                                                                           FILED
                                                                         March 8, 2016
                                                                  In the Office of the Clerk of Court
                                                                WA State Court of Appeals, Division Ill




            IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
                               DIVISION THREE

STATE OF WASHINGTON,                          )
                                              )         No. 32873-2-111
                      Respondent,             )
                                              )
       v.                                     )
                                              )
CECILY ZORADA MC FARLAND,                     )         UNPUBLISHED OPINION
                                              )
                      Appellant.              )

       KORSMO, J. -    Cecily McFarland challenges her convictions and sentences for

first degree burglary, ten counts of theft of a firearm, and three counts of unlawful

possession of a firearm. We conclude that the trial court did not abuse its discretion in

the trial rulings and did not err at sentencing. Likewise, the record does not support a

contention that trial counsel erred. Therefore,·we affirm.

                                          FACTS

       Ms. McFarland once dated and lived with Derek Sterling at the home of his

parents, the Legaults. That relationship ended and she began dating Chad Faircloth. On

the evening of the day she moved in with the Faircloth family, June 21, 2014, Ms.

McFarland and Chad Faircloth went to the Legault home. Over multiple vehicle trips

extending to the early morning of June 22, the two took a number of items from the
No. 32873-2-III
State v. McFarland


home, including firearms. 1 Ms. McFarland told the Faircloths that she was retrieving her

personal property. She also texted Derek Sterling that evening and told him she was at

his parents' home.

       When he awoke on the 22nd, Mr. Legault discovered that his television, Blu-ray

player, eighteen weapons, ammunition, alcohol, and numerous other items, including

checkbooks belonging to the Legaults, were missing. Around 8:00 a.m. that morning, a

deputy sheriff stopped a vehicle driven by Ms. McFarland on suspicion of DUI. Chad

Faircloth was her passenger. She took a portable breath test that reported she had no

alcohol on her breath; she was released after a blood sample was taken to check for

suspected narcotics impairment.

       Later that day law enforcement searched the Faircloth home and retrieved property

taken from the Legault home, including ten firearms. Chad Faircloth and Ms. McFarland

were arrested and charged with various offenses. In addition to the previously mentioned

14 felonies, the State also charged Ms. McFarland with one count of second degree

trafficking in stolen property. Her case proceeded to jury trial.

       Prior to jury selection, Ms. McFarland made a number of motions in limine,

including one prohibiting the State or its witnesses from referring to the complaining

witness as the victim. The court denied this motion. During the trial one of the deputies


       1
        On one trip around 6:00 a.m., Jeffrey Faircloth drove the younger couple to the
house and waited in his vehicle while the two retrieved some items.

                                             2
No. 32873-2-III
State v. McFarland


referred to Mr. Legault as the victim. The prosecutor also used the word victim when

questioning the deputy. In sum, the word "victim" was used in front of the jury around

six times.

       The State offered a "bodycam" video of Ms. McFarland's arrest into evidence.

Ms. McFarland made a number of objections to the video based on relevancy and

prejudice, including that it showed her in handcuffs, referenced that she had served time

in jail, included a portion where the deputy was defining the crime of burglary, and

included a discussion about Ms. McFarland's drug use. She argued that the only thing

probative in the whole ten-minute video was her denial of involvement in any burglary.

The State conceded that "some of the stuff probably shouldn't come in," including what

constitutes burglary, and the fact that she just got out of jail.

       Originally, the prosecutor sought to admit about ten minutes of the video. 2 The

trial court, however, ordered that a five minute portion of the video be cut to remove any

reference to the fact that she had been in jail. The remaining video was a little less than

six minutes in length. Ex. 44. Ms. McFarland still objected on the grounds that it was

prejudicial and mostly lacking in probative value. The trial court, however, felt that it

was important to show her demeanor. Believing that it was "impossible to sanitize this




       2
           The original video is not part of the record on appeal.

                                                3
No. 32873-2-III
State v. McFarland


completely," the trial court admitted this truncated video and played it for the jury.

Verbatim Report of Proceedings (VRP) at 213-214, 216. 3

       The video begins with a handcuffed Ms. McFarland in the house. Ex. 44 at 11 sec.

to 15 sec. Then, a deputy took her outside and asked her to sit down in front of the house.

