### IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION II STATE OF WASHINGTON, No. 51930

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Respondent,

v. DHENA RAY ALBERT, UNPUBLISHED O PINION

Appellant.

S UTTON , J.

— Dhena Albert appeals her convictions for possession with intent to deliver a controlled substance

— methamphetamine, and unlawful possession of a firearm in the first degree. 1
T he Vancouver Police Department obtaine d information from a confidential , reliable informant (CRI) about Albert’s sale of methamphetamine and used the CRI to arrange a controlled buy of methamphetamine from Albert at her residence between August 16 and 18, 2017 . The police department then obtained a search warrant and seized evidence from Albert’s residence, including

a surveillance device and a handgun with a loaded magazine in a safe

. The State charged Albert with possession with intent to deliver a controlled substance

— methamphetamine

— and unlawful possession of a firearm in the first degree , and a third charge that wa s later dropped

. Pretrial , Albert filed a motion for a Franks 2 hearing and a motion for a trial continuance to view the surveillance device seized by the police

. The court denied these

1 Albert had prior felony convictions and could not possess a firearm.

2 Franks v. Delaware , 438 U.S. 154, 98 S. Ct. 2674, 57 L. Ed. 2d 667 (1978). Filed Washington State Court of Appeals Division Two April 7, 2020No. 51930

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motions. A jury found Albert guilty of both charges. Albert filed a post

- t rial motion for a new trial and/ or arrest of the judgment, which the court denied. Based on a pending federal charge, and after Albert f

iled a motion for an appeal bond, the court set bail at four million dollars

. Albert argues that the trial cour t erred by denying her pretrial motion for a Franks hearing and her motion for a continuance . She also argues that the trial court erred by denying her motion to suppress the evidence seized during the search , denying her motion for a new trial or alternatively, to arrest judgment , and setting her appeal bond at four million dollars.
We hold that the trial court did not err by denying Albert’s request for a Frank s hearing because she failed to meet her burden of proof for a Franks hearing , an d the trial court did not err by denying Albert’s motion for a continuance related to the surveillance device

. We decline to decide the remainder of Albert’s assignments of error because she either failed to adequately preserve these issues or failed to a dequately brief them

. Thus, we affirm the trial court’s orders
and Albert’s convictions.
FACTS
I. B ACKGROUND I NFORMATION The Vancouver Police Department obtained and executed a search warrant on August 25, 2017, for an apartment in Vancouver where Albert allegedly resided . The warrant was based o n the affidavit by Vancouver Police Detective Chadd Nolan. In his affidavit, Detective Nolan described his reason to believe that two individuals, including Albert, were selling methamphetamine out of the residence at that location . His belief came from information from a CRI. This CRI informed the police that he or she knew that Albert sold methamphetamine from her residence. The CRI positively identified Albert from a photograph and provided substantialNo. 51930

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information about Albert. The CRI described the way that Albert communicates with her
customers , t he way that she measures the methamphetamine for sale, and that the CRI had previously purchased methamphet amine from Albert on numerous occasions using cash

. Detective Nolan searched Albert’s driver’s license and discovered that her address matched the address given by the CRI. Based on this information, Detective Nolan set up a controlled buy with the CRI , whereby the CRI would buy methamphetamine from Albert under Detective Nolan’s supervision. Detective Nolan stated that the controlled buy occurred between August 16 and August 18 , 2017 . Prior to the purchase, Detective Nolan thoroughly searched the CRI for any controlled substances and provided the CRI with prerecorded currency with which to purchase the methamphetamine. The officers watched the CRI as the CRI entered Albert’s residence , and they continued to watch the residence until the CRI left

. Af ter the CRI left the residence, the CRI met the officers at a predetermined location. The CRI presented Detective Nolan with a substance that Detective Nolan recognized as methamphetamine. The substance was field tested and tested positive for methamphe tamine. The CRI informed Detective Nolan that Albert had a safe where she kept her methamphetamine and
money. The CRI also informed Detective Nolan that Albert had pipes commonly used for smoking methamphetamine, a scale, and packaging material. The pol ice then obtained a search warrant for Albert’s residence , and d uring the search, the police found a handgun with a loaded magazine in a safe

