### FILED FEB 6,2014 In the Office ofthe Clerk ofCourt WA State Court ofAppeals, Division III

INTIIE COURT OF APPEALS OF TIIE STATE OF WASHINGTON DIVISION THREE STATE OF WASHINGTON, ) ) No. 30850-2-III Respondent, ) ) 

### v. ) ) ROBERT JAMES MIDDLEWORTH, ) UNPUBLISHED OPINION ) Appellant. ) KORSMO, C.J.

- RobertJames Middleworthraises multiple challenges tohis convictions for first degree childrape and first degree child molestation. We agree only with his argumentthatrestitution was improperly ordered and otherwise affirm. FACTS Mr. Middleworth dated K.D., who eventually moved along with herfour-year-old daughter B.D. into the basement apartment Mr. Middleworth occupied

### in his mother's house. Not longthereafter Mr. Middleworth and K.D. hadtotake B.D. to thehospital due topainwhile urinating. Seeing signs ofpossible sexual abuse, a nurse askedB.D. if anyonehadtouched her "downthere." B.D. statedthatMr. Middleworthhaddone so.No. 30850-2-111 State v. Middleworth

CPS I forensic child abuse investigatorBrook Martin interviewed B.D. on September 28,2010. The interview was videotaped and law enforcement viewed the interview remotely from an observation room. B.D. disclosed an act ofmolestation duringthe interview, but denied any acts that constituted rape. On the way home from the interview, B.D. commentedthat one ofthe balloons in the carlooked like a "wienerthat went in her mouth." Upon hearing about that remark, Ms. Martin conducted a second interview on September 30, 2010. She briefly mentioned during hertestimony at the first trial that she had conducted a follow-up interview on the 30thdue to remarks made in the car afterher first interview. Neither counsel askedMs. Martin about that interview. The defense rested without calling witnesses. Thejury convicted Mr. Middleworth as charged on one count offirst degree child rape and one count offirst degree child molestation. Represented by new counsel, Randy Lewis, Mr. Middleworth obtained a newtrial on the basis that his original counsel hadpreventedhim from testifying. Afterthe defense replaced Mr. Lewis withMr. Jerry Makus, the case eventually was rescheduled for a newtrial in early 2012. The court set a status conference hearing for January 11, 2012, priorto the retrial. The matter was heard in chambers, but was reported so that a record was available in the

I Child Protective Services. 2No.30850-2-II1 State 

### v. Middleworth

event thatMr. Middleworth, who was trying to fire Mr. Makus, alleged ineffective assistance ofcounsel. The court explained thatthe conference was intendedto be an informal discussion andthat the parties and witnesses were not allowed to be present. Mr. Middleworth askedto be present, but the court did not allow the request. At the hearing, Mr. Makus confirmedthat he was prepared to go to trial but acknowledgedthat his client desired to terminate his representation. The trialjudge indicated that the representation issue would betaken up later in the courtroom in Mr. Middleworth's presence. The court also asked ifthere were any discovery issues and the State asked the court to clarify its earlierruling about B.D.'staped interview. The court clarified thatthe entire interview would be admissible and also statedthat itwould not change its previous ruling about B.D.'s foster care placement. Theparties also discussed the availability ofa defense expert who would have to travel from Wisconsin. The matter was complicated because the witness alleged that the first report attributed to him by the defendant-and which was very favorable to the defendant-hadbeen forged. The expert did claim responsibility for a differentreport that was less favorable to the defense. Defense counsel also asked, andthe prosecutor answered, a question about a State's expert's opinion concerning herpes testing ofMr. Middleworth. Theparties then went into the courtroom and dealt with Mr. Middleworth's request to replace Mr. Makus.

3No.30850-2-III State v. Middleworth

The secondtrial began January 18,2012. Itended in a mistrial when excluded evidence was presented duringthe State's case. A third trial was held April 2 thru April 10,2012. 

