IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
STATE OF WASHINGTON, ) NO. 76437-3-I r-S
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cri
Respondent, ) DIVISION ONE rn CD -11_,1
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v. ) in Cl
) UNPUBLISHED OPINION 74.
4... r-
ANDREW DENVER S BUCHANAN, )
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Appellant. ) FILED: September 17,2018
)
LEACH, J. — Andrew Buchanan appeals his multiple convictions and his
sentence. He claims that the admission of opinion evidence violated his
constitutional right to an impartial jury, that he received ineffective assistance of
counsel, and that the trial court made several errors when sentencing him.
Because each of his claims lacks merit, we affirm.
FACTS
Joseph and Cindy Divita own a storage shed that they use to store family
property. In mid-September 2016, the shed's alarm was activated. A few days
later, Divital found the door ajar but determined that nothing was missing. On
September 26, Divita found that someone had broken into the shed and the safe
inside. Someone had stolen a number of items, including jewelry from the safe.
I "Divita" refers to Joseph Divita.
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The shed alarm went off again on September 27, and Divita found that his
shotgun and rifle were missing.
Images from a video camera inside the shed showed a woman and a
man. Divita testified that the images showed the man carrying two of Divita's
firearms as he left the shed. Images from a camera located outside of the shed
showed a vehicle that Swinomish Detective James Schwahn identified as one
that Buchanan had recently purchased. Police obtained search warrants for the
vehicle, Buchanan's storage unit, and the house where Buchanan was living.
Police found items from Divita's shed at all three locations, including pieces of
the stolen jewelry. Police also recovered some of the stolen jewelry from a
number of jewelry vendors.
The State charged Buchanan with first degree burglary, second degree
burglary, first degree theft, first degree trafficking in stolen property, and two
counts each of second degree unlawful possession of a firearm and theft of a
firearm. A jury found him guilty as charged. He appeals.
ANALYSIS
Right to an Impartial Jury
Buchanan challenges the admission of Schwahn's opinion testimony that
the man in the surveillance video was carrying firearms; Buchanan claims this
testimony infringed upon his right to an impartial jury under the Sixth Amendment
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to the United States Constitution and article 1, section 22 of the Washington
Constitution.2 We disagree.
A. Manifest Constitutional Error
As a preliminary matter, the State contends that this court should not
review this claim because Buchanan did not raise the issue below. An appellate
court may refuse to review any claim of error that a party did not raise in the trial
court unless one of three exceptions applies.3
First, Buchanan claims that his trial counsel did raise the issue below. His
counsel moved in limine to preclude any testimony "that narrates or provides any
opinion, speculation, or personal interpretation about the content of any
photograph or video evidence for which the witness was not personally present
to observe at the time of occurrence and for which the witness lacks direct
personal knowledge." Buchanan contends that because the party who loses a
motion in limine generally has a standing objection:: his counsel preserved the
issue for appeal without objecting. But the record provided to this court does not
include the trial court's rulings on these motions in limine. So we decline to
review his claim on this basis.
2 The Sixth Amendment states, "In all criminal prosecutions, the accused
shall enjoy the right to a speedy and public trial, by an impartial jury." Article 1,
section 22 of the Washington Constitution states, "[T]he accused shall have the
right to ... a speedy public trial by an impartial jury."
3 RAP 2.5(a).
4 State v. Kelly, 102 Wn.2d 188, 193,685 P.2d 564 (1984).
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Second, Buchanan asserts that admission of Schwahn's testimony
qualifies as manifest constitutional error, reviewable for the first time on appeal
under RAP 2.5(a)(3). An error is manifest if it caused actual prejudice.° This
means the defendant must make a plausible showing that the asserted error had
practical and identifiable consequences in the trial.° But this court first decides
whether the alleged error implicates a constitutional right. To determine if an
error is of constitutional magnitude, a reviewing court assumes the alleged error
occurred and then assesses if that error actually violated the defendant's
constitutional rights.1
Buchanan contends that Schwahn's identification testimony infringed on
his constitutional right to an impartial jury because Schwahn provided an
improper opinion about his guilt. Opinion testimony about a criminal defendant's
guilt violates the defendant's right to a trial by an impartial jury.° Buchanan likens
his case to State v. Farr-Lenzini° and State v. Montgomery."