. They seized the gun, drug evidence , and Albert’s cell phone

. Albert has a prior conviction for a serious offense and was not lawfully allowed to possess a firearm.No. 51930

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The CRI cooperated with the Vancouver Police Department in exchange for “favorable consideration on a criminal charge.” Clerk’s Papers ( CP ) at 101. Detective Nolan was forthcoming in his affidavit about the CRI’s history with drug abuse and prior criminal history. The State charged Albert on August 2 9 , 2017, with (1) one count of possession of a controlled substance with intent to deliver

— methampheta mine, with enhancement s for being within 1000 feet of a school bus route, while armed with a firearm , and it being a major violation of the Uniform Controlled Substances Act , 3 (2) one count of unlawful possession of a firearm in the first degree , 4 and a th ird charge which was later dismissed.
II

. P RE T RIAL M OTIONS A. M OTION FOR A F RANKS H EARING AND R ELATED M OTIONS P retrial, Albert filed a motion for a Franks 5 hearin g, a supporting declaration , and a summary of her whereabouts and cellphone usage on the days of the alleged controlled buy by the CRI

. Albert also filed a motion to seal her declaration and a motion to obtain sealed records documenting the CRI’s allegations

. Albert argued that the affidavit for the search warrant was unreliable beca use “the affiant does not give a date or time” that the CRI bought the methamphetamine from Albert, the affidavit does not say who observed the controlled buy, and Albert was not at her residence for a substantial period of time between August 16 to August 18 , 2017

.

3 Ch. 69.50 RCW.

4 RCW 9.41.040(1)(a).

5 Franks , 438 U.S. 154.No. 51930

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Albert’s counsel informed the trial court that he had Albert’s cell phone data, including her text messages, extracted with the assistance of a private investigator to establish her whereabouts during the three

- day period the CRI had bought from her . From this information, Albert’s counsel determined that Albert was not at home for substantial periods of time during that time period based on the exhibits he had prepared and attached to the motion . When the court asked Albert’s
counsel whet her he was arguing that the affiant , Detective Nolan, either lied or recklessly disregarded the truth, Albert’s counsel stated, “ W hether it’s his reckless disregard of the truth or the informant’s, I’m not sure that line is that bright

. ” Verbatim Report o f Proceedings ( VRP )
at 33. The trial court found that Albert did not meet her preliminary burden of proof for a Franks hearing

. There isn’t anything in any of these affidavits which would allow the [c ] ourt to find that the officer had some information which indicated the [CRI] is not telling

. . . the truth about what happened during this controlled buy, and having that information [Detective Nolan] either disregarded it, [or] intentionally omit it, or having the information he [didn’t] care whether it ’s true or not

. . . . The defendant has to show . . . by a preponderance of the evidence that the affiant either intentionally misrepresented something or recklessly disregarding the truth. So, the focus was no t what the affiant knew at the time they di d the affidavit, and I have nothing in this information that would allow me to find that they had anything other than what they put in the affidavit.
VRP at 37

- 38 (internal quotation marks omitted)

. The court denied Albert’s motion s for a Franks hearing , for disclosure of the CRI and the logs and records of the C RI , and to seal her declaration , but it granted Albert’s motion for the return of the surveillance device

.No. 51930

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B. M OTION S T O S UPPRESS V IDEO D ATA F ROM S URVEILLANCE D EVICE AND F OR A C ONTINUANCE A lbert also filed a pretrial motion to suppress the video from the surveillance device, which

was seized during the execution of the search warrant . She also filed a m otion for a continuance to view the surveillance device , believing it may contain exculpatory evidence confirming that she
was not at home for substantial periods of time during the three