### Mr. Makus represented

### Mr. Middleworth attrial. Ms. Martin again testified that there had been a second interview, although the prosecutor did not inquire further. Defense counsel asked ifthe second interview had beenvideotaped and where the tape

was. Ms. Martin answered thatthe interview had been videotaped but she hadnot given the tape to law enforcementbecause they had not wanted it. Outside the presence ofthejury, the court andparties further inquired into the second interview. Ms. Martin explainedthe remark that ledto the second interview. The court ordered that the video be produced immediately and thatthe State explain why it had not been produced earlier. The defense movedto dismiss the charges dueto this discovery violation. After reviewing the secondtape, the trialjudge summarized his impressions ofit,2 B.D. has stated that Nana3 hadputbandages on her inner thigh, butno context tothe statement was given. There was no allegation that eitherNana orher longtime companion ("PapaBrian") had injured B.D. The court concluded that a continuance for the defense to investigate was appropriate; the matter was continued five days to April 10. The court indicated that the

2Thatvideotape was nottranscribed norwas ittransmitted to this court as part of the record ofthis appeal. 3 K.D.'s mother. 4No.30850·2-III State v. Middleworth parties could recall any witnesses who had already testified. The State did not recall any witnesses and rested. The defense called the CPS social worker who had transported K.D. When she could not recall any statements by B.D., the social worker was not put before thejury. K.D. was called and testified that she had once left B.D. with her mother during the time she lived with the defendant. The foster mother testified that she had bathed B.D. who cried in pain when herthighs were washed and cried "Brian" several times. "Papa Brian" also was called to testify; he denied hurting B.D. Mr. Middleworth took the stand and also denied touching B.D. inappropriately. Thejury convicted Mr. Middleworth as charged. The court sentenced him to a high end standard range minimum term of 160 months. The court also ordered "restitution" of$2,597.22 in expert witness costs payable to the county prosecutor's office and an additional sum for health care for B.D. Mr. Middleworth then timely appealed to this court. ANALYSIS This appeal raises several claims which we can group into five categories: (1) the status conference hearing held in chambers; (2) the lack ofa "separate and distinct acts" instruction; (3) the use ofthe "beliefin the truth" language in 11 WASHINGTON PRACTICE: WASHINGTON PATTERN JURY INSTRUCTIONS: CRIMINAL (WPIC) 4.01; (4) the second interview discovery violation; and (5) the restitution order. We will address the

5

### No.30850-2-III State v. 

### Middleworth arguments in that manner and decline to reach appellant's cumulative error claim in light ofour conclusion as to his trial claims.4 

### Status Conference 

### Mr. Middleworth argues that the status conference violated both his due process right to be present and his public trial right. Although we are dubious about both ofthose claims, we need not address them because he already receivedthe remedy to which he would have been entitled had he established the alleged violations. A criminal defendant has the right under article I, section 22 ofthe Washington constitution to "a speedy public trial." E.g., 

### State v. Love, 176 Wn. App. 911, 916, 309 P.3d 1209 (20l3). Similarly, the Sixth Amendment and the Due Process Clause ofthe Fourteenth Amendment ensurethe defendant's right to be present at all critical stages of the trial. State v. irby, 170 Wn.2d 874, 880-81, 246 P.3d 796 (2011). When the public trial right has been violated, the defendant is entitledto a newtrial. State v. Strode, 167 Wn.2d 222,231,217P.3d 310 (2009). Similarly, a violation ofthe Sixth and Fourteenth Amendmentright will result in a new trial unless the error is shown to be harmless beyond a reasonable doubt. irby, 170 Wn.2d at 885-87. Although the hearing, described previously, looked and sounded like a simple status conference at which thejudge and parties exchange information and discuss the

4 

### We also will not address the issues raised by the statement ofadditional grounds other than to note that they are without merit. 