The State charged Farr-Lenzini with attempting to elude police or, in the
alternative, the lesser included crime of reckless driving.11 The State asked the
5 State v. Kirkman, 159 Wn.2d 918, 935, 155 P.3d 125(2007).
6 Kirkman 159 Wn.2d at 935.
7 State v. Kalebaugh, 179 Wn. App. 414, 420-21, 318 P.3d 288 (2014),
affd, 183 Wn.2d 578, 355 P.3d 253(2015).
8 State v. Quaale, 182 Wn.2d 191, 199, 340 P.3d 213(2014).
9 93 Wn. App. 453,970 P.2d 313(1999).
10 163 Wn.2d 577, 183 P.3d 267(2008).
11 Farr-Lenzini, 93 Wn. App. at 458.
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pursuing police officer to give his opinion "as to what the defendant's driving
pattern exhibited."12 The officer responded that the driver "was attempting to get
away from me and knew I was back there and refusing to stop."13 Division Two
of this court held that the officer's testimony about Farr-Lenzini's state of mind
violated her right to a jury trial because it constituted an opinion about the intent
element of the offenses.14
In Montgomery, the State charged the defendant with intent to
manufacture methamphetamine.15 One detective testified that he believed
Montgomery was purchasing items with the requisite intent and another testified
that the items "were purchased for manufacturing!" Our Supreme Court held
that this testimony about Montgomery's state of mind amounted to improper
opinions on guilt.17
Here, Schwahn testified that in the surveillance video played for the jury,
the man pictured was carrying firearms:
Q. Now, let's go—move on to the—oh. So first of all, before I
leave the videos, did you make any observations on the video
relating to the firearms?
12 Farr-Lenzini, 93 Wn. App. at 458.
13 Farr-Lenzini, 93 Wn. App. at 458.
14 Farr-Lenzini, 93 Wn. App. at 463-64.
15 Montgomery, 163 Wn.2d at 583.
16 Montgomery, 163 Wn.2d at 588.
17 Montgomery, 163 Wn.2d at 594-95.
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A. So the video where the alarm is set off, at that point prior to
the alarm being set off you see a male walking across the video
camera. And where he's heading is he's heading towards that door
which was, like we said, was on the bottom there. So the south
side of the building, he's walking towards the open door and you
can see clearly in his hands that he's got two long objects that is, in
my opinion, it's clear that—it looks to be rifles.
One of them is in a camo-style—kind of looked like a cloth
case. That's the one that's in his right hand. The one that's in his
left hand does not—doesn't appear to be in a case, or if it is in a
case, it's a much more form-fitting case that's in his left hand, a little
harder to see because it's black and kind of blends in with the
shadows.
Buchanan asserts that similar to Farr-Lenzini and Montgomery, Schwahn
opined on Buchanan's guilt with respect to the first degree burglary, theft of
firearms, and unlawful possession of firearms counts, by testifying that in his
"opinion," it was "clear that the surveillance video showed the man pictured
carrying firearms. As Buchanan acknowledged at oral argument, his view about
the admissibility of opinion testimony in a criminal case would make nearly all
opinion testimony inadmissible. But the fact that an opinion supports a finding of
guilt does not make the opinion improper."
Unlike the witnesses in Farr-Lenzini and Montgomery, Schwahn did not
testify about Buchanan's intent. Schwahn expressed no opinion about whether
Buchanan committed a crime or about the identity of the man in the video. He
opined about possession, which supported a finding of guilt only for the firearm-
18 State v. Collins, 152 Wn. App. 429,436, 216 P.3d 463(2009).
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related offenses with which the State charged Buchanan. Thus, the challenged
testimony did not violate Buchanan's right to an impartial jury. Buchanan does
not show manifest constitutional error.
B. Ineffective Assistance of Counsel
Alternatively, Buchanan claims that he received ineffective assistance of
counsel because his trial counsel did not object to Schwahn's alleged improper
testimony on guilt. Claims of ineffective assistance present mixed questions of
law and fact, which we review de novo.19
To prove ineffective assistance, the defendant must show that (1)
counsel's performance was deficient and (2) counsel's deficient performance
prejudiced the defense to the extent that it denied the defendant a fair trial." If
the defendant carries this burden, this court must reverse.21 To prove deficient
performance, the defendant must show that counsel's performance fell below an
objective standard of reasonableness.22 Appellate courts examine trial counsel's
performance with great deference, and the defendant must overcome the
presumption that the challenged action "'might be considered sound trial
19 Strickland v. Washinoton, 466 U.S. 668,698, 104 S. Ct. 2052, 80 L. Ed.
2d 674(1984).
