*730¶33 (dissenting) — Captain Michael Zambryski testified that it was Janae We who had the opportunity and means to carry out the fire and, based on financial information he received, she was motivated to do so by insurance fraud. This is an improper opinion of guilt and a manifest constitutional error that was not harmless error. Alternatively, the failure to object constitutes ineffective assistance of counsel. I also agree with Ms. We’s contention that the trial court erred in ordering the minimum monthly restitution payment because the figure was based on the untenable reason that the total restitution must be paid within 25 years. I must therefore respectfully dissent.
Schultheis, J.Opinion as to Guilt
¶34 To determine whether a manifest error exists, we ask: (1) does the alleged error present a constitutional issue, (2) did it have practical and identifiable consequences, (3) what are the merits of the constitutional issue, and (4) was the error harmless? State v. Lynn, 67 Wn. App. 339, 345, 835 P.2d 251 (1992).
¶35 Improper opinion testimony violates a defendant’s right to a jury trial and invades the fact-finding province of the jury. State v. Dolan, 118 Wn. App. 323, 329, 73 P.3d 1011 (2003) . Since testimony concerning an opinion on guilt violates a constitutional right, it generally may be raised for the first time on appeal. State v. Florczak, 76 Wn. App. 55, 74, 882 P.2d 199 (1994); State v. Carlin, 40 Wn. App. 698, 700 P.2d 323 (1985), overruled on other grounds by City of Seattle v. Heatley, 70 Wn. App. 573, 854 P.2d 658 (1993); State v. Saunders, 120 Wn. App. 800, 811, 86 P.3d 232 (2004); Dolan, 118 Wn. App. at 329; State v. Demery, 144 Wn.2d 753, 759, 30 P.3d 1278 (2001); see RAP 2.5(a)(3).
¶36 The error had practical and identifiable consequences in this case because the fire examiner had a “special aura of reliability.” Demery, 144 Wn.2d at 765. A government officials testimony often carries a special aura of reliability and trustworthiness and therefore may be particularly prejudicial. State v. Barr, 123 Wn. App. 373, *731381-82, 98 P.3d 518 (2004); Demery, 144 Wn.2d at 765. Further, there were no eyewitnesses and the State presented only circumstantial evidence. The error was manifest and constitutional.
¶37 To determine whether a witness statement is impermissible opinion testimony, our courts consider: (1) the particular circumstances of the case, (2) the type of witness involved, (3) the nature of the testimony and charges, (4) the types of defenses, and (5) the other evidence before the trier of fact. Heatley, 70 Wn. App. at 579.
¶38 Captain Zambryski testified here that when performing a fire investigation, he looks for three components: means (the capability of the person to start the fire), opportunity (the time to carry out the fire), and motive (the reason behind starting the fire). As for means, Captain Zambryski testified that Ms. We was physically capable of carrying out the fire and she told him the materials to do so were in the home. For opportunity, he stated that the duplex owner was in Florida, there was no one other than Ms. We in the duplex, and the area itself was isolated and even more so at night.
¶39 Concerning motive, the State asked:
Q And based upon your investigation and your training and experience, who had the motive to set this fire?
A The defendant.
III Report of Proceedings (RP) (Feb. 17 & 22, 2005) at 500. The State inquired about the financial records Captain Zambryski reviewed and examinations under oath conducted by the insurance company. The examination continued:
Q Did those examinations have any bearing as part of your determination of motive?
A Yes, they did.
Q Did the financial records that you reviewed, as well as the summaries of the financial records, have any bearing on your determination of motive?
A Yes.
*732Q And what did you determine to be the defendant’s motive for this fire?
A Insurance fraud.
II RP (Feb. 17 & 22, 2005) at 501-02.
¶40 The crime of first degree arson, as it was charged here, requires a finding that the defendant caused the fire with the intent to collect insurance proceeds. RCW 9A.48.020(l)(d). Although motive is not an essential element of the offense, that term was not defined for the jury, and motive is so closely associated with the element of intent, the two would be virtually indistinguishable to the jury.5
¶41 The fire captain’s statements on motive were direct opinions of guilt. Taken as a whole, his testimony constituted a direct and clearly identifiable conclusion that Ms. We committed the arson and her reason was to collect insurance money. These are conclusions for the jury. It was improper for Captain Zambryski to make them.
¶42 A similar view was held by a majority of the Idaho Supreme Court in State v. Walters, 120 Idaho 46, 813 P.2d 857, 868 (1991) (Boyle, J., specially concurring).6 In Walters, an arson defendant claimed, as Ms. We does here, that the failure to object to an arson expert’s opinion of guilt was both ineffective assistance of counsel as well as a fundamental error affecting a constitutional right that could be raised for the first time on appeal. The court ruled that the conviction could be reversed on either ground. Id. at 870.1 agree.
