           IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
                                         DIVISION ONE                               gs
STATE OF WASHINGTON,                                No. 68915-1-1
                                                                                       ro

                           Respondent,

                  v.                                UNPUBLISHED OPINION                  9?

KEAYN DUNYA,

                           Appellant.            FILED: January 20, 2015

       Schindler, J. —A jury convicted Keayn Dunya of murder in the first degree of

Kriston Dunya. By special verdict, the jury found Dunya was "armed with a firearm at

the time of the commission of the crime." Dunya appeals, arguing (1) the DNA1 testing

violated his right to due process, (2) the court erred in allowing expert testimony on

infrared video analysis and reverse projection photogrammetry, and (3) the jury verdict

did not authorize the imposition of a firearm enhancement. We affirm.

                                            FACTS

       Keayn and Kriston Dunya married and had a child together, K.D. In 2010,

Kriston filed for dissolution of the marriage. Kriston sought joint custody of K.D. and

child support. Dunya would not agree to entry of the final orders in the dissolution

action. The dissolution trial was scheduled to begin on July 28, 2011.


       1 Deoxyribonucleic acid.
No. 68915-1-1/2



       Kriston worked at the Barnes & Noble store in Bellingham. On Saturday, July 2,

2011, Kriston and Amber Wilson worked the late shift at Barnes & Noble. Kriston and

Wilson made plans to go for a walk on July 3. Kriston was scheduled to be off work the

next day and return to work on July 4. Kriston left the store at approximately 11:30 p.m.

On July 3, Wilson sent Kriston several text messages but received no response.

       On July 4, Kriston did not come to work or answer her phone. That evening,

Barnes & Noble supervisor Robinson Whitney drove past Kriston's apartment "to see if

she was home." Whitney saw the "outdoor light" on and noticed Kriston's car parked in

front of the building. When Kriston did not come to work on July 5, Whitney returned to

Kriston's apartment. Whitney knocked but there was no response. Whitney then

looked through a window and saw Kriston lying on the apartment floor. The door to the

apartment was unlocked. Whitney opened the door and yelled Kriston's name. When

Kriston did not respond, Whitney called 911.

       The police found Kriston's purse near her body. The purse contained her

identification and credit cards. Scattered around the floor near her body were Vicodin

pills. The police also found fingertip pieces from a yellow rubber latex glove on the floor

and a bullet embedded in the carpet near her body. Kriston did not have any

prescriptions or bottles for Vicodin.

       Detective Joseph Leighton met with Dunya on July 5. Dunya told Detective

Leighton that he and his son K.D. were with his girlfriend Kara Buchanan at her home

on Whidbey Island the entire July 4 weekend. Buchanan confirmed that Dunya had

been with her the entire weekend. Buchanan told Detective Leighton that Dunya and
No. 68915-1-1/3


K.D. arrived Friday evening, July 1, and left around 4:00 or 5:00 p.m. on Monday, July

4.


       The medical examiner determined that the single gunshot wound to the chest

caused Kriston's death on July 3. The gunshot was from such close range that her face

was "tattoo[ed]" with gunpowder.

       The police obtained surveillance videotapes from several nearby locations. The

video from an adjacent building showed that during the early morning hours of July 3, a

Toyota Avalon drove past Kriston's apartment and parked in a lot nearby. The Toyota

Avalon has a sunroof and an American flag decal on the left side of the rear bumper.

The right auxiliary light of the car is out and the driver's door mirror is broken off.

       At approximately 4:51 a.m., a person gets out of the Toyota Avalon, puts on a

jacket, and grabs an object that appears to be a long barrel gun. The jacket has a hood

and two vertical stripes running from the neckline down the outer portion of the sleeves

to the cuffs. At approximately 4:53 a.m., the person walks toward Kriston's apartment

holding what appears to be a long barrel gun on the right side. Three minutes later at

approximately 4:57 a.m., the same person returns carrying the long barrel gun, gets into

the Toyota Avalon, and drives away.

       On July 7, Buchanan called and left a voicemail for Detective Leighton. In the

message, Buchanan tells Detective Leighton that she shot Kriston and provides details

of the shooting that had not been released to the public. Buchanan states that she

plans to kill herself.

       After receiving the voicemail, Detective Leighton contacted Island County police.

The Island County police found Buchanan at a beach on Whidbey Island with an empty
No. 68915-1-1/4


pill bottle of Vicodin and bleeding profusely from cuts to her wrists. An extra-large

hooded red jacket with stripes on both sleeves was in the backseat of Buchanan's

Dodge Durango. In the ambulance on the way to the hospital, Buchanan told Detective

Jana Bouzek that she did not harm Kriston and that she had never been to Kriston's

apartment.

          Police searched Buchanan's residence. A gold Toyota Avalon that matched the

vehicle in the surveillance video was parked in the carport at Buchanan's home. During

a search of the house, police found a long barrel 20-gauge pump shotgun, a 20-count

package of yellow rubber latex gloves with one glove missing, and a bag of burnt plastic

debris.

          On July 13, the State charged Dunya and Buchanan with the first degree murder

of Kriston while armed with a firearm. The police obtained DNA samples from both

Dunya and Buchanan.

