[No. 79564-9. En Banc.]
Argued January 17, 2008. Decided May 15, 2008.
[1] Criminal Law Trial Taking Case From Jury Sufficiency of Evidence Test. The evidence admitted in a criminal trial is sufficient to support a conviction if a rational person viewing the evidence in the light most favorable to the State could find each element of the crime beyond a reasonable doubt. [2] Controlled Substances Methamphetamine Precursor Chemicals Possession Intent To Manufacture Methamphetamine Proof Sufficiency. A defendant may be convicted of unlawful possession of ephedrine or pseudoephedrine with intent to manufacture methamphetamine under RCW 69.50.440 upon evidence of possession of ephedrine or pseudoephedrine and at least one other factor supporting an inference of intent. [3] Controlled Substances Methamphetamine Precursor Chemicals Possession Intent To Manufacture Methamphetamine Proof Suspicious Purchase of Pseudoephedrine and Other Ingredients. Evidence that a criminal defendant and another person went from store to store, entering together, with each separately purchasing several boxes of pseudoephedrine cold tablets plus quantities of other items that can be used to manufacture methamphetamine, ultimately purchasing five of nine ingredients necessary for methamphetamine manufacture, is sufficient to support a conviction of unlawful possession of ephedrine or pseudoephedrine with intent to manufacture methamphetamine under RCW 69.50.440. [4] Controlled Substances Methamphetamine Precursor Chemicals Possession Intent To Manufacture Methamphetamine Proof Inference From Possession of Pseudoephedrine and Additional Distinctive Ingredients. The possession of pseudoephedrine cold medicine together with the possession of two other "distinctive ingredients" of methamphetamine manufacture is sufficient to support a conviction of unlawful possession of ephedrine or pseudoephedrine with intent to manufacture methamphetamine under RCW 69.50.440. [5] Criminal Law Evidence Inferences Innocent or Criminal Explanation Discretion of Trier of Fact. When evidence admitted in a criminal trial supports both an innocent and a criminal explanation, the jury is entitled to infer guilt. [6] Jury Right to Jury Nature of Right. The role of the jury is to be held inviolate under the state constitution. [7] Jury Right to Jury Scope Determination of Factual Questions. The right to have factual questions decided by the jury is crucial to the constitutional right to trial by jury. The constitution consigns to the jury the ultimate power to weigh the evidence and determine the facts. [8] Evidence Opinion Evidence Expert Testimony Jury Issue Effect. Under ER 702, a qualified expert may express an opinion concerning his or her field of expertise when the opinion will assist the trier of fact. The mere fact that the expert's opinion covers an issue the jury must decide does not necessarily require exclusion of the opinion. [9] Evidence Opinion Evidence Lay Testimony Test. Under ER 701, a lay witness may give opinion or inferential testimony based on rational perceptions that helps the jury to understand the witness's testimony and that is not based on scientific or specialized knowledge. [10] Evidence Opinion Evidence Expert Testimony Ultimate Issue Assertion of What Result To Reach. A witness giving opinion testimony should not tell the jury what result to reach. [11] Evidence Opinion Evidence Expert Testimony Necessity Jury Capable of Drawing Conclusions. Opinion testimony by an expert witness should be avoided if the information can be presented in such a way that the jury can draw its own conclusions. Opinions are not indispensable. The use of expert testimony in nonopinion form is encouraged when counsel believes the jury can itself draw the requisite inference. [12] Criminal Law Evidence Opinion Evidence Determination Factors. Before opinion testimony may be offered in a criminal trial, the trial court must determine its admissibility. In determining whether such statements are impermissible opinion testimony, the court must consider the circumstances of the case, including the following factors: (1) the type of witness involved, (2) the specific nature of the testimony, (3) the nature of the charges, (4) the type of defense, and (5) the other evidence before the trier of fact. [13] Criminal Law Evidence Opinion Evidence Guilt or Innocence In General. It is inappropriate to admit opinion testimony, particularly expressions of personal belief, as to a criminal defendant's guilt. [14] Criminal Law Evidence Opinion Evidence Intent of Accused. It is inappropriate to admit opinion testimony, particularly expressions of personal belief, as to a criminal defendant's intent. [15] Evidence Opinion Evidence Veracity of Witness. It is inappropriate to admit opinion testimony, particularly expressions of personal belief, as to a witness's veracity. [16] Evidence Opinion Evidence Witness Preparation Necessity. In order to assure evidence is admitted in an orderly fashion and impermissible opinions