.2 Although 

       1 Guerrero was acquitted because the State was unable to prove that Guerrero was 
properly advised of his duty to register as a sex offender when the law changed to require 
registration in 1990.  See Laws of 1990, ch. 3, § 401.
       2 Both Judge McCutcheon and Hohlbein were deceased at the time of Guerrero's 

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No. 65817-4-I/3

Guerrero had never before asserted that an order of dismissal had been entered 

in his case, he claimed that the order had been recently located in a box of
documents stored at his father's house.3 Despite questions about the origin and 

authenticity of the order, the State did not contest the validity of the order.  

Accordingly, the court issued a new order of dismissal to give effect to the 1994 

order. 

       Guerrero thereafter filed a lawsuit against King County, alleging that the

court's failure to process the 1994 order of dismissal resulted in damages to him 

in the form of lost wages, mental anguish, emotional distress, and impairment of

his reputation.  While preparing the county's defense, the deputy prosecuting 

attorney assigned to the case noticed that the signatures on the 1994 order of 

dismissal closely resembled the signatures that appeared on the 1984 judgment 

and sentence in Guerrero's criminal case.  Upon closer examination, it was 

determined that the signatures of Judge McCutcheon, Hohlbein, and DPA Baird

on the 1994 order of dismissal were, in fact, identical to the signatures that 
appeared on the 1984 judgment and sentence.4

       This information was relayed to the King County Sherriff's Office.  The 

petition.  When questioned regarding the 1994 order of dismissal, DPA Baird could not 
remember signing it but did identify the signature as his own.  
       3 Guerrero's brother, John Guerrero, later testified that he was the person who first 
discovered the 1994 order of dismissal.  However, John added that he found the documents in 
the top of a box in his father's closet shortly after Guerrero had been in the room with the door 
closed and locked. He further testified that there were other papers in the same box that 
appeared to be court documents that had been altered or tampered with. 
       4 When this information was conveyed to Guerrero's civil counsel, Guerrero dismissed 
his suit against the county.  

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No. 65817-4-I/4

1994 order of dismissal, along with other documents from the case, was 

submitted for analysis to Brett Bishop, a forensic scientist at the Washington 

State Patrol Crime Lab.  Based upon Bishop's examination of these materials, 

he concluded that the signatures of Judge McCutcheon, DPA Baird, and

Hohlbein were "exact duplicates" of the signatures on the 1984 judgment and 

sentence. Bishop determined that the signatures on the dismissal document 

were "cut and pasted" from the 1984 judgment and sentence and that the 1994

order of dismissal was not authentic. 

       Guerrero was thereafter charged with one count of forgery and one count 

of attempted theft in the first degree.  At trial, Guerrero did not dispute that the 

order was forged but denied that he was responsible.  Instead, he argued to the 

jury that his former attorney, James McLees, had created the false order without 

Guerrero's knowledge.  

       McLees could not be located and did not testify at trial.  Pursuant to the 

parties' agreement, the jury was informed that:

       [I]t is unknown whether James McLees is alive or dead.  Both the 
       State and the Defendant have made diligent efforts to locate 
       James McLees.  These efforts have been unsuccessful. 

Report of Proceedings (RP) at 1094.  Thereafter, during closing argument, the 

prosecutor told the jury that the "former attorney conveniently was not around . . 

. for [anyone] to find" during the investigation of the forgery incident. RP at 

1354.  Guerrero objected on the basis of burden shifting.  The trial court 

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No. 65817-4-I/5

overruled the objection.  The prosecutor then explained that Guerrero had no 

burden to prove himself innocent, referencing the court's instructions on the 

matter which properly instructed the jury regarding the State's burden of proof.  

       The jury found Guerrero guilty as charged.  The court imposed sentences 

within the standard range. 

       Guerrero appeals.

                                           II

       Guerrero contends that the prosecutor committed misconduct requiring 

reversal by remarking during closing argument that McLees -- the person who

Guerrero argued had forged the 1994 order of dismissal -- "conveniently was not 

around" for questioning during the investigation of the forgery.  We disagree. 

       "A defendant claiming prosecutorial misconduct must show that the 

prosecutor's conduct was both improper and prejudicial in the context of the 

entire record and circumstances at trial."  State v. Miles, 139 Wn. App. 879, 885, 

162 P.3d 1169 (2007) (emphasis added).  Allegedly improper arguments by the 

prosecutor must be reviewed in the context of the total argument, the issues in 

the case, the evidence addressed in the argument, and the instructions given. 

State v. Gregory, 158 Wn.2d 759, 810, 147 P.3d 1201 (2006); State v. Russell,

125 Wn.2d 24, 85-86, 882 P.2d 747 (1994).  In closing argument, a prosecutor is 

afforded wide latitude in drawing and expressing reasonable inferences from the 

evidence.  State v. Hoffman, 116 Wn.2d 51, 94-95, 804 P.2d 577 (1991).  