          On July 15, Dunya's attorney filed a "Notice of Appearance, Demand for

Discovery, Not Guilty Plea and Demand for Jury." The Notice of Appearance requests

copies of all police records, witness statements, police notes, "copies of any reports or

laboratory or fingerprint tests, autopsy reports, photographs and breathalyzer or blood

test," and "all documents, writings and things that are evidence." The Notice of

Appearance also asked for "a list of all persons . .. having knowledge or information

concerning the incident(s)[,] any and all search warrants, supporting affidavits, and

returns executed in the investigation," and "notice before any evidence or potential

evidence relating to the above action is released by the Plaintiff or destroyed or before

any testing of said evidence occurs."
No. 68915-1-1/5


      The Washington State Patrol Crime Laboratory (WSPCL) determined that the

weapon used to kill Kriston was likely a 12-gauge shotgun. Toxicology reports found no

drugs or alcohol in her system at the time of death.

      On August 30, WSPCL forensic scientist Mariah Low informed Bellingham Police

Department Evidence Superintendent Les Gifts that she had obtained a very small

amount of DNA from two of the yellow latex glove pieces found near Kriston's body.

Low told Superintendent Gifts that she believed she could extract a DNA profile but the

test would likely consume the entire sample. Following WSPCL protocol, Low

requested authorization to perform the DNA testing.

       On September 7, 2011, the prosecutor sent a written response authorizing Low

to perform DNA testing.

            I am writing about the [State v. Dunya & Buchanan] case and
      evidence that has been sent to your laboratory for examination. In
      speaking with Sergeant Les Gifts he has indicated that the following items
      cannot be examined for DNA without potentially consuming the samples:
            1. Shotgun #100140
            2. Pieces of rubber/latex gloves #100067
             3. Gloves #100332
             4. Blood
              I would ask you to go ahead with your analysis, notwithstanding the
      fact that the samples may be consumed in the process.

       On October 10, the WSPCL issued a report on the DNA testing. The glove

pieces contained a mixed sample of DNA from at least two people. The DNA profile of

Dunya matched the profile of the major contributor of the DNA on the glove pieces.

There was not enough information to determine the minor contributor. The WSPCL

produced copies of all documentation related to the DNA testing and analysis to the

defense.
No. 68915-1-1/6


       The defense filed a motion to suppress the DNA evidence. Dunya argued the

prosecutor's failure to notify the defense that the test would result in consumption of the

entire DNA sample violated his right to due process.2 The prosecutor submitted an

affidavit stating that his failure to notify the defense of the DNA testing was an

unintentional "oversight."

       The court found "no showing of bad faith" and denied the motion to suppress.

However, the court ruled that the defense could "inquire thoroughly about the

circumstances" concerning the DNA testing at trial.

       Before trial, Buchanan pleaded guilty to the lesser charge of rendering criminal

assistance in the first degree and agreed to testify against Dunya.

       The State called approximately 18 witnesses to testify at trial. The court admitted

into evidence more than 100 exhibits, including video clips and stills from the

surveillance tapes, evidence seized at the crime scene and during the search of

Buchanan's house, phone records, and the voicemail from Buchanan to Detective

Leighton confessing that she killed Kriston. The defense theory was that Buchanan or

an unknown person killed Kriston.

       Nancy Parker lived in the apartment above Kriston. Parker testified that in the

early morning hours of July 3, she heard "a male voice mumbling for a couple

minutes, ... a very brief scream and then ... a bang-bang that at that time Ithought
was a door slamming." Parker testified that after the "bang-bang" noise there was

silence.




         2Dunya also argued the prosecutor's failure to notify the defense before authorizing the DNA
testing violated the WSPCL policies and procedures. However, there was no dispute theWSPCL
followed adopted policies and procedures before conducting DNA testing.
No. 68915-1-1/7


       Detective Richard Schwallie testified about the police investigation and the video

obtained from the surveillance cameras located at the adjacent building. Detective

Schwallie explained that because of the lack of ambient light in the early morning hours

of July 3, the cameras were in "night mode" and used "an infrared illuminator and

infrared filter to capture the images." Detective Schwallie testified about his experience

with infrared imaging. Detective Schwallie said infrared mode "throws out the color

component," resulting in "a distortion of tone."

       The court admitted into evidence video clips and still shots of the individuals in

the surveillance video. Detective Schwallie testified that the person shown in the

surveillance video at approximately 5:00 a.m. on July 3 appeared "to have a darker

complexion" compared to other people captured on the surveillance video earlier that

morning or the night before.

       Detective Schwallie testified that he used reverse projection photogrammetry to

determine the height of the person in the video. Buchanan was approximately 5 feet 3

inches tall and Dunya was approximately 5 feet 10 inches tall. Using the same cameras

at the same location and camera angle, Detective Schwallie recorded a female officer

between 5 feet 3 inches and 5 feet 4 inches tall, and a male officer who was 5 feet 10

inches tall. Detective Schwallie testified that the height of the person in the video on

July 3 was "closer to five foot ten and . . . definitely appeared to be a larger body build

than our 5-foot four female." The court admitted into evidence still shots from the

cameras showing the height of the two officers as compared to the person in the video.

The still shots are superimposed over images of the person in the video.
No. 68915-1-1/8


       Detective Michael Mozelewski testified that Whidbey Island is located

approximately 87 miles from Bellingham and it takes approximately one hour and 54

minutes to drive from Whidbey Island to Bellingham.

      Amber Wilson testified that Kriston was seeking custody of K.D. and that Kriston

wanted to move back to Missouri with her son. The attorney representing Kriston in the

dissolution action testified that Dunya objected to the order of child support and "refused

to sign" any temporary orders.

       Buchanan testified that she met Dunya in August 2010 and they began dating in

April 2011. Buchanan said she went to Bellingham every Wednesday to spend the

night with Dunya and he would come to her house on Whidbey Island on "various

weekends," often with his son K.D. Buchanan said Dunya told her he had been

divorced for several years. Buchanan said she was in love with Dunya.