*733¶43 As in this case, in Walters, a state fire investigator testified that he thought the defendant started the fire and then he supported the opinion with his reasons that he thought the defendant intentionally set it. Id. at 872 (Bakes, C.J., dissenting). The Walters dissent perceived that the testimony was not a statement of guilt because the fire expert did not say that the defendant was “guilty.” Id. at 872 n.5 (Bakes, C.J., dissenting). This is the premise upon which the majority opinion in this case is based.
¶44 The majority in Walters correctly noted:
While an expert may, as here, testify that in his opinion a fire was “deliberately set” and that it was “a case of arson,” these opinions are permissible because they are the “ultimate issues” within the expert’s expertise as contemplated under [Idaho Rule of Evidence] 704. However, if we allow an expert on the cause of fires to weigh the evidence and testify as to who he believes is guilty of the crime of arson, we would be allowing the “expert” to leave the realm of his expertise and invade the province of the jury. The jury alone has the responsibility to weigh the evidence and conclude the “ultimate issue” of guilt or innocence.
Id. at 813 (Boyle, J., specially concurring).
¶45 I agree with the majority here that opinion testimony from which the jury can infer guilt, elicited by a question that seeks a factual opinion on an ultimate issue rather than a conclusion as to the ultimate issue, does not constitute a comment on guilt. But a direct or an implicit statement of guilt, elicited in a manner that seeks a conclusion on the ultimate issue rather than a factual opinion on the ultimate issue, is a comment on the defendant’s guilt. Accord Wash. State Physicians Ins. Exch. & Ass’n v. Fisons Corp., 122 Wn.2d 299, 344, 858 P.2d 1054 (1993) (“Legal opinions on the ultimate legal issue before the court are not properly considered under the guise of expert testimony.”); see, e.g., State v. Garrison, 71 Wn.2d 312, 315, 427 P.2d 1012 (1967) (holding that asking the proprietor of a burglarized tavern whether or not he thought the defendant was one of the parties who participated in the burglary was a question calculated to elicit an *734opinion on whether or not the appellant was guilty); State v. Haga, 8 Wn. App. 481, 490, 492, 507 P.2d 159 (1973) (holding that an ambulance driver’s testimony implied his opinion that a murder defendant was guilty where the prosecutor’s questions were phrased to elicit a conclusion rather than facts from which the jury could decide).
¶46 The State’s examination was not phrased to present testimony that the fire had to be caused by someone under certain conditions; the State asked who it was and Captain Zambryski said it was Ms. We. The State did not ask if Ms. We had a motive to carry out the fire; the State asked and Captain Zambryski responded that she had the motive to do it.
¶47 I disagree that Captain Zambryski’s testimony is admissible. ER 704 allows for the admission of an opinion or inference on an ultimate issue that the trier of fact must decide, provided that the opinion or inference is otherwise admissible. Heatley, 70 Wn. App. at 578-79. To be otherwise admissible, opinion evidence must also satisfy ER 403, ER 701, and ER 702. Id. at 579.
¶48 The record shows that Captain Zambryski was testifying as an expert under ER 702. “But the expert testimony of an otherwise qualified witness is not admissible if the issue at hand lies outside the witness’ area of expertise.” State v. Farr-Lenzini, 93 Wn. App. 453, 461, 970 P.2d 313 (1999) (citing Queen City Farms, Inc. v. Cent. Nat’l Ins. Co. of Omaha, 126 Wn.2d 50, 103-04, 882 P.2d 703, 891 P.2d 718 (1994)). The defense objection to Captain Zambryski’s testimony regarding the financial analysis was sustained because the State had a qualified expert in that area. The court ruled that Captain Zambryski was not an expert on finances. He certainly was not, then, qualified to testify as an expert on financial motivation. See id. (holding police officer was not qualified to testify as an expert on the driver’s state of mind).
¶49 The error in this case was not harmless. In its appellate brief, the State conceded to numerous shortcomings in Captain Zambryski’s investigation that were ad*735dressed on the record. These shortcomings highlight the witness’s failure to consider other suspects and that his focus was solely on Ms. We. And that reinforces the conclusory opinion he offered concerning Ms. We’s guilt. The untainted evidence, because it is circumstantial and there are no eyewitnesses, would not overwhelmingly lead to a conviction.
