State Of Washington, V. Christopher Lee Derri ( 2021 )


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  • IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
    STATE OF WASHINGTON,
    DIVISION ONE
    Respondent,
    No. 80396-4-I
    v.
    PUBLISHED OPINION
    CHRISTOPHER LEE DERRI,
    a/k/a JOHN STITES,
    Appellant.
    DWYER, J. — Christopher Derri appeals from his convictions of three
    counts of robbery in the first degree. Derri contends that the information was
    constitutionally defective as to each count because it did not include all of the
    essential elements of robbery. Additionally, Derri asserts that the trial court erred
    by (1) admitting out-of-court and in-court identifications of him as the perpetrator,
    (2) denying his motion for a mistrial or dismissal with regard to count three after
    witness testimony revealed that the State had failed to disclose the existence of
    video footage that was potentially relevant to that count, and (3) refusing to
    instruct the jury on the law concerning missing evidence. Finally, Derri contends
    that he is entitled to a new sentencing hearing because the State failed to
    establish his criminal history by a preponderance of the evidence. Because Derri
    does not establish an entitlement to relief on any of his claims, we affirm.
    No. 80396-4-I/2
    I
    On March 1, 2017, Christopher Derri, who is also known as John Stites,
    entered a branch of Chase Bank in Seattle, approached two employees at teller
    stations, and demanded money. Derri first approached David Fletcher, the
    branch manager. Fletcher greeted Derri. Derri initially responded by
    “mumbling.” Derri then said to Fletcher, “[N]o dye packs, no bait money, this is a
    robbery, give me the money.” In response, Fletcher and another employee,
    Jacob Price, emptied money from the drawers and put it on the counter of the
    teller stations. Derri was wearing a hooded jacket and, according to Price, the
    hood “[d]idn’t really cover his face too much.”
    After Fletcher and Price put the money on the counter of the teller
    stations, Derri grabbed the money and placed it in a bag. Fletcher stated that
    Derri “kept asking for more and more” and also asked for the “merchant teller.”
    Fletcher informed Derri that “it was their day off.” Fletcher and Price then
    “started handing [Derri] rolls of coins” and “trays [of] . . . loose pennies and
    nickels.” Derri subsequently left through the front entrance of the bank. The
    encounter lasted several minutes.
    After Derri left, Fletcher and Price locked the doors to the bank. Fletcher
    then telephoned the police. Within a matter of minutes, several police officers
    arrived. Detective Len Carver obtained photographs and a video from the bank’s
    surveillance cameras. After Detective Carver retrieved the photographs, he
    distributed them through a “bulletin” to other police officers affiliated with the
    Seattle Police Department. Upon seeing the photographs, Detective Scott Miller
    2
    No. 80396-4-I/3
    determined that the individual depicted in the photographs “looked like” Derri.
    Detective Miller had met Derri on three occasions prior to seeing the
    photographs.
    Detective Miller subsequently sent an e-mail message to Detective
    Carver, informing him that the individual in the photographs resembled Derri.
    After receiving Derri’s name from Detective Miller, Detective Carver located a
    photograph of Derri and created a photomontage that featured Derri’s
    photograph along with photographs of five other individuals.
    On March 2, 2017, Detective Carver presented this photomontage to
    Fletcher and Price. Neither Fletcher nor Price identified any of the photographs
    as depicting the individual who robbed the bank.
    On March 7, 2017, Derri entered a branch of HomeStreet Bank in Seattle
    and approached two employees, Hannah Amdahl and Andrew Hilen, who were
    located at teller stations. Amdahl recalled that Derri “came in and was mumbling,
    but eventually it became clear through his words that he was robbing us.”
    According to Hilen, Derri initially stated the he “need[ed] . . . money now, [or]
    something to that effect.” Derri then repeated his message stating, “I need your
    money. Please give me your money now.”
    Amdahl and Hilen emptied money out of the drawers and put it on the
    counter of their teller stations. Meanwhile, Derri paced back and forth between
    Amdahl and Hilen. After Amdahl and Hilen “had given him all the money,” Derri
    took the money from the counter and put it in his pockets. Prior to leaving the
    bank, Derri told Amdahl and Hilen not to “call the cops until after [he] le[ft].” Derri
    3
    No. 80396-4-I/4
    acquired approximately $6,000. The encounter lasted approximately three
    minutes.
    After Derri left the bank, Amdahl and Hilen locked the doors and “wait[ed]
    for the police to arrive.” Police officers arrived within minutes. A video and
    photographs of the robbery were retrieved from the bank’s surveillance cameras.
    Amdahl and Hilen recognized Derri as a person who had entered the bank
    approximately two weeks before the robbery. In late February, Derri had spoken
    to Amdahl about opening a bank account at HomeStreet Bank. During their
    conversation, Amdahl agreed to lower the bank’s minimum balance requirement
    because Derri stated that he “didn’t have the funds” to open an account. To
    remember the conversation, Amdahl wrote herself a note, which memorialized
    the name that was given by Derri: “John Stites.” The following week, Amdahl
    wrote “2/24?” on the note in order to “remember what day it had happened.”
    On March 8, 2017, Detective Carver interviewed Amdahl. Detective
    Carver had assembled a photomontage using a different, more recent
    photograph of Derri. Upon reviewing the photomontage, Amdahl identified
    Derri’s photograph and stated that she recognized Derri as the robber with 100
    percent confidence. On March 9, Detective Carver showed the same
    photomontage to Hilen. Hilen identified Derri’s photograph and stated that he
    recognized Derri as the robber with 98 to 99 percent confidence.
    On March 10, 2017, Detective Carver showed the photomontage with the
    more recent photograph of Derri to both Fletcher and Price, individually.
    Detective Carver decided to show Fletcher and Price the second photomontage
    4
    No. 80396-4-I/5
    because “the photograph that they were originally shown was older and there
    was a stark contrast between the two photographs.” Price did not select any
    photograph from the photomontage. Fletcher, however, identified Derri’s
    photograph and stated that he recognized Derri as the robber with 90 percent
    confidence.
    On March 11, 2017, Derri entered the same HomeStreet Bank that he had
    robbed four days earlier. Amdahl and the branch manager, Dustin Foss, were
    present. Amdahl “saw [Derri’s] face clearly and recognized him as the previous
    robber.” As Derri entered the bank, Amdahl activated a “silent alarm.” Derri then
    approached Amdahl and said something along the lines of “You know the drill.”
    Amdahl gave Derri some money and then “backed up and said that was it.” Derri
    then left the bank. The encounter lasted approximately one minute.
    After Derri left, Foss locked the doors and Amdahl telephoned the police.
    A responding officer, Richard Lima, spoke with Amdahl and Foss. Amdahl and
    Foss provided the name “John Stites” to Officer Lima. Officer Lima obtained
    photographs that depicted the robbery from the bank’s surveillance cameras. He
    did not, however, retrieve any video footage from the cameras. Several days
    after the robbery, Officer Lima retrieved video footage from Ken’s Market, a
    business located across the street from HomeStreet Bank. This footage depicted
    the exterior of the bank both immediately before and after the robbery. On March
    13, 2017, Derri was arrested.
    The State charged “Christopher Lee Derri, aka John Stites” with three
    counts of robbery in the first degree: the first count occurring on March 1, 2017,
    5
    No. 80396-4-I/6
    and “from the person and in the presence of David Fletcher and Chase Bank”;
    the second count occurring on March 7, 2017, and “from the person and in the
    presence of Hannah Amdahl, Andrew Hilen, and HomeStreet Bank”; and the
    third count occurring on March 11, 2017, and “from the person and in the
    presence of Hannah Amdahl.” Following a jury trial, Derri was found guilty as
    charged. The trial court imposed a standard range sentence of 150 months of
    incarceration.
    Derri appeals.
    II
    Derri first asserts that the information, which charged him with three
    counts of robbery in the first degree, was constitutionally defective as to each
    count because it failed to include all of the essential elements of robbery. This is
    so, Derri avers, because the information was required to state that he had used
    force or fear either to obtain or retain possession of the property at issue or to
    prevent or overcome resistance to the taking. We disagree.
    Under both the United States and Washington Constitutions, an accused
    has a right to be informed of the criminal charges against him or her in order to
    facilitate the adequate preparation of a defense. U.S. CONST. amend. VI; WASH.
    CONST. art. I, § 22 (amend. 10). Accordingly, a defendant must be provided a
    charging document setting forth every material element of the charge or charges
    against the defendant, along with all essential supporting facts. State v.
    McCarty, 
    140 Wn.2d 420
    , 425, 
    998 P.2d 296
     (2000).
    6
    No. 80396-4-I/7
    “The standard of review for evaluating the sufficiency of a charging
    document is determined by the time at which the motion challenging its
    sufficiency is made.” State v. Taylor, 
    140 Wn.2d 229
    , 237, 
    996 P.2d 571
     (2000).
    When a defendant challenges the sufficiency of the charging document before a
    verdict is rendered, the charging language must be strictly construed. Taylor,
    
    140 Wn.2d at 237
    . When a defendant challenges the sufficiency after a verdict is
    rendered, the charging document must be construed liberally in favor of validity.