       Buchanan testified that in late May or early June 2011, Dunya described his

"dark side" and said that "he was going to kill his wife." Buchanan said she did not "take

him seriously."

       Q.     Did he ever mention that he would be doing something to Kriston
              Dunya, his wife, or he led you to believe his ex-wife?
      A.      Urn, there was once earlier in the relationship when we were driving
              down the Island, we were talking about personality traits and he
              mentioned he had a dark side, if I couldn't handle it, don't ask about
              it. And I sort of shrugged my shoulders and rolled my eyes and I
              said, okay, I can deal with it. Tell me what it is. And he said he
              was going to kill his wife and I just laughed it off. I didn't think
              anything of it.
      Q.      Did you take him seriously at that point at all?
      A.      Not in that regard, no.

       Buchanan said that Dunya and K.D. spent the July 4 holiday weekend with her

on Whidbey Island. But Buchanan testified that when she woke up around 3:00 a.m. on



                                             8
No. 68915-1-1/9



July 3, Dunya was not in bed. When Buchanan got up around 6:00 a.m., Dunya still

"wasn't there" and she noticed that his cell phone was on the nightstand. Buchanan

checked on K.D. and then went outside. Buchanan said Dunya's truck was parked

outside but her gold Toyota Avalon "was gone." Buchanan testified that Dunya had

never taken her car before and had not mentioned anything about leaving early in the

morning.

      After Buchanan went back inside, she checked Dunya's cell phone and

discovered "text messages from multiple women." Buchanan said it appeared that

Dunya "had multiple relationships other than ours." Buchanan was upset and called her

husband in Minnesota to tell him she thought her relationship with Dunya was over.

The cell phone records show that at 6:22 a.m. on July 3, Buchanan called a number in

Minnesota. The call from Buchanan on Whidbey Island to her husband in Minnesota

lasted 25 minutes.

       Buchanan testified that Dunya returned later that morning driving her Toyota

Avalon. Dunya parked the car in the carport. Buchanan testified that Dunya put her red

jacket with stripes on the sleeves into the washing machine. Shortly after Dunya

returned, Buchanan saw him next to the Toyota with his left hand on the trunk of the car

and his right hand holding a five-gallon bucket wrapped in a clear garbage bag. When

Dunya saw Buchanan, he told her to "get back in the house." Buchanan watched from

the window as Dunya took the bucket and a fire extinguisher to the backyard. After

Dunya and K.D. left the next morning, Buchanan found a burn spot in the grass and a

hard piece of plastic.
No. 68915-1-1/10


       On July 6, Buchanan drove to Dunya's apartment in Bellingham to take care of

K.D. while Dunya was at work. After she received a call from the Bellingham Police

Department, she immediately sent Dunya a text message. In the text, Buchanan asked

Dunya why the police wanted to talk to her. Dunya responded that the police wanted

Buchanan to "confirm that he was with [her] that weekend" and that she "was to let them

know that he was."

       On July 7, Buchanan decided to call Dunya and confront him about seeing other

women.



       I said give me a detail. Keayn give me a detail. What happened. And
       instead of telling me he was having an affair, what he said was single shot
       to the chest, blood splatter all over the apartment. And I don't remember
       ending the conversation on the phone.

       Buchanan testified that after the call, she went home, "grabb[ed] my pills and an

Exacto knife," drove to the beach, and swallowed 90 Vicodin pills.3 After taking the

Vicodin, Buchanan called Detective Leighton and confessed to killing Kriston.

Buchanan said that she confessed because she did not want K.D. to grow up without a

father and K.D. "was [her] only concern at that point." Buchanan explained that in order

to convince the police she had killed Kriston, she included as many details as she could

remember based on what she observed, what Dunya had told her, and the questions

the police had asked her.

        On cross-examination, Buchanan stated that she had "an aspect of [her]

personality" she referred to as "monster" that "comes out to protect [her] inner child."

Buchanan testified that she sometimes referred to her "monster" in conversations and

text messages with Dunya and others but did not remember talking to the police about

        3 Buchanan testified she had a Vicodin prescription for chronic plain and had shared her
medication with Dunya after he told her he had been in a car accident.

                                                   10
No. 68915-1-1/11



it. But Buchanan said there was "no way monster could hurt anybody" because

"[mjonster is a protector not a danger."

       Emily Mowrey dated Dunya from April 2010 to May 2011. Mowrey testified that

Dunya told her he had been divorced for several years and he was in a custody dispute

with Kriston.


       Shellie Stevens testified that she dated Dunya off and on for approximately five

years. Stevens said Dunya told her he was divorced. Stevens testified that after

Kriston's murder, Dunya sent her a text message saying the newspapers were wrong

and he and Kriston were not married. Stevens testified that in May 2011, Dunya told

her he was concerned Kriston would get custody of K.D. and take K.D. back to Missouri.

According to Stevens, Dunya said "something about. . . Kriston needing to die

or. . . needing to kill her." Stevens gave Dunya a hug and told him he "could never do

that." In response, Dunya said, "I have to."

       Before Low testified, the parties entered into a written stipulation concerning the

authorization to conduct DNA testing on the latex glove pieces. The stipulation states:

       Ms. Low will testify that she notified the Bellingham Police Department and
       the Whatcom County Prosecuting Attorney's Office that testing for DNA in
       the pieces of latex glove found in the apartment of Kriston Dunya would
       consume any DNA that was available on those pieces of evidence. She
       received a letter from the Prosecuting Attorney's Office authorizing her to
       conduct the test for any available DNA. She assumed that this information
       of the consumption of any available DNA would be passed on to the
       defense attorney, and now understands that this notification was not
       brought to the attention of [defense counsel].