Id. at 15 sec. to 35 sec. Ms. McFarland was belligerent and appeared possibly intoxicated

or under the influence of a drug. Id. at 43 sec. to 1 min., 3 sec. ("I want to know what the

hell is going on," and "this is fucking crazy and bullshit"). Then, Ms. McFarland asked

about burglary. Id. at 1 min., 14 sec. to 1 min., 17 sec. ("I don't know why it's a burglary,

burglary for what? I didn't burglary [sic] anything"). The deputy responded that another

officer soon would explain that to her. Id.

       About two minutes went by where nothing happened other than occasional

disgruntled comments from Ms. McFarland. Id. at 1 min., 17 sec. to 3 min., 13 sec. Then

the conversation turned back to burglary. Id. at 3 min., 12 sec. to 3 min., 21 sec.

("Burglary, what the fuck you mean burglary, I was here the whole time except when I

went out to go get my clothes.") The deputy then explained what burglary means. Id. at 3

min., 21 sec. to 3 min., 32 sec. (correcting Ms. McFarland "you don't have to break in ...

it means being any place, or entering or remaining unlawfully in a building while

committing another crime.") Ms. McFarland asked wh_ere this burglary happened, and the


       3
       VRP denotes the consecutively numbered transcripts covering the trial, while
VTP will be used to denote the transcript of the pretrial and posttrial proceedings.

                                              4
No. 32873-2-III
State v. McFarland


deputy said he did not know. Id. at 3 min., 33 sec. to 3 min., 37 sec. Ms. McFarland then

reiterated that she did not leave at all last night except to go get her clothes. Id. at 3 min.,

37 sec. to 3 min., 41 sec. The deputy then said, they're "probably talking about last night,

where were you last night?" and Ms. McFarland states, "I was here." Id. at 3 min., 41 sec.

to 3 min., 48 sec.

       In the final portion of the video, the deputy explained to Ms. McFarland that she

was detained. He then asked her if her rights had been read to her, and when she did not

respond, he proceeded to read the Miranda 4 rights. Id. at 4 min. to 5 min., 8 sec. Ms.

McFarland was belligerent while the deputy read the Miranda rights, quoting the right to

remain silent back to him. Id. at 4 min., 30 sec. to 4 min., 45 sec. At the end, she said

she understood the rights he read to her. Id. at 5 min., 5 sec. to 5 min., 10 sec.

       The deputy then explained the situation to her as he saw it. Id. at 5 min., 23 sec. to

5 min., 33 sec. ("As far as I know there was a burglary that occurred last night, and

apparently somehow your name or some video or fingerprints or ... I don't know,

something came up that's leading us back to you"). Ms. McFarland responded, "What

the hell, I was here the whole fucking all last night." Id. at 5 min., 35 sec. Right after

that statement, the video ended.




       4
           Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).

                                               5
No. 32873-2-III
State v. McFarland


       The State dismissed the trafficking charge during trial. The defense did not put on

a case. During closing arguments, both the State and defense referenced the video. The

defense theory of the case was that small, weak Ms. McFarland was a bystander to the

theft of the guns by the Faircloths. Nonetheless, the jury ultimately found Ms.

McFarland guilty of all 14 remaining charges: three counts of unlawful possession of a

firearm, ten counts of theft of a firearm, and the first degree burglary count.

       At sentencing, the court calculated Ms. McFarland's offender score at two on the

ten firearm theft counts based on her two prior adult felony convictions. 5 The offender

score was calculated at three on the remaining four counts, with the burglary offense

counting as one point on the unlawful possession charges and the unlawful possession

charges collectively adding one point to the burglary scoring. Clerk's Papers (CP) at

214-215. The defense agreed with the calculation of the standard ranges and did not

dispute the scoring. VTP at 22-23. Defense counsel asked for low end sentences, noting

the harshness of the resulting sentence. VTP at 24. The trial court agreed that the

sentence was harsh, but stated that judges "apparently don't have much discretion here."

VTP at 25. The court then imposed a mid-range term on the burglary count and

consecutive low-end sentences totaling 23 7 months on the remaining charges. VTP at

25-26; CP at 216.


       5
        Ms. McFarland actually had three prior convictions, but two of them were
considered the same criminal conduct and counted as one offense. Clerk's Papers at 214.

                                              6
No. 32873-2-III
State v. McFarland


       Ms. McFarland timely appealed to this court.