    Taylor, 
    140 Wn.2d at 237
    .
    A challenge to the sufficiency of a charging document involves a question
    of constitutional due process and may be raised for the first time on appeal.
    State v. Holland, 
    77 Wn. App. 420
    , 426, 
    891 P.2d 49
     (1995); RAP 2.5(a)(3).
    When, as here, an appellant raises such a challenge for the first time on appeal,
    we employ the two-pronged test originally set forth in State v. Kjorsvik, 
    117 Wn.2d 93
    , 105-06, 
    812 P.2d 86
     (1991).
    To satisfy the first prong, we must liberally construe the language of the
    charging document to determine if it contains the necessary elements of the
    crime charged. McCarty, 
    140 Wn.2d at 425
    . Notably, “[t]he State need not
    include definitions of elements in the information.” State v. Johnson, 
    180 Wn.2d 295
    , 302, 
    325 P.3d 135
     (2014).
    If the charging document can be construed as containing the required
    elements, even if only in vague terms, we must then determine if the language
    resulted in any actual prejudice to the defendant (the second prong of the test).
    McCarty, 
    140 Wn.2d at 425
    . However, if the necessary elements cannot be
    7
    No. 80396-4-I/8
    found in or even fairly inferred from the charging document, we presume
    prejudice without reaching the second prong of the test. McCarty, 
    140 Wn.2d at 425
    . The remedy for an insufficient charging document is reversal and dismissal
    of the charges without prejudice to the State’s ability to refile. State v.
    Quismundo, 
    164 Wn.2d 499
    , 504, 
    192 P.3d 342
     (2008).
    Derri was charged with three counts of robbery in the first degree in
    violation of RCW 9A.56.200, which provides, in pertinent part:
    (1) A person is guilty of robbery in the first degree if:
    ...
    (b) He or she commits a robbery within and against a
    financial institution as defined in RCW 7.88.010 or 35.38.060.
    The elements of robbery are set forth in the definitional statute:
    A person commits robbery when he or she unlawfully takes
    personal property from the person of another or in his or her
    presence against his or her will by the use or threatened use of
    immediate force, violence, or fear of injury to that person or his or
    her property or the person or property of anyone. Such force or
    fear must be used to obtain or retain possession of the property, or
    to prevent or overcome resistance to the taking; in either of which
    cases the degree of force is immaterial. Such taking constitutes
    robbery whenever it appears that, although the taking was fully
    completed without the knowledge of the person from whom taken,
    such knowledge was prevented by the use of force or fear.
    RCW 9A.56.190 (emphasis added).
    Here, Derri contends that the information, with regard to all three counts of
    robbery in the first degree, did not properly set forth the essential elements of the
    8
    No. 80396-4-I/9
    crime of robbery.1 Specifically, Derri asserts that the information was required to
    recite the portion of the second sentence of RCW 9A.56.190 that we have
    emphasized above. Because Derri did not raise this issue in the trial court, we
    apply the standard of review set forth in Kjorsvik, 
    117 Wn.2d at 106
    . Accordingly,
    we must first determine whether the language of the information included all of
    the essential elements of the crime of robbery in the first degree.
    We have already held—in the context of an information that was
    challenged as being constitutionally defective—that the essential elements of
    robbery do not include the contents of the second sentence of RCW 9A.56.190.
    State v. Phillips, 9 Wn. App. 2d 368, 373-74, 
    444 P.3d 51
    , review denied, 
    194 Wn.2d 1007
     (2019). In so doing, we explained that the first sentence of RCW
    9A.56.190 contains the statutory elements of robbery whereas the second
    sentence merely defines certain terms contained within that first sentence:
    The first sentence, which sets forth the statutory elements of
    robbery, includes the element of “the use or threatened use of
    immediate force, violence, or fear of injury.” The second sentence
    defines “force” and “fear” as used in sentence one. “Such force or
    fear must be used to obtain or retain possession of the property, or
    to prevent or overcome resistance to the taking; in either of which
    1  The information contained identical statutory language for each of the three counts of
    robbery in the first degree, differing only with regard to the particular dates and complainants.
    The following is an example of the language used in the information:
    Count 1 Robbery In The First Degree
    That the defendant Christopher Lee Derri, aka John Stites, in King
    County, Washington, on or about March 1, 2017, did unlawfully and with intent to
    commit theft take personal property of another, to-wit: U.S. currency, from the
    person and in the presence of David Fletcher and Chase Bank, who had an
    ownership, representative, or possessory interest in that property, against his
    will, by the use or threatened use of immediate force, violence and fear of injury
    to such person or his property and to the person or property of another, and that
    he did commit the robbery within and against a financial institution defined in
    RCW 7.88.010 or RCW 35.38.060, to wit: Chase Bank;
    Contrary to RCW 9A.56.200(1)(b) and 9A.56.190, and against the peace
    and dignity of the State of Washington.
    9
    No. 80396-4-I/10
    cases the degree of force is immaterial.” (Emphasis added.) It also
    defines to “obtain” or “retain” as a form of “take,” as used in
    sentence one.
    Phillips, 9 Wn. App. 2d at 377 (quoting RCW 9A.56.190).
    In other words, “the statutory elements of robbery are set forth in the first
    sentence while sentence[] two . . . [is a] mere definitional statement[].” Phillips, 9
    Wn. App. 2d at 377. Accordingly, an information that charges a defendant with
    robbery need not allege that the defendant used force or fear either to obtain or
    retain possession of the property at issue or to prevent or overcome resistance to
    the taking.
    Derri, however, asserts that a different outcome is compelled by our
    Supreme Court’s decision in State v. Pry, 
    194 Wn.2d 745
    , 
    452 P.3d 536
     (2019).
    Derri argues that the court in Pry rejected the principle, which we relied on in
    Phillips, that statutory provisions that are merely definitional need not be included
    in the information. Instead, according to Derri, the information must contain all of
    the “fact[s] [that are] essential to proving the illegality of the offense.”2 See Pry,
    194 Wn.2d at 752 (“An ‘essential element is one whose specification is
    necessary to establish the very illegality of the behavior’ charged.” (quoting State
    v. Johnson, 
    119 Wn.2d 143
    , 147, 
    829 P.2d 1078
     (1992))). Derri is wrong.
    Indeed, the Pry decision expressly acknowledged the principle that “[a]
    charging document is not required to define essential elements.” 194 Wn.2d at
    752. While affirming our decision in the case, the Pry court invoked this principle
    in determining whether an information, which charged a defendant with rendering
    2   Br. of Appellant at 14.
    10
    No. 80396-4-I/11
    criminal assistance, contained all of the essential elements of that offense. The
    information in Pry provided that the defendant “‘rendered criminal assistance to a
    person who had committed or was being sought for any class A felony; contrary
    to the Revised Code of Washington 9A.76.070(1).’” Pry, 194 Wn.2d at 753-54.
    Significantly, RCW 9A.76.070(1) states: “A person is guilty of rendering criminal
    assistance in the first degree if he or she renders criminal assistance to a person
    who has committed or is being sought for murder in the first degree or any class
    A felony.” Thus, according to the court, the defendant therein “was charged with
    ‘rendering criminal assistance,’ and the information told him this meant that he
    was charged with ‘rendering criminal assistance.’” Pry, 194 Wn.2d at 754.
    The court then determined whether RCW 9A.76.050, which is entitled
    “Rendering criminal assistance—Definition of term,” either provided the essential
    elements of the offense or merely defined those elements. Pry, 194 Wn.2d at
    754-55. The court concluded that the contents of that statutory provision were
    not merely definitional but rather set forth the essential elements of the offense of
    rendering criminal assistance. Pry, 194 Wn.2d at 756. Likewise, in Phillips, we
    held that the first sentence of RCW 9A.56.190, which is entitled “Robbery—
    Definition,” contained the statutory elements of robbery. 9 Wn. App. 2d at 377.
    Derri next contends that our Supreme Court, in State v. Johnson, 
    155 Wn.2d 609
    , 
    121 P.3d 91
     (2005), held that the second sentence of RCW
    9A.56.190 includes a statutory element of robbery. Not so. The issue in
    Johnson was “whether a robbery conviction can be based upon force used to
    escape after peaceably-taken property has been abandoned.” 
    155 Wn.2d at
    11
    No. 80396-4-I/12
    609-10. The court held that a robbery conviction could not be so based because
    Washington law incorporates the “transactional” view of the crime of robbery,
    meaning “the force must be used to obtain or retain property, or to prevent or
    overcome resistance to the taking.” Johnson, 
    155 Wn.2d at 610
    . In Phillips, we
    explained that the Johnson “decision makes clear the relationship between the
    first and second sentences of RCW 9A.56.190.” 9 Wn. App. 2d at 377. Whereas
    the first sentence provides the essential elements of robbery, the second
    sentence defines certain terms contained within the first sentence to explain
    Washington’s “transactional” view of robbery. Phillips, 9 Wn. App. 2d at 377.