¶50 The court in Walters also held that under the circumstances, both prongs of the Strickland test were met, i.e., deficient performance and resulting prejudice.7 As to the first prong, the court noted:
Trial counsel’s inexplicable failure to object to [the fire expert’s] extremely damaging opinion that the defendant was guilty of setting the fire was an error so serious that we rule that counsel was not functioning as the “counsel” guaranteed by the sixth amendment. Trial counsel’s failure to object to [the fire expert’s] damaging opinion is on par with the failure by counsel ... to suppress the damaging testimony of [a police officer].
Walters, 813 P.2d at 867.
¶51 On the second prong, the majority held:
When an arson expert declares that it was the defendant who set the fire in the house, there can be little doubt that the jury was impressed and influenced by the authoritative statement. Had [the fire expert] been prevented from declaring his damaging opinion, there is at the least a reasonable probability that the outcome of the proceeding would have been different.
Id. at 867-68.
¶52 The court held that the probability that a different result would occur was sufficient to undermine the confidence in the outcome. Id. at 867 (quoting Strickland, 466 U.S. at 694). Considering the absence of eyewitnesses or confessions, the court held that “it is impossible to say that the accusation by the arson expert did not have a substan*736tial influence on the verdict.” Id. at 868. The same is true here.
¶53 I would therefore reverse because the testimony was an improper opinion of guilt and not harmless error and/or ineffective assistance of counsel.
Restitution
¶54 Ms. We argues that the calculation of the minimum monthly payment was improper because the court did not follow the restitution statute. The trial court ordered amortization of the total restitution amount plus statutory interest over 25 years. That ultimately resulted in payments of $2,718.88 per month for 25 years. Significantly, the trial court did not participate in setting the minimum monthly amount. The prosecutor made the computations and prepared the order.
¶55 The amortization in and of itself is not inappropriate. It would be a proper exercise of discretion to require an early restitution payoff under proper circumstances. But the 25-year payment period in this case was based on the incorrect assumption that the restitution must be paid within 25 years.8
¶56 For the purposes of restitution for the arson in this case, she will remain under the court’s jurisdiction until the obligation is completely satisfied. RCW 9.94A.753(4). The court focused on abiding by a nonexistent 25-year time limit, disregarding Ms. We’s ability to make the minimum monthly payment.
¶57 The issue of Ms. We’s resources was contested at trial. The State, in order to advance its theory that she was *737motivated to commit insurance fraud, presented evidence and argued at trial that Ms. We was quickly running out of money. Ms. We presented evidence and argued that she had enough money in a trust account in Belize to live on for two years. While there was some evidence of Ms. We’s financial status in the court file, there is no indication the restitution judge (who was not the same judge that heard her trial) reviewed it.
¶58 Further, the trial court may rely only on information admitted, acknowledged, or proved in a trial or at the restitution hearing, and not on disputed information unless the factual dispute is resolved in an evidentiary hearing. RCW 9.94A.530(2); State v. Tindal, 50 Wn. App. 401, 748 P.2d 695 (1988). Although Ms. We was convicted, the jury did not have to determine her financial status to find her guilty.
¶59 Given that the trial court did not inquire into any of the statutory factors of RCW 9.94A.753(1) when setting the minimum monthly payment and, instead, set the payment amount on an erroneous basis, I would hold that the restitution order should be reversed and remanded for consideration of proper factors for the minimum monthly payment.
Review denied at 163 Wn.2d 1008 (2008).
“ ‘ “Motive” is said to be the moving course, the impulse, the desire that induces criminal action on part of the accused; it is distinguished from “intent” which is the purpose or design with which the act is done, the purpose to make the means adopted effective.’ ” State v. Powell, 126 Wn.2d 244, 260, 893 P.2d 615 (1995) (quoting Black’s Law Dictionary 1014 (6th ed. 1990)). The jury was instructed on intent: “A person acts with intent or intentionally when acting with the objective or purpose to accomplish a result which constitutes a crime.” Clerk’s Papers at 60.
Justice Boyle’s concurring opinion was issued on rehearing and joined by two other justices, and therefore represents the majority view. Milburn v. State, 130 Idaho 649, 946 P.2d 71, 80 (Ct. App. 1997).
Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). Washington has also adopted the Strickland test. State v. Thomas, 109 Wn.2d 222, 225-26, 743 P.2d 816 (1987).
In her restitution brief filed with the trial court, Ms. We cited RCW 9.94A.753(5) for the proposition that there is a 25-year time limit in which to pay restitution. RCW 9.94A.753(6) addresses a 25-year restitution time limit, but that subsection is limited to cases involving rape of a child in the first, second, or third degree, when the victim becomes pregnant so that the costs associated with the pregnancy and care of the child can be reimbursed. The trial court then repeated the urgency of the restitution payment: “I recognize that the amount payable would need to be structured to come within that 25 year window.” RP (Sept. 22, 2005) at 25.