are not improperly injected into the trial, certain procedures must be followed by trial advocates to lay proper foundations for opinion testimony. Witness preparation facilitates the smooth and orderly presentation of evidence and the efficient administration of justice. Witness preparation will vary depending on the nature of the trial, the issue, and the type of witness. At a minimum, trial advocates must explain to witnesses the decorum of a courtroom, the difference between direct and cross-examination, any orders in limine entered by the trial court, and the rules against speculation and expression of personal beliefs or opinions unless specifically requested. [17] Criminal Law Evidence Opinion Evidence Guilt or Innocence Witness's Statements Preferred Form of Question. In a criminal trial, a witness's expressions of normal conversational phrases such as "I believe" and "it's possible" are likely to draw objections because witnesses are generally not permitted to speculate or express their personal beliefs about the defendant's guilt or innocence. It is unnecessary for a witness to express belief that certain facts or findings lead to a conclusion of guilt. To avoid inviting witnesses to express their personal beliefs, one permissible and perhaps preferred way is for trial counsel to phrase the question "is it consistent with" instead of "do you believe." [18] Evidence Opinion Evidence Witness Preparation Preferred Approach. It is the duty of every trial advocate not to intentionally introduce prejudicial inadmissible evidence in a manner that denies an opponent the opportunity to object and the trial court the opportunity to rule on the objection. Occasionally issues arise, such as the foundation of an opinion, which must be explored outside the presence of the jury. Because the admission of an opinion is the exception to the general rule, one permissible, and perhaps preferred, way for the opinion to be offered is for trial counsel to ask the witness if the witness has an opinion on a subject and to instruct the witness to answer either, "Yes, I have an opinion" or "No, I do not have an opinion." Having established that the witness has an opinion, trial counsel may ask for the opinion. This tried and proven procedure assures that (1) the witness will not inappropriately blurt out an inadmissible opinion, (2) opposing counsel will have an opportunity to state any objection, and (3) the court will rule on the objection before the witness offers the opinion. Any party concerned about opinion testimony may seek an order in limine requiring a like or similar procedure. [19] Criminal Law Evidence Opinion Evidence Guilt or Innocence Defendant's Intent. When intent is the core issue in a criminal prosecution and is the only disputed element at trial, a witness's testimony expressing an opinion as to the defendant's intent constitutes improper opinion evidence on the defendant's guilt. Opinions on guilt are improper whether direct or by inference and are particularly improper when the language used in expressing the opinion is direct and explicit, using such expressions as "I felt very strongly that" or "we believe" or when the opinion is stated in conclusory terms parroting the legal standard. [20] Criminal Law Evidence Police Officer Testimony Effect. A police officer's testimony in a criminal trial carries an "aura of reliability." [21] Criminal Law Evidence Opinion Evidence Guilt or Innocence Police Officer Testimony Relevance. A police officer's opinion as to a criminal defendant's guilt has low probative value insofar as the officer's area of expertise is in determining when an arrest is justified, not in determining when there is guilt beyond a reasonable doubt. The fact that the jury understands that the defendant was arrested because the officer believed that the defendant was guilty does not justify allowing the officer's explicit opinions as to the defendant's intent. [22] Controlled Substances Methamphetamine Precursor Chemicals Possession Intent To Manufacture Methamphetamine Proof Opinion Evidence Defendant's Intent. In a prosecution for possession of ephedrine or pseudoephedrine with intent to manufacture methamphetamine under RCW 69.50.440, testimony by a police officer or a State's expert witness that the defendant intended to manufacture methamphetamine constitutes impermissible opinion testimony as to the defendant's guilt. [23] Appeal Review Issues Not Raised in Trial Court Constitutional Rights Court Rule "Manifest" Error What Constitutes. For purposes of RAP 2.5(a)(3), under which a manifest error affecting a constitutional right may be raised for the first time on appeal, a constitutional error is "manifest" only if it causes actual prejudice or has practical and identifiable consequences in the trial of the case. [24] Criminal Law Evidence Opinion Evidence Guilt or Innocence Harmless Error Curative Instructions. Important to the determination of whether a criminal defendant was prejudiced by opinion testimony as to the