                                                                                                ILED
                                                                                       011 RT OF APPEALS


                                                                                    2013 DEC — 3   AN 9: 21

                                                                                    S' rW E OF VVASH1 N Gf0a 1


                                                    IfPUY
       IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                               DIVISION II

STATE OF WASHINGTON,
                                                                            No. 42902 -1 - II
                                    Respondent,                            Consolidated with


          V.                                                                No. 43292 -7 -II


STACI LEA ALLISON,                                                      UNPUBLISHED OPINION


                                    Appellant,




          MAXA, J. —   Staci Allison appeals her convictions of first degree theft and money

laundering. Allison claims that ( 1) the trial court erred in not dismissing the case because of

prosecutorial mismanagement and ( 2) the money laundering statute, RCW 9A.83. 020, is

unconstitutional because it encompasses more than one subject. She also claims that the


sentencing court imposed restitution for losses not causally connected to her charged crimes. We

affirm.



                                                    FACTS


Background


          Allison worked for the Clallam County Sheriff' s Office as a records specialist assigned to

the   evidence room.'    Only three people had access to the evidence room: Allison, her supervisor

Chris James, and James' s supervisor Alice Hoffman.




1
 According to Chief Civil Deputy Alice Hoffman, " the records specialist assigned to the
evidence room had full management responsibilities and authority over everything.to do with
that   room."   Report   of   Proceedings ( Oct. 18, 2011)   at   48.
No. 42902 -1 - II, consolidated with No.4329274I



       On November 27, 2006, James was looking for the keys to an impounded car. When she

could not find the keys on the keyboard in the evidence room, James began looking through the

office and was upset by the disorganization. At one point she picked up a blue tub or bin of

currency envelopes and money fell out of an envelope that should have been sealed. When it

became clear that money was missing, the sheriff' s office contacted the Washington State Patrol

 WSP) to investigate.


       Lead WSP Detective Steven Stockwell later testified that he investigated all of the open


currency   envelopes   in the blue tub   and   found that $ 51, 905. 33   was   missing. Stockwell learned


from Hoffman that unauthorized database deletions had been made to the WSP' s " AEGIS"


system. He checked the security logs, which showed that Allison was present on the day and

during those times that the database records were deleted. He also noted that neither Hoffman

nor James was present in the evidence room during the times the database records were deleted.

       Federal Bureau of Investigation Special Agent Patrick Gahan performed a financial

analysis of Allison' s records. He examined those records for a 50 -month period, which began


five months prior to Allison' s employment with the sheriff' s office. According to Gahan' s

findings, Allison had a negative bank account balance at the end of two thirds of the 50 months,


incurred an average of eight overdraft charges per month, and consistently took out " payday"

loans to cover her expenses. However, there were no payday loans for the period from May

2003 until May 2006. During this period, Allison deposited about $9, 000 that was not

attributable to any income source. Gahan noted that during this same period Allison took three

trips to Seoul, South Korea, and one trip to Disneyland, but had no transactions associated with

these trips. He also reported that Allison' s then -
                                                   boyfriend reported that Allison had reimbursed

him for the trips with cash.


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No. 42902 -1 - II, consolidated with No.432927 -II


       The sheriff' s office relied on the AEGIS computer system to track the evidence from the

time it came into the sheriff' s office until the time it was disposed of or returned to its owner.

According to the AEGIS log files, Allison had deleted 49 entries despite a rule that no entries

ever were to be deleted. In fact, deleting such records violated state law. Further, Allison

deleted those records one day before a scheduled state audit. Hoffman later explained that the

deleted records would not have appeared on the auditor' s list and, consequently, the auditor

would not have known to check them.


        The State charged Allison with first degree theft and money laundering.

Procedural History

        Trial was scheduled for September 13, 2010. During initial discovery the State produced

about 1, 800 pages of documents. In that material, defense counsel found pages 8 and 927 of a


diary Allison kept at work detailing procedural problems. Defense counsel requested that the

State produce the entire diary on August 4, 2010, and the State provided it on August 12, 2010.

At the same time, the State produced another 800 pages of discovery that it had possessed but not

given to the defense.


        On September 10, 2010, the State sent defense counsel an e -mail explaining that it had

discovered another box containing a summary of the state audit and another 1, 000 pages of new

discovery. On the first day of the scheduled trial, the State gave that summary to defense

counsel, agreed to provide the supporting materials as soon as she got them, and revealed that

WSP Detective Don Kelly had helped clean up the evidence room after the WSP audit and

discovered unaccounted for cash.