- day period of the controlled buy. The court denied the motion for a continuance , stating, “I haven’t heard that there is i n fact any exculpatory evidence, just the possibility that there might be. There ha [s] been ample time to try to develop the things that are suggested.” VRP at 44. Trial began on May 7, 2018. On May 8, the State informed Albert that she could pick up th e surveillance device and review the surveillance device

. C

. T RIAL C OURT R ULING

- U SE OF S URVEILLANCE D EVICE V IDEO D ATA IN R EBUTTAL During trial, t he officers were finally able to gain access to the data contained in the surveillance device but only after the State had rested its case. Once they did gain access by using special software , the video data showed Albert sitting in her kitchen on August 22, 2017 , three days prior to the execution of the search warrant , next to a large bag of methamphetami ne and a large scale. The trial court ruled that because of the late disclosure , the State could not use the video data in its rebuttal, but that it could be used as impeachment evidence if Albert chose to testify. Albert did not testify , and she rested her case . The jury found Albert guilty on both counts. During trial, Albert had not been detained. Following her conviction, the trial court remanded her into custody pending sentencing with bail set at $7 5 0,000.No. 51930

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D. P OST

- T RIAL M OTIONS Post

- trial , the State moved to hold Albert without bail based on information it had received from the Federal Bureau of Investigation ( FBI ) . The FBI had informed the State that it had served a search warrant on Albert two days after her trial concluded. The State was concerned that because Albert was then facing a federal criminal charge, she may have more incentive to flee pending sentencing. Based on this concern, the State requested a no

- bail hold

. The court granted the State’s req uest. Albert then filed a motion for discovery regarding the state’s evidence of the FBI’s search warrant and a motion for discovery of the surveillance device

. Albert argued that the FBI allegedly had information of where s he had been living and for h ow long, which was relevant to her request for a Fran ks hearing. Albert also filed a motion for a new trial , or in the alternative, a motion for arrest of the judgment , arguing that there was insufficient evidence and that the court erred by denying her motion to suppress evidence and her motion for an in

- camera interview of the CRI

. The court denied both motion s . That same day, the court sentence d Albert to 170 months of confinement and 12 months of community custody . It also heard Albert’s motion f or an appeal bond. The court set bail at four million dollars. As pointed out by counsel in his motion on the appeal bond, a no

- bail hold is inappropriate unless I find one of four things that are laid out in a case of this type. I cannot find any of t hem, although I will find that I think [Albert] is likely to flee if she’s not held on a substantial bond, but a stay doesn’t regard unreasonable trauma to the victims, haven’t dealt with legal financial obligations, and wouldn’t unduly diminish a deterren t effect of punishment. So, based upon all that, I set bail at four million dollars.No. 51930

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VRP at 466. Albert appeals

. ANALYSIS Albert argues that the trial court erred by denying her request for a Franks hearing and her motion for a continuance , and also makes several other assignments of error

. We hold that the trial court did not err by denying Albert’s request for a Frank s hearing or by denying Albert’s
motion for a continuance. However, w e decline to decide Albert’s other assignments of error becaus e th ose issues were either not preserved at the trial court, or they were inadequately briefed and thus, we affirm the trial court’s orders and Albert’s convictions.
I. F RANKS H EARING Albert argues that the trial court erred by denying her motion for a F ranks hearing because she provided evidence to establish that she was not at the residence for a substantial period of time during the period of the controlled buy

. We hold that the trial court did not err by denying Albert’s
motion for a Franks hearing

. In Frank s , the United States Supreme Court held that the Fourth Amendment requires a trial court to conduct an evidentiary hearing upon the defendant’s request if the defendant makes a substantial preliminary showing that an affiant deliberately or reckle ssly made material misstatements in a search warrant affidavit. 438 U.S. 154, 155

- 56, 98 S. Ct. 2674, 57 L. Ed. 2d 667 (1978). “Allegations of negligence or innocent mistakes are insufficient.” Franks , 438 U.S. at 171. Rather, to be entitled to a Frank s hearing, “[t]here must be allegations of deliberate falsehood or of reckless disregard for the truth, and those allegations must be accompanied by an offer of proof.” Franks , 438 U.S. at 171.No. 51930