defendant's guilt is whether the jury was properly instructed. It may be concluded that the defendant was not prejudiced by such testimony if the jury was instructed that jurors "are the sole judges of the credibility of witnesses" and that jurors "are not bound" by expert witness opinions, particularly if there was no written jury inquiry or any evidence that the jury was unfairly influenced. [25] Trial Instructions Adherence by Jury Presumption In General. Absent evidence to the contrary, a jury is presumed to follow the trial court's instructions. [26] Criminal Law Trial Misconduct of Prosecutor Argument Review Standard of Review. A trial court's rulings on improper prosecutorial argument are reviewed for abuse of discretion. Discretion is abused if the trial court's decision is manifestly unreasonable or is based on untenable reasons or grounds. [27] Trial Instructions Review Error of Law Misleading to Jury Question of Law or Fact Standard of Review. Whether legal error in a jury instruction could have misled the jury is a question of law that is reviewed de novo. [28] Criminal Law Witnesses Failure To Call Inference "Missing Witness" Doctrine In General. Since a criminal defendant has no duty to present evidence, a prosecutor generally may not comment on a lack of defense evidence. However, under the missing witness doctrine, the defendant's theory of the case is subject to the same scrutiny as the State's. Under the missing witness doctrine, the State may point out the absence of a "natural witness" when it appears reasonable that the witness is under the defendant's control or peculiarly available to the defendant and the defendant would not have failed to produce the witness unless the testimony were unfavorable. The State may then argue, and the jury may infer, that the absent witness's testimony would have been unfavorable to the defendant. [29] Criminal Law Witnesses Failure To Call Inference "Missing Witness" Doctrine Test. The missing witness doctrine may not be applied against a criminal defendant unless the potential testimony is material and not cumulative; the missing witness is particularly under the control of the defendant, rather than being equally available to both parties; the missing witness's absence is not satisfactorily explained; and application of the doctrine would not infringe on the defendant's right to remain silent or shift the burden of proof. [30] Criminal Law Witnesses Failure To Call Inference "Missing Witness" Doctrine Assertion Timeliness. The missing witness doctrine must be raised early enough in the proceedings to provide an opportunity for rebuttal or explanation. [31] Criminal Law Witnesses Failure To Call Inference "Missing Witness" Doctrine Instruction Harmless Error Test. A missing witness instruction improperly given in a criminal trial cannot be harmless error unless the jury is properly instructed on the State's burden of proof and, from the record in the case, it appears beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained. Whether an erroneous instruction is harmless depends on the facts of the particular case. [32] Criminal Law Witnesses Failure To Call Inference "Missing Witness" Doctrine Instruction Harmless Error Factors. It may be concluded that a missing witness instruction improperly given in a criminal trial was not harmless if the missing witness was a close family member, the jury was presented with two competing interpretations of the undisputed events giving rise to the charge, and the prosecutor repeatedly referred to the witness's absence. MADSEN, J.M. JOHNSON, and FAIRHURST, JJ., concur by separate opinions. Nature of Action: Prosecution for unlawful possession of pseudoephedrine with intent to manufacture methamphetamine. Superior Court: The Superior Court for Spokane County, No. 04-1-04087-7, Michael P. Price, J., on May 9, 2005, entered a judgment on a verdict of guilty. Court of Appeals: The court affirmed the judgment by an unpublished opinion noted at 135 Wn. App. 1041 (2006). Supreme Court: Holding that the conviction is supported by the evidence; and that, although it was error for witnesses to give their opinions as to the defendant's intent to manufacture methamphetamine, the error was harmless; but that the defendant was prejudiced by the trial court's giving a missing witness instruction, the court reverses the decision of the Court of Appeals and the judgment and remands the case to the trial court for further proceedings. Carol A. Elewski-, for petitioner. Steven J. Tucker-, Prosecuting Attorney, and Mark E. Lindsey-, Deputy, for respondent. En Banc Ά1 CHAMBERS, J. Virgil Montgomery challenges both his conviction for possession of pseudoephedrine with intent to manufacture methamphetamine and his standard range, 51-month sentence. Among other arguments, Montgomery asserts his trial was tainted by improper opinion testimony, an improper missing witness instruction, and improper argument about missing potential defense witnesses. We agree with Montgomery that the