                                        ARGUMENT

       This appeal challenges the trial court's ruling on the "victim" nomenclature and

the admission of the bodycam video of the defendant, as well as the calculation of the

offender score and the standard range sentence. We address those four matters in the

order stated.

       "Victim" Reference

       Ms. McFarland challenges the court's denial of her pre-trial motion to prohibit

witnesses from referring to the Legaults as victims. While we believe that there are

situations where such testimony would be erroneous, this was not one of those cases.

The trial court did not abuse its discretion.

       As a general rule, trial judges have broad discretion in their evidentiary rulings.

State v. Sharp, 80 Wn. App. 457, 460, 909 P.2d 1333 (1996). Accordingly, we review

rulings on motions in limine for abuse of discretion. State v. Powell, 126 Wn.2d 244,

258, 893 P.2d 615 (1995). Discretion is abused when it is exercised on untenable

grounds or for untenable reasons. State ex rel. Carroll v. Junker, 79 Wn.2d 12, 26, 482

P.2d 775 (1971).

       It is improper for a witness to testify that a defendant is guilty. State v. Black, 109

Wn.2d 336, 348, 745 P.2d 12 (1987). Ms. McFarland argues that use of the word

"victim" is the equivalent of expressing the opinion that she is guilty. It is not. As with

                                                7
No. 32873-2-III
State v. McFarland


many words, "victim" has several connotations that are dependent on the context in

which the word is used. Someone who has been shot is regularly referred to as a victim

by law enforcement and medical professionals without regard to whether the shooting is

justified. A person who has been swindled of all her savings is a victim of theft or fraud.

Law enforcement frequently refers to the complainant in a criminal case as the victim.

The word simply serves as a designation that places a person in a particular category.

       Nonetheless, the word could on some occasions serve as an opinion. Other states

have held in certain circumstances that using the term victim is not permissible. The

Vermont Supreme Court explained that "where the commission of a crime is in dispute

and the core issue is one of the complainant's credibility, it is error for a trial court to

permit a police detective to refer to the complainant as the 'victim.'" State v. Wigg, 2005

VT 91, 179 Vt. 65, 889 A.2d 233, 236. Other jurisdictions agree with this determination.

See State v. Devey, 2006 UT App. 219, 138 P.3d 90, 95-96 (holding it may have been

error to deny a motion in limine prohibiting the State and witnesses from referring to the

complaining witness as a "victim" when the existence of a crime was at issue); State v.

Albino, 130 Conn. App. 745, 762, 24 A.3d 602 (2011) (holding that "in a case where

there is a challenge as to whether a crime occurred, the repeated use of the words victim,

murder and murder weapon is improper"); Jackson v. State, 600 A.2d 21 (Del. 1991)

(recognizing that "victim" may be appropriate when there is no doubt that a crime was

committed and identity was at issue); Veteto v. State, 8 S.W.3d 805, 816-817 (Tex. App.

                                               8
No. 32873-2-III
State v. McFarland


2000), abrogated on other grounds by State v. Crook, 248 S.W.3d 172 (2008) (reference

to child as "the victim" instead of "the alleged victim" could lend credence to her

testimony that the assaults occurred).

       The only Washington case to address this issue in a published opinion did so in an

entirely different context. State v. Alger, 31 Wn. App. 244, 640 P .2d 44 (1982). Alger

was a prosecution for statutory rape. The court read the jury a stipulation of the parties

concerning the defendant's age and the fact that he had not been married to "the victim."

Id. at 248-249. On appeal, the defendant challenged the reference as a judicial comment

on the evidence in violation of our state constitution. Id. at 249. Without deciding

whether it was error, the court determined that the single reference did not prejudice the

defendant. Id.

       We believe that in some circumstances it could be error for a witness to use the

word "victim" to express an opinion or for a judge to use the word to refer to a disputed

fact. That does not justify a blanket prohibition on use of the word. More to the point,

there was no error in using the word in this case. There was no dispute that the Legaults

were burglarized. The defense theory simply was that Ms. McFarland was not actively

involved. Use of the word "victim" to refer to the Legaults was not error in this context.

       The trial court did not abuse its discretion by denying the motion in limine.

       Video ofDefendant




                                             9
No. 32873-2-111
State v. McFarland


       Ms. McFarland contends that the trial court erred in permitting use of the reduced

six minute video of her arrest. While we share her concerns that more of the video was

shown than was necessary, we again conclude that the trial court did not abuse its

discretion in allowing the exhibit into evidence.