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Albert’s counsel informed the court that he used Albert’s ce ll phone records to establish her whereabouts during the three

- day period that the CRI purported to have bought methamphetamine from her. Her counsel prepared this information with assistance from a private investigator. Counsel argued that this informat ion demonstrated that Albert was not at home for substantial periods of time during that three

- day time period. When the court asked Albert’s counsel whether he was arguing that Detective Nolan, the affiant, either lied or recklessly disregarded the truth , Albert’s counsel stated, “Whether it’s his reckless disregard of the truth or the informant’s, I’m not sure that line is that bright.” VRP at 33. The court reviewed Detective Nolan ’s affidavit for the search warrant which detailed the CRI’s allegatio ns, knowledge of Albert, and the controlled buy that occurred between August 16 and August 18 , 2017

. Detective Nolan described how the CRI knew Albert a nd described the controlled buy in great detail. He admitted that the CRI is a known drug user and tha t the CRI “has provided this information

. . . for favorable consideration on a criminal charge.” CP at 101. The trial court found that Albert did not meet her preliminary burden of proof for a Franks hearing

. Albert did not present any evidence to show that Detective Nolan had information which indicated that the CRI was not telling the truth. Instead, Albert focused on whether the CRI lied, but she failed to make a substantial showing that Detective Nolan either lied or recklessly disregarded the truth in his affidavit, as required for a Franks hearing. Franks , 438 U.S. at 171. Because Albert failed to meet her preliminary burden, we hold that the trial court did not err by denying her motion for a Fran ks hearing.No. 51930

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10 II. M OTION FOR A C ONTINUANCE Albert argues that the trial court erred by denying her motion for a continuance . She argues that a continuance was necessary due to the prejudicial nature of the surveillance device ; that the denial of a conti nuance forced a trial, terminating her ability to testify ; and that the denial “created
a structural inherent ineffective assistance of counsel in that [Albert]’s trial counsel was unaware of the video showing [Albert] sitting in the apartment next to an o unce of methamphetamine[

. ] ” Br. of App ellant at 14

. Albert also argues that a continuance was necessary because her trial counsel was unaware of the surveillance device video which showed her sitting next to a large brick of methamphetamine, and if he had known about it, he would have likely advised her to take the State’s plea offer. We hold that the trial court did not err by denying Albert’s motion for a
continuance

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. P REJUDICE F R OM D ENIAL OF A C ONTINUANCE Under CrR 3.3(f) (2) , the court may continue the trial “when such continuance is required in the administration of justice and the defendant will not be prejudiced in the presentation of his or her defense.” We review a trial co urt’s decision to deny a motion for a continuance for abuse
of discretion. State v. Kenyon , 167 Wn.2d 130, 135, 216 P.3d 1024 (2009). We will not disturb the trial court’s decision “unless there is a clear showing it is ‘manifestly unreasonable, or

exerc ised on untenable grounds, or for untenable reasons.’” Kenyon , 167 Wn.2d at 135 (internal quotation marks omitted) (quoting State v . Flinn , 154 Wn.2d 193, 199, 110 P.3d 748 (2005)). Here, one week before trial, Albert requested a trial continuance to access the contents of the surveillance device, believing it may corroborate her argument that she was not home for substantial periods of time during the period of the controlled buy. At the time of her motion, sheNo. 51930

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had not yet seen the video data contain ed on the surveillance device

. The trial court denied the motion, saying “I haven’t heard that there is in fact any exculpatory evidence, just the possibility that there might be. There ha [s] been ample time to try to develop the things that are suggeste d.”
VRP at 44. During trial, the officers still could not gain access to the data contained in the surveillance device until after the State rested its case. Once they did gain access by using special software, the surveillance device showed Albert sit ting in her kitchen on August 22, 2017, three days prior to the execution of the search warrant, next to a large bag of methamphetamine and a large scale.
T he court ruled that the State could not use the device as rebuttal evidence, but that it could use it as impeachment evidence if Albert chose to testify , which she declined to do.
B