State's opinion testimony was improper, as was the missing witness argument and instruction. Although we find some of the error harmless, we agree that Montgomery was denied a fair trial. We reverse his conviction and remand for a new trial. Ά2 In courts of law, it is not uncommon for two sides to offer starkly contrasting versions of the same events. The State contends that two middle aged citizens approaching their golden years and with no prior serious criminal history embarked upon a criminal enterprise to manufacture methamphetamine. Although the two are hardly the modern day equivalent of Bonnie and Clyde, the State contends that there is sufficient evidence to support a verdict that Montgomery, age 60, and his partner in crime, Joyce Biby, age 63, possessed pseudoephedrine with the intent to manufacture methamphetamine. Ά3 Montgomery offers a completely different interpretation of the same events. Montgomery testified that he, an ordained minister, first met Biby around 15 years ago. The two fell out of contact before getting reacquainted in 2004 while volunteering together at a local food bank. Montgomery testified that he and Biby are not now and have never been romantically involved. According to Montgomery, Biby confided in him about her troubles with the Social Security Administration. She became so upset telling him of her upcoming mental health assessment that Montgomery offered to drive her the hour or so from their homes in Newport, Washington and Oldtown, Idaho Ά4 On June 23, 2004, the pair set off in a Geo Storm borrowed from Biby's son-in-law. According to Montgomery, when Biby finished her appointment, she was extremely upset and could not drive. The two decided to do some shopping before returning home. Ά5 They first went to a large grocery, where Montgomery bought some matches for his wood stove and his son's cigarettes. Montgomery's 33-year-old son has been disabled by a stroke. Montgomery no longer works as a minister because he is the primary caregiver for both his son and his 14-year-old grandson. The next stop was the cold medicine aisle at Target in the Spokane Valley, which, unfortunately for Montgomery and Biby, was under police surveillance. Ά6 They attracted the attention of police who were watching from a video room, because upon entering the store, Montgomery and Biby made an immediate right turn and went directly to the cold medicine. Police saw Montgomery point to particular brands and select two boxes of Target brand cold medicine containing the decongestant pseudoephedrine. The two then shopped and paid for their purchases separately, choosing separate check-out lines, Montgomery testified, to get through more quickly. Montgomery finished first and waited for Biby in the front of the store. Montgomery also testified that he did not know Biby had later returned and selected two boxes of the same cold medicine he had bought. Ά7 Police followed Montgomery and Biby to the Dollar Store, where Montgomery bought reading glasses. Biby paid the dollar for the glasses, and Montgomery reimbursed her immediately. Next door to the Dollar Store was a Rosauers grocery, where Montgomery bought one box of Sudafed brand cold medicine for his son, who, Montgomery testified, cannot take the generic brand purchased at Target because of other medications his son takes. Again, he and Biby shopped separately, and, Montgomery testified, he was unaware that Biby bought three boxes of matches. Ά8 Police then followed them to a Kmart store, where they compared prices but bought nothing. Next, at a Wal-Mart store, Montgomery bought a gallon of acetone. According to Montgomery, he lives in a rented trailer and has an agreement with the landlord to fix it up. The tiles on the floor are peeling up at the corners, and the can of acetone that the landlord had left to remove them with was nearly empty. Biby, shopping separately, bought two cans of denatured alcohol. Ά9 Partly because it was a hot day and the car had no air-conditioning, Montgomery testified, on their way out of town he and Biby stopped at a second Target on the north side of Spokane. They went to the cold medicine aisle to compare prices, Montgomery explained. While he shopped, Biby bought two boxes of the cold medicine he had indicated. Montgomery bought a large bottle of hydrogen peroxide because, he said, his dog had recently cut itself badly on the metal skirting surrounding his dilapidated trailer. Ά10 Shortly after the last shopping stop at Target, the pair stopped so that Biby could stretch her legs under a large shade tree. When they returned to the highway, police pulled them over, arrested them, and searched the car. SUFFICIENCY OF THE EVIDENCE Ά12 All told, Montgomery had purchased five boxes of matches, two boxes of Target brand cold medicine, one box of Sudafed, one gallon of acetone, and a large bottle of hydrogen peroxide. Biby had purchased four boxes of Target brand cold medicine, a pair of reading glasses, three boxes of matches, and two cans of denatured