29 Strickland, 466 U.S. at 687.
21 State v. McFarland, 127 Wn.2d 322, 337,899 P.2d 1251 (1995).
22 Strickland, 466 U.S. at 687-88.
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strategy.'"23 Generally, the decision of when or whether to object is trial
strategy.24
Buchanan contends that defense counsel's failure to object to Schwahn's
challenged testimony constitutes deficient performance. He asserts that because
Schwahn's testimony directly related to a disputed issue of fact, his counsel's
failure to object was not trial strategy. But counsel's performance is not deficient
because counsel did not object to admissible testimony.25 ER 701 provides that
a lay witness may give opinion testimony if it is rationally based on the perception
of the witness and is helpful to a clear understanding of the testimony or the
determination of a fact in issue. The rule allows witnesses to testify about
observations as well as inferences and opinions, including opinions about the
speed of a car, the value of property, and identification of a person, when such
testimony will be helpful to the jury.26
As discussed above, Schwahn expressed his opinion that the man
pictured in the video was holding firearms. This is permissible lay witness
opinion testimony that is helpful to the jury in determining whether Buchanan
committed first degree burglary, theft of firearms, and unlawful possession of
23 Strickland, 466 U.S. at 689 (quoting Michel v. Louisiana, 350 U.S. 91,
101, 76 S. Ct. 158, 100 L. Ed.83(1955)).
24 State v. Madison, 53 Wn. App. 754, 763,770 P.2d 662(1989).
25 State v. Alvarado, 89 Wn. App. 543, 553,949 P.2d 831 (1998).
26 Ashley v. Hall, 138 Wn.2d 151, 155-56, 978 P.2d 1055(1999).
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firearms. Buchanan's counsel did not perform deficiently by failing to object to
Schwahn's admissible testimony. Because Buchanan does not show deficient
performance, we reject his ineffective assistance of counsel claim.
Statutory Grounds for an Exceptional Mitigated Sentence
Next, Buchanan claims that he should be resentenced because the trial
court declined to run his firearm-related sentences concurrently as an
exceptional mitigated sentence only because it incorrectly believed it could not
do so. We disagree.
The standard range sentence for multiple firearm-related convictions is
consecutive sentences.27 A sentencing court has discretion to impose an
exceptional mitigated sentence in the form of concurrent sentences for multiple
firearm-related convictions when consecutive sentences would result in a
"presumptive sentence that is clearly excessive in light of the purpose of the
[Sentencing Reform Act of 1981 (SFtA)]."29 Among other objectives, the SRA29
27 RCW 9.94A.589(1)(c) states, "If an offender is convicted under RCW
9.41.040 for unlawful possession of a firearm in the first or second degree and for
the felony crimes of theft of a firearm or possession of a stolen firearm, or both,
Whe offender shall serve consecutive sentences for each conviction of the felony
crimes listed in this subsection 1(c), and for each firearm unlawfully possessed."
28 RCW 9.94A.535(1)(g).
29 Ch. 9.94A RCW.
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seeks to "[e]nsure that the punishment for a criminal offense is proportionate to
the seriousness of the offense and the offender's criminal history."3°
A sentencing court must find that there are "substantial and compelling
' "A discretionary sentence within
reasons justifying an exceptional sentence."3
the standard range is reviewable in 'circumstances where the court has refused
to exercise discretion at all or has relied on an impermissible basis for refusing to
impose an exceptional sentence below the standard range.'"32 A trial court relies
on an impermissible basis when it "operates under the 'mistaken belief that it did
not have the discretion to impose a mitigated exceptional sentence for which [a
defendant] may have been eligible.'"33 An appellate court must remand for
resentencing when it is not confident that the sentencing court would have
imposed the same sentence had it known an exceptional sentence was an
option.34
Buchanan relies on State v. McFarland35 to support remand in this case.
In McFarland, our Supreme Court held that Irlemand for resentencing [was]
3° RCW 9.94A.010(1); State v. McFarland, 189 Wn.2d 47, 52, 399 P.3d
1106(2017).
31 RCW 9.94A.535.
32 McFarland, 189 Wn.2d at 56 (internal quotation marks omitted)(quoting
State v. McGill, 112 Wn. App. 95, 100,47 P.3d 173(2002)).
33 McFarland, 189 Wn.2d at 56 (alteration in original)(quoting In re Pers.
Restraint of Mulholland, 161 Wn.2d 322, 333, 166 P.3d 677(2007)).