    Derri also asserts that our Supreme Court’s decision in State v. Allen, 
    159 Wn.2d 1
    , 
    147 P.3d 581
     (2006), recognized that the second sentence of RCW
    9A.56.190 includes a statutory element of robbery. We disagree. In Allen, the
    court examined whether sufficient evidence supported a defendant’s conviction
    of aggravated first degree murder, with robbery in the first or second degree as
    the aggravator. 
    159 Wn.2d at 9-10
    . The court described the State’s burden of
    proof—under the specific facts of that case—as follows:
    Thus, to establish the aggravating factor of robbery in this case, the
    State had to prove beyond a reasonable doubt that Allen: (1) took
    the cashbox from his mother’s person or in her presence (2)
    against her will and (3) used force or fear to take the cashbox or to
    prevent his mother from resisting the taking.
    Allen, 
    159 Wn.2d at 9
     (emphasis added).
    In Phillips, we explained that this language did not add to the statutory
    elements of robbery:
    [T]he Allen court was not engaged in announcing a new statutory
    element of robbery. Rather, it was discussing what the State—in
    12
    No. 80396-4-I/13
    that case, as the case had been tried—had to establish to prove
    guilt of the charge. There are no statutory elements of robbery
    requiring proof of “cashboxes” or “mothers.”
    9 Wn. App. 2d at 380.
    Finally, Derri contends that the information was constitutionally defective
    because, in State v. Todd, 
    200 Wn. App. 879
    , 
    403 P.3d 867
     (2017), Division
    Three ruled that the statutory elements of robbery include the second sentence
    of RCW 9A.56.190. Although a panel of Division Three judges did, in fact, so
    hold, they cited to our Supreme Court’s decision in Allen in support of their
    determination. Todd, 200 Wn. App. at 885-86. But, as already explained, the
    Allen opinion did not, in fact, announce a new statutory element of robbery. The
    decision in Todd is less well-reasoned than our decision in Phillips. Today we
    follow Phillips.
    In sum, the information herein was not required to provide that Derri had
    used force or fear either to obtain or retain possession of the property at issue or
    to prevent or overcome resistance to the taking. Because the first prong of the
    Kjorsvik standard is satisfied, Derri must show actual prejudice flowing from any
    vagueness in the charging document to obtain relief. He has neither shown nor
    alleged such prejudice. Thus, the information charging Derri with three counts of
    robbery in the first degree was constitutionally sufficient. See State v. Nonog,
    
    169 Wn.2d 220
    , 231, 
    237 P.3d 250
     (2010) (“Because [the appellant] does not
    argue that he was actually prejudiced by the State’s charging language, the
    information is constitutionally sufficient.” (citation omitted)).
    Accordingly, Derri’s assignment of error fails.
    13
    No. 80396-4-I/14
    III
    Derri asserts that the trial court erred by admitting at trial certain out-of-
    court and in-court identifications of him. In particular, Derri contends that certain
    out-of-court identifications resulted from unduly suggestive identification
    procedures and, in turn, the in-court identifications of him were tainted by these
    procedures. We disagree.
    A
    “[T]he admission of evidence of a photo identification is reviewed under
    the same standard as any other evidentiary ruling—abuse of discretion.” State v.
    Kinard, 
    109 Wn. App. 428
    , 435, 
    36 P.3d 573
     (2001).
    A trial court abuses its discretion only if any of the following
    is true:
    (1) The decision is “manifestly unreasonable,” that is, it falls
    “outside the range of acceptable choices, given the facts and the
    applicable legal standard”;
    (2) The decision is “based on untenable grounds,” that is,
    “the factual findings are unsupported by the record;” or
    (3) The decision is “based on untenable reasons,” that is, it
    is “based on an incorrect standard or the facts do not meet the
    requirements of the correct standard.”
    State v. Dye, 
    178 Wn.2d 541
    , 548, 
    309 P.3d 1192
     (2013) (quoting In re Marriage
    of Littlefield, 
    133 Wn.2d 39
    , 47, 
    940 P.2d 1362
     (1997)). Alternatively, a trial court
    abuses its discretion when “no reasonable judge would have ruled as the trial
    court did.” State v. Mason, 
    160 Wn.2d 910
    , 934, 
    162 P.3d 396
     (2007) (citing
    State v. Thang, 
    145 Wn.2d 630
    , 642, 
    41 P.3d 1159
     (2002)); In re Marriage of
    Landry, 
    103 Wn.2d 807
    , 809-10, 
    699 P.2d 214
     (1985).
    “[C]onvictions based on eyewitness identification at trial following a pretrial
    identification by photograph will be set aside on that ground only if the
    14
    No. 80396-4-I/15
    photographic identification procedure was so impermissibly suggestive as to give
    rise to a very substantial likelihood of irreparable misidentification.” Simmons v.
    United States, 
    390 U.S. 377
    , 384, 
    88 S. Ct. 967
    , 
    19 L. Ed. 2d 1247
     (1968). In
    determining whether an out-of-court identification procedure violates due
    process, trial courts conduct a two-step inquiry. First, the defendant “bears the
    burden of showing that the identification procedure was impermissibly
    suggestive.” State v. Vickers, 
    148 Wn.2d 91
    , 118, 
    59 P.3d 58
     (2002). “If [the
    defendant] fails, the inquiry ends.” Vickers, 
    148 Wn.2d at 118
    . Second, “[i]f [the
    defendant] proves the procedure was suggestive, the court then considers,
    based upon the totality of the circumstances, whether the procedure created a
    substantial likelihood of irreparable misidentification.” Vickers, 
    148 Wn.2d at 118
    .
    When the trial court determines whether a photographic identification
    procedure created a substantial likelihood of irreparable misidentification, the
    factors to be considered by the court include:
    (1) the opportunity of the witness to view the criminal at the time of
    the crime; (2) the witness’s degree of attention; (3) the accuracy of
    the witness’s prior description of the criminal; (4) the level of
    certainty demonstrated at the confrontation; and (5) the time
    between the crime and the confrontation.
    State v. Linares, 
    98 Wn. App. 397
    , 401, 
    989 P.2d 591
     (1999); see Neil v.
    Biggers, 
    409 U.S. 188
    , 199-200, 
    93 S. Ct. 375
    , 
    34 L. Ed. 2d 401
     (1972).
    15
    No. 80396-4-I/16
    B
    Derri claims that the identification procedure concerning Fletcher was
    impermissibly suggestive both because (1) Detective Carver showed Fletcher
    two photomontages and Derri was the only person appearing in both montages,
    and (2) Derri was the only person with a neck tattoo featured in the montages.
    Next, Derri argues that the identification procedure regarding Amdahl was
    impermissibly suggestive because Detective Carver showed her a photomontage
    wherein Derri was the only individual featured with a neck tattoo. Finally, Derri
    asserts that the identification procedure concerning Hilen was impermissibly
    suggestive both because Detective Carver (1) showed Hilen photographs from
    the March 1 robbery of Chase Bank before showing Hilen the photomontage, and
    (2) showed Hilen a photomontage wherein Derri was the only individual featured
    with a neck tattoo.
    The trial court ruled that none of the photographic identification
    procedures were impermissibly suggestive. Additionally, the trial court
    determined that the procedures did not create a substantial likelihood of
    misidentification. In doing so, the trial court explained:
    Even if the Court were to have found the montage
    procedures were impermissibly suggestive, the Court finds that the
    Biggers factors are met in this case. So the totality of the
    circumstances does not give rise to a substantial likelihood of
    irreparable misidentification. First, each of the witnesses had an
    opportunity to observe the bank robber. Mr. Fletcher greeted the
    bank robber and interacted with him. Ms. Amdahl claims to have
    seen the bank robber before and even recalled his name, and on
    the day of the robbery she along with Mr. Hilen were the tellers who
    were ordered to remove money from the drawers. Both observed
    the bank robber for the time that he was in the bank.
    16
    No. 80396-4-I/17
    Second, all the witnesses described[] [t]he defendant, his
    appearance, and his demeanor in sufficient detail to establish that
    they were paying attention to the bank robber. Third, the
    descriptions of the bank robber are all sufficiently consistent with
    the attributes of Mr. Derri. Fourth, each of the three individuals
    showed high levels of certainty in the identification, 90 percent for
    Mr. Fletcher, 100 percent for Ms. Amdahl, and 98 to 99 percent for
    Mr. Hilen. And finally, all identifications were made sufficiently
    close to the date of the robbery, the longest being nine days after
    the robbery. So for these reasons, the Court finds that the out-of-
    court identifications are reliable.
    Because the trial court properly exercised its discretion by concluding that
    the identification procedures in question did not create a substantial likelihood of
    misidentification, we need not opine as to whether the procedures were
    impermissibly suggestive. As explained above, a trial court abuses its discretion
    when its decision is “based on untenable grounds or untenable reasons,” or “if its
    decision is manifestly unreasonable.” Littlefield, 
    133 Wn.2d at 46-47
    . The trial
    court herein did not abuse its discretion in ruling as it did.