alcohol. Montgomery and Biby had bought five of the nine necessary ingredients to manufacture methamphetamine, entered stores together and split up to buy the ingredients, bought unusually large quantities of acetone and hydrogen peroxide, and went from one store to the next, buying potential ingredients at nearly every stop. Ά13 Even if the two were not working together, Montgomery alone bought pseudoephedrine cold medication as well as a gallon of acetone and a large bottle of hydrogen peroxide, two other "distinctive ingredients." See Missieur, 140 Wn. App. at 189. Montgomery's innocent explanations for his purchases were appropriate jury arguments, but the jury was not required to believe them. See Brockob, OPINION TESTIMONY Ά14 At Montgomery's trial, the detectives who followed him and Biby from store to store testified, as did a forensic chemist. Montgomery argues their statements regarding his intent amounted to improper opinion testimony on guilt. Detective Knechtel testified first. After the detective had described the events, the prosecutor asked whether he had formed any conclusions. The detective replied, "I felt very strongly that they were, in fact, buying ingredients to manufacture methamphetamine based on what they had purchased, the manner in which they had done it, going from different stores, going to different checkout lanes. I'd seen those actions several times before." Report of Proceedings (RP) at 40. The prosecutor later asked, "Why . . . would you come to the conclusion that this was possession of that pseudoephedrine with intent to manufacture methamphetamine?" RP at 73. The court sustained Montgomery's objection that this question went to the ultimate legal question in the case and the detective did not answer. Defense counsel cross-examined the detective, asking, "this is an assumption on your part that this is intent, correct?" RP at 105. Ά15 The prosecutor asked Detective Blashill why he had not stopped Montgomery and Biby sooner if he was suspicious almost from the beginning of the shopping trip. Blashill responded, "It's always our hope that if the person buying these chemicals, that are for what we believe to be methamphetamine production, that we can take them back to the actual lab location." RP at 116. On redirect, the prosecutor asked Blashill not to speculate but to just answer based on his training and experience, and Blashill responded, "That those items were purchased for manufacturing." RP at 135. There was no objection to either of these statements. Ά16 The forensic chemist testified primarily about the necessary ingredients for making methamphetamine and the commonly available products from which those chemicals can be obtained. RP at 145-46. On redirect by the State, the chemist surveyed the combined purchases of Biby and Montgomery and testified, "these are all what lead me toward this pseudoephedrine is possessed with intent." RP at 160. Defense counsel did not object. On cross examination, the chemist conceded he would not be able to come to a conclusion based on Montgomery's purchases alone. He also agreed when defense counsel asked, "this is an assumption on your part that this is intent, correct?" and "determining what a person's intent is, based on what we see, without knowing anything about them, we're making some assumptions, correct?" RP at 105, 161. Ά17 In this case, we are yet again asked to decide how far the State's witnesses may go in expressing opinions. See, e.g., State v. Yates, 161 Wn.2d 714, 763, 168 P.3d 359 (2007) petition for cert. filed, No. 07-10069 (U.S. Mar 20, 2008); State v. Mason, 160 Wn.2d 910, 932, 162 P.3d 396 (2007); State v. Kronich, 160 Wn.2d 893, 903-04, 161 P.3d 982 (2007); State v. Kirkman, Ά18 The concept of the jury as the arbiter of disputed facts appears to predate recorded history. Ancient Greek tradition credits Athena, the goddess of wisdom, with convening the first jury. Ά19 More recently, the common law attempted to protect the role and the province of the jury by prohibiting opinion testimony on ultimate issues in the case. United States v. Spaulding, 293 U.S. 498, 507, 55 S. Ct. 273, 79 L. Ed. 617 (1935). One commentator has suggested that, at ancient common law, opinion testimony was never discussed because "it never occurred to the courts to allow such a thing." Ric Simmons, Conquering the Province of the Jury: Expert Testimony and the Professionalization of factfinding, 74 U. CIN. L. REV. 1013, 1016 (2006). Ά21 But during the 18th century, the need for skilled witnesses to help resolve technical questions began to conflict with the traditional requirement that witnesses testify only from personal knowledge and refrain from expressing opinions. Simmons, supra, at 1016-17. As the prohibition on opinion testimony on the ultimate issue became unworkable, and the distinctions between ultimate factual issues and nonultimate issues became more spurious, jurisdictions began to reject this rule and adopt some version of Federal Rule of Evidence 704, stating that a