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No. 42902 -1 - II, consolidated with No.432927 -II


       Allison made a motion under CrR 8. 3 to dismiss based on government mismanagement.


The trial court denied the motion until the parties could examine the new material and continued


the trial to October 11, 2010. This new date was within the October 13 time for trial deadline.

          On October 1, 2010, defense counsel requested a continuance because he was still cross


indexing the 1, 000 pages of WSP support materials and because he had not yet received Don

Kelly' s formal report. He also requested enough time to file a brief in support of his motion to

dismiss and file a motion to disqualify the prosecutor handling the case because Don Kelly was

her husband.


          On January 13, 2011, the trial court requested additional briefing on the motion to

dismiss   and reset   the trial date for    February   14, 2011.   On January 27, 2011, the trial court issued

a memorandum opinion denying the motion to dismiss, ruling, in part:

                   It is frustrating to this court and no doubt to the parties that discovery
          which should have been disclosed early on was not. Unlike [ Sherman] [21 however,
          it does not appear that there was any willful intent or malfeasance involved in the
          materials not being discovered. It is clear that there is misfeasance on the part of
          law enforcement, and, perhaps mismanagement by the Prosecuting Attorney's
          office for not determining at an earlier date that not all likely discovery was
          available. Nevertheless this is a complex case involving thousands of documents
          of   discovery ( or   so   the Court   has been told), a great deal of forensic accounting
          and performance auditing. There have been numerous continuances of the trial.
          Some     necessitated      by   the Defendant' s   difficulty   in obtaining   counsel,   others


          necessitated by the nature of the case, and occasionally by defense counsel' s
          illness. The State objected only to the last continuance requested and either did
          not object or agreed to the others to accommodate the defense. The reset on the
          day of trial was within speedy trial limits. The executive summary contained the
          gist of the relevant testimony. Defense then requested additional time which was
          granted. This Court is granted some discretion in making a determination. Under
          the totality of the circumstances the Court does not feel that a dismissal of the
          case is warranted. While the facts causing the delay in the case are unfortunate,
          the Court does not find them so egregious as to warrant the extraordinary remedy



2 State v. Sherman, 59 Wn. App. 763, 801 P. 2d 274 (1990).

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No. 42902 -1 - II, consolidated withNo.432927 -
                                              II



       of   dismissal. A trial on the merits by fully prepared counsel can resolve
       significant issues of prejudice to the fact finding function. Accordingly the
       Motion to Dismiss on the basis of the late discovery is denied.

Suppl. Clerk' s Papers at 50 -51.


        On February 1, 2011, the trial court found no evidence that a genuine conflict existed and

denied the motion to disqualify the prosecuting attorney. Nonetheless, a different attorney

assumed responsibility for.the case. On September 15, 2011, the State filed an amended

information additionally charging the theft as a major economic offense, justifying an

exceptional sentence.



Trial and Restitution


        A four -
               day jury trial began   on   October 17, 2011. Allison testified that she deleted the


AEGIS records at James' s behest because they were testing the system. She also explained that

she stopped taking out payday loans because she and her ex- husband were sharing a home and

expenses at that time. Regarding the trips to South Korea and Disneyland, Allison explained that

her then -
         boyfriend had paid for the trips and she otherwise would not have been able to go.


        The jury found Allison guilty as charged and found that the first degree theft was a major

economic offense. The sentencing court imposed an exceptional 36 -month sentence and,

following a restitution hearing, ordered Allison to pay $51, 905. 30 in restitution, the full amount

of money the WSP audit determined was missing.

                                               ANALYSIS


A.    PROSECUTORIAL MISMANAGEMENT


        Allison contends that the trial court abused its discretion in denying her motion to dismiss

under CrR 8. 3( b) for prosecutorial mismanagement. She argues that the State' s late disclosures


of voluminous documentary evidence forced her to request a postponement to enable counsel to

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No. 42902 -1 - II, consolidated with No.432927 -II



get up to speed, which forced her to make a choice between her right to a speedy trial and her

right to the effective assistance of counsel. We disagree that the trial court abused its discretion


in denying the motion to dismiss.

          CrR 8. 3( b) states:


          The court, in the furtherance of justice, after notice and hearing, may dismiss any
          criminal prosecution due to arbitrary action or governmental misconduct when
          there has been prejudice to the rights of the accused which materially affect the
          accused' s right to a fair trial. The court shall set forth its reasons in a written
          order.