       Low testified that she extracted DNA from the pieces of the rubber latex glove but

the quantity of the DNA was "very low," only .102 nanograms. Because the DNA testing

would consume the entire sample, she sought authorization before proceeding. Low



                                               11
No. 68915-1-1/12


testified that the prosecuting attorney authorized her to conduct the DNA testing. Low

assumed the defense was notified because "whenever we are going to consume more

than half of an evidence item," it is laboratory policy to "allow a defense hired individual

to come in and observe that testing if they so chose to do that."

       Low testified that she generated over 100 pages in notes, photos, and other

documentation concerning the DNA testing to allow a forensic expert to review her

notes and see exactly what she did. Low testified that the DNA test of the sample

extracted from the glove pieces generated a mixed profile, meaning "it came from at

least two individuals." Low compared the DNA profile to the reference samples taken

from Dunya and Buchanan. Low determined that the DNA profile matched the DNA

profile for Dunya. Low stated that the probability of finding someone else with the same

DNA profile as she found on the glove pieces that matched Dunya was "one in 100

quintillion." Low testified that she was not able to make a comparison to the second

"minor component" of the DNA profile.

       The defense conducted an extensive cross-examination of Low and the

procedures and methods used for the DNA testing and analysis. Low explained that

because the DNA sample was so small, she had to "amplif[y]" the sample by making

copies of the DNA to reach 1.02 nanograms. Low also testified that the "reagent blank,"

a separate tube that is processed along with the sample to detect contaminates,

indicated the presence of contaminant DNA but it was such a low level of contaminant,

it was not possible to determine the source. Low testified that the contaminant had "no

[e]ffect on the results."




                                             12
No. 68915-1-1/13


       Low also testified about DNA testing performed on the red jacket recovered from

Buchanan's car. Low stated there were at least two contributors to the DNA and one

contributor was male. Low was able to exclude Dunya as a possible contributor to the

DNA profile on the jacket. Low testified she could not exclude or include Buchanan as a

possible contributor.

       Dunya did not testify. The defense called two witnesses, the police officer who

rode with Buchanan to the hospital after the suicide attempt, Detective Bouzek, and Dr.

Donald Riley.

       Detective Bouzek testified Buchanan said that "she didn't harm Kriston," and that

"she hadn't been to [Kriston's] home and she hadn't seen her that previous weekend."

But when Detective Bouzek asked Buchanan "whether or not monster hurt [Kriston],"

Buchanan said that "the monster might have or could have hurt [Kriston], but she would

like to think that she didn't hurt anyone."

       Dr. Riley testified that based on his review of the DNA testing on the glove

pieces, he did not "trust" the results. Dr. Riley stated Low's notes indicate that the DNA

sample on the glove pieces and the reference sample from Dunya were probably stored

together, and that could have contaminated the "very, very small" amount of DNA on the

glove pieces. According to Dr. Riley, "the general assumption would be that the results

are due to contamination."

       In closing, the prosecutor argued the evidence established beyond a reasonable

doubt that Dunya killed Kriston at approximately 5:00 a.m. on July 3 with a 12-gauge

shotgun. The prosecutor asserted the evidence showed Buchanan could not have been

in Bellingham at 5:00 a.m. because her cell phone established she was on Whidbey


                                              13
No. 68915-1-1/14



Island at 6:22 a.m. The State also argued Buchanan was not the right height or build to

be the person on the surveillance video and only Dunya had a motive to kill Kriston.

      Defense counsel argued that the evidence showed Buchanan killed Kriston

because she was "obsessed with having a life with [Dunya and K.D.]" Defense counsel

argued that the physical evidence, particularly the DNA from the glove pieces, was not

reliable. The attorney asserted the evidence showed the DNA evidence was likely

contaminated. The attorney also argued the WSPCL violated its standard operating

procedures by testing the evidence without notifying the defense.

      The jury convicted Dunya of murder in the first degree. By special verdict, the

jury found that Dunya was armed with a firearm at the time of the commission of the

crime. The court imposed a standard range sentence of 320 months together with the

firearm enhancement of 60 months.

                                       ANALYSIS


DNA Testing

      Dunya argues denial of his motion to suppress the DNA evidence violated his

right to due process. Specifically, Dunya asserts the prosecutor's authorization to

conduct the DNA testing precluded independent verification by the defense.

      We review an alleged due process violation de novo. State v. Mullen, 171 Wn.2d

881, 893-94, 259 P.3d 158 (2011). Due process requires the State to preserve material

exculpatory evidence. U.S. Const, amend. XIV; Wash. Const, art. I, § 3; California v.

Trombetta. 467 U.S. 479, 485-89, 104 S. Ct. 2528, 81 L Ed. 2d 413 (1984); State v.

Wittenbarqer, 124 Wn.2d 467, 475, 880 P.2d 517 (1994) (citing Brady v. Maryland. 373

U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963)).



                                           14
No. 68915-1-1/15


       Whether destruction of evidence violates due process depends on the nature of

the evidence and the motivation of law enforcement. Wittenbarqer. 124 Wn.2d at 475-

77 (citing Trombetta. 467 U.S. at 489; Arizona v. Younqblood. 488 U.S. 51, 58, 109 S.