. I NEFFECTIVE A SSISTANCE OF C OUNSEL A claim that counsel was ineffective is a mixed question of law and fact that we review de

novo. State v. Jones , 183 Wn.2d 327, 338, 352 P.3d 776 (2015). The Sixth Amendment to the United States Constitution and article I, section 22 of the Washington Constitution guarantee the right to effective assistance of counsel. Strickland v. Washington , 466 U.S. 668, 685

- 86, 104 S. Ct. 2052, 2 064, 80 L. Ed. 2d 674 (1984). In Strickland , the United States Supreme Court set forth
a two

- prong inquiry for reversal of a criminal conviction based on ineffective assistance of counsel. Strickland , 466 U.S. at 687. Under the Strickland test, the defe ndant bears the burden to show (1) counsel’s performance was deficient and (2) counsel’s deficient performance prejudiced the
defense. Strickland , 466 U.S. at 687. Failure to make the required showing of either deficient performance or sufficient prejudi ce defeats an ineffectiveness claim. Strickland , 466 U.S. at 700.No. 51930

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We do not determine whether Albert’s trial counsel’s performance was deficient because she fails to make any argument explaining how her trial counsel’s performance was deficient. RAP
10. 3(a)(6). Because Albert fails to make any showing of deficient performance, we do not determine whether Albert was prejudiced. Strickland , 466 U.S. at 700.
C

. C R R 4.7 V IOLATION The State has the obligation to provide the defendant with certain material and information within the State’s knowledge, possession, or control. CrR 4.7(a). CrR 4.7(h)(2) imposes on the State a continuing duty to disclose certain evidence to the defense, stating: Continuing Duty to Disclose. If, after compliance with these ru les or orders pursuant thereto, a party discovers additional material or information which is subject to disclosure, the party shall promptly notify the other party or their counsel of the existence of such additional material, and if the additional materi al or information is discovered during trial, the court shall also be notified. “Discretion is abused when the trial court’s decision is manifestly unreasonable, or is exercised on untenable grounds, or for untenable reasons.” State v. Blackwell , 120 Wn. 2d 822, 830, 845 P.2d 1017 (1993). “Exclusion or suppression of evidence or dismissal for a discovery violation is an extraordinary remedy and should be applied narrowly.” State v. Vance , 184 Wn. App. 902, 911, 339 P.3d 245 (2014). Here, the State provided the defense with the surveillance device as soon as it was available , once t he officers were able to gain access to it after the State rested its case. Once the device was provided, the trial court ruled that because of the late disclosure, the S tate could not use the device in its rebuttal, but that it could be used as impeachment evidence if Albert chose to testify, which she did not do. We hold that t he court properly exercised its discretion to impose aNo. 51930

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sanction against the State for its late disclosure , and did not abuse its discretion by denying Albert’s request for a continuance.
III

. A DDITIONAL A SSIGNMENTS OF E RROR

- N OT P RESERVED OR I NADEQUATELY B RIEFED A lbert makes a number of other assignments of error. See assignments of error 1, 3 , 5, 8, and 9. However, Albert makes no argument nor cites authority associated with these assignments of error. Therefore, we decline to decide these issues on the merits. RAP 10.3(a)(6) (a brief must contain “[t]he argument in support of the issues presented for review, together with citations to legal authority and references to relevant parts of the record”) , 10.3(g) ; see also State v. Harris , 164 Wn. App. 377, 389 n. 7, 263 P.3d 1276 (2011) (assignment of error waived where appellant failed to present supporting argument and legal authority).
CONCLUSION
We affirm the trial court’s order s denying Albert’s motions for a Franks hearing and for a continuance , and thus, we affirm the convi ctions

. A majority of the panel having determined that this opinion will not be printed in the Washington Appellate Reports, but will be filed for public record in accordance with RCW 2.06.040, it is so ordered.

S UTTON , A.C. J. We concur:

M AXA , .J.

G LASGOW , J.