    C
    First, the trial court’s decision was not based on untenable grounds. A
    trial court’s decision “is based on untenable grounds if the factual findings are
    unsupported by the record.” Littlefield, 
    133 Wn.2d at 47
    . Here, the trial court’s
    factual findings were supported by the evidence that was before the court when it
    ruled on Derri’s CrR 3.6 motion.3
    3  We consider the factual record that was before the trial court when it ruled on Derri’s
    motion to suppress the identifications made by Fletcher, Amdahl, and Hilen. Although a hearing
    was conducted on the motion, neither party presented any testimony during this hearing. Rather,
    the hearing was limited to the parties’ arguments regarding whether the identification procedures
    in question violated due process requirements. The parties did, however, file various documents
    along with briefs concerning Derri’s motion to suppress the identifications. Accordingly, in
    determining whether the trial court abused its discretion by denying Derri’s motion to suppress the
    identifications made by Fletcher, Amdahl, and Hilen, we properly consider the information that
    was contained within these documents.
    17
    No. 80396-4-I/18
    The trial court’s factual finding that “each of the witnesses had an
    opportunity to observe the bank robber” is supported by the evidence in the
    record. In an initial incident report dated March 1, 2017, a police officer wrote
    that “Fletcher stated that a white male entered the bank, walked around for a
    minute and then demand[ed] that he and his staff put money into a dark brown
    satchel that he was holding in his hands.” The robber “faced the front counter
    and began talking very fast and incoherently holding a brown satchel out in front
    of him.” Additionally, the robber “told Fletcher repeatedly to ‘do it now’ while
    holding the bag open in front of him and told Fletcher not to make him come over
    the counter.” Fletcher also recollected that the robber stated that “he was not
    kidding and that he wanted the merchant teller” and “asked for wrapped $20’s in
    the bottom drawer and told the staff not to give him anything with dye packs.”
    Fletcher then “put the trays of money on the counter and the [robber] took the
    whole tray and stuffed it into his satchel.” Afterward, the robber approached
    Price and took money that Price had put on the counter. The robber then exited
    the bank. On March 2, Detective Carver interviewed Price, and Price recalled
    that he was able to see the robber’s face during the robbery.
    With regard to the March 7 robbery of HomeStreet Bank, Amdahl stated
    the following in an interview with Detective Carver that took place the day after
    the robbery:
    [T]he [robber] came . . . through the door and I looked up and he
    was almost to my station. Um he was wearing a black wind
    breaker or um kind of a rain jacket of some kind with the um hoodie
    pulled up and the strings pulled so it was tight against his face, so
    you could only see his face.
    18
    No. 80396-4-I/19
    Amdahl stated that the robber was “mumbling” and then “said um
    something along the lines of um this is a robbery, uh give me your money.”
    Amdahl and Hilen started to put “money on the table,” and the robber “kept
    saying like more, more.” Amdahl recalled that the robber told her “no dye packs
    and no devices.” Amdahl and Hilen “eventually . . . put pretty much all the money
    that [they] had on” the counter. Amdahl recalled observing the robber “look[]
    through [the money]” and “tak[e] some [of] the rubber bands off and flip[] through
    them.” At one point, the robber asked for the “merchant teller” and Amdahl
    informed him, “I don’t know what that is and we don’t have one of those.”
    Two days after the March 7 robbery, Detective Carver interviewed Hilen.
    During this interview, Hilen recalled that he initially “heard” the robber approach
    his teller station before “demanding that [he and Amdahl] remove [the] money
    from the bottom drawers.” Hilen stated that the robber “requested that probably
    two or three or four times” before he and Amdahl “pick[ed] up on what he
    wanted.” Then, according to Hilen, “eventually [Amdahl] started givin’ [the
    robber] money” and Hilen “followed suit” and “provided the [robber] with cash.”
    During this time, the robber “was pacing back and forth between” Hilen and
    Amdahl. Hilen stated that he “g[ave] [the robber] what he wanted but very
    slowly.” After Hilen and Amdahl handed the robber the money, the robber “spent
    maybe fifteen seconds in front of both [of the] teller lines . . . stuffing money into
    his coat pockets.” The robber “was having real trouble getting it into his
    pocket[s].” Hilen recalled thinking that, while the robber was struggling, “it was
    19
    No. 80396-4-I/20
    sort of funny for a little bit.” The robber then “looked at both [Amdahl] and [Hilen]
    and apologized . . . on his way out the door.”
    Notably, following the March 7 robbery of HomeStreet Bank, Amdahl
    informed a police officer that she recognized the robber as a person who had
    come into the bank approximately two weeks earlier. On that day, an individual
    had entered the bank and asked Amdahl about opening an account. Amdahl
    agreed to lower the minimum balance requirement for opening an account and
    subsequently wrote a note to make a record of the agreement. On this note,
    Amdahl wrote down the name “John Stites.”
    In light of the evidence summarized above, the trial court’s finding that
    “each of the witnesses had an opportunity to observe the bank robber” is
    supported by the record that was before the trial judge when the judge ruled on
    Derri’s motion.
    Next, the trial court’s finding that “all of the witnesses described[] [t]he
    defendant, his appearance, and his demeanor in sufficient detail to establish that
    they were paying attention to the bank robber” is also supported by the evidence
    that was before the court when it ruled on Derri’s motion to suppress. In the
    initial incident report dated March 1, 2017, a police officer stated that “Fletcher
    described the male as approximately 5’11 tall, very thin with a sunken in face.”
    Likewise, in a transcript from an interview with Detective Carver, Amdahl stated
    that the robber “had uh sunken in eyes and just his-he looked very emaciated in
    the face.” Additionally, Hilen informed Detective Carver that the robber was “very
    skinny,” weighed approximately “a hundred and forty-five pounds,” had “sandy
    20
    No. 80396-4-I/21
    brownish blonde hair,” and had “a very weathered face.” All three of these
    descriptions were made before the witnesses were shown any of the
    photomontages in question.
    The trial court’s finding that “the descriptions of the bank robber are all
    sufficiently consistent with the attributes of Mr. Derri” is also supported by the
    evidence that was before the court. Indeed, the parties had filed numerous
    photographs of Derri with the court. In these photographs, Derri may be fairly
    described as being skinny and having a “sunken in” or “weathered” face.
    Furthermore, the trial court’s finding that each of the witnesses showed a
    high level of certainty in identifying Derri is supported by the evidence that was
    before the trial judge. The second time Fletcher was presented with a
    photomontage of Derri, he wrote a note next to Derri’s photograph that stated, “I
    would say with 90% confidence that this is the fellow that robbed the bank.” After
    Amdahl identified Derri’s photograph from the photomontage, she stated that she
    was 100 percent confident that the individual featured in the photograph was the
    same person who had robbed HomeStreet Bank on March 7. Additionally, when
    Hilen identified Derri’s photograph from the photomontage, he stated that he was
    98 to 99 percent confident that the individual featured in that photograph had
    robbed the bank.
    Finally, the trial court’s finding that “all identifications were made
    sufficiently close to the date of the robbery” was supported by the evidence.
    Amdahl identified Derri’s photograph on March 8, 2017, which was one day after
    the March 7 robbery of HomeStreet Bank. Hilen identified Derri’s photograph on
    21
    No. 80396-4-I/22
    March 9, 2017, which was two days after that robbery. And Fletcher identified
    Derri’s photograph on March 10, 2017, which was nine days after the March 1
    robbery of Chase Bank.
    Thus, the trial court’s determination was not based on untenable grounds.
    D
    Neither was the trial court’s decision based on untenable reasons. Again,
    a trial court’s decision “is based on untenable reasons if it is based on an
    incorrect standard or the facts do not meet the requirements of the correct
    standard.” Littlefield, 
    133 Wn.2d at 47
    . In determining whether the identification
    procedures created a substantial likelihood of misidentification, the trial court
    applied the correct legal standard. Indeed, the trial court considered the totality
    of the circumstances and applied the five factors outlined by the Supreme Court
    in Biggers, 
    409 U.S. at 199-200
    . Moreover, the evidence considered by the trial
    court was relevant to, and met the requirements of, the correct legal standard.
    E
    Finally, the trial court’s decision was not manifestly unreasonable because
    it did not fall “outside the range of acceptable choices, given the facts and the
    applicable legal standard.” Littlefield, 
    133 Wn.2d at 47
    . In light of the evidence
    that was before the trial court when it made its ruling, a reasonable judge could
    have concluded that each of the five factors enumerated in Biggers weighed in
    favor of a determination that the photographic identification procedures at issue
    did not create a substantial likelihood of misidentification.4
    Finally, in light of all of the circumstances set forth above, we cannot say that “no
    4
    reasonable judge would have ruled as the trial court did.” Mason, 
    160 Wn.2d at 934
    .
    22
    No. 80396-4-I/23
    For these reasons, the trial court did not abuse its discretion by denying
    Derri’s motion to suppress the identifications made by Fletcher, Amdahl, and
    Hilen.