Ct. 333, 102 L. Ed. 281 (1988)). "Material exculpatory evidence" must possess "an

exculpatory value that was apparent before it was destroyed" and be "of such a nature

that the defendant would be unable to obtain comparable evidence by other reasonably

available means." Wittenbarqer. 124 Wn.2d at 475 (citing Trombetta. 467 U.S. at 489).

       By contrast, "potentially useful" evidence is "evidentiary material of which no

more can be said than that it could have been subjected to tests, the results of which

might have exonerated the defendant." Younqblood, 488 U.S. at 57; Wittenbarqer. 124

Wn.2d at 477. For example, in Younqblood. the destroyed semen samples taken from

the victim were only "potentially useful" because their exculpatory value was not

apparent before testing. Younqblood. 488 U.S. at 56 n*.

      The DNA extracted from the glove pieces was potentially useful not material

exculpatory evidence. As in Younqblood. the DNA evidence had no apparent

exculpatory value without testing.

       In Younqblood. the police negligently failed to preserve semen samples collected

from the victim and the victim's clothing. Younqblood. 488 U.S. at 58. Notwithstanding

the State's negligence, the Court held that the defendant could not demonstrate the

State acted in bad faith by destroying the potentially useful evidence and, therefore,

there was no due process violation. Younqblood. 488 U.S. at 58.

      The defendant has the burden of showing that the failure to preserve "potentially

useful" evidence "was improperly motivated." Wittenbarqer. 124 Wn.2d at 478. Where,



                                            15
No. 68915-1-1/16


as here, the evidence is only "potentially useful" to the defense, the failure to preserve

the evidence does not violate due process unless the defendant can show the State

acted in bad faith. Wittenbarqer. 124 Wn.2d at 477 (citing Younqblood. 488 U.S. at 58).

Bad faith is shown when "the police themselves by their conduct indicate that the

evidence could form a basis for exonerating the defendant." Younqblood. 488 U.S. at

58. Mere negligence is insufficient to establish bad faith. Younqblood. 488 U.S. at 58;

United States v. Tercero. 640 F.2d 190, 193 (9th Cir. 1980). "Bad faith" in this context

requires some showing of "connivance." United States v. Loud Hawk. 628 F.2d 1139,

1146 (9th Cir. 1979). Compliance with departmental destruction policies is evidence of

good faith. See, e^, United States v. Barton, 995 F.2d 931, 935-36 (9th Cir. 1993);

United States v. Heffinqton. 952 F.2d 275, 280-81 (9th Cir. 1991); United States v.

Westerdahl. 945 F.2d 1083, 1087 (9th Cir. 1991); Mitchell v. Goldsmith. 878 F.2d 319,

322 (9th Cir. 1989). But "the destruction of evidence ... in violation of explicit policy

and procedures . . . [does] not ipso facto establish bad faith." State v. Groth, 163 Wn.

App. 548, 559-60, 261 P.3d 183 (2011) (citing United States v. Montgomery. 676 F.

Supp. 2d 1218, 1245 (D. Kan. 2009); United States v. Elliot. 83 F. Supp. 2d 637, 647

(E.D. Va. 1999); State v. Durnwald. 163 Ohio App. 3d 361, 371, 2005-Ohio-4867, 837

N.E.2d 1234).

       Below, the prosecutor admitted his authorization to conduct DNA testing without

notifying the defense "was an oversight," and stated his "main purpose . .. was to get

the testing concluded as soon as possible and obtain results for the State and the

defense." The prosecutor's affidavit states, in pertinent part:

       Your affiant was involved in the investigation of the murder of Kriston
       Dunya and the subsequent charging of the [State v. Dunya & Buchanan]

                                             16
No. 68915-1-1/17


      matter. The investigation of the murder of Kriston Dunya immediately
      implicated Keayn Dunya and Kara Buchanan. Due to this fact, both were
      charged with Murder in the First Degree on July 13, 2011. At this time
      there had been no examination of evidence by the Washington State
      Patrol Crime laboratory. Evidence, including pieces of a latex glove found
      at the crime scene, a coat believed to have been involved and a shotgun,
      and various swabs taken from suspects for DNA analysis and swabs
      taken from the victim's body at the autopsy, were sent to the Laboratory
      on the 13th day of July, 2011.
              I believed that it was critical to obtain the analysis of the items
      submitted as soon as possible in order to make a determination as to the
      culpability of the two people charged. Ms. Buchanan had admitted to the
      shooting, but there was concern as to what her involvement was in the
      murder and also the involvement of Mr. Dunya. We had a video tape that
      we believed showed Keayn Dunya approaching the building in which the
      victim was located with a long firearm, and also leaving the vicinity of the
      building within three minutes of arrival. I hoped that the laboratory
      analysis would provide further evidence to ascertain each of the
      Defendant's roles in this crime.
             I received notice from Sergeant Les Gitts of the Bellingham Police
      Department that testing would not proceed with the latex glove pieces, the
      gun, or the glove, unless authorization by means of a "letter of
      consumption" was provided to the lab. I wrote Forensic Scientist Mariah
      Low a letter on September 7, 2011, authorizing the examination even
      though the sample might be consumed during the testing. On other
      occasions I have moved the court for an order authorizing this testing, but
      it was an oversight that I just sent a letter. If a case is under investigation I
      would ordinarily send a letter and if it was charged I would often seek a
      court order. The main purpose of sending the letter was to get the testing
      concluded as soon as possible and obtain results for the State and the
      defense.

      Dunya's attorney argued that the prosecutor's failure to notify the defense of the

planned testing constituted "some form of mismanagement," but conceded the

prosecutor's oversight was not deliberate.