34 Mulholland, 161 Wn.2d at 334; see also McGill, 112 Wn. App. at 99.
35 189 Wn.2d 47, 399 P.3d 1106 (2017).
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warranted" because the sentencing court did not understand its discretion to
impose concurrent sentences for McFarland's firearm-related offenses.36 The
court explained that although the sentencing court imposed a sentence at the
bottom of the standard range, it "indicated some discomfort with [its] apparent
lack of discretion and even commented that McFarland's standard range
sentence was equivalent to that imposed for second degree murder."31
Here, Buchanan claims that the sentencing court mistakenly believed that
statutory constraints prevented it from considering an exceptional mitigated
sentence. At sentencing, Buchanan's trial counsel asked that the court consider
an exceptional mitigated sentence below the standard range and, if the court
decided against a mitigated sentence, that it impose a low-end sentence.
Buchanan's counsel stated that the range for Buchanan's firearm-related
offenses was higher than many other criminal offenses involving homicide or
manslaughter. His counsel asserted that this range was disproportionate to the
seriousness of these offenses and thus excessive in light of the purpose of the
SRA to punish offenses proportionate to the seriousness of the offense.
When sentencing Buchanan, the court noted that "the firearm offenses are
required by law to run consecutive to each other and concurrent to all other
charges." As discussed above, this is, in fact, what RCW 9.94A.589(1)(c)
36 McFarland, 189 Wn.2d at 58-59.
37 McFarland, 189 Wn.2d at 51, 58-59.
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requires. But because it is unclear whether the court understood that it could
impose an exceptional mitigated sentence, we decide whether the record makes
clear that the court would have imposed the same sentence had it known that an
exceptional mitigated sentence was available. The court explained why it chose
to impose a midrange sentence of 124 months rather than a low-end sentence of
106 months:
I am going to tell you why I am sentencing you in the manner that I
am sentencing you. It's been argued by the Prosecutor that I
should go to the high end of the range in sentencing you. It's been
argued by your attorney I should go to the low end of the range,
possibly even exceptionally in sentencing you.
It seems to me that in returning to the same location to
further victimize the Divitas that shows a certain degree of callous
indifference to their rights and the impact that invading their
property, their lives, their memories; that that callous indifference to
their rights argues that I should be sentencing you right in the
midrange of these particular crimes.
Unlike the sentencing court in McFarland, here, the court decided against
imposing a low-end standard range sentence and imposed a midrange sentence.
The court explained that Buchanan's "callous indifference" to the Divitas' rights
warranted a longer sentence. Because the court rejected Buchanan's request for
a low-end standard range sentence due to his attitude, Buchanan does not show
prejudice, and his claim fails.
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Ineffective Assistance of Counsel
Buchanan makes another ineffective assistance of counsel claim based
on his trial counsel's failure to argue that several of his convictions constituted
the same criminal conduct under the SRA. We disagree.
As discussed above, ineffective assistance of counsel requires that the
defendant show (1) counsel's performance was deficient and (2) counsel's
deficient performance prejudiced the defense to the extent that it denied the
defendant a fair tria1.38 Defense counsel's failure to argue same criminal conduct
when the argument is relevant can constitute ineffective assistance.39
RCW 9.94A.589(1)(a) states, "Except as provided in (b), (c), or (d) of this
subsection," when a trial court sentences a defendant for two or more current
offenses, it determines the sentence range for each current offense by treating all
current convictions as if they were prior convictions so as to include a
defendant's current offenses in his offender score. But if the court finds that
some or all of a defendant's current offenses constitute the "same criminal
conduct,"4° it must count those offenses as one crime when calculating the
defendant's offender score.'"
38 Strickland, 466U.S. at 687.
33 State v. Saunders, 120 Wn. App. 800, 824-25, 86 P.3d 232(2004).
48 "'Same criminal conduct'... means two or more crimes that require the
same criminal intent, are committed at the same time and place, and involve the
same victim." RCW 9.94A.589(1)(a).
41 RCW 9.94A.589(1)(a).
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The exception clause in RCW 9.94A.589(1)(a) makes the same-criminal-
conduct analysis described in 1(a) inapplicable to subsections (b), (c), or (d).