### 6No. 30850-2-111 State v. Middleworth expected course ofevents attrial, we need not resolve the case on thatbasis. Even ifwe
assume that there was a violation ofthe defendant's public trial and presence rights, he has already been accorded the remedy for such a violation-a newtrial. The challenged hearing occurred before the second trial, which resulted in a mistrial. A third trial was then held. The violation, ifany, before the second trial was remedied bythe third trial. Accordingly, Mr. Middleworthhas already received that which he would have been entitled to receive. There is nobasis for reversing the outcome ofthe third trial for something that occurredpriorto an earliertrial. These arguments are, therefore, without merit. Separate andDistinctActs Instruction Mr. Middleworth next contends thatthe trial court erredby failing to instruct the jury that a separate and distinct act needed to beproven for each offense. We believe the jury was adequately instructed and that there was no significantpossibility thatthe defendant was convicted twice for one action. The law governing review of jury instruction challenges is well settled. Jury instructions are sufficient ifthey correctly state the law, are not misleading, and allow the parties to argue their respective theories ofthe case. State v. Dana, 73 Wn.2d 533,536­ 37,439 P.2d403 (1968). The trial court also is granted broad discretion in determining the wording and number of jury instructions. Petersen v. State, 100 Wn.2d 421, 440, 671 7No. 30850-2-111 State v. Middleworth

P.2d 230 (1983). Discretion is abused when it is exercised onuntenable grounds or for untenable reasons. State ex reI. Carrollv. Junker, 79 Wn.2d 12, 26, 482 P.2d 775 (1971). A separate and distinct acts instruction is used to prevent doublejeopardy violations when multiple counts ofthe same charge are presentedto ajury. State v. Mutch, 171 Wn.2d 646, 662, 254 P.3d 803 (2011). The purpose is to preventthejury from convictingthe defendant ofmultiple counts for the same act. Id. A "defendant's doublejeopardyrights are violated ifhe or she is convicted ofoffenses that are identical both in fact and in law." State v. Calle, 125 Wn.2d 769, 777, 888 P.2d 155 (1995). "If there is an element in each offense which is not included in the other, and proofofone offense wouldnotnecessarily also prove the other, the offenses are not constitutionally the same and the doublejeopardy clause does notprevent convictions for both offenses." Id. (quotingState v. Vladovic, 99 Wn.2d 413,423,662 P.2d 853 (1983)). Child molestation is not a lesser included offense ofchildrape. State v. French, 157 Wn.2d 593,610-11, 141 P.3d 54 (2006). Thus, a conviction for both child molestation and child rape does not violate doublejeopardy. Id. at 611,n.11. Despite the fact that child rape and child molestation do not stand in a lesser included relationship to each other, Mr. Middleworth argues thatthe distinct acts instruction was still necessary in**th~s** case because ofState v. Land, 172 Wn. App. 593, 295 PJd 782 (2013). There, Division One ofthis court concludedthat a distinct act instruction should have been given in a case ofchild rape and child molestation where 

### 8No.30850-2-III State v. Middleworth

there was an allegation oforal-genital contact. Id. at 600. In that circumstance, theLand court believed thatthe definitions ofsexual molestation and sexual intercourse overlapped, leading to thepossibility ofan oral rape also amountingto molestation. Id. at 599-600. Onthat basis, the court concludedthat it was appropriate to considerthe defendant's doublejeopardy argument, although it ultimately found the lack ofthe instruction harmless under the facts ofthe case. Id. at 600-03. The court determinedthat the offenses were the same in law and fact in this circumstance. Id. at 600. AlthoughLandappears to conflate the identical "in fact and in law" test5 and is in conflict withFrench, we need not decide whether ornot we agree withLandbecause it is not factually apropos here. There wereno allegations oforal-genital contact and the

concerns the Landcourt had about the offenses beingthe same in law and in fact are not presentedhere. Mr. Middleworth has not establishedthat the offenses are the same 

### in law and in fact, even underthe modified approach undertaken by Land.

5Landis the only case to apply the distinct acts instruction to different charges, a significant expansion ofthe doctrine. Landrelied for its same "in fact and in law" analysis uponState v. Hughes, 166 Wn.2d 675,212 P.3d 558 (2009). There the court held that second degree rape predicatedupon the victim's inability to consent and second degree child rape were the same in law because both required the prosecutionto prove an element ofnonconsent. Id. at 684. InLand, the court looked atthe definitional level to find the offenses to be the same "in law" rather than at the elements level. 172 Wn. App. at 600. This approach is a dramatic change in the same "in law"prong ofdouble jeopardy analysis. 9