              And I don't think - again I [cannot] find any justification why this
      would have been done quote, deliberately. But nonetheless, and so I
      think it's recognized by the plaintiff that this was an oversight and clearly it
      damages Mr. Dunya's ability to defend this particular piece of information
      because the information, this sort of crime lab testimony potentially can be
      very impressive upon a jury.




                                             17
No. 68915-1-1/18


       The court ruled the authorization to conduct DNA testing did not violate due

process.


      It seems to me that what we have here is not a due process violation;
      there is no violation of discovery. It is an issue of consumption, not
      obstruction that was not entirely exculpatory it was inculpatory.
             It seems there is no showing of bad faith. The evidence before me
       indicates the lab protocol was followed that we do not have a Criminal
       Rule 8.3 situation.
             Oversight does not in each and every case constitute
      mismanagement, and I will not in this instance craft a de facto
      exclusionary rule.

       Dunya contends the trial court erred in finding there was "no showing of bad

faith." Dunya asserts the failure to notify the defense before conducting the DNA testing

and the failure to request a court order before authorizing the testing establishes bad

faith. Substantial evidence supports the finding that there was no showing of bad faith

and the prosecutor was merely negligent in failing to contact the defense.

       State v. Copeland. 130 Wn.2d 244, 922 P.2d 1304 (1996), and Younqblood are

analogous. In Copeland. an FBI4 agent followed FBI policy and "discarded the

remainder of DNA extracted from the crime sample after it was subjected to DNA

testing." Copeland. 130 Wn.2d at 279. The court concluded that the discarded

evidence was not material exculpatory evidence because "there was no evidence that

any retest results would have been exculpatory." Copeland. 130 Wn.2d at 280. The

court did not address whether the agent acted in bad faith but noted that the defendant

failed to show that the policy itself constituted bad faith. Copeland. 130 Wn.2d at 280-

81.


      The out-of-state case Dunya relies on, Freeman v. State, 121 So.3d 888 (Miss.

2013), is distinguishable. In Freeman, the prosecutor lost key evidence that by court

      4 Federal Bureau of Investigation.

                                            18
No. 68915-1-1/19


order the State had to preserve. Freeman, 121 So.3d at 895. The Mississippi Supreme

Court concluded that the prosecutor's conduct violated due process because the State

could give "no legitimate reason as to why it failed to follow the court order and preserve

the video." Freeman. 121 So.3d at 896.5

       We conclude Dunya has not shown the authorization to proceed with DNA

testing and the failure to preserve potentially useful evidence violated his right to due

process.


Opinion Testimony

       Dunya contends improper opinion testimony about the person in the surveillance

video impermissibly invaded the province of the jury and denied him a fair trial. The trial

court has broad discretion to determine the admissibility of testimony. City of Seattle v.

Heatlev. 70 Wn. App. 573, 579, 854 P.2d 658 (1993).

       We review decisions on the admissibility of evidence under an abuse of

discretion standard. State v. Maqers. 164 Wn.2d 174, 181, 189 P.3d 126 (2008). A

court abuses its discretion if its decision is manifestly unreasonable or based on

untenable grounds or reasons. Maqers. 164 Wn.2d at 181. A reviewing court will find

an abuse of discretion only if it concludes that no reasonable person would have ruled

as the trial judge did. State v. Atsbeha. 142 Wn.2d 904, 913-14, 16 P.3d 626 (2001).

Even if evidence is erroneously admitted, reversal is not warranted "unless, within

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

had the error not occurred." State v. Tharp, 96 Wn.2d 591, 599, 637 P.2d 961 (1981).

       As a general rule, no witness, lay or expert, may "testify to his opinion as to the

guilt of a defendant, whether by direct statement or inference." State v. Black. 109

       5 Footnote omitted.

                                             19
No. 68915-1-1/20


Wn.2d 336, 348, 745 P.2d 12 (1987). Such testimony has been characterized as

unfairly prejudicial because it "invad[es] the exclusive province of the finder of fact."

Black, 109 Wn.2d at 348. But testimony that is not a direct comment on a defendant's

guilt, is otherwise helpful to the jury, and is based on inferences from the evidence is not

improper opinion testimony. State v. Sanders. 66 Wn. App. 380, 388, 832 P.2d 1326

(1992). Whether testimony constitutes an impermissible opinion on guilt will generally

depend on the record and the circumstances of each case, including the type of witness

involved, the specific nature of the testimony, the nature of the charges, the type of

defense, and the other evidence before the trier of fact. Heatlev. 70 Wn. App. at 579.

       Expert testimony in the form of an opinion is admissible under ER 702 if" '(1) the

witness qualifies as an expert, (2) the opinion is based upon an explanatory theory

generally accepted in the scientific community, and (3) the expert testimony would be

helpful to the trier of fact.'" State v. Willis. 151 Wn.2d 255, 262, 87 P.3d 1164 (2004)

(quoting State v. Swan. 114 Wn.2d 613, 655, 790 P.2d 610 (1990)). Expert testimony is

helpful to the jury if it concerns matters beyond the common knowledge of the average

layperson and is not misleading. State v. Thomas. 123 Wn. App. 771, 778, 98 P.3d

1258 (2004). "Courts generally 'interpret possible helpfulness to the trier of fact broadly

and will favor admissibility in doubtful cases.'" Moore v. Haqqe. 158 Wn. App. 137,

155, 241 P.3d 787 (2010) (quoting Miller v. Likins. 109 Wn. App. 140, 148, 34 P.3d 835

(2001)). We review the trial court's evaluation of a proposed expert witness's

qualifications for abuse of discretion. State v. Perez. 137Wn. App. 97, 108, 151 P.3d

249 (2007).