    IV
    Derri next contends that the trial court erred by denying his motion for
    either a mistrial or a dismissal (with regard to count three) pursuant to CrR
    8.3(b)5 and CrR 4.7(h)(7)(i).6 Specifically, Derri asserts that the trial court was
    required to either declare a mistrial with regard to count three or dismiss count
    three after witness testimony revealed that the State had failed to disclose the
    existence of the video from Ken’s Market that depicted the exterior of
    HomeStreet Bank both immediately before and after the March 11 robbery. We
    disagree.
    “Two things must be shown before a court can require dismissal of
    charges under CrR 8.3(b).” State v. Michielli, 
    132 Wn.2d 229
    , 239, 
    937 P.2d 587
    (1997). “First, a defendant must show arbitrary action or governmental
    misconduct.” Michielli, 
    132 Wn.2d at 239
    . Second, a defendant must show
    “prejudice affecting the defendant’s right to a fair trial.” Michielli, 
    132 Wn.2d at 240
    .
    5Under CrR 8.3(b), a trial court “may dismiss any criminal prosecution due to arbitrary
    action or governmental misconduct when there has been prejudice to the rights of the accused
    which materially affect the accused’s right to a fair trial.”
    6 CrR 4.7(h)(7)(i) provides:
    [I]f at any time during the course of the proceedings it is brought to the attention
    of the court that a party has failed to comply with an applicable discovery rule or
    an order issued pursuant thereto, the court may order such party to permit the
    discovery of material and information not previously disclosed, grant a
    continuance, dismiss the action or enter such other order as it deems just under
    the circumstances.
    23
    No. 80396-4-I/24
    Moreover, “[t]he purpose behind discovery disclosure is to protect against
    surprise that might prejudice the defense.” State v. Barry, 
    184 Wn. App. 790
    ,
    796, 
    339 P.3d 200
     (2014). “If the State fails to disclose such evidence or comply
    with a discovery order, a defendant’s constitutional right to a fair trial may be
    violated; as a remedy, a trial court can grant a continuance, dismiss the action, or
    enter another appropriate order.” Barry, 184 Wn. App. at 796 (citing CrR
    4.7(h)(7)(i)).
    A trial court’s decision on a motion to dismiss under CrR 8.3(b) is
    reviewed for manifest abuse of discretion. State v. Moen, 
    150 Wn.2d 221
    , 226,
    
    76 P.3d 721
     (2003). Likewise, “[d]iscovery decisions based on CrR 4.7 are
    within the trial court’s sound discretion.” State v. Vance, 
    184 Wn. App. 902
    , 911,
    
    339 P.3d 245
     (2014).
    During the trial, a police officer’s testimony revealed that the State had
    failed to disclose a surveillance video from a business—Ken’s Market—which
    was located across the street from HomeStreet Bank. The video depicted the
    scene outside of the bank both immediately before and after the March 11, 2017
    robbery. The prosecutor was not aware of the video’s existence. The prosecutor
    arranged for a detective to locate the video and, the next day, the prosecutor
    provided a copy of the video to Derri.
    Derri moved for either a mistrial or a dismissal with regard to count three,
    which concerned the March 11 robbery of HomeStreet Bank. The motion was
    brought pursuant to CrR 8.3(b) and CrR 4.7(h)(7)(i). Derri advanced four
    arguments as to why he was prejudiced by the State’s failure to timely disclose
    24
    No. 80396-4-I/25
    the video: (1) he was unable to provide the video to an expert who may have
    been able to enhance the video, including the face and right index finger7 of the
    suspect, (2) he was denied an opportunity to interview potential witnesses from
    the businesses that the suspect was seen passing, (3) he may have been able to
    determine whether there was further surveillance footage from a nearby
    automated teller machine (ATM) and neighboring businesses, and (4) he could
    have argued a different suspect theory based on the video.
    Initially, the trial court offered a continuance or a recess as a remedy to
    address Derri’s concerns. Derri declined these remedies. The trial court then
    determined that the State’s failure to disclose the video constituted a discovery
    violation and governmental misconduct. However, the court denied the request
    for a mistrial or dismissal, reasoning that Derri had failed to establish prejudice.
    The trial court did not abuse its discretion by denying Derri’s request for a
    mistrial or dismissal with regard to count three. Indeed, the trial court explained
    that each of the reasons advanced by Derri as to why he was prejudiced were
    speculative:
    With regards to the first claim regarding possible expert
    testimony, the Court finds no actual prejudice has been shown.
    The Court finds that the video stills of the HomeStreet Bank robbery
    on March 11th, as taken within the bank branch, are good quality
    video stills that show the robber’s face and whole body during the
    robbery. Accordingly, if the defendant wanted an expert to blow up
    the face and hands of the robbery suspect, they were free to use
    that video for the same purpose. They have not done so or they’ve
    not introduced evidence of such, and it is unlikely, or at the very
    least speculative, that the Ken’s Supermarket video would have
    7 Because Derri had “tattoos on his right index finger,” Derri’s counsel argued that an
    expert may have been able to enhance the video footage in order to determine whether the
    individual featured in the video had such tattoos.
    25
    No. 80396-4-I/26
    provided any different evidence than the HomeStreet Bank or even
    the Chase Bank videos of the other robbery.
    In fact, the Court finds that the Ken’s Supermarket video is of
    relatively poor quality, and what it captures of the suspect’s face
    and hands is even less than what was captured inside the
    HomeStreet Bank. It is also farther away. And because of this, it is
    speculative to claim that the Ken’s Supermarket video would be any
    more helpful in advancing the defense in this case.
    With regard to the second and third claims of prejudice,
    which is the loss of an opportunity to interview businesses and
    obtain surveillance videos from neighboring businesses and ATM
    machines, the Court also finds that actual prejudice has not been
    shown. Defense has had the opportunity to do this type of an
    investigation even if the video had never been obtained at all.
    Finally, with regard to the fourth claim of prejudice, which is
    that he could have advanced a different suspect theory based on
    the video evidence, the Court finds no actual prejudice. The video
    and stills from inside the HomeStreet Bank, like I said earlier, are
    better quality, and if defendant was unable to advance a different
    suspect theory with that evidence, it is beyond speculative that a
    surveillance video that is farther away and of poorer quality would
    further that defense.[8]
    The trial court’s decision was not manifestly unreasonable or based on
    untenable grounds or untenable reasons. Indeed, a reasonable judge could
    have determined that the video footage from Ken’s Market was of poorer quality
    than the photographs that captured the scene inside the bank. Because of the
    relatively poor quality of the video footage from Ken’s Market, the trial court
    reasonably determined that Derri’s claims of prejudice were speculative.
    Moreover, the trial court reasonably concluded that Derri had an opportunity to
    obtain video footage from any ATM machine or business near HomeStreet Bank
    even if the State had never obtained the video footage from Ken’s Market.
    8 Derri contends that, in denying his motion for a mistrial or dismissal, the trial court
    erroneously stated that a video of the March 11 robbery (rather than photographs) was admitted
    into evidence. Even if the trial court mistakenly believed that a video of the March 11 robbery
    was admitted into evidence, the court made clear that it found the photographs depicting the
    March 11 robbery to be of higher quality than the video from Ken’s Market.
    26
    No. 80396-4-I/27
    Accordingly, the trial court did not err.
    V
    Derri next contends that the trial court erred by refusing to instruct the jury
    on missing evidence. Specifically, Derri asserts that he was entitled to a missing
    evidence instruction because (1) the State did not retrieve video footage from
    HomeStreet Bank for any day in February, even though Amdahl informed a
    police officer after the March 7 robbery that she had recognized the robber as an
    individual with whom she had met in late February, (2) the State did not timely
    disclose the video footage from Ken’s Market depicting the exterior of
    HomeStreet Bank both immediately before and immediately after the March 11
    robbery, and (3) the State did not retrieve video footage of the March 11 robbery
    before it was deleted by HomeStreet Bank. We hold that Derri was not entitled to
    a missing evidence instruction.
    The missing evidence instruction derives from the missing witness
    doctrine. Indeed, “[t]he rule is often referred to in a short-hand way as the
    ‘missing witness’ rule though the same inference may arise from the failure to
    produce other forms of evidence as well.” 5 KARL B. TEGLAND, W ASHINGTON
    PRACTICE: EVIDENCE LAW AND PRACTICE § 402.8, at 291 (6th ed. 2016); see State
    v. James, 
    26 Wn. App. 522
    , 524, 
    614 P.2d 207
     (1980) (“The range of sanctions
    available to the trial court is broad, including missing-evidence jury instructions.”).
    The missing evidence instruction is a permissive inference instruction that
    informs the jury that “‘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,
    27
    No. 80396-4-I/28
    and, . . . he fails to do so, — the jury may draw an inference that it would be
    unfavorable to him.’” State v. Blair, 
    117 Wn.2d 479
    , 485-86, 
    816 P.2d 718
     (1991)
    (alteration in original) (quoting State v. Davis, 
    73 Wn.2d 271
    , 276, 
    438 P.2d 185
    (1968), overruled on other grounds by State v. Abdulle, 
    174 Wn.2d 411
    , 
    275 P.3d 1113
     (2012)). The instruction is not warranted when the evidence is unimportant,
    merely cumulative, or when its absence is satisfactorily explained. Blair, 
    117 Wn.2d at 489
    .