witness, whether lay or expert, may state an opinion as to the ultimate issue to be decided by the trier of fact. Simmons, supra, at 1023-25. Ά27 It is unnecessary for a witness to express belief that certain facts or findings lead to a conclusion of guilt. To avoid inviting witnesses to express their personal beliefs, one permissible and perhaps preferred way is for trial counsel to phrase the question "is it consistent with" instead of "do you believe." For example, experts are often asked if a history given is "consistent" with clinical findings or if certain assumptions are "consistent" with a conclusion. This court approved this form of question in Kirkman. the State asked Dr. Stirling, "Do you have an opinion with medical certainty whether the findings you observed are consistent with the history of abuse you were given?" 2B RP at 251. Dr. Stirling stated, "I would say the findingsto have no findings after receiving a history like that is actually the norm rather than the exception." Id. at 252. He went on to say, "I would be very surprised if her assailant were able to actually insert his penis into her vagina." Id. at 255. Kirkman, Dr. Stirling did not come close to testifying on any ultimate fact. He never opined that Candia was guilty, nor did he opine that C.M.D. was molested or that he believed C.M.D.'s account to be true. Dr. Stirling testified only that he was able to communicate with C.M.D. because she "had good language skills for her age, she spoke clearly," 2B RP at 244. His testimony was content neutral, focusing upon the clear communication, rather than the substance of matters discussed. The doctor's testimony did not constitute manifest error. Id. at 933. Prosecutor: Detective, based upon your background and experience, do you have an opinion as to whether the chemicals possessed by Mr. Montgomery and the manner in which they were obtained is consistent or inconsistent with intent to manufacture methamphetamine? Please answer, "Yes I have an opinion," or "No, I do not have an opinion." Detective: Yes, I have an opinion. Prosecutor: What is that opinion? Detective: The chemicals possessed and the manner in which they were obtained was consistent with intent to manufacture methamphetamine. Prosecutor: Would you explain to the jury the bases for your opinion? This approach permits the defense to timely state objections and the court to rule on the admissibility of evidence. It permits the detective to explain why the evidence is consistent with intent to manufacture without expressing an opinion as to the guilt or innocence of the accused. Finally, it permits the jury to perform its proper function. Ά30 Opinions on guilt are improper whether direct or by inference, but it is very troubling that the testimony in this case was quite direct and used explicit expressions of personal belief such as "I felt very strongly that . . ." and "we believe." RP at 40, 116; see Kirkman, Ά35 Finally, we note that when Montgomery did object to a question posed to Detective Knechtel, because the question went to the ultimate legal question, the court sustained the objection and the detective did not answer. Had Montgomery raised objections, it seems likely they too would have been sustained and curative instructions given if requested. The record does not establish actual prejudice. MISSING WITNESS INSTRUCTION Ά36 The prosecutor also questioned Montgomery extensively about the whereabouts of his son and grandson and their ability to corroborate Montgomery's explanations of his purchases. Montgomery responded that his son was not competent to testify due to his stroke, and his grandson, age 14, was in school. Montgomery's daughter, a reserve deputy sheriff for Bonner County, Idaho, testified as a rebuttal witness for the defense. She testified that Montgomery's son was not competent and his grandson was in school. She also testified that the dog was injured and the trailer was in bad repair. Ά37 After both sides had rested, the State requested a "missing witness" jury instruction, arguing that the son and grandson, as well as Montgomery's landlord, were natural witnesses for Montgomery to call, and the jury should be able to infer from their absence that their testimony would have been unfavorable. If a party does not produce the testimony of a witness who is within the control of or peculiarly available to that party and is [sic] a matter of reasonable probability, it appears naturally in the interest of the party to produce the witness, and if the party fails to satisfactorily explain why it has not called the witness, you may infer that the testimony that the witness would have given would have been unfavorable to the party, if you believe such inference is warranted under all the circumstances of the case. RP at 227; see also WPIC 5.20 (setting forth substantially the same language). We cite to the verbatim report of proceedings and the WPIC because the parties did not designate that the jury instructions be made part of the record. "I have