                                              20
No. 68915-1-1/21


       Before trial, the defense filed a motion in limine to exclude testimony that the

person in the surveillance video was Dunya. During the pretrial hearing on the motions

in limine, the defense agreed the person in the video appeared to be "about" 5 feet 10

inches tall and "appears to be darker skin," but argued it was not clear it was Dunya.

               The person depicted in the video is sort of lacking any kind of facial
       features. I mean, I think generically it can be described as a male about
       five-ten; appears to be darker skin but we can't say if it is Hispanic,
       African-American, Native American, East Indian; appears to be wearing
       gloves but you can't say for sure; appears to be holding something that is
       sort of similar in appearance to a gun but you can't say for sure. I mean if
       all there was, was just the image on the video and nothing else in the
       state's case, it would be near impossible to say well, that's Mr. Dunya.

       The defense asked to exclude "any law enforcement or lay witness testimony as

far as what this video tape depicts other than just the basics necessary for the

foundation for its admissibility," but agreed the State could elicit testimony that the

suspect in the videotape was "dark complexioned because that's pretty obvious."

Consistent with the defense position, the court ruled that the State could present

testimony that the suspect appeared to have a darker skin tone than other people

observed on the video surveillance.

       During trial, defense counsel objected to Detective Schwallie testifying about the

skin tone of the person in the surveillance video, arguing it"falls within the subject

matter of the motions in limine" and that it was "beyond the scope of this witness's

expertise." After permitting defense counsel to conduct voir dire concerning the
background and training of Detective Schwallie, the court overruled the objection.




                                              21
No. 68915-1-1/22


        Dunya contends the court erred in allowing Detective Schwallie to testify as an

expert.6 Dunya contends Detective Schwallie was not qualified to testify as an expert
on infrared video images and reverse projection photogrammetry.

        Detective Schwallie testified that he had been with the Bellingham Police

Department for 20 years, he received extensive training in video analysis, forensic

Photoshop, and digital and video image comparison, and he had more than 8 years of

experience as a forensic video analyst for the police department. Detective Schwallie

testified that his training involved looking at infrared images captured on a variety of

security cameras. Detective Schwallie explained that infrared "throws out the color

characteristics of an image, ... it basically works off of the reflective material or the

reflectiveness of the materials that the objects are made of." Detective Schwallie also

testified that he had experience using reverse projection photogrammetry to determine

the height of objects or people in a video.

        Based on his training and experience, Detective Schwallie testified that the

suspect in the video appeared "to have a darker skin tone" compared to others on the

video, appeared to be closer to 5 feet 10 inches tall than 5 feet 4 inches, and had a

build that was "more consistent with our 5-foot 10 male than with our 5-foot three or 5-

foot four female." Based on his training and knowledge of how different types of objects

and materials appear under infrared lighting, as well as his 20 years of professional

experience with the police department, Detective Schwallie testified that the suspect

appeared to be carrying a long barreled firearm.



         6 For the first time on appeal, Dunya contends the court erred in allowing Detective Schwallie to
testify because he was not identified as an expert witness before trial as required by CrR 4.7(a)(2)(ii).
Absent manifest constitutional error, we do not consider arguments raised for the first time on appeal.
RAP 2.5(a)(3); State v. Powell. 166 Wn.2d 73, 84, 206 P.3d 321 (2009).

                                                    22
No. 68915-1-1/23


        The court did not err in concluding Detective Schwallie qualified to testify as an

expert witness. Detective Schwallie had specialized knowledge of infrared video, had

analyzed the surveillance video using reverse projection photogrammetry, and was

better able to compare the skin tone and height and build of the individuals in the video.

Detective Schwallie's testimony was helpful to the jury and relevant to identifying the

person in the video. Because the surveillance video was recorded in infrared mode, the

color and tone of the images was distorted. As the court observed, the video images

differed from "what would be seen with ... the naked eye or some other type of

footage."7

        Detective Schwallie's testimony was neither a direct or implicit opinion of Dunya's

guilt, nor was his comment that the person in the video appeared to have "a darker

complexion" an impermissible appeal to racial prejudice. The record establishes

defense counsel specifically agreed that Detective Schwallie could testify that the

person in the video appeared "dark complexioned."

        Dunya also argues the court erred in admitting still shots from the video

comparing the height of two police offers to the person in the video. Dunya did not

object to admission of the video still shots at trial. "[A]gain, there is no objection far as

the showing of this -- these images on the screen as has previously been done, but we

would like to reserve objection to what we do with the actual disk itself." Defense

counsel later clarified that the concern was with jurors "maipulat[ing]" the images on the

discs during deliberations. The court confirmed that it could have the parties reconvene


         7 The court also did not abuse its discretion in ruling Detective Schwallie was qualified to testify
that the object the suspect was carrying was a long barreled firearm. See State v. Ortiz, 119 Wn.2d 294,
310, 831 P.2d 1050 (1992) ("Practical experience is sufficient to qualify a witness as an expert.").


                                                     23
No. 68915-1-1/24


and play the discs for the jury. Absent manifest constitutional error, we do not consider

arguments raised for the first time on appeal. RAP 2.5(a)(3). An alleged evidentiary

error is not of constitutional magnitude. State v. Powell. 166 Wn.2d 73, 84, 206 P.3d

321 (2009).