          Before   a   trial   court   may dismiss   charges under     CrR 8. 3( b),   the defendant must show by a

preponderance of the evidence ( 1) arbitrary action or governmental misconduct and ( 2) prejudice

affecting the defendant' s right to a fair trial. State v. Rohrich, 149 Wn.2d 647, 654, 71 P. 3d 638

 2003).    The governmental misconduct need not be evil or dishonest; simple mismanagement is

sufficient.   State    v.   Blackwell, 120 Wn.2d 822, 831, 845 P. 2d 1017 ( 1993).                  And, the defendant


must show actual prejudice, not merely speculative prejudice affecting his right to a fair trial.

Rorich, 149 Wn.2d at 657. Dismissing charges under CrR 8. 3( b) is an

   extraordinary remedy.' "             State v. Rohrich, 149 Wn.2d at 658 ( quoting State v. Baker, 78

Wn.2d 327, 332, 474 P. 2d 254 ( 1970)).                It is limited to those " ` truly egregious cases of


mismanagement or misconduct.' "                State   v.   Wilson, 149 Wn.2d 1, 9, 65 P. 3d 657 ( 2003) ( quoting


State v. Duggins, 68 Wn. App. 396, 401, 844 P. 2d 441, aff'd, 121 Wn.2d 524, 852 P.2d 294

 1993)).    The trial       court should resort   to dismissal      under   CrR 8. 3( b) "   only as a last resort."

Wilson, 149 Wn.2d at 12. We review the trial court's decision denying a motion to dismiss under

CrR 8. 3 for an abuse of discretion, which it is when the decision was manifestly unreasonable,

based on untenable grounds, or made for untenable reasons. State v. Michielli, 132 Wn.2d 229,

240, 937 P. 2d 587 ( 1997); Blackwell, 120 Wn.2d at 830.


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No. 42902 -1 - II, consolidated with No.432927 -II


          Here we find no abuse of discretion. First, the record reflects that there was no


 gamesmanship" involved in the State' s delayed production of documents. Instead, the

prosecutor worked diligently to locate further discovery that was beneficial to Allison. In fact,

the prosecutor pursued discoverable materials even after being told none existed. In Wilson, our

Supreme Court found no governmental misconduct when the prosecutor acted diligently to set up

last- minute    witness   interviews   and   there   was no evidence of unfair   gamesmanship.    149 Wn.2d


at   10 -11.   By contrast, the facts here are unlike in Michielli, where the prosecutor waited until

five days before trial before adding         new charges without an explanation or      justification. 132


Wn.2d at 243 -44.


           Second, as the trial court noted, this was a complicated case involving thousands of pages

of documents and forensic analysis. Although the delays in producing documents were

unfortunate, there is no indication of any egregious conduct that caused the delays. This case is

unlike State v. Brooks, where this court upheld the trial court' s dismissal because of "severe

governmental mismanagement."             149 Wn.       App.   373, 393, 203 P. 3d 397 ( 2009). There, the State


failed to timely provide extensive material information, including the 60 -page victim' s

statement, the defendant' s statement to the police, the lead detective' s report, the entire police


file, witness lists and statements, and multiple other documents routinely produced in discovery.

Brooks, 149 Wn. App. at 376, 386 -87.

           Whether to dismiss charges based on prosecutorial mismanagement under CrR 8. 3( a)

rests in the trial court' s discretion. Based on the record before us and the abuse of discretion

standard of review, we cannot find that the trial court' s decision to allow the trial to continue was


manifestly unreasonable.




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No. 42902 -1 - II, consolidated withNo.432927 -II


B.      CONSTITUTIONALITY OF MONEY LAUNDERING STATUTE


            Allison argues that the money laundering statute, RCW 9A.83. 020, is unconstitutional

because the legislature violated the " single subject" rule established in article H, section 19 of the


Washington State Constitution. She argues that the same act creating the money laundering

offense also reenacted and amended RCW 69. 50. 505, which governs the seizure and forfeiture of


personal, real, and intangible property associated with the drug trade. She concludes that the

legislation enacted two subjects by creating a criminal offense and a means for civil forfeiture.

We disagree.


