State Of Washington, V Staci Lei Allison ( 2013 )

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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STACI LEA ALLISON, UNPUBLISHED OPINION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.
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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 Wash. 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 Wash. 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 Wash. 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 Wash. 2d at 657. Dismissing charges under CrR 8. 3( b) is an
extraordinary remedy.' " State v. Rohrich, 149 Wash. 2d at 658 ( quoting State v. Baker, 78
Wash. 2d 327, 332, 474 P.2d 254 ( 1970)). It is limited to those " `` truly egregious cases of
mismanagement or misconduct.' " State v. Wilson, 149 Wash. 2d 1, 9, 65 P.3d 657 ( 2003) ( quoting
State v. Duggins, 68 Wash. App. 396, 401, 844 P.2d 441, aff'd, 121 Wash. 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 Wash. 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 Wash. 2d 229,
240, 937 P.2d 587 ( 1997); Blackwell, 120 Wash. 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 Wash. 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
Wash. 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 Wash. 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 Wash. 2d 642, 655, 278 P.3d 632 ( 2012) ( citing
Amalgamated Transit Union Local 587 v. State, 142 Wash. 2d 183, 212, 11 P.3d 762 ( 2000), 27
P.3d 608 ( 2001); Wash. Fed'n ofState Emps. v. State, 127 Wash. 2d 544, 552, 901 P.2d 1028
1995)). We construe this provision liberally in favor of the legislation. Amalgamated Transit,
142 Wash. 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 Wash. 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 Wash. 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 Wash. 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 Wash. 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 Wash. 2d 960, 965, 195 P.3d 506 ( 2008). We review a
sentencing court' s decision setting restitution for an abuse of discretion. Tobin, 132 Wash. 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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