Firearm Enhancement

       Relying on State v. Williams-Walker. 167 Wn.2d 889, 225 P.3d 913 (2010),

Dunya argues the court did not have the authority to impose the firearm enhancement

because the instruction for the special verdict states the jury must decide whether

Dunya was "armed with a deadly weapon." Because the jury instructions complied with

Washington Practice: Washington Pattern Jury Instructions: Criminal (WPIC)

defining a deadly weapon to include a firearm and the special verdict form specifically

asks the jury to find whether Dunya was "armed with a firearm," we disagree.

      We review a challenge to a jury instruction de novo, evaluating the jury

instruction "in the context of the instructions as a whole." State v. Bennett. 161 Wn.2d

303, 307, 165 P.3d 1241 (2007). " 'Jury instructions are sufficient when they allow

counsel to argue their theory of the case, are not misleading, and when read as a whole

properly inform the trier of fact of the applicable law.'" Keller v. City of Spokane. 146

Wn.2d 237, 249, 44 P.3d 845 (2002) (quoting Bodin v. City of Stanwood, 130 Wn.2d

726, 732, 927 P.2d 240 (1996)). Instructional error is harmless when, beyond a

reasonable doubt, the jury verdict would have been the same absent the error. State v.

Brown. 147 Wn.2d 330, 341, 58 P.3d 889 (2002).

       The State charged Dunya with murder in the first degree with a firearm

enhancement under RCW 9.94A.533(3)(a). The jury instructions complied with the


                                             24
No. 68915-1-1/25


WPIC. Specifically, WPIC 2.07.02, defining the deadly weapon sentence enhancement

for purpose of the special verdict, and WPIC 2.10, defining "firearm." 11 WPIC 2.07.02,

at 48 (3d ed. 2008); 11 WPIC 2.10, at 52 (3d ed. 2008).

        Jury instruction 15 states:

        For purposes of a special verdict the State must prove beyond a
        reasonable doubt that the defendant was armed with a deadly weapon at
        the time of the commission of the crime charged in Count I.

        A pistol, revolver, or any other firearm is a deadly weapon whether loaded
        or unloaded.[8]

        Jury instruction 16 states, "A 'firearm' is a weapon or device from which a

projectile may be fired by an explosive such as gunpowder."

        The note on use for WPIC 2.07.02 recommends using the instruction "in those

cases in which an enhanced sentence for use of a deadly weapon is sought under...

RCW 9.94A.533 ... and the only weapon allegedly used by the defendant is a firearm."

11 WPIC 2.07.02 note on use at 48. The comment to WPIC 2.10 notes that the

"firearm" definition applies "to firearm enhancements under RCW 9.94A.533(3)." 11

WPIC 2.10 comment at 52.




         811 WPIC 2.07.02 states, in pertinent part:
             DEADLY WEAPON—DEFINITION FOR SENTENCE ENHANCEMENT—SPECIAL
                                           VERDICT—FIREARM
                  For purposes ofa special verdict the State must prove beyond a reasonable
         doubt that the defendant was armed with a deadly weapon at the time of the commission
         of the crime [in Count     ].


                  Apistol, revolver, or any other firearm is a deadly weapon whether loaded or
         unloaded.
(Alteration in original.)
                                                       25
No. 68915-1-1/26


      The juryfound by special verdict that Dunya was "armed with a firearm" during

the commission of the crime. The special verdict form states, in pertinent part:

      We, the jury, return a special verdict by answering as follows:

       QUESTION: Was the defendant, KEAYN DUNYA, armed with a firearm at
       the time of the commission of the crime of Murder in the First Degree as
       charged in Count I?

       ANSWER: YES (Write "yes" or "no").

       In Williams-Walker, the Washington State Supreme Court considered "whether a

trial court may impose a firearm enhancement in the absence of a jury finding bv special
verdict that the defendant used a firearm." Williams-Walker. 167 Wn.2d at 898.9 In the

three consolidated cases, the trial court imposed a firearm enhancement after the jury

was asked to find by special verdict whether the defendant was armed with a "deadly
weapon." Williams-Walker, 167 Wn.2d at 898. Because the jury returned answers to
the deadly weapon special verdict forms, the court reasoned that the jury "authorized
only a deadly weapon enhancement, not the more severe firearm enhancement."
Williams-Walker. 167 Wn.2d at 898. The court held that "[f]or purposes of sentence

enhancement, the sentencing court is bound by special verdict findings," and that a

firearm sentence enhancement "must be authorized by the jury in the form of a special

verdict." Williams-Walker, 167 Wn.2d at 900.

       Here, the jury found bv special verdict that Dunya used a "firearm" in committing
the crime. Although jury instruction 15 states that "[f]or purposes of a special verdict the
State must prove beyond a reasonable doubt that the defendant was armed with a
deadly weapon" rather than a "firearm," the instructions told the jury that a "deadly



       9 Emphasis in original.
                                             26
No. 68915-1-1/27


weapon" includes a "firearm" and further defined "firearm" in a separate instruction.10

The instructions properly informed the jury of the applicable law and that in order to

return this special verdict, it had to find beyond a reasonable doubt that Dunya

committed his offense while armed with a "firearm."

       We affirm.




                                                       yjLt^MiiLi (
WE CONCUR:




  J$-C<z /V^OmC.Q.




       10 (Emphasis added.) For the first time in his reply brief, Dunya claims State v. Recuenco, 163
Wn.2d 428, 180 P.3d 1276 (2008), requires a specific pattern jury instruction to impose a firearm
enhancement. We do not consider an argument made for the first time in a reply brief. Cowiche Canyon
Conservancy v. Boslev. 118 Wn.2d 801, 809, 828 P.2d 549 (1992).

                                                  27