            Article II,   section       19     of our constitution provides, " No    bill shall embrace more than one


subject, and     that   shall   be    expressed       in the title." " The single -subject rule aims to prevent the


grouping of incompatible measures and to prevent ` logrolling,' which occurs when a measure is

drafted such that a legislator or voter may be required to vote for something of which he or she

disapproves in      order      to   secure approval of an unrelated          law." Wash. Ass' n for Substance Abuse


and    Violence Prevention             v.   State, 174 Wn.2d 642, 655, 278 P. 3d 632 ( 2012) ( citing


Amalgamated Transit Union Local 587                        v.   State, 142 Wn.2d 183, 212, 11 P. 3d 762 ( 2000), 27


P. 3d 608 ( 2001);       Wash. Fed'n ofState Emps. v. State, 127 Wn.2d 544, 552, 901 P. 2d 1028

 1995)).      We construe this provision liberally in favor of the legislation. Amalgamated Transit,

142 Wn.2d at 206.


            The 1992 legislative             act   is titled, " Money   Laundering" and therefore is a general, not a

restrictive title. LAWS OF 1992, ch. 210, at 946; see Wash. Ass' n, 174 Wn.2d at 655 ( discussing

general and restrictive             titles).    When a title is general, the legislation is constitutional if there is


some " ` rational       unity' " between the             general subject and    the incidental subdivisions.       Wash.


Ass'   n,   174 Wn.2d     at   656 ( internal        quotation marks omitted) ( quoting     State   v.   Grisby,   97 Wn.2d
No. 42902 -1 - II, consolidated with No.432927 -II


493, 498, 647 P. 2d 6 ( 1982)).            Rational unity exists when matters within the body are germane to

the title   and   the   provisions are germane              to   one another.      Wash. Ass' n, 174 Wn.2d at 656.


            Allison fails to     overcome       the       presumption       that this legislation is   constitutional.   Section 1


of the act contains definitions, section 2 defines the elements of the crime of money laundering,

section 3 provides the procedure for seizing and forfeiting the proceeds of the criminal offense,

section 4 protects officials from liability for lawfully enforcing the chapter, section 5 defines

what is subject to seizure and forfeiture, section 6 provides further definitions, and section 7


explains that the new provisions ( sections 1 through 4) will be codified in Title 9A RCW. All of


these provisions related to the money laundering title, and all of the provisions are germane to

one another. The enactment is not unconstitutional. Allison' s claim fails.


C.          RESTITUTION


            Allison contends that the sentencing court abused its discretion by imposing $51, 905. 33

in   restitution when      the   evidence at         trial connected        her activity to only $ 9, 800 in losses. She


argues that two others also had access to the evidence room, the State did not show significant


changes in her lifestyle, it presented evidence of only $9, 000 in unexplained deposits, and the lax

procedural safeguards governing the evidence room undermined the State' s claim that she was

solely responsible for the losses. We disagree.

            RCW 9. 94A.753( 3) provides that a sentencing court may impose restitution following a

criminal conviction           that is " based        on   easily   ascertainable    damages."    This statute allows broad


discretion ranging from " none ( in some extraordinary circumstances) up to double the offender' s

gain or     the   victim' s   loss."    State   v.   Kinneman, 155 Wn. 2d 272, 282, 119 P. 3d 350 ( 2005). The


State need not prove the damages with certainty and it need only prove them by a preponderance

of   the   evidence.     State   v.    Tobin, 132 Wn.            App.   161, 173 - 74, 130 P. 3d 426 ( 2006),    aff'd, 161

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No. 42902 -1 - II, consolidated with No.432927 -II



Wn.2d 517, 166 P. 3d 1167 ( 2007).          It must also prove that the losses are causally connected to

the   crime charged.   State   v.   Griffith, 164 Wn.2d 960, 965, 195 P. 3d 506 ( 2008). We review a


sentencing court' s decision setting restitution for an abuse of discretion. Tobin, 132 Wn. App. at

173.


         There was no abuse of discretion here. The WSP audit of the items in the blue tub next to


Allison' s workstation found that $51, 905. 33 was missing. The evidence showed that Allison

was the primary custodian of the evidence room. The evidence also showed that Allison deleted

49 records from the computer system the day before the state audit. Of these 49 deleted records,

16 related to items in the blue tub, totaling $9, 802. 19. And while the evidence only showed

about $ 9, 000 in unexplained deposits to Allison' s bank account, there also was evidence that she

travelled to South Korea three times and to Disneyland without expense and for two years

stopped relying on payday loans to pay her basic living expenses. Under these circumstances,

we cannot say that the sentencing court abused its discretion in finding a causal link between the

criminal activity and the damages and in imposing the entire loss as restitution.




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No. 42902 -1 - II, consolidated with No.432927 -II


        We affirm Allison' s conviction and the trial court' s restitution order.


        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.




                                                      MAXA, J.




        1"
S HINDLER, J.
                liLd-      L. /




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