       As mentioned previously, trial courts have broad discretion in admitting evidence.

Sharp, 80 Wn. App. at 460. Accordingly, we review those rulings for abuse of

discretion. State v. Slocum, 183 Wn. App. 438, 449, 333 P.3d 541 (2014).

       Ms. McFarland challenges the video exhibit on three grounds. She argues that it

was not relevant, a deputy's discussion of the elements of the crime of burglary was

improper, and the exhibit was unduly prejudicial. We look at those arguments in the

order stated.

       The video was relevant because it included Ms. McFarland's denial of

involvement in the crime, a facet of the recording that she agreed was relevant. The State

offered that evidence to show her consciousness of guilt. That type of evidence long has

been admissible. State v. Bruton, 66 Wn.2d 111, 112-113, 401 P.2d 340 (1965). The

statement also tied the defense down to theories consistent with her alleged non-

involvement with the incident. Thus, that aspect of the video was relevant and

admissibl~. ER 401, 402.

       More problematic is Ms. McFarland's second complaint that the discussion of the

elements of burglary discussion was improper. The prosecutor conceded at trial that it

                                             10
No. 32873-2-III
State v. McFarland


should not be admitted. Nonetheless, the discussion was part and parcel of the defendant's

discussion and denial of involvement in the crime. Statements she made prompted the

deputy to correct her understanding of what constituted a burglary. 6 As the trial court

acknowledged, it was not possible to completely sanitize the video. VRP 213-214.

       The record does not establish abuse of discretion. The deputy's discussion of the

elements of the offense was limited and also was consistent with the court's later

instruction to the jury. The discussion was not offered to the jury as a statement oflaw

for their consideration. It simply put the denial of involvement in its proper context.

Finally, the court's written instructions repeatedly reminded jurors that it must accept the

law as contained in the written instructions. CP at 135, 136. Given all, we cannot say the

court erred in its decision. There was minimal prejudice from this discussion and it did

relate to relevant statements made by the defendant.

       Finally, Ms. McFarland does complain that the redacted video was unduly

prejudicial by showing her in handcuffs 7 and showing her demeanor over several minutes


       6
          The exchange in question began with Ms. McFarland, stating: "Burglary, what
the f--- actually you mean burglary. I've been here the whole time except when I went out
to go get my clothes." Deputy Linscott asks if she understood "what burglary actually
is?" She responded, "Yeah, when you're breaking and entering." The deputy answered
back: "Eh, you don't have to break in. It means being in any place, or entering or
remaining unlawfully in a building while committing another crime." Ex. 44 at 3 min., 13
sec. to 3 min., 34 sec.
       7
      The trial court offered to give a limiting instruction concerning the handcuffs.
However, no limiting instruction was requested. VRP at 214.

                                             11
No. 32873-2-111
State v. McFarland


while she was not being questioned or making any statements relevant to the proceedings.

The trial court excised nearly six minutes of the video, but left in this evidence of her

demeanor, believing it to be important for the jury to consider. While we question

whether the value of that evidence was outweighed by its prejudice, we acknowledge that

this was the trial court's decision to make. In large part the demeanor evidence was

cumulative to that shown in the admittedly relevant portions of the video. "The

admission of evidence which is merely cumulative is not prejudicial error." State v.

Todd, 78 Wn.2d 362, 372, 474 P.2d 542 (1970). We conclude that Ms. McFarland has

not shown that the court abused its discretion in its editing of the video.

       The admission of the redacted video in exhibit 44 was not error.

       Offender Score Calculation

       Ms. McFarland also challenges the offender score calculation, arguing that all of

the offenses should have been considered the same criminal conduct. Because this

argument fails for several reasons, it is discussed summarily.

       The governing principle is found in RCW 9.94A.589(l)(a). When imposing

sentence under that subsection, courts are required to include each other current offense

in the offender score unless one or more of those offenses constitute the same criminal

conduct, in which case they shall be "counted as one crime." The statute then defines

that particular exception to the scoring rule: "' Same criminal conduct,' as used in this

subsection, means two or more crimes that require the same criminal intent, are

                                             12
No. 32873-2-III
State v. McFarland


committed at the same time and place, and involve the same victim." Id. It is the

defendant's burden to establish that offenses constitute the same criminal conduct. State

v. Graciano, 176 Wn.2d 531, 540-541, 295 P.3d 219 (2013).