### No. 30850-2-II1 State 

### v. Middleworth



### He thus has not established that the court erred by declining to give his requested "distinct acts" instruction. Although we cannot see why the courtwould not have given the instruction, it was not an abuse ofdiscretion to decline to do so. There was no error. WPIC4.01 

### Mr. Middleworth also argues that the court erred in instructing thejurywith the modified WPIC 4.01. 6 

### He contends that the instruction misdirects thejurors by referencing an "abiding beliefin the truth 

### ofthe charge." We believe that the instruction couldproperly use the word "truth" without running afoul ofthe constitution. "Jury instructions, taken in their entirety, must inform thejurythat the State bears the burden ofproving every essential element ofa criminal offense beyond a reasonable doubt." State 

### v. Pirtle, 

### 127 Wn.2d 628, 656, 904 P.2d 245 (1995). An instruction that relieved the State ofits burden would constitute reversible error. Id. 

### This type of challenge is reviewed de novo "in the context ofthe instructions as a whole." Id. 

### WPIC 4.01 reads: [The] [Each] defendant has entered a plea ofnot guilty. Thatplea puts in issue every element of[the] [each] crime charged. The [State] [City] [County] is the plaintiffand has the burden ofproving each element of[the] [each] crime beyond a reasonable doubt. The defendant has no burden ofproving that a reasonable doubt exists [as to these elements].

6 

### He also argues that the prosecutor committed misconduct by arguing the instruction. While we doubt that aprosecutor would engage in misconduct by relying upon one ofthe court's instructions, we need not reach this derivative argument in light ofour conclusion that the instruction was proper. 10No. 30850-2-111 State v. Middleworth

A defendant is presumed innocent. This presumption continues throughout the entire trial unless during your deliberations you find it has been overcome by the evidence beyond a reasonable doubt. A reasonable doubt is one for which a reason exists and may arise from the evidence or lack ofevidence. Itis such a doubt as would exist in the mind ofa reasonable person after fully, fairly, and carefully considering all ofthe evidence or lack ofevidence. [If, from such consideration, you have an abiding beliefin the truth ofthe charge, you are satisfied beyond a reasonable doubt.] With case appropriate choices for the bracketed material in the first paragraph, and includingthe now challenged last sentence in paragraph three, the trial court used this ins.truction. The final optional sentence in WPIC 4.01 has beenupheld against numerous claims that the "abiding belief'portion either dilutes the State's burden ofproofor shifts the burden ofproofto the defendant. Pirtle, 127 Wn.2d at 656-58; State v. Lane, 56 Wn. App. 286, 299-301, 786 P.2d 277 (1989); State v. Mabry, 51 Wn. App. 24, 25,751 P.2d 882 (1988); State v. Price, 33 Wn. App. 472, 475-76, 655 P.2d 1191 (1982). Based on a
case raising the issue in a different context, Mr. Middleworth now challenges the "belief in the truth" portion ofthe sentence as confusing or misleading to thejury. In State v. Emery, the prosecutor during closing argumenttold thejurythat the Latin root from which we getthe word "verdict" means to "speakthe truth" and that "[y]our verdict should speakthe truth." State v. Emery, 174 Wn.2d 741, 751,278 P.3d 653 (2012). The Supreme Courtheld that it is misconduct for a prosecutorto tell thejury that itsjobis to "speakthetruth": 11No. 30850-2-111 State v. Middleworth

We hold that the prosecutor's truth statements are improper. Thejury'sjob is notto determine the truth ofwhathappened; ajurytherefore does not "speakthe truth" or "declare the truth." Rather, ajury'sjob is to determine whetherthe State has proved the charged offenses beyond a reasonable doubt. Id. at 760 (citations omitted). The court explained that such statements could have "confusedthejury about its role and the burden ofproof." Id. at 763. Seizing onthis language, Mr. Middleworth argues thatthe "abiding beliefin the truth" language is the equivalent oftelling thejurythat itsjob is to "determinethe truth ofwhathappened." Other state and federal courts have addressed this issue. The

consensus from those courts is that "truth" is not a bad word. Problems with "search for the truth" instructions arise only when the instructions misdirect orredirect thejury's focus. Victor v. Nebraska, 511 U.S. 1,6, 114 S. Ct. 1239, 127 L. Ed. 2d 583 (1994). If the instruction suggests "thatthejurors embark on 'their own intuitive search for the truth'" then it must be reversed. Moore 

### v. State, 283 Ga. 151, 155,656 S.E.2d 796 (2008).7 Ifthe instruction tells thejury "to determine the truth in view ofthe evidence, considered in light ofthe court's instructions," then it suffices. Id.