    When a trial court refuses to issue a requested jury instruction, the
    standard of review “depends on whether the trial court’s refusal . . . was based
    upon a matter of law or of fact.” State v. Walker, 
    136 Wn.2d 767
    , 771, 
    966 P.2d 883
     (1998). “A trial court’s refusal to give instructions to a jury, if based on a
    factual dispute, is reviewable only for abuse of discretion.” Walker, 
    136 Wn.2d at 771-72
    . “The trial court’s refusal to give an instruction based upon a ruling of law
    is reviewed de novo.” Walker, 
    136 Wn.2d at 772
    .
    We note that Derri requested several different jury instructions concerning
    missing evidence. First, Derri requested the following jury instruction with regard
    to the State’s failure to (1) obtain video footage from HomeStreet Bank depicting
    the events that transpired on February 24, 2017, and (2) timely disclose the video
    footage from Ken’s Market depicting the exterior of HomeStreet Bank both
    immediately before and immediately after the March 11 robbery:
    If the State could have been [sic] introduced evidence at the
    trial and the State fails to introduce such evidence at trial, you may
    be able to infer that the evidence would have been unfavorable to
    the State. You may draw this inference only if you find that:
    (1) The evidence was peculiarly available to the State or its
    agents;
    28
    No. 80396-4-I/29
    (2) The issue on which evidence could have been presented
    is an issue of fundamental importance, rather than one
    that is trivial or insignificant;
    (3) As a matter of reasonable probability, it appears naturally
    in the interest of the State to introduce that evidence;
    (4) There is no satisfactory explanation of why the State did
    not introduce the evidence; and,
    (5) The inference is reasonable in light of all the
    circumstances.[9]
    The trial court refused to give this instruction, reasoning that the missing
    witness rule does not apply to evidence other than witnesses:
    So the Court does not believe that this instruction is an accurate
    statement of the law as it pertains to evidence. Absent any case
    that suggests that the missing witness instruction is properly given
    in cases where the State could have obtained additional evidence
    but did not, they’re just -- there is simply no case. So I’m not going
    to give the instruction. However, I will note you’re free to argue that
    theory absent the instruction to the jury.[10]
    9 This proposed instruction was based on the pattern instruction entitled “FAILURE TO
    PRODUCE WITNESS”:
    If a person who could have been a witness at the trial is not called to
    testify, you may be able to infer that the person’s testimony would have been
    unfavorable to a party in the case. You may draw this inference only if you find
    that:
    (1) The witness is within the control of, or peculiarly available to, that
    party;
    (2) The issue on which the person could have testified is an issue of
    fundamental importance, rather than one that is trivial or insignificant;
    (3) As a matter of reasonable probability, it appears naturally in the
    interest of that party to call the person as a witness;
    (4) There is no satisfactory explanation of why the party did not call the
    person as a witness; and
    (5) The inference is reasonable in light of all the circumstances.
    11 W ASHINGTON PRACTICE: W ASHINGTON PATTERN JURY INSTRUCTIONS: CRIMINAL 5.20 (4th ed.
    2016) (WPIC).
    Notably, the first prong from the instruction above states: “The witness is within the
    control of, or peculiarly available to, that party.” WPIC 5.20 (emphasis added). Derri changed
    this language to: “The evidence was peculiarly available to the State or its agents.” (Emphasis
    added.)
    10 It is worth noting that Derri’s counsel, in fact, argued this theory extensively during
    closing argument:
    So what are -- let’s talk about some of the missing evidence in this case.
    Where is this video from 2/24? Where is it? You would think that as early as
    March 7th when Ms. Amdahl says, “The man came into the bank on February
    24th,” that the police would go pull this video to corroborate identification. They
    didn’t bother to do that. Why not? What do they want you not to know about?
    29
    No. 80396-4-I/30
    The trial court incorrectly reasoned that a missing evidence instruction can
    never be warranted. However, we may affirm the trial court’s ruling “on any
    ground within the pleadings and proof.” Michielli, 
    132 Wn.2d at 242
    . Because a
    missing evidence instruction was not warranted in this case, the trial court
    properly declined to issue the instruction.
    Indeed, the video footage from late February was not missing. Detective
    Carver testified that he did not request from HomeStreet Bank any video footage
    from February 24, 2017. Moreover, the parties stipulated that “HomeStreet
    Bank’s policy in 2017 was to retain surveillance video footage for 90 days.”
    Thus, the evidence adduced at trial indicates that the video footage from late
    February was deleted by HomeStreet Bank—a non-state actor—pursuant to the
    bank’s standard video-retention policy.
    And they still could have gathered that video because . . . that video was still
    retained by HomeStreet Bank in that time period.
    . . . You may have a whole other list of missing evidence, but this is the
    stuff that I came up with. This is not exhaustive. Where is this video from March
    11? Why don’t we have that video? You saw a video from Chase Bank, you saw
    a video from the other HomeStreet incident, why don’t we have March 11th?
    That evidence, this evidence, the 2/24 video, they could have gotten this
    stuff easily enough. They were the first ones on scene for these robberies. They
    were the first ones who had contact with the bank employees. That was
    available to the police. They could have requested it, they could have produced
    it, they could have played it. Why not?
    And this video from 2/24 . . . and the March 11th video . . . go to an issue
    of fundamental importance. It goes to the issue of identification in this case. So
    you would expect the police to get that data, to get that information and present it
    to you. You would expect the State to present it to you in a trial like this. And it’s
    routine for them to gather video in bank robberies. So it would have been natural
    for the detectives and investigators to [do] that, but they chose not to do it here.
    And there’s no reason -- there’s no explanation why they didn’t do it? You didn’t
    hear an explanation to the Court like why didn’t you get this video? . . . They
    didn’t explain to you why they chose to be sloppy in their investigation.
    30
    No. 80396-4-I/31
    To be entitled to a missing evidence instruction, however, it must be that
    the evidence “‘is within the control of the party whose interest it would naturally
    be to produce it.’” Blair, 117 Wn.2d at 485-86 (emphasis added) (quoting Davis,
    
    73 Wn.2d at 276
    ). The video footage from late February was not within the
    State’s control because that footage was deleted by a non-state actor. To be
    entitled to a missing witness instruction, a party must demonstrate, among other
    things, that “the witness is peculiarly available to one of the parties.” State v.
    Reed, 
    168 Wn. App. 553
    , 571, 
    278 P.3d 203
     (2012). The same is true for
    claimed missing evidence. Derri was not entitled to a missing evidence
    instruction with regard to the video footage that was deleted pursuant to
    HomeStreet Bank’s standard video-retention policy. The reason for its absence
    was adequately explained.
    Furthermore, Derri was not entitled to a missing evidence instruction with
    regard to the video footage from Ken’s Market. Indeed, the State provided Derri
    with a copy of this video footage during the trial. For a missing evidence
    instruction to have been warranted, however, Derri was required to establish that
    the State had failed to produce the evidence in question. See Blair, 
    117 Wn.2d at 486
    . It did not. Derri was free to present the video to the jury. Moreover, as
    the court pointed out in ruling on the motion for a mistrial, the Ken’s Market video
    was of a lesser quality than the evidence the State chose to put before the jury.
    Thus, the “absence” of the video from the evidence presented at trial was
    adequately explained to, and understood by, the trial court.
    31
    No. 80396-4-I/32
    Next, concerning the State’s failure to obtain video footage depicting the
    March 11 robbery of HomeStreet Bank, Derri requested the following instruction:
    If you find that the State or its agents failed to obtain
    evidence that the State or its agents knew or should have known
    would be evidence in this case, you may infer, but are not required
    to infer, that this evidence was unfavorable to the State.
    Derri also requested a related instruction, which provided: “A police officer
    is an agent of the State.”
    Derri claimed that he was entitled to these instructions because Detective
    Carver requested,11 but did not obtain, video footage of the March 11 robbery
    before that footage was deleted by HomeStreet Bank pursuant to the bank’s
    standard video-retention policy.12 In support of his argument, Derri cited to a
    11 Although Derri asserted that Detective Carver “requested” the video footage of the
    March 11 robbery, the evidence adduced at trial does not clearly indicate whether Detective
    Carver requested this footage from HomeStreet Bank:
    [Defense Counsel]:        Now, one of your standard operating procedures is to
    request video from a bank that has been robbed,
    correct?
    [Detective Carver]:       Generally, yes.
    [Defense Counsel]:        And in this case, you did not request video from the
    HomeStreet robbery on March 11?
    [Detective Carver]:       I didn’t?
    [Defense Counsel]:        Do you need to look at your report to refresh your
    memory about that? Just let me know if you do.
    [Detective Carver]:       I don’t recall if I requested video or not. They were
    robbed more than once. I do remember having
    conversations with their corporate security rep.