       Ms. McFarland did not raise this claim to the trial court. In fact, her counsel,

under questioning by the trial judge, conceded that the score and range were correct.

Since she failed to raise this challenge in the trial court, it is waived. State v. Nitsch, 100

Wn. App. 512, 520-521, 997 P.2d 1000 (2000). She never attempted to meet her burden

under Graciano.

       A second reason that the argument fails is that it does not satisfy the statutory test.

Among the statutory factors is a requirement that the offenses involve the same victim.

While the burglary and theft counts could constitute the same criminal conduct, and were

in fact so treated by the trial court, the unlawful possession counts could not constitute

the same conduct with the burglary charge because the victims were different. The

Legaults were the victims of the burglary and theft counts. However, the public at large

is the victim of an unlawful firearm possession charge. See State v. Haddock, 141 Wn.2d

103, 110-111, 3 P.3d 733 (2000).

       A third reason that the argument could fail is the burglary anti-merger statute,

RCW 9A.52.050. This statute gives trial courts the authority to treat burglary offenses

separately even when the underlying crime would otherwise constitute the same criminal

conduct. State v. Lessley, 118 Wn.2d 773, 781-782, 827 P.2d 996 (1992).

                                              13
No. 32873-2-111
State v. McFarland


       Finally, application of the same criminal conduct standard is problematic with

respect to the scoring of the theft and firearm offenses. The same criminal conduct

exception is found in RCW 9.94A.589(l)(a) and by its terms applies only to offenses

scored under that subsection. See first sentence (expressly exempting subsections (b) and

(c) from its application). In this case, the only offense to which the same criminal

conduct exception could have been applied was to the burglary count. However, that

standard has no application to the scoring of the theft and unlawful possession counts that

were sentenced under subsection (c ). Thus, while the theft counts could be the same

criminal conduct as the burglary, the burglary could not be the same criminal conduct as

the theft counts. 8

       For all of these reasons, the offender score argument is without merit.

       Exceptional Sentence

       Lastly, Ms. McFarland contends that the trial court erred in imposing a standard

range sentence because it did not recognize it had any discretion to. do otherwise. She

attacks this issue on both statutory and ineffective assistance rationales. For differing

reasons, both of them fail.




       8
         It appears the scoring of the theft counts as "2" instead of "3" was error, although
it inured to the benefit of Ms. McFarland. As the State committed the same error in its
briefing to the trial court, it cannot complain here.

                                             14
No. 32873-2-III
State v. McFarland


       For over three decades since its original enactment, the Sentencing Reform Act of

1981 (SRA), ch. 9.94A RCW, has always stated that a "sentence within the standard

sentence range ... shall not be appealed." RCW 9.94A.585(1). Accordingly, an

offender who receives a standard range sentence, such as Ms. McFarland, cannot

challenge the sentence on appeal. Instead, any challenge that might exist is to the process

by which the sentence was imposed. A challenger must show that the judge failed to

consider something he was required to consider or otherwise refused to follow a

mandatory process. State v. Mail, 121 Wn.2d 707, 712, 854 P.2d 1042 (1993). For

instance, the categorical refusal to consider an alternative sentence is a failure to comply

with the procedural requirements of the SRA. State v. Grayson, 154 Wn.2d 333, 342-

343, 111 P.3d 1183 (2005). Ms. McFarland argues that the trial court failed to recognize

that it had power to impose an exceptional sentence, likening the case to In re

Mulholland, 161 Wn.2d 322, 166 P.3d 677 (2007) (reversing trial court for failure to

consider an exceptional sentence when sentencing multiple serious violent felonies under

RCW 9.94A.589(l)(b)).

      Ms. McFarland's initial problem here is that she never asked the trial judge to

impose an exceptional sentence. Her counsel made no such request at sentencing and

there is no sentencing memorandum or other writing suggesting the possibility.

Likewise, the prosecutor's sentencing brief does not address the topic. It simply was not




                                             15
No. 32873-2-III
State v. McFarland


before the court. Accordingly, the judge cannot have erred for failing to do something he

was never asked to do. 9

       Alternatively, Ms. McFarland argues that her counsel rendered ineffective

assistance by failing to seek an exceptional sentence. Again, very familiar standards

govern review of this contention. The Sixth Amendment to the United States

Constitution guarantees the effective assistance of counsel. Counsel's failure to live up to

those standards will require a new trial when the client has been prejudiced by counsel's

failure. State v. McFarland, 127 Wn.2d 322, 334-335, 899 P.2d 1251 (1995). In

evaluating ineffectiveness claims, courts must be highly deferential to counsel's

decisions. A strategic or tactical decision is not a basis for finding ·error. Strickland v.