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No. 65817-4-I/6

       Here, the prosecutor argued to the jury that it should reject Guerrero's 
"other suspect" theory of the case.5 The prosecutor argued at length that

McLees had neither motive nor opportunity to forge the 1994 order of dismissal. 

Moreover, Guerrero had never mentioned McLees in any of the various 

hearings, trials, filings, or depositions associated with either the criminal 

proceedings against Guerrero or his litigation with King County.  Indeed, the 

prosecutor noted, it was "not until Mr. Guerrero [was] charged with a crime and 

need[ed] a defense that we first start[ed] hearing about Mr. McLees."  RP at 

1355-56.  During the course of this argument, the following exchange took place:

       [PROSECUTOR]:  The question I'd ask you to consider in 
       deliberations is who else would have done this ...  . .  I suggest [to]
       you that there's no one who fits that description, other than Mr. 
       Guerrero, himself.  Now, [it became] clear through the course of 
       this trial that the Defense has picked the person that they want you 
       to pin the blame on.  That person is James McLees, heard the 
       name many times, this 81 year old disgraced former attorney 
       conveniently was not around --
       [DEFENSE COUNSEL]:  Objection.
       [PROSECUTOR]:  -- for no one to find.
       [DEFENSE COUNSEL]:  Burden shifting.

RP at 1353-54. 

       Guerrero asserts that the prosecutor impermissibly invoked the "missing 

witness" doctrine by arguing that McLees was "conveniently was not around . . . 

for [anyone] to find."  A prosecutor is generally not permitted to argue or imply 

that a defendant has failed to call a witness because the witness's testimony 

       5 Prior to trial, the State moved to preclude Guerrero from arguing or introducing 
evidence of "other suspects." This issue was extensively briefed and litigated.  The trial court 
eventually ruled that Guerrero could pursue an "other suspect" defense. 

                                          - 6 - 

No. 65817-4-I/7

would be unfavorable to the defendant.  State v. Montgomery, 163 Wn.2d 577, 

597-98, 183 P.3d 267 (2008).  However, pursuant to the "missing witness" 

doctrine, such argument is permissible where (1) the defendant was able to 

produce the witness and (2) the defendant's testimony unequivocally implies the 
uncalled witness's ability to corroborate his theory of the case.6  State v. 

Cheatam, 150 Wn.2d 626, 652, 81 P.3d 830 (2003); State v. Contreras, 57 Wn.

App. 471, 476, 788 P.2d 1114 (1990).  Here, because the parties stipulated that 

both Guerrero and the State had made "diligent efforts" to locate McLees,

Guerrero contends that the prosecutor was not permitted to argue that it was 

convenient for Guerrero that McLees could not be found to testify. 

       Guerrero misapprehends the prosecutor's argument.  Because the 

prosecutor's remark did not, in fact, pertain to McLees' likely testimony as a 

witness, this statement does not implicate the "missing witness" doctrine.  The 

prosecutor did not imply that Guerrero had failed to call McLees because his 

testimony would be unfavorable.  Rather, when viewed in the context of the total 

argument, it is clear that the prosecutor's remarks were intended to cast doubt 

upon Guerrero's theory that McLees was the person who had actually committed 

the crime.  It is, of course, not misconduct for a prosecutor to "argue that the 

evidence does not support the defense theory." Russell, 125 Wn.2d at 87.  Nor 

is it impermissible for a prosecutor to challenge a defendant's credibility in 

       6 Where the missing witness doctrine applies, the jury is instructed that it may infer that 
the testimony of the missing witness would be unfavorable to the party that failed to call the 
witness.  State v. Cheatam, 150 Wn.2d 626, 652, 81 P.3d 830 (2003); see 11 Washington 
Practice: Washington Pattern Jury Instructions: Criminal 5.20 (3d ed. 2008).

                                          - 7 - 

No. 65817-4-I/8

closing argument.  State v. Copeland, 130 Wn.2d 244, 290-01, 922 P.2d 1304 

(1996). Here, the prosecutor merely pointed out that it was suspicious that 

Guerrero's accusation of McLees was not made until a time when neither the 

State nor the defense could locate him to investigate this claim. This argument

was based on the evidence and was made in the context of a broader argument 

challenging the credibility of Guerrero's "other suspect" theory.  Such an 

argument does not violate the "missing witness" doctrine.

       Moreover, the prosecutor's comments regarding Guerrero's "other 

suspect" theory did not relieve the State of its burden to prove each element of 

the crime charged beyond a reasonable doubt.  A prosecutor may not imply that

a defendant has a duty to present exculpatory evidence.  Cheatam, 150 Wn.2d 

at 652.  However, where a defendant chooses to present such evidence, the

defendant's theory of the case is not immunized from attack.  Contreras, 57 Wn. 