    [Defense Counsel]:        But he didn’t respond to the March 11th robbery?
    [Detective Carver]:       No, I don’t think so.
    12 The record does not clearly indicate whether the video footage of the March 11 robbery
    was actually deleted by HomeStreet Bank pursuant to the bank’s video retention policy, or
    whether the video footage never existed because of “technical difficulties” with HomeStreet
    Bank’s surveillance cameras.
    During the hearing on Derri’s motion for a mistrial or a dismissal, the State represented to
    the trial court that HomeStreet Bank did not provide the State with video footage of the March 11
    robbery because of “technical difficulties” with the footage:
    THE COURT: . . . For the March 11th robbery, there are photo stills. And were
    those photo stills provided electronically to counsel?
    [THE STATE]: Yes.
    THE COURT: Okay. And I cannot recall if -- is that the way that their
    surveillance video works is just doing a still every few seconds?
    32
    No. 80396-4-I/33
    federal appellate court’s opinion in United States v. Sivilla, 
    714 F.3d 1168
     (9th
    Cir. 2013).
    The trial court denied Derri’s proposed instruction, reasoning, among other
    things, that “Sivilla is distinguishable because it was a spoliation case.” Indeed,
    the Sivilla court held that a defendant was entitled to a spoliation instruction
    because, in relevant part, “evidence was destroyed while in the government’s
    custody.” 714 F.3d at 1173.
    In any event, Derri was not entitled to a remedial instruction with regard to
    the State’s failure to obtain video footage depicting the March 11 robbery of
    HomeStreet Bank. The evidence adduced at trial indicates that the video footage
    of the March 11 robbery was deleted by HomeStreet Bank—a non-state actor—
    pursuant to the bank’s standard video-retention policy. As with the video footage
    from late February, the video footage depicting the March 11 robbery was not
    [THE STATE]: Is Your Honor asking about inside the bank?
    THE COURT: Correct.
    [THE STATE]: No. No. It’s my understanding that the bank had difficulty
    providing the video from the 11th, which is why we don’t actually have a
    surveillance video, technical difficulties with the video itself, which is why we
    have stills and not a video.
    However, the trial court subsequently read the following stipulation to the jury:
    The parties agree that the following specified facts are true and
    admissible. HomeStreet Bank’s policy in 2017 was to retain surveillance video
    footage for 90 days. That policy applied to all cameras. All cameras recorded 24
    hours a day in February and March of 2017. Only two cameras had issues from
    that timeframe. On March 30th, 2017, camera number three was not working,
    and on March 9th, 2017, there was a brief branch outage while new hard drives
    were added to [the] DVR. Both issues were resolved within a day.
    Because the parties stipulated that “[o]nly two cameras had issues” between “February
    and March of 2017,” and that those issues occurred on March 9 and March 30, 2017, and were
    each “resolved within a day,” we assume that the video footage of the March 11 robbery was
    deleted by HomeStreet Bank pursuant to the bank’s video-retention policy.
    33
    No. 80396-4-I/34
    missing. It did not exist. Thus, Derri was not entitled to a missing evidence
    instruction.13
    Accordingly, the trial court did not err.
    VI
    Derri next contends that resentencing is required because the State failed
    to prove his identity concerning the prior convictions that comprised his offender
    score at sentencing. We disagree.
    The State bears the burden of proving a defendant’s criminal history by a
    preponderance of the evidence. State v. Cate, 
    194 Wn.2d 909
    , 912-13, 
    453 P.3d 990
     (2019). To establish a prior conviction, “there must be some showing that
    the defendant before the court for sentencing and the person named in the prior
    conviction are the same person.” State v. Ammons, 
    105 Wn.2d 175
    , 190, 
    713 P.2d 719
    , 
    718 P.2d 796
     (1986). “[T]he identity of names is sufficient proof, which
    may be rebutted by the defendant’s declaration under oath that he is not the
    same person named in the prior conviction.” Ammons, 105 Wn.2d at 190.
    Indeed, “[t]he defendant’s declaration under oath will suspend the use of the prior
    conviction in assessing the presumptive standard sentence range until the State
    proves by independent evidence . . . that the defendant before the court for
    sentencing and named in the prior conviction are the same.” Ammons, 105
    Wn.2d at 190.
    13 Neither was Derri entitled to a spoliation instruction. Indeed, Washington law regarding
    spoliation provides that “for a direct sanction to apply the spoliation must in some way be
    connected to the party against whom the sanction is directed.” Henderson v. Tyrrell, 
    80 Wn. App. 592
    , 606, 
    910 P.2d 522
     (1996). Because the video footage of the March 11 robbery was deleted
    by employees of HomeStreet Bank—a non-state actor—pursuant to the bank’s standard video
    retention policy, the deletion of the footage was not connected to the State.
    34
    No. 80396-4-I/35
    Here, the State established identity of names.14 Derri was charged as
    “Christopher Lee Derri, aka John Stites.” All of the certified documents submitted
    by the State contained the name “Christopher Lee Derri,” “Christopher L. Derri,”
    “Christopher Derri,” “John Stites,” “John T. Stites,” or “John Timothy Stites.”15
    These names are sufficient to establish identity of names. See, e.g., State v.
    Powell, 
    172 Wn. App. 455
    , 458-59, 
    290 P.3d 353
     (2012) (holding that the State
    established identity of names where a defendant was charged as “Larry Allen
    Powell” and was previously convicted as “Larry A. Powell”).
    14   Although the State established identity of names, Derri correctly points out that the
    State did not offer a certified document for one prior conviction on which the sentencing court
    relied: a juvenile conviction from 1997 for possession of a controlled substance with the cause
    number 97-8-00311-5. This conviction added a half point to Derri’s offender score. Without this
    conviction, Derri’s offender score would have been 16 instead of 17. Because Derri’s sentencing
    range was a “9+,” the standard range sentence would have been the same regardless of whether
    Derri’s score was 16 or 17. Thus, the error is harmless. See State v. Argo, 
    81 Wn. App. 552
    ,
    569, 
    915 P.2d 1103
     (1996) (holding that an error in calculating an offender score was harmless
    because the standard range sentence would have been the same under the proper score).
    15 The certified documents filed by the State included: (1) a judgment and sentence for
    one count of possession of methamphetamine and one count of possession of stolen property
    third degree wherein the defendant is identified as “John T. Stites”; (2) a judgment and sentence
    for one count of assault in the second degree - domestic violence wherein the defendant is
    identified as “Christopher Lee Derri AKA: John Stitos” as well as an information related to that
    count wherein the defendant is identified as “Christopher Lee Derri AKA John T. Stites”; (3) a
    judgment and sentence for one count of conspiracy to commit a violation of the Uniform
    Controlled Substances Act: possess methamphetamine wherein the defendant is identified as
    “Christopher Lee Derri”; (4) a juvenile court judgment for one count of assault in the third degree
    and one count of escape in the second degree wherein the defendant is identified as “John
    Timothy Stites”; (5) a juvenile court judgment for one count of unlawful possession of a firearm in
    the first degree and one count of violation of Uniform Controlled Substances Act - possession of
    methamphetamine wherein the defendant is identified as “John Timothy Stites”; (6) a juvenile
    court judgment for one count of robbery in the second degree wherein the defendant is identified
    as “John Timothy Stites”; (7) a juvenile court order of disposition for one count of attempted
    possession of a controlled substance wherein the defendant is identified as “John Stites”; (8) a
    juvenile court order of disposition for one count of escape in the first degree wherein the
    defendant is identified as “John Stites”; (9) a juvenile court order of disposition for one count of
    taking a motor vehicle without the owner’s permission wherein the defendant is identified as
    “John Stites”; (10) a federal court judgment for two counts of felon in possession of a firearm
    wherein the defendant is identified as “John Timothy Stits” as well as a guilty plea related to those
    counts wherein the defendant is identified as “John Timothy Stites”; and (11) a judgment and
    sentence from an Oregon state court for one count of tampering with a witness wherein the
    defendant is identified as “John Timothy Stites.”
    35
    No. 80396-4-I/36
    Derri asserts that the State was required to present evidence in addition to
    the certified documents because his defense counsel objected to the certified
    documents filed by the State on the ground that the documents contained
    numerous “aliases and different birthdays.” Not so. As already explained, the
    State established identity of names. The State was not required to establish
    identity of birthdates in order to meet its burden of proof. See Ammons, 105
    Wn.2d at 190. Had Derri desired the State to have been required to submit
    further evidence of his criminal history, he could have made a “declaration under
    oath that he is not the same person named in the prior conviction[s].” Ammons,
    105 Wn.2d at 190. He did not do so.
    Accordingly, Derri is not entitled to a new sentencing hearing on this basis.
    Affirmed.