RCW 9.94A.589(1)(c) provides an exception for firearm-related offenses:
If an offender is convicted under RCW 9.41.040 for unlawful
possession of a firearm in the first or second degree and for the
felony crimes of theft of a firearm or possession of a stolen firearm,
or both, the standard sentence range for each of these current
offenses shall be determined by using all other current and prior
convictions, except other current convictions for the felony crimes
listed in this subsection (1)(c), as if they were prior convictions.
Thus, when a defendant like Buchanan is convicted of unlawful possession of a
firearm in the second degree and theft of a firearm, the sentencing court does not
perform the same-criminal-conduct analysis under RCW 9.94A.589(1)(a).
Instead, it does not score the defendant's current convictions for those firearm-
related offenses when calculating his offender score specifically for those same
offenses.
First, Buchanan claims that his trial counsel performed deficiently because
his counsel failed to argue that his two convictions for unlawful possession of a
firearm in the second degree and his two convictions for theft of a firearm
constituted the same criminal conduct. To support this claim, he relies on State
v. Murohv.42 There, Division Two of this court concluded that burglary, unlawful
possession of a firearm, and theft of a firearm all constituted the same criminal
42 98 Wn. App. 42, 50-51, 988 P.2d 1018(1999).
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conduct. But, in Murphy, the court examined a former version of the statute that
the legislature amended, in relevant part, in 1999 to include an exception that
was substantively identical to the current version of RCW 9.94A.589(1)(c) cited
above:*
Here, Buchanan's two convictions for unlawful possession of a firearm in
the second degree and theft of a firearm qualify under RCW 9.94A.589(1)(c).
This provision requires only that the sentencing court not count those convictions
toward Buchanan's offender scores for his firearm-related convictions. If the
sentencing court had considered whether any of Buchanan's offenses qualified
as the same criminal conduct under RCW 9.94A.589(1)(a), it would not have
considered these four convictions in its determination. Thus, Buchanan's
counsel's performance did not fall below an objective standard of
reasonableness because his counsel did not argue at sentencing that the court
should apply an inapplicable statutory provision.
Second, Buchanan claims that his trial counsel provided ineffective
assistance because his counsel did not assert that his conviction for first degree
burglary was the same criminal conduct as his convictions for unlawful
possession of a firearm and theft of a firearm. But the burglary antimerger
statute states, "Every person who, in the commission of a burglary shall commit
43 Murphy, 98 Wn. App. at 50-51 (examining former RCW 9.94A.400(1)(a)
(1996)).
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any other crime, may be punished therefor as well as for the burglary, and may
be prosecuted for each crime separately."" In State v. Lessley," this court
affirmed the trial court's determination that the defendant's convictions for
kidnaping and burglary did not qualify as the same criminal conduct. We
reasoned that the antimerger statute provides the sentencing judge with the
discretion to exempt burglary from the same-criminal-conduct analysis.
Buchanan contends that his trial counsel performed deficiently because
his counsel failed to tell the trial court about the discretion it had. But Buchanan
provides no authority to support the proposition that it is counsel's responsibility
to inform the trial court of its discretion to apply the antimerger statute or that
counsel performs deficiently when he does not do so. When a party does not
support its assertions with authority, a reviewing court assumes that it has found
none." Buchanan does not meet his burden of proving ineffective assistance.
Jury Demand Fee
Last, Buchanan claims that the trial court erred in imposing the $250 jury
demand fee because it did so based on the incorrect belief that it was a
mandatory fee rather than a discretionary fee. Buchanan did not challenge the
44 RCW 9A.52.050.
46 59 Wn. App. 461,463,467, 798 P.2d 302(1990).
46 State v. Lord, 117 Wn.2d 829, 853, 822 P.2d 177(1991).
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imposition of the jury demand fee at his sentencing hearing.'" In State v.
Blazina," our Supreme Court held that RAP 2.5(a) grants appellate courts
discretion whether to review a defendant's challenge to his legal financial
obligations that he raises for the first time on appeal. We exercise our discretion
and decline to review this challenge.
CONCLUSION
Buchanan does not show that Schwahn provided improper opinion
testimony on guilt, meet his burden on either of his ineffective assistance of
counsel claims, or show prejudice on the exceptional mitigated sentence issue.
We affirm.
biese,<„,
WE CONCUR:
‘eeted(97
47 Although Buchanan's counsel asked "the Court to waive any fines and
fees, costs, which the Court is able to do," he did not object after the trial court
imposed the fees.
48 182 Wn.2d 827, 832-35, 344 P.3d 680(2015).
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