App. at 476.  Indeed, "the evidence supporting a defendant's theory of the case 

is subject to the same searching examination as the State's evidence."  

Contreras, 57 Wn. App. at 476.  Where a defendant seeks to introduce evidence 

of other suspects, it is the defendant's burden to produce evidence tending to

show "'a train of facts or circumstances'" that clearly indicates that someone 

other than the defendant is the guilty party.  State v. Downs, 168 Wash. 664, 
667, 13 P.2d 1 (1932) (quoting Greenfield v. People, 85 N.Y. 75, 89 (1881)).7

       7 The Downs approach for evaluating "other suspect evidence" remains the law of our 
state.  See State v. Strizheus, 163 Wn. App. 820, 830, 262 P.3d 100 (2011).  Moreover, this 
formulation satisfies the requirements of the Compulsory Process Clause of the Sixth 
Amendment.  See Holmes v. South Carolina, 547 U.S. 319, 327-28, 126 S. Ct. 1727, 164 L. Ed. 

                                          - 8 - 

No. 65817-4-I/9

Accordingly, it shifts no burden for a prosecutor to comment on the quality of a 

defendant's evidence of other suspects. The prosecutor's remark was not 

improper.

       Furthermore, the prosecutor's remarks resulted in no prejudice to 

Guerrero.  In order to prove that prosecutorial misconduct was prejudicial, the 

defendant must prove that there is a "substantial likelihood [that] the . . . 

misconduct affected the jury's verdict."  State v. Pirtle, 127 Wn.2d 628, 672, 904 

P.2d 245 (1995).  A prosecutor's misconduct is not prejudicial "'unless, within 

reasonable probabilities, the outcome of the trial would have been materially 

affected had the error not occurred.'" State v. Bourgeois, 133 Wn.2d 389, 403,

945 P.2d 1120 (1997) (quoting State v. Tharp, 96 Wn.2d 591, 599, 637 P.2d 961

(1981)).  This has long been the standard where allegations of prosecutorial 

misconduct are premised upon an impermissible application of the "missing 

witness" doctrine.  See, e.g., State v. Dixon, 150 Wn. App. 46, 53, 207 P.3d 459 

(2009); Contreras, 57 Wn. App. at 473-74.

       As our Supreme Court has recently reiterated, in analyzing prejudice, we 

do not assess a prosecutor's remarks in isolation.  State v. Warren, 165 Wn.2d 

17, 28, 195 P.3d 940 (2008).  Here, the jury was properly instructed on the

State's burden of proof. The trial court explained that the defendant "has no 

2d 503 (2006) (approving of "widely accepted" rule that before "'[other suspect] testimony can be 
received, there must be such proof of connection with it, such a train of facts or circumstances, 
as tends clearly to point out such other person as the guilty party'" (quoting State v. Gregory, 198 
S. C. 98, 104-05, 16 S.E.2d 532 (1941))).

                                          - 9 - 

No. 65817-4-I/10

burden of proving that a reasonable doubt exists as to [the elements of the 

crime]."  Clerk's Papers at 355.  Moreover, the prosecutor himself reminded the 

jury of the State's burden:

       [Defense counsel is] right about one very important thing, and I 
       don't want this to get lost anywhere in the mix.  As the defense, as 
       the defendant, Mr. Guerrero bears no burden of proving himself 
       innocent.  The burden is on me to prove him guilty beyond a
       reasonable doubt.  That is absolutely the truth and you should hold 
       me to that burden.

RP at 1379.  Viewed as a whole, as we are required to do, Gregory, 158 Wn.2d 

at 810, the State's closing argument did not urge the jury to relieve the State of 

its burden of proof.  Thus, the prosecutor's argument was neither improper nor 

prejudicial. 

       Finally, the jury was informed that both parties had made diligent efforts to 

locate McLees and that his absence at trial was beyond the control of both 

Guerrero and the State.  Accordingly, no reasonable juror could have inferred 

that Guerrero had deliberately failed to call McLees because his testimony would 

be unfavorable to Guerrero -- the jury was well aware that Guerrero had no ability 

to procure McLees' presence at trial, regardless of his expected testimony.  

Given these circumstances, and because we presume that the jury was able to 

follow its instructions, Warren, 165 Wn.2d at 28, Guerrero has failed to 

demonstrate that the prosecutor's remarks had a substantial likelihood of 

affecting the jury's verdict. There was no prejudice, there was no error, and 

reversal is unwarranted.

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No. 65817-4-I/11

       Affirmed.

We concur:

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