State Of Washington v. Kevin Mark Himple ( 2018 )

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IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
THE STATE OF WASHINGTON, )
) No. 75298-7-1
Respondent, )
) DIVISION ONE
v. )
) UNPUBLISHED OPINION
KEVIN MARK HIMPLE, )
)
Appellant. ) FILED: January 16, 2018
)
APPELWICK, J. — Himple was convicted of first degree rape of a child in King
County. He argues that the trial court abused its discretion when it convicted him
for an act that allegedly occurred in Snohomish County. We affirm.
FACTS
Kevin Himple lived with his then wife and her son and daughter, V.E., at the
Lazy Wheels Mobile Home Park in Bothell, King County, Washington. V.E. was
five or six years old when her mother and Himple's relationship began.
Himple took care of V.E. while her mother was at work. Himple helped V.E.
with baths. While her mother was at work, V.E. testified that Himple would kiss
her in a "normal family" way, but then started kissing her with his tongue. She
stated that after she got home from school, when she was alone in the home with
him, Himple would remove both of their clothing. Himple then orally raped her,
had her perform oral sex on him, watched pornography, and masturbated in front
of her. V.E. stated that this happened "too many times to count." V.E. also testified
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that one time Himple attempted to have vaginal intercourse with her. The one
incident that did not happen at the Lazy Wheels Mobile Home Park occurred after
Himple and V.E.'s mother separated. It happened at Himple's mother's house in
Snohomish County. On that occasion, Himple had her perform oral sex on him.
On January 13, 2011, the State charged Himple in King County with three
counts of first degree rape of a child — domestic violence, for acts occurring
between August 30, 2004 and March 31, 2006. On October 5, 2015, Himple
waived his right to a jury trial. On the same day, the State amended the charges
to two counts of first degree rape of a child, and one count of first degree child
molestation. The State also extended the charging period for the incidents through
September 30, 2006.
Himple did not object to the amended information. Himple informed the trial
court that he had no intention of objecting, as long as the conduct the State was
alleging during the extended time period occurred at Himple's mother's house in
Snohomish. The court allowed the amended information, and moved forward with
the trial.
At the close of the State's evidence, Himple moved to dismiss all three
counts. He stated that, under the law of the case doctrine, the State was required
to prove that all the acts had occurred in King County, as it had alleged that in its
information. He argued that the State had not given evidence that specified that
the alleged acts for counts one and two happened in King County. He also argued
that there was testimony that the act underlying count three happened in
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Snohomish County, and not King County. He stated that he was not raising the
issue of venue:
And I'm carefully distinguishing this from venue. Venue is a
separate issue and one that 1 would have had to have raised far
earlier than this.
The court denied Himple's motion, stating that the law of the case doctrine does
not apply in bench trials.
After the parties rested, the court found credible V.E.'s testimony about the
first time Himple had sexual contact with her. But, the court found that it occurred
between 2002 and 2003, prior to the charging period. The court found credible
V.E.'s testimony about Himple's attempt to have vaginal intercourse with her. But,
because it found that the incident might or might not have occurred during the
charged period, the State had failed to prove beyond a reasonable doubt that
Himple had committed first degree rape of a child for this incident. The court found
credible V.E.'s testimony about the incident that happened at Himple's mother's
house in Snohomish County. The court found that the State had proven beyond a
reasonable doubt that this incident occurred between August 30, 2004 and
September 30, 2006. Himple was convicted of one count of first degree rape of a
child.
Himple then moved for a new trial. He argued that venue was improper.
He contended that when the State amended the charges it included an allegation
that occurred in Snohomish County, but it did not indicate that the alleged act
occurred in Snohomish County rather than King County. Himple also argued that
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he did not voluntarily and intelligently waive his constitutional right to be tried in
Snohomish County for the act that allegedly occurred in Snohomish County.
The trial court denied Himple's motion for a new trial:
So regarding Mr. Himple's motion for a new trial, I do find that
the state properly charged Mr. Himple in King County pursuant to
CrR 5.1(b). Mr. Himple clearly failed to object to improper venue in
a timely fashion or in any fashion and thereby he waived his
constitutional right to venue.
Third, there's no case law or law to support the proposition
that the right to waive requires an affirmative acknowledgment or
express waiver by the defendant or some kind of colloquy or the court
actually wading into what I think is clearly attorney-client matters and
strategy. So with that said, I make a finding that the right to waive
venue is procedural and/or tactical and does not require an
affirmative acknowledgment or express waiver.
The court sentenced Himple to an indeterminate term of imprisonment of
123 months to life. Himple appeals.
DISCUSSION
Himple argues that his conviction for a crime that allegedly occurred in
Snohomish County violated his rights under article I, section 22 of the Washington
State Constitution. He contends that the trial court should have granted his motion
to dismiss count three at the close of the State's case, because no evidence was
presented that the crime occurred in King County. He also contends that the trial
court should have granted his motion for a new trial. Alternatively, Himple argues
that his counsel was ineffective for failing to properly raise and argue venue.