    WE CONCUR:
    36
    No. 80396-4-I/37
    State v. Derri, No. 80396-4-I
    COBURN, J. (concurring) — I agree with the majority that under the totality
    of the circumstances, the photo identification procedures used by law
    enforcement did not create a substantial likelihood of irreparable
    misidentification. Thus, I concur with the majority that the trial court did not err by
    admitting evidence of the out-of-court and in-court identifications of Derri. I also
    concur with the majority’s resolution of the remaining issues it resolves. I write
    separately because I would hold that Derri met his burden to show the photo
    identification procedures used in this case were impermissibly suggestive in that
    Derri was the only person with a neck tattoo in the montages presented to
    witnesses.
    DISCUSSION
    The due process clause protects against the admission of evidence
    derived from improper identification procedures. Neil v. Biggers, 
    409 U.S. 188
    ,
    196, 
    93 S. Ct. 375
    , 
    34 L. Ed. 2d 401
     (1972); U.S. CONST. amend. XIV.16 “To
    establish a due process violation, a defendant must first show that an
    identification procedure is suggestive.” State v. Linares, 
    98 Wn. App. 397
    , 401,
    
    989 P.2d 591
     (1999). “A ‘lineup of clones is not required.’ ” United States v.
    Johnson, 
    745 F.3d 227
    , 230 (7th Cir. 2014) (quoting United States v. Arrington,
    
    159 F.3d 1069
    , 1073 (7th Cir. 1998)). Nevertheless, a procedure is suggestive if
    16Derri also cites to article I, section 3 of the Washington State Constitution in support of
    his due process argument. But he does not separately analyze his state constitutional argument,
    and thus, neither do I.
    37
    No. 80396-4-I/38
    it directs undue attention to the defendant. State v. Eacret, 
    94 Wn. App. 282
    ,
    283, 
    971 P.2d 109
     (1999).
    We have held that the trial court’s ultimate decision whether to admit
    evidence of a photo identification is reviewed for abuse of discretion. State v.
    Kinard, 
    109 Wn. App. 428
    , 435, 
    36 P.3d 573
     (2001). However, whether a photo
    montage is impermissibly suggestive, so as to warrant consideration of the
    Biggers factors, is a conclusion of law we review de novo based on an
    independent review of the montage. See State v. Vickers, 
    107 Wn. App. 960
    ,
    968, 
    29 P.3d 752
     (2001) (conducting independent review of montage and
    concluding it was not impermissibly suggestive), aff’d, 
    148 Wn.2d 91
    , 
    59 P.3d 58
    (2002); Eacret, 94 Wn. App. at 285 (conducting independent review of montage
    to determine whether anything in it unduly attracted attention to defendant’s
    photo); see also United States v. Johnson, 
    820 F.2d 1065
    , 1072 (9th Cir. 1987)
    (“Whether a pretrial identification procedure is impermissibly suggestive is
    reviewed de novo.”).
    Here, each of the witnesses who positively identified Derri was shown a
    montage of photos of six or seven males of apparently similar age and race.
    Derri bears a clearly visible neck tattoo in his photo, and he is the only person in
    the montage bearing a visible tattoo. The trial court concluded the montage was
    not impermissibly suggestive because “no witness described the bank robber as
    having a tattoo, and therefore, there was no obligation on the part of police to
    provide another photograph of individuals with tattoos.” The trial court was
    wrong.
    38
    No. 80396-4-I/39
    Detective Carver created the montage knowing that the suspect was Derri
    and that he was the only individual with a visible neck tattoo in the montage.
    Carver could easily have cut off the photos below the chin or created a montage
    where everyone had a neck tattoo. Instead, he chose to create a montage where
    the suspect visibly stood out from the others.
    I would hold that this distinctive difference directed undue attention to
    Derri and, thus, rendered the identification procedure impermissibly suggestive.
    See State v. Burrell, 
    28 Wn. App. 606
    , 610-11, 
    625 P.2d 726
     (1981) (holding that
    photo montage was impermissibly suggestive where defendants’ photo was “a
    closer view than the others, which might have tended to call attention to his
    photo,” and “[n]one of the other individuals had a ‘frizzy Afro’ hairstyle as long as
    [the defendant]’s.”); cf. United States v. Whitewater, 
    879 F.3d 289
    , 292 (8th Cir.
    2018) (holding that lineup was not impermissibly suggestive where all individuals
    were dark or olive-skinned individual males with very short black hair between 20
    and 50 years of age and all had neck tattoos).
    Relying on Vickers, the State contends that “[t]he presence of a particular
    feature not present in other photos does not necessarily mean the montage was
    impermissibly suggestive.” In Vickers, the only differences were that the
    defendant’s photo had a lighter background, and the defendant was the only
    person in the montage not wearing coveralls. 
    148 Wn.2d at 118
    . Our Supreme
    Court held “[t]hese minor differences are not sufficient to warrant further inquiry,”
    observing, “The lighter background . . . does not unduly draw attention . . . , nor
    do the photographs show enough clothing to draw attention.” 
    Id. at 119
    . Here,
    39
    No. 80396-4-I/40
    the clearly visible tattoo on Derri’s neck does draw attention. The State’s
    reliance on Vickers is misplaced. Cf. United States v. Kelsey, 
    917 F.3d 740
    , 750
    (D.C. Cir. 2019) (holding that photo array was not impermissibly suggestive even
    though defendant was the only person with a tattoo because the tattoo was not
    clearly discernable in photo, but observing, “Of course, if only one photo in a
    photo array has a characteristic distinctive to the defendant, then the array may
    well be impermissibly suggestive.”).
    The State also points out that Fletcher once and Price twice failed to make
    any selection despite Derri’s being the only person pictured with a neck tattoo.
    The State contends that this means the tattoo was not impermissibly suggestive.
    But as to Price, the State cites no authority for the proposition that a “no pick” by
    a witness other than the one whose identification is challenged negates a
    conclusion of impermissible suggestiveness. And as to Fletcher, even the State
    acknowledges that Derri’s tattoo was barely visible in the first photo montage
    shown to Fletcher. That Fletcher did not select anyone from that photo montage
    but later selected Derri from the second montage in which Derri’s tattoo was
    clearly visible weighs in favor of, not against, a conclusion that the second
    montage was impermissibly suggestive.
    Finally, the State argues that the presence of the tattoo was not
    impermissibly suggestive because no witness described the robber as having a
    neck tattoo. It relies on Burrell in support of the proposition that the presence of
    a distinctive feature is “less suggestive when the particular feature is not
    mentioned by the witness in their description of the perpetrator.” That was not
    40
    No. 80396-4-I/41
    the holding in Burrell. In Burrell, we held that a photo montage was
    impermissibly suggestive where the defendant was the only person pictured with
    the “particular and somewhat distinctive characteristic” of a “ ‘frizzy Afro’ ”
    hairstyle. 
    28 Wn. App. at 610
    . In so doing, we did observe that one witness’s
    description of the perpetrator referred to that hairstyle and thus, “the risk that a
    misidentification will occur based solely or primarily upon that characteristic is
    substantially enhanced.” Id. at 611 (emphasis added). We did not hold,
    however, that an identification procedure is impermissibly suggestive only if a
    witness mentioned the distinctive feature that is unique to the defendant’s
    photograph. To the contrary, we held the identification procedure in Burrell was
    impermissibly suggestive as to both of two witnesses despite the fact that only
    one of them had described the perpetrator as having “an ‘Afro’ hairstyle.” Id. at
    607.
    The State’s reading of Burrell and the trial court’s apparent agreement
    with that reading dangerously suggest that distinct differences between photos in
    a montage are permissible as long as no witness identified the suspect by that
    distinguishing feature. That contradicts more than 50 years of case law. The
    United States Supreme Court in Simmons v. United States, 
    390 U.S. 377
    , 383,
    
    88 S. Ct. 967
    , 
    19 L. Ed. 2d 1247
     (1968), explained:
    It must be recognized that improper employment of photographs by
    police may sometimes cause witnesses to err in identifying
    criminals. A witness may have obtained only a brief glimpse of a
    criminal, or may have seen him under poor conditions. Even if the
    police subsequently follow the most correct photographic
    identification procedures and show him the pictures of a number of
    individuals without indicating whom they suspect, there is some
    danger that the witness may make an incorrect identification. This
    41
    No. 80396-4-I/42
    danger will be increased if the police display to the witness only the
    picture of a single individual who generally resembles the person
    he saw, or if they show him the pictures of several persons among
    which the photograph of a single such individual recurs or is in
    some way emphasized.
    (Emphasis added.)
    It is beyond dispute that eyewitness misidentification plays a role in
    wrongful convictions and that developing neuroscience behind memory raises
    legitimate questions about the weight factfinders should give to eyewitness
    confidence levels in the reliability of their identifications. See State v.
    Scabbyrobe, No. 37124-7-III, slip op. at 20-26 (Wash. Ct. App. Mar. 18, 2021),
    http://www.courts.wa.gov/opinions/pdf/371247_pub.pdf (Fearing, J., dissenting).
    Carver’s compilation of the photo montage, and the trial court’s conclusion that
    the montage was not impermissibly suggestive, are steps backward in the
    continuing quest to avoid wrongful convictions.
    With these considerations in mind, I respectfully concur.
    42