Washington, 466 U.S. 668, 689-691, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). Under

Strickland, courts apply a two-prong test, evaluating whether or not (1) counsel's

performance failed to meet a standard of reasonableness and (2) actual prejudice resulted

from counsel's failures. Id. at 690-692. When a claim can be disposed of on one ground,

a reviewing court need not consider both Strickland prongs. Id. at 697; State v. Foster,

140 Wn. App. 266, 273, 166 P.3d 726, review denied, 162 Wn.2d 1007 (2007).




       9
         It is in this context that we read the judge's "no discretion" comment to mean
that there was nothing presented to him other than a standard range sentence, leaving the
judge little room to maneuver.

                                              16
No. 32873-2-111
State v. McFarland


       The first Strickland prong is dispositive here as Ms. McFarland has not

demonstrated that her counsel erred. Specifically, she has not shown that a basis existed

for an exceptional sentence in her case that counsel unreasonably failed to pursue. For

instance, there was evidence in the record that Ms. McFarland had used narcotics around

the time of the burglary. This record does not reflect whether she was sufficiently

impaired that she was unable to appreciate the wrongfulness of her actions. See RCW

9.94A.535(1)(e). We simply do not know what efforts the defense made to investigate

that mitigating factor or some other mitigating factor that might have been applicable.

       Ms. McFarland suggests now that an exceptional sentence was appropriate under

RCW 9.94A.535(l)(g). That provision allows an exceptional sentence when the

"operation of the multiple offense policy of RCW 9.94A.589 results in a presumptive

sentence that is clearly excessive in light of the purpose of this chapter." She likens this

case to Mulholland where the court applied the mitigating factor to a sentence imposed

under RCW 9.94A.589(l)(b). However, there are two factual differences between this

case and Mulholland.

       First, sentencing here was under subsection .589(1 )( c), not (1 )(b) as in that case.

While the reasoning in Mulholland might well also apply to subsection ( 1)( c), Ms.

McFarland has presented no published authority indicating that any court has ever done

so before, thus suggesting that her counsel did not err by failing to make the argument. A

problem with comparing the two subsections is that RCW 9.41.040(6) expressly states

                                              17
No. 32873-2-III
State v. McFarland


that "notwithstanding any other law," an offender committing unlawful possession of a

firearm or theft of a firearm "shall serve consecutive sentences for each of the felony

crimes of conviction listed in this subsection." On its face, that provision appears to

prohibit any exceptional sentence that would alter the consecutive ordering of the

sentences, but does not otherwise prohibit use of the exceptional sentence power in these

cases. Thus, it would not prohibit the reduction of each of the consecutive terms in the

event an exceptional sentence is appropriate. We need not resolve the question of

whether the rationale of Mulholland would authorize an exceptional sentence here due to

the second critical factual difference between that case and this one. 10

       That critical difference is that there was no request for an exceptional sentence

here, although there was one in Mulholland. 161 Wn.2d at 326. That means that to raise

this issue at all, Ms. McFarland has to attack her counsel's performance and show that

her representation fell below professional norms. In light of the lack of any history of

other counsel successfully making a similar argument, we cannot conclude as a matter of

law that counsel failed to meet professional standards. Nonetheless, it is still possible for

Ms. McFarland to prevail on this point if she can present evidence that her counsel erred




       10
         An argument on this point should involve any legislative history materials that
would shed light on the meaning ofRCW 9.41.040(6). See State v. Murphy, 98 Wn.
App. 42, 47-49, 988 P.2d 1018 (1999) (discussing legislative intent).

                                             18
No. 32873-2-111
State v. McFarland


because he did not pursue an exceptional sentence that was in fact available to her. 11 To

do so, however, she will have to marshal that evidence and argument in a personal

restraint petition (PRP) since the necessary evidence is not in the record of this appeal.

See McFarland, 127 Wn.2d at 338 (PRP appropriate vehicle for establishing counsel

ineffectiveness when necessary facts are not in the record).