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I. Venue
Article I, section 22 of the Washington Constitution provides that: "[i]n
criminal prosecutions the accused shall have the right. . . to have a speedy public
trial by an impartial jury of the county in which the offense is charged to have been
committed." WASH. CONST. art. I, § 22. Additionally, CrR 5.1 governs the proper,
venue for the commencement of criminal actions. CrR 5.1(a) provides that an
action shall be commenced either: "(1) In the county where the offense was
committed;" or "(2) In any county wherein an element of the offense was committed
or occurred." And, where there is reasonable doubt whether an offense has been
committed in one of two or more counties, the action may be commenced in any
of the relevant counties. CrR 5.1(b). Further, CrR 5.1(c) provides that if a case is
filed under CrR 5.1(b) and there is reasonable doubt about where the offense
occurred, the defendant"'shall have the right to change venue to any other county
in which the offense may have been committed.'" State v. Stearman, 187 Wn.
App. 257, 266, 348 P.3d 394 (2015). So, the defendant's right to change venue
under CrR 5.1(b) and (c) arises only when a case is filed in one county but there
is reasonable doubt as to whether the crime actually occurred there. Id.
Proper venue is not an element of the crime. State v. Rockl, 130 Wash. App.
293, 297, 122 P.3d 759 (2005). Rather, it is a constitutional right that is waived if
not asserted in a timely fashion. Id. A decision denying a change of venue will be
disturbed only for an abuse of discretion. Id. A trial court abuses its discretion,
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when its decision is manifestly unreasonable or based on untenable grounds or
reasons. State v. Powell, 126 Wash. 2d 244, 258, 893 P.2d 615 (1995).
A. Right to Change Venue
In Rockl, police saw the defendant drive a stolen truck in King County, after
which he led police on a chase into Pierce County. 130 Wash. App. at 295. Rockl
was charged in King County with first degree possession of stolen property and
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attempting to elude a police vehicle. Id. During his arraignment, Rockl moved
under CrR 5.1(c) to change venue to Pierce County, arguing that his alleged
criminal conduct occurred in both King and Pierce Counties. Id. The trial court
denied the motion. Id. On appeal, this court noted that in cases where a crime
clearly occurred in more than one county, courts dismissed change of venue
motions that were not based on prejudice under CrR 5.1(a), on the ground that
venue was proper in either county where the defendant's criminal acts, or some of
them, took place. 130 Wash. App. at 298. In that case, the court found that Rockl
committed his offenses in more than one county, therefore either could charge him.
Id. The affidavit of probable cause and the trial testimony established that Rockl's
criminal acts occurred in both King and Pierce Counties. Id. Because there was
no reasonable doubt Whether an'offense had been committed in one of two or
more counties, therefore CrR 5.1(c) did not apply and did not give him a right to
change venue. Id. at 298-99.
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In State v. Price, the court found that the defendants knew prior to trial that
the State's main witness on the three counts placed his actions in a different county
from the one in which the Information charged. 94 Wash. 2d 810, 816,620 P.2d 994
(1980). Yet, defendants waited almost 3 months to raise the venue issue. Id. The
court held that the defendants were required to object promptly to venue once they
had received information indicating venue would lie in a different county. Id. Their
long and unexplained failure to do so plainly violated the expeditious objection
requirement of CrR 5.1(c). Id. It affirmed the trial court's ruling that any objection
to venue had been waived by this delay. Id.
Here, the certification for determination of probable cause, filed with the
information, alleged that Himple's criminal acts occurred in both King and
Snohomish counties. The certification for determination of probable cause stated
that V.E."disclosed that she was molested by... Himple. .from 2004-2006 when
they lived at[address in Bothell, Washington], within King County." And, it stated,
"V.E. also disclosed that Himple had done the same thing to her at his home in
Snohomish." Therefore, venue was initially proper under CrR 5.1 and Rockl in
both King and Snohomish counties for the three counts the State alleged Himple
committed.
B. Waiver
The defendant may waive the right to challenge venue. State v. Dent, 123
Wn.2d 467,479,869 P.2d 392(1994). In Dent, our Supreme Court held that under
CrR 5.1(b), where there is reasonable doubt whether the offense has been
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No. 75298-7-1/8
committed in one of two or more counties, the right of a defendant to change to the
other county is strictly time limited. Id. at 480. Under CrR 5.1(c), in this scenario,
any objection to venue must be made as soon after the initial pleading is filed as
the defendant has knowledge upon which to make it. See Dent, 123 Wn2d at 480.
Where CrR 5.1 does not apply, the defendant is required to raise the venue
question at the omnibus hearing. Dent, 123 Wash. 2d at 480. Unless the defendant
makes a showing of good cause for not raising the issue at the omnibus hearing,
failure to do so constitutes a waiver. Id. Where evidence introduced during the
trial raises a question of venue for the first time, the defendant must raise the issue
at the end of the State's case. Id.
Here, the State repeatedly presented Himple with information that the State
was alleging acts that occurred in both King and Snohomish counties. First, the
certification for determination of probable cause, regarding Himple's sexual acts,
stated that the alleged acts occurred in both King and Snohomish counties. Himple
did not object to venue after his formal arraignment on April 2, 2014. Prior to trial,
the State informed Himple's counsel that it intended to amend the date range to
include the alleged act that occurred at Himple's mother's house in Snohomish.
