                                                            FILE:0
                                                    COURT OF APPEALS 01V I
                                                     STATE OF WASHINGTON
                                                     2018 OCT 29 At110: 29

          IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

STATE OF WASHINGTON,
                                         )       DIVISION ONE
                     Respondent,
                                         )       No. 77043-8-1
                     v.
                                         )       ORDER GRANTING MOTION
VICTOR ANDREW MASON,                     )       FOR RECONSIDERATION,
                                         )       WITHDRAWING OPINION,
                     Appellant.          )       AND SUBSTITUTING OPINION


       The appellant, Victor Andrew Mason, has filed a motion for reconsideration of the

opinion filed on September 17, 2018. The State has filed a motion to concede error

regarding appellant's motion to reconsider. The court has determined that appellant's

motion for reconsideration should be granted and that the opinion filed on September

17, 2018 shall be withdrawn and a substitute unpublished opinion be filed. Now,

therefore, it is hereby

       ORDERED that the motion for reconsideration is granted; it is further

       ORDERED that the opinion filed on September 17, 2018 is withdrawn and a

substitute unpublished opinion shall be filed.
                                                        FILED                        -
                                                COURT OF APPEALS DIV 1
                                                 STATE OF        10H
                                                          WASHING-

                                                 2018 OCT 29 AN 9:55

      IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

STATE OF WASHINGTON,                     )
                                         )      DIVISION ONE
                     Respondent,         )
                                         )       No. 77043-8-1
                     v.                  )
                                         )       UNPUBLISHED OPINION
VICTOR ANDREW MASON,                     )
                                         )
                     Appellant.          )      FILED: October 29, 2018
                                         )

       DWYER, J. —A jury convicted Victor Mason of one count of robbery in the

second degree. Mason appeals, contending that the trial court erred in declining

to give a missing evidence instruction. We remand to the trial court to strike the

imposition of the $100 DNA collection fee. In all other respects, we affirm.



       On June 22, 2016, Christian Bird was working as a loss prevention officer

at a Rite Aid drugstore in north Seattle. Bird observed a man, later identified as

Mason, take a package of toothbrushes and two water squirt guns, and conceal

them in his pants. Mason also took a Hawaiian shirt and put it on over his

clothes. Mason walked out of the store without paying for the items.

       Bird and his supervisor, Abraham Henriquez, followed Mason out of the

store. Bird identified himself to Mason as a loss prevention officer. Mason

responded by punching Bird in the face. Mason then grabbed his bike and

appeared as though he was going to hit Bird and Henriquez with it. Bird and
No. 77043-8-1/2


Henriquez wrestled Mason to the ground and restrained him. Henriquez

informed Mason that he was going to release him "but he had to promise to calm

down and not hurt us if I let him go." As soon as Henriquez released Mason,

Mason picked 'up Henriquez and threw him into a large ceramic flower pot.

       Jack Wirta, the store manager, called 911. Wirta saw items scattered on

the sidewalk, including a package of Rite Aid brand toothbrushes, two water

squirt guns and a ripped Hawaiian shirt. Wirta identified all of the items as Rite

Aid merchandise. In particular, Wirta recognized the Hawaiian shirt as a pattern

that Rite Aid carried at that time.

       The State charged Mason with robbery in the second degree. At trial,

Wirta testified that Rite Aid had security cameras aimed at the entrance to the

store as well as throughout the inside of the store. He testified that security

camera footage was retained for 90 days before it was destroyed. Law

enforcement officers obtained security camera footage showing Mason leaving

the store wearing the Hawaiian shirt and assaulting Bird and Henriquez. The

State presented this footage at trial. The officers did not request any other

security camera footage from the incident.

       Mason requested that the trial court give a "missing evidence" instruction.

He argued that because the State did not present security camera footage

showing what,he was wearing when he entered the store, or showing him taking

items in the store, the jury should be permitted to infer that the missing security




                                          2
No. 77043-8-1/3


camera footage would have been favorable to him. Mason proposed the

following instruction, based on the pattern "missing witness" instruction.'

              If the State or one of its agents could have produced
       evidence at trial and the evidence is not produced, you may 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 within the control of, or peculiarly
       available to, that party;

              (2) The issue on which the evidence concerns 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 the 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.

The trial court declined to give the instruction.

       Well, yeah, I'm not going to give this one. This — this particular
       instruction only applies to witnesses. And the comments instructed
       to be —that it be given sparingly.

       The burden of proof instruction regarding, you know, evidence or
       lack of evidence — well, both the burden of proof and consideration
       of evidence and lack of evidence permits you to argue with regard
       to the videos.

       In closing argument, Mason argued that the evidence was insufficient to

prove he stole the Hawaiian shirt because security camera footage from outside

the store could have shown that he entered the store wearing the shirt.