       Accordingly, we conclude that Ms. McFarland has not established that her counsel

rendered ineffective assistance at sentencing. The convictions are therefore affirmed.

       Affirmed.

       A majority of the panel has determined this opinion will not be printed in the

Washington Appellate Reports, but it will be filed for public record pursuant to RCW

2.06.040.



I CONCUR:



   57dh f!(1)
       Siddoway,




       11
          Mere disagreement with a standard sentence range is not a basis for an
exceptional sentence. State v. Freitag, 127 Wn.2d 141, 144-145, 896 P.2d 1254, 905
P .2d 3 55 ( 1995). Sentencing for this type of offense is harsh by legislative design.
Murphy, 98 Wn. App. at 49 n.8.

                                             19
                                      No. 32873-2-111

       FEARING, J. (concurring)- I concur in the majority's affirmation of the

convictions of Cecily McFarland. I write separately because I disagree with one of the

rulings of the majority. I would rule that the trial court abused its discretion when

allowing the State to show the jury large portions of the five-minute, thirty-nine seconds

arrest video.

       The majority writes that the State offered that portion of the video, in which

Cecily McFarland denies being present at the Legault home, as evidence to show

McFarland's consciousness of guilt. Majority at 10. I question how one's denial of

being present during a crime shows consciousness of guilt. Perhaps the tone of voice or

mannerism accompanying the denial could tend to show a guilty conscience, but the State

does not base a claim of relevance on these airy considerations. Nevertheless, at trial,

defense counsel agreed that these portions of the video may be shown.

       The majority writes that "[t]hat type of evidence long has been admissible," citing

State v. Bruton, 66 Wn.2d 111, 112-13, 401 P.2d 340 (1965). Majority at 10. Our high

court wrote, in Bruton, that evidence of flight is admissible. The high court reversed the

conviction of Virgie Washington, nonetheless, because of lack of evidence of flight.
No. 32873-2-III
State v. McFarland


More importantly, the Bruton court did not address whether one's denial of guilt tends to

establish one's guilt.

       During the video, Cecily McFarland occasionally denied being present at the

Legault home during the theft. Because of the prejudicial nature of the video, the trial

court should have limited the State to playing one instance of the denial. The cumulative

nature of evidence is a basis for excluding evidence. ER 403. Nevertheless, again,

defense counsel agreed that the denial could be shown to the jury and counsel did not

object to repetitive showing of the denial.

       The video was highly prejudicial to Cecily McFarland. The video showed her

slovenly dressed and in handcuffs, included a discussion of her drug use, contained a

discussion of the legal nature of burglary, captured the reading of the Miranda rights

during which McFarland quoted some of the rights, and recorded her repeated use of the

"f' word. A perceptive viewer might conclude McFarland to be intoxicated or under the

influence of drugs while videotaped. During the video, the arresting officer suggested

that McFarland was a flight risk and falsely suggested that fingerprints might link

McFarland to the crime. None of this video material tended to prove that McFarland

committed any crime. A jury should not see an accused in handcuffs at trial. State v.

Finch, 137 Wn.2d 792, 859, 975 P.2d 967 (1999). No purpose serves to not extending

this rule to a video. McFarland's potty mouth could lead a juror with a stereotypical view

of a criminal to regard such language to imply guilt. McFarland's quoting of Miranda

rights would signal to jurors that she had been arrested before.

                                              2
No. 32873-2-111
State v. McFarland


       Despite an abuse of discretion in playing the entire video to the jury, I would

affirm the conviction because the error was harmless. Erroneous evidentiary rulings that

do not impact a constitutional right are not reversible error unless, within reasonable

probabilities, the outcome of the trial would have been materially affected if the error had

not occurred. State v. Brown, 113 Wn.2d 520, 554, 782 P.2d 1013, 787 P.2d 906 (1989).

Cecily McFarland does not claim constitutional error.

       At trial, Cecily McFarland admitted to being present at the Legault home during

the burglary. She previously lived at the home and would have knowledge as to the

location inside the residence of the pilfered property. Her codefendant would not have

sought to burglarize the home without input from McFarland. The portions of the video

admitted with the consent of McFarland also showed her handcuffed and broadcasted her

use of the "f' word. Therefore, showing the permissible portion of the video already

caused harm.



I CONCUR:




                                                 Fea~ 1              J.




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