      IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

STATE OF WASHINGTON,                         )   NO. 76437-3-I                   r-S
                                                                                          --4
                                                                                          3'
                                             )
                                                                                  cri
                     Respondent,             )   DIVISION ONE                     rn      CD -11_,1

                                             )
      v.                                     )                                             in Cl
                                             )   UNPUBLISHED OPINION               74.
                                                                                   4...         r-
ANDREW DENVER S BUCHANAN,                    )
                                             )
                     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.
NO. 76437-3-1/2



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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NO. 76437-3-1 / 3



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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NO.76437-3-1/4



       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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NO. 76437-3-1/5



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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NO. 76437-3-1/6
                                                                  '7


      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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NO. 76437-3-1/7



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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NO. 76437-3-1/8



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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NO. 76437-3-1/9



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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NO. 76437-3-1/10



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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NO. 76437-3-1 / 11



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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NO. 76437-3-1/12



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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NO. 76437-3-1/ 13



                        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).
                                      -13-
NO. 76437-3-1/ 14



      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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NO. 76437-3-1/ 15



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)).
                                       -15-
NO. 76437-3-1/16



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).
                                      -16-
NO. 76437-3-1/17



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).
                                       -17-