       111 WASHINGTON PRACTICE: WASHINGTON PATTERN JURY INSTRUCTIONS CRIMINAL 5.20 (4th
ed. 2016)(WPIC).
No. 77043-8-114


       But you've seen no video of Victor putting on a Hawaiian shirt. You
       didn't see any video of Victor not walking in wearing a Hawaiian
       shirt. That would clearly establish that he put it [on] inside the
       store, but you don't have that video.

Mason also argued that the evidence was insufficient because the State did not

provide security camera footage from inside the store showing him take the other

items. The jury found Mason guilty as charged. Mason appeals.

                                                II

        Mason argues that the trial court erred in declining to give the missing

evidence instruction. "[A] trial court's refusal to give an instruction [to the jury]

based upon a ruling of law is reviewed de novo." State v. Walker, 136 Wn.2d

767, 772, 966 P.2d 883(1998).2

       A missing evidence instruction derives from the missing witness doctrine.

It 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," and that party fails to do so, the jury

may draw an adverse inference from that failure. State v. Blair, 117 Wn.2d 479,

485-86, 816 P.2d 718(1991)(quoting State v. Davis, 73 Wn.2d 271, 276, 438

P.2d 185 (1968)). The instruction is not permitted where the evidence is

unimportant, or merely cumulative, or where its absence can be satisfactorily

explained. Blair, 117 Wn.2d at 489.



          2 Mason contends that the proper standard of review is abuse of discretion, because the
trial court "refused to exercise discretion based on a mistaken understanding of the existence of
its own discretion under the law." Reply Br. of Appellant at 2. We need not address this issue
because the error was harmless under either standard of review.

                                                4
No. 77043-8-1/5


       The trial court determined that Mason was not entitled to the proposed

instruction because WPIC 5.20 applies only to witnesses, not physical evidence.

While the pattern instruction refers only to witnesses, as the State appropriately

concedes,"there is authority suggesting the instruction is within a broad

spectrum of sanctions available to trial courts when there has been government

mismanagement."3

       However, errors involving a jury instruction are harmless if this court

concludes beyond a reasonable doubt "that the jury verdict would have been the

same absent the error." State v. Brown, 147 Wn.2d 330, 341, 58 P.3d 889

(2002)(quoting Neder v. United States, 527 U.S. 1, 19, 119 S. Ct. 1827, 144 L.

Ed. 2d 35 (1999)). We make this determination viewing the record as a whole.

Brown, 147 Wn.2d at 341.

       Here, the facts of the case did not support a missing evidence instruction.

Both Bird and Henriquez testified that the security cameras inside the store did

not cover the area where Mason took merchandise.4 And it was irrelevant

whether Mason stole the Hawaiian shirt because the evidence was

uncontroverted that he stole other items, including toothbrushes and water squirt


       3 Br. of Resp't at 6.
       4  Henriquez testified as follows:
        Q And there are multiple cameras inside of the store?
        A Correct.
        Q Cameras that record the floor?
        A It's limited. So we don't — I mean, the only angles that we have wouldn't have
        covered the areas which Mr. Mason shop — shopped in.
Bird corroborated Henriquez's testimony:
        Q You didn't offer recordings from any other cameras from inside the store?
        A Well, I got the cameras that he was on. I mean Rite-Aid doesn't have as many
        cameras as you probably think.
                                               5
No. 77043-8-1/6


guns.5 We agree with the State that, even if the trial court's ruling was

erroneous, such error was harmless.6

        Mason challenges the trial court's imposition of the $100 DNA collection

fee, based on recent amendments to RCW 43.43.7541 eliminating the DNA

collection fee if a defendant's DNA has been collected because of a prior

conviction. See State v. Ramirez,            Wn.2d       , 426 P.3d 714, 721 (2018). The

State concedes that Ramirez entitles Mason to amendment of the judgment and

sentence. We remand for the trial court to strike the DNA collection fee from the

judgment and sentence. In all other respects, we affirm.




WE CONCUR:




        5 No evidence supports the notion that Mason walked into the store in possession of
toothbrushes of the type sold by Rite Aid, still in their original packaging.
        6 In addition, had the trial court applied the appropriate test, the instruction would not
have been given. The concern underlying the instruction is government mismanagement. See
State v. James, 26 Wn. App. 522, 524, 614 P.2d 207(1980). The instruction should not be given
when the absence of the evidence is satisfactorily explained. State v. Reed, 168 Wn. App. 553,
571, 278 P.3d 203(2012). Here, the videos were routinely destroyed by Rite Aid, a private party,
90 days after the event. As no one had requested them, Rite Aid acted routinely. Thus, the
videos were not available to be shown at trial. There was no evidence or allegation that the
requesters or the State took any affirmative act to destroy the videos.
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