7Other cases include State 

### v. Aleksey, 343 S.C. 20, 26-29, 538 S.E.2d 248 (2000); State v. Weisbrode, 653 A.2d 411, 416-17 (Me. 1995); State v. Marshall, 123 N.J. 1,225­ 28,586A.2d 85 (1991); State 

### v. Purnell, 126 N.J. 518, 544-45, 601 A.2d 175 (1992). Notably, one state-Vermont-hasrejected a truth instruction very similarto the instruction here. State v. Giroux, 151 Vt. 361, 363-65, 561 A.2d 403 (1989) (rejecting "convinced the charge is true"). 12No. 30850-2-111 State v. Middleworth

One ofthe best explanations for why "search for truth" instructions are fraught with danger comes from the Fifth Circuit: As an abstract concept, "seekingthe truth" suggests determining whose version ofevents is more likely true, the government's orthe defendant's, and thereby intimates a preponderance ofevidence standard. Such an instruction would be error ifused in the explanation ofthe concept ofproofbeyond a reasonable doubt. UnitedStates v. Gonzalez-Balderas, 11 F.3d 1218,1223 (5th Cir. 1994).8 These cases convince us thatthe "beliefin the truth" language in WPIC 4.01 is sufficient under the constitution because it properly directs thejury's attention to its constitutional task by anchoring its search for the truth to the truth ofthe charges. WPIC 4.01 directs thejuryto determine the truth ofthe charges (i.e. every element ofthe crimes charged) and to do so after "such consideration," which means "after fully, fairly, and carefully considering all ofthe evidence or lack ofevidence." In context, the language does not misdirect thejury or otherwise changes its focus from its constitutional obligation to determine whetherthe elements ofthe crime have been provenbeyond a reasonable doubt. The instruction is not constitutionally deficient.

8Other federal circuit courts have also criticized and openly discouraged "search for truth" instructions for the reasonthat they are hard to getright and" often times, if viewed in isolation, would constitute reversible error. UnitedStates v. Shamsideen, 511 F.3d 340,347-48 (2d Cir. 2008); UnitedStates v. Wilson, 160 F.3d 732, 747 (D.C. Cir. 1998); UnitedStates 

### v. Pine, 609 F.2d 106, 108 (3d Cir. 1979). 13No.30850-2-II1 State v. Middleworth Discovery Violation Using an amalgam oftheories, Mr. Middleworth next argues that the court erred by failing to dismiss the charges after the late discovery ofthe tape ofthe second interview. He has not shown any entitlementto that remedy. Because ofthe way this issue is presented, we must considervarying standards governing discovery and governmental behavior impacting a fair trial. Discovery in a criminal case is governed by CrR4.7. Critical to this case is CrR 4.7(a)(4), which provides that: Theprosecuting attorney's obligation underthis section is limited to material and information withinthe knowledge, possession or control of members ofthe prosecuting attorney's staff. CrR4.7(h)(7) provides broad discretionto fashion an appropriate remedy for violations ofthe rule, includingthe granting ofa continuance or dismissal ofan action. CrR 4.7(h)(7)(i). Counsel may be personally sanctioned for willfully violating the rule or discovery order. CrR4.7(h)(7)(ii). The Due Process Clause ofthe United States Constitution requires the government provide any exculpatory information to the defense. Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d215 (1963). 