During the pretrial hearing, the State moved to amend the charging period in the
information. Himple did not object when the State moved to amend the
information, and Himple noted that the State told him it was amending to include
the act that occurred in Snohomish. Himple failed to object to venue, even though
he was aware pretrial that the State was alleging acts that occurred in both King
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No. 75298-7-1/9
and Snohomish counties. This constitutes a waiver of a venue objection. See
Dent, 123 Wash. 2d at 480.
Under Dent, if evidence at trial raises a question of venue for the first time,
the defendant must raise the issue at the end of the State's case. Id. Not only
was the close of the State's case not the first time Himple was made aware of a
potential venue issue, counsel expressly chose not to object to venue, stating,
"And I'm carefully distinguishing this from venue. Venue is a separate issue and
one that I would have had to have raised far earlier than this." Instead he made a
motion to dismiss.
Himple argues that the trial court abused its discretion in denying Himple's
motion to dismiss count three, even though trial counsel did not properly object to
venue. Himple contends that, because the issue was squarely before the trial
court, and there was a genuine issue of fact about venue, the court should have
addressed it. He relies on Stearman and State v. Quismundo, 164 Wash. 2d 499,
192 P.3d 342(2008).
In Stearman, prior to trial, the State gave an offer of proof that Stearman
had committed at least some elements of his offenses in Pierce County,the county
in which he was charged. 187 Wash. App. at 266-67. But, at trial, the State failed to
produce evidence that any of Stearman's acts occurred in Pierce County. Id. at
269. Therefore, this court held that the trial court abused its discretion when it
refused to consider Stearman's renewed motion to change venue at the close of
the State's evidence. Id. at 269-70. It noted that an error regarding venue may be
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No. 75298-7-1/10
harmless where any reasonable jury could find that venue was proper. Id. at 272.
But, because the State did not provide any evidence that supported the venue
where Stearman was tried, no reasonable jury could have found that Stearman
committed his offenses in Pierce County by a preponderance standard. Id. at 273.
Thus, the court found that the venue error was not harmless. Id.
This case differs from Stearman. In Stearman, venue emerged as an issue
because of the evidence the State offered during the trial. See 187 Wash. App. at
269. Therefore, there was a later trigger point for Stearman to object to venue.
See id. Stearman's objection was timely. See id. Here, Himple was aware that
the State was alleging that criminal conduct had occurred in Snohomish County
before the trial began and he did not timely object.
Himple argues that he did not waive his venue objection at the outset of trial
because it was possible, based on the allegations in the amended information, for
the court to have found that all three charged crimes occurred in King County.
However, the issue is not of what the court might convict the defendant, but
whether the defendant knows of a venue issue. See Dent, 123 Wash. 2d at 480.
Because Himple was aware the information alleged acts in Snohomish County, the
general venue rule applies. He did not object and, therefore, he waived his
objection.
In Quismundo, after the State rested its case, Quismundo moved to dismiss
because the amended information lacked an essential element of the crime for
which he was charged—that he had violated a no-contact order. Quismundo, 164
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Wn.2d at 501. Our Supreme Court held that the trial court abused its discretion
when it allowed the State to reopen its case and amend the insufficient charging
information. Id. at 503-04. The court noted that it was immaterial that Quismundo
went forward with his trial and that the trial court's obligation to follow the law
remains the same regardless of the arguments raised by the parties. Id. at 505-
06. The court held that the trial court should have dismissed the charges against
Quismundo without prejudice once the insufficiency of the amended information
was revealed, even though Quismundo erroneously requested the wrong remedy,
dismissal with prejudice. j.çj. at 505-06.
The issue in Quismundo differs from a venue objection, which numerous
courts have held the defendant waives if he himself does not timely raise. State v.
McCorkell, 63 Wash. App. 798, 800, 822 P.2d 795 (1992); Dent, 123 Wash. 2d at 480.
Himple argues that the trial court should have granted his motion for a new
trial, because, as fact finder, it failed to carry out its duty in determining whether
venue was proven by a preponderance of the evidence. But, venue is not an
element of the crime. Rockl, 130 Wash. App. at 297. The information filed in
Quismundo lacked an element of the crime, which made dismissal without
prejudice the proper remedy. Here, dismissal would not have been proper. And,
more importantly, Himple had already waived his objection to venue.
II. Ineffective Assistance of Counsel
Alternatively, Himple asserts a violation of his constitutional right to effective
assistance of counsel. He argues that if this court finds that an objection to venue
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No. 75298-7-1/12
should have been raised at any time prior to the close of the State's case, we
cannot characterize trial counsel's failure to do so as a legitimate trial strategy.
• Himple argues that since his conviction would not have occurred with proper
objections and arguments on venue, he was prejudiced and deprived of effective
representation.
The sixth amendment to the United States Constitution and article!, section
22 of the Washington Constitution guarantee criminal defendants the right to the
assistance of counsel. That assistance must be effective to ensure a fair and
impartial trial. Rockl, 130 Wash. App. at 299. We