kids, and if I were in trouble, if I were on trial, and my kid told me -- my kid is quite a bit older than that -- said, well, gee, dad, I got to work that day, what do you think about that? Is that reasonable to you? Is that a reasonable explanation? If my son were on trial and I knew something, if I could corroborate something for him, do you think you could keep me away from a courtroom? Keep you away from a courtroom if you had testimony that would help him?" RP at 239. Ά41 The potential corroboration by Montgomery's grandson and landlord can hardly be described as "key" testimony. See Contreras, 57 Wn. App. at 475-76. The grandson's testimony would likely have been cumulative. He would probably know whether the dog was injured and whether the trailer was in poor repair, but Montgomery's daughter had already corroborated this information. Montgomery's grandson is not akin to an alibi witness who fails to testify. At no point in his direct testimony did Montgomery assert as a defense that his grandson could corroborate that he purchased the acetone to repair the tiles. Instead, the prosecutor, on cross examination, asked whether his grandson would know about it, and Montgomery answered that he would. Additionally, the grandson was 14 years old and in school at the time. His absence was adequately explained, and the missing witness instruction should not have been given. Ά45 Because we find that giving the missing witness instruction was reversible error, we find it unnecessary to reach Montgomery's other contentions. We need not and do not decide whether the sentencing court should have considered imposing a first time offender sentencing waiver rather than a standard range sentence because Montgomery was eligible for the waiver despite the fact that neither attorney brought it to the court's attention. Nor do we decide whether Montgomery's counsel was ineffective in (among other things) failing to request the first time offender waiver. CONCLUSION Ά46 Montgomery's conviction was supported by substantial evidence. Although it was error for the detectives and forensic chemist to give their opinions as to Montgomery's intent to manufacture, the error was not manifest. It was an abuse of discretion for the court to give a missing witness instruction under the facts of this case, and this error was not harmless. We do not reach Montgomery's contentions that the court should have considered a first time sentencing waiver and that he received ineffective assistance of counsel. We reverse and remand for further proceedings consistent with this opinion. ALEXANDER, C.J., and C. JOHNSON, SANDERS, OWENS, and STEPHENS, JJ., concur. Ά47 MADSEN, J. (concurring) I write separately because, while the majority correctly states the law that applies to decide whether sufficient evidence supports the defendant's conviction, I am concerned that the majority's presentation of the facts does not conform to that standard. See State v. Brown, 162 Wn.2d 422, 428, 173 P.3d 245 (2007); State v. Green, 94 Wn.2d 216, 221-22, 616 P.2d 628 (1980). Rather than stating the facts in the light most favorable to the State, for the most part the majority presents them from the defendant's perspective, leaving the impression that the court believes the jury verdict was wrong. Majority at 1-86. It is no more the court's province to offer an opinion on guilt than it is the province of witnesses to do so. Ά48 The majority opinion also unnecessarily reaches the defendant's challenges to opinion testimony. The law is clear that a witness cannot give an opinion on the guilt of the defendant because such evidence violates the defendant's right to a jury trial that includes the jury's independent determination of the facts. State v. Kirkman, FAIRHURST, J., concurs with MADSEN, J.. Ά49 J.M. JOHNSON, J. (concurring) I concur with the holding of the majority but write separately on the application of the missing witness doctrine. Specifically, I would hold that allowing the missing witness instruction in regard to Virgil Montgomery's 14-year-old grandson was not error. Ά50 The jury instruction at issue reads as follows: If a party does not produce the testimony of a witness who is within the control of or peculiarly available to that party and is [sic] a matter of reasonable probability, it appears naturally in the interest of the party to produce the witness, and if the party fails to satisfactorily explain why it has not called the witness, you may infer that the testimony that the witness would have given would have been unfavorable to the party, if you believe such inference is warranted under all the circumstances of the case. Verbatim Report of Proceedings at 227; see also 11 WASHINGTON PRACTICE: WASHINGTON PATTERN JURY INSTRUCTIONS: CRIMINAL 5.20, at 130 (2d ed. 1994). Ά51 We review a trial court's choice of jury instructions for abuse of discretion. State v. Lucky, 128 Wn.2d 727, 731, 912 P.2d 483 (1996), overruled on other grounds by State v. Berlin, 133 Wn.2d 541, 947 P.2d 700 (1997). While