### A Bradyviolation occurs when: (1) the evidence at issue is favorable to the accused, eitherbecause it is exculpatory or impeaching; (2) the evidence was suppressed by the State, eitherwillfully orinadvertently; and (3) the evidence is material in the sense that ifit had been disclosed to the defense, there is a 14No.30850-2-III State v. Middleworth
reasonableprobability that the result ofthe proceeding would have been different. Strickler v. Greene, 527 U.S. 263, 281-82, 119 S. Ct. 1936, 144 L. Ed. 2d 286 (1999). A Bradyviolation occurs when the information is known to law enforcement, even ifnot known by the prosecutor. State v. Mullen, 171 Wn.2d 881, 894, 259 P.3d 158 (2011). If the evidence could have been discovered by the defense, there is no violation. 

### Id. at 896. CrR 8.3(b) empowers a court to dismiss an action when "due to arbitrary action or governmental misconduct" thatprejudices the rights ofthe defendant, there has been a material effect on the "rightto a fair trial." The trial court's rulings under CrR 8.3(b) are reviewed for abuse ofdiscretion; the extraordinary remedy ofdismissal is only appropriate when there has been such prejudice that no other action would ensure a fair trial. State v. Garza, 99 Wn. App. 291,295,994 P.2d 868 (2000). As noted, Mr. Middleworth combines these three theories while arguingthat the action should have been dismissed. However, not all ofthese rules are applicable to this

case and they cannot be combined in the manner he desires. As noted, the discovery rules apply only to materials within the possession ofthe prosecutor's office. CrR4.7(a)(4). That was not the case here. The videotape was in the possession and control ofCPS, not the prosecutor's office. Accordingly, there was no violation ofthe criminal discovery rules. Brady likewise does not aid Mr. Middleworth here. Even ifwe assume that CPS

was performing a law enforcement function, thus bringing this case within the orbit of 15No.30850-2-II1 State v. Middleworth Brady, the argument founders onthe materiality prong ofthe Brady test. 9 Even after the tape was disclosed, neitherparty sought to admit it at trial. As noted by the trialjudge, B.D. did notprovide any information that suggested someone else had raped and molested her. There was no apparent prejudice tothe defense from the late disclosure of the videotape's existence. The defense had the opportunity to call witnesses related to thetape and hadtime to investigate the matterbefore putting on its defense. Forboth reasons, Mr. Middleworth has failed to establish a Bradyviolation. For similarreasons there was no basis for granting reliefunder CrR 8.3(b). Assumingthere was governmental misconduct, it did not materially affect the defendant's right to a fair triaL The court continued the matter five days priorto the defense presentation ofthe case in order to investigate the videotape and summon any additional witnesses. There is no indication that any witnesses were missing orthat more time was neededto investigatethe videotape. Mr. Middleworth has not shownthat he

was so significantlyprejudiced that only a dismissal ofthe case could remedy the situation. Garza, 99 Wn. App. at 295. CrR 8.3(b) simply does notprovide a basis for relief.

9 Given thatthe existence ofthe second interview was disclosed at the first trial, there is an open question ofwhether ornotthe government suppressed anything. We need notresolvethat matter here due to the failure to establish materiality. 16i No. 30850-2-111 State v. Middleworth
The missing videotape was treated by the court as a discovery issue and the 

## I defense was given appropriate time to investigate and respond to it in a timely fashion. No further remedy was required. i 

## ! Restitution The final challenge presented by Mr. Middleworth is a contention that the trial 

# i I courterred in ordering restitution tothe prosecutor's office ofexpert witness costs. We 

# I agree that these expenses are not subject to restitution. 

### I I There is significant case and statutory authority governing restitution awards. The authority to impose restitution is wholly statutory. State v. Griffith, 164 Wn.2d 

# I
960,965, 195 P.3d 506 (2008). RCW 9A.20.030(1) provides in part: 

## t 

# i Ifa person has gained money orproperty or caused a victim to lose money 

### f orproperty through the commission ofa crime, upon conviction thereof

... I the court ... may order the defendant to pay an amount, fixed by the court, I f not to exceed double the amount ofthe defendant's gain or the victim's loss from the commission ofa crime. Such amount may be used toprovide 

# i f restitution to the victim at the order ofthe court. ! l 

# f This statute ofgeneral application applies to both district and superior courts; the s**~** } Sentencing Reform Act applies it in this manner: "Restitution shall be ordered whenever 

### f , the offender is convicted ofan offense which results in injury to any person or damage to

or loss ofproperty." RCW 9.94A.753(5). We review a restitution order for an abuse of discretion. State v. Dedonado, 99 Wn. App. 251, 255-56, 991 P.2d 1216 (2000).

