State v. Montgomery

Supreme Court of Washington, En Banc · 2008 · Evidence

183 P.3d 267 (Wash. 2008)

Updated August 22, 2026

Evidenceopinion testimonyultimate issueintentguiltmissing witness instructionnatural witnesspeculiarly available witness

Facts

Police surveilling store purchases watched Montgomery and Biby enter multiple stores together, separate inside, and buy pseudoephedrine cold medicine along with matches, acetone, hydrogen peroxide, denatured alcohol, and other items associated with methamphetamine production. At trial, detectives and a forensic chemist testified in terms of their belief or conclusion that the items were being purchased for manufacturing methamphetamine or were possessed with intent to do so. Montgomery testified to innocent explanations for the purchases and said his son was incompetent to testify and his 14-year-old grandson was in school; his daughter corroborated that the dog was injured, the trailer was in bad repair, and the son was not competent. Over objection, the court gave a missing witness instruction regarding the grandson and landlord, and the prosecutor repeatedly argued that the jury could infer their testimony would have been unfavorable to Montgomery.

Issue

Whether the evidence was sufficient to support Montgomery's conviction, whether the detectives' and chemist's statements amounted to improper opinion testimony on Montgomery's intent or guilt, and whether the trial court erred by allowing a missing witness instruction and related argument concerning Montgomery's grandson and landlord. Also at issue was whether any such errors required reversal.

Rule

Evidence is sufficient for possession of pseudoephedrine with intent to manufacture methamphetamine if, viewing the evidence in the light most favorable to the State, a rational juror could find the elements beyond a reasonable doubt and there is at least one additional factor supporting intent beyond mere possession, such as acting in concert or possessing another distinctive methamphetamine ingredient. In criminal cases, opinions expressing personal belief as to the defendant's guilt, the accused's intent, or witness veracity are improper, even though opinion testimony on some ultimate issues may otherwise be admissible. A missing witness instruction against a criminal defendant is proper only when the witness's testimony is material and noncumulative, the witness is peculiarly available to or under the defendant's control, the absence is not satisfactorily explained, and the doctrine does not infringe the defendant's right to silence or shift the burden of proof.

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One of 10 multiple-choice questions for this case. Pick an answer to see why.

In Yakima, police stopped Dana Mercer after watching her buy two boxes of pseudoephedrine cold tablets at one store and, 20 minutes later, a gallon of acetone and a large bottle of hydrogen peroxide at another. She told officers the purchases were for cleaning glue off floorboards and treating a dog's wound.

If Dana is charged with possessing pseudoephedrine with intent to manufacture methamphetamine, is the evidence sufficient to survive her motion to dismiss?

Explanation. The majority held that sufficiency exists if, viewing the evidence in the light most favorable to the State, a rational juror could find intent beyond a reasonable doubt and there is at least one additional factor beyond mere possession of pseudoephedrine. Possessing pseudoephedrine together with other distinctive ingredients such as acetone and hydrogen peroxide is enough to support the inference, even if the defendant offers innocent explanations. The jury need not accept those explanations.