the majority recognizes this deferential standard, it fails to apply it. The record shows that the judge listened to counsel's extensive argument on the missing witness doctrine, read this court's decision in Blair, Ά52 "The majority of jurisdictions permit the missing witness inference in criminal cases where the defense fails to call logical witnesses." Blair, 117 Wn.2d at 486 (listing cases from other jurisdictions upholding the missing witness instruction). The missing witness instruction may be given when four criteria are met: (1) the potential testimony must be material and not cumulative, (2) the missing witness must be particularly under the defendant's control rather than equally available to both parties, (3) the missing witness's absence must not be adequately explained, and (4) the inference must not infringe upon a criminal defendant's right to silence or shift the burden of proof. Id. at 488-91; majority at 21-99. Ά53 Montgomery's failure to call his grandson as a witness satisfied these criteria. The majority declares that his grandson's potential testimony "can hardly be described as 'key' testimony." Majority at 22. I disagree. Montgomery provided innocent explanations for each of the items he purchased: the hydrogen peroxide was for a dog's injured leg, the acetone was to remove floor tiles in the family home, the cold medicine was for his son and him, and the matches were for his son's cigarettes and for the home wood stove. Ά54 Montgomery testified his grandson could corroborate his innocent explanations for each item. Montgomery lived in a trailer with his son and grandson. His grandson could have testified about the turned up floor tiles, the wood stove, the injured dog, the smoking habits of his father, and even the two different types of cold medicine. Ά55 This testimony would not have been cumulative. Montgomery's daughter did not live in the home. Thus, she did not testify about the turned up tiles, the wood stove, the smoking habits of her brother, or the two types of cold medicine. She only testified about the dog's injured paw. Ά56 Montgomery's grandson was particularly available to Montgomery. "For a witness to be 'available' to one party to an action, there must have been such a community of interest between the party and the witness, or the party must have so superior an opportunity for knowledge of a witness, as in ordinary experience would have made it reasonably probable that the witness would have been called to testify for such party except for the fact that his testimony would have been damaging." Blair, 117 Wn.2d at 490 (quoting State v. Davis, 73 Wn.2d 271, 277, 438 P.2d 185 (1968)). Montgomery and his grandson had "such a community of interest." They are close relatives. See Alan Stephens, Annotation, Adverse Presumption or Inference Based on Party's Failure To Produce or Examine Family Member Other Than SpouseModern Cases, 80 A.L.R.4TH 337, § 2[a], at 343 (1990) ("Family relationships are generally considered a significant factor rendering a witness available to a party for purposes of the missing witness rule . . . ."), Ά57 Montgomery's grandson's absence was also not adequately explained. Although attending school is undoubtedly important, when your grandfather could be imprisoned for up to 10 years for a crime he did not commit, Ά58 Lastly, the burden of proof was not improperly shifted. Reference to a defendant's failure to produce a witness is not an impermissible shifting of the burden of proof. Blair, 117 Wn.2d at 491. Here, both the trial court and the prosecutor instructed that it was the responsibility of the State to prove each element of the crime charged beyond a reasonable doubt and that Montgomery had no burden of proof. See State v. Lord, 117 Wn.2d 829, 861, 822 P.2d 177 (1991) ("jury is presumed to have heeded the instructions of the court"). Ά59 As a final note, and most important, I believe the majority underestimates the ability of juries. " 'Jurors are presumed to be intelligent, capable of understanding instructions and applying them to the facts of the case.' " People v. Carey, 41 Cal. 4th 109, 130, 158 P.3d 743, 59 Cal. Rptr. 3d 172 (2007) (internal quotation marks omitted) (quoting People v. Lewis, 26 Cal. 4th 334, 390, 28 P.3d 34, 110 Cal. Rptr. 2d 272 (2001)). Two phrases in the "missing witness" jury instruction stand out: "may infer" and "if . . . such inference is warranted under all circumstances of the case." (Emphasis added.) The instruction did not require jurors to infer unfavorable testimony. It merely allowed them to do so if, after hearing all of the evidence, it was warranted. Ά60 Montgomery claimed his grandson could have corroborated his explanations for four or five of the drug ingredients he innocently purchased. His grandson did not testify, and his absence was not adequately explained. Allowing the missing witness instruction was not an abuse of discretion. I concur with the majority's reversal of these convictions. FAIRHURST, J., concurs with J.M. JOHNSON, J.