17No. 30850-2-III State v. Middleworth 

# I ! ! ! In interpreting the restitution statutes, we must "recognize that they were intended to require the defendantto face the consequences ofhis orher criminal conduct." State v. 

# I ! Tobin, 161 Wn.2d 517,524, 166 P.3d 1167 (2007). Accordingly, the court should not 

# I i i engage in an overly technical construction that would permit the defendantto escape fromjustpunishment. 

### ld. The legislature intended "to grant broadpowers ofrestitution" 

### f 

## r to the trial court. State v. Davison, 116 Wn.2d 917, 920, 809 P.2d 1374 (1991). f I 

## i The amount ofrestitution mustbe established by a preponderance ofthe evidence. 

### i, 

### t State v. Kinneman, 155 Wn.2d 272,285, 119 P.3d 350 (2005). Evidence is sufficientto 

## f 

# i , support a restitution order ifit provides a reasonable basis, other than conjecture or speculation, to estimate the loss. 

### ld.; State v. Fleming, 75 Wn. App. 270, 274-75, 877 

# I I f P.2d 243 (1994). Restitution is not limited to cases where the damage computation is simple. Kinneman, 155 Wn.2d at 285. 

## t r The court ordered restitution to Molina Healthcare in an amount to be determined 

# t I i as well as restitution to the Walla Walla County Prosecutor's Office in the amount of I 

### t $2,597.22 for "expertwitness fees." The award to Molina is in reference to B.D. 

## I i Although 

### Mr. Middleworth challenges both awards, we will only address the award to the 

## f f i

### , prosecutor's office. On its face, there is nothing obviously wrong about an award to a 

### I 

# ! healthcare provider for the victim. More importantly, since there is no amount awarded

18

### No. 30850-2-111 State 

### v. Middleworth

at this time, IO 

### there is little to discuss. Ifthat award is updated, Mr. Middleworth can challenge it ifhe has a basis for doing so. At this point there is nothing to review. The award to the prosecutor for expert witness fees is another matter. Restitution is to the victim or others who incurred costs on her behalf. Forthe purpose ofcollecting the expenses ofprosecution, the prosecutor is not a "victim" under the restitution statute. CfState v. Kisor, 82 Wn. App. 175, 183-84,916 P.2d 978 (1986) (officer not a victim despite loss ofpersonal time spent with police dog killed by defendant, although county could recoup costs oftraining a new dog). Costs, including expertwitness expenses, can be recovered. See State v. 

### Baggett, 103 Wn. App. 564, 571-72, 13 P.3d 659 (2000), review denied, 143 Wn.2d 1011 

### (2001) (upholding award ofexpert fees as a recoverable costunderRCW 10.01.160(1». However, an award ofcosts is not an award ofrestitution. Restitution is mandatory under our statutes and is ordered without regard to the defendant's ability to pay. Costs can only be imposed after the court finds that the defendant has the ability to pay them. RCW 10.01.160(3). Restitution has priority over court costs. RCW 9.94A.760(1). Court costs also can be remitted under certain circumstances. RCW 10.01.160(4). Thus, restitution and costs differ in many significantregards. It

### was error to treat the expert fees, which appear to be a cost, as restitution.

10 

### We have not been presented with any updated information about restitution. 19No. 30850-2-111 State v. Middleworth

We reverse the restitution awarded for the expert witness fees. In all other respects, thejudgment is affinned. Affinned in part, reversed in part. A majority ofthe panel has detennined this opinion will not be printed in the Washington Appellate Reports, but it will be filed for public record pursuantto RCW 2.06.040.

# ~rsmo,R WE CONCUR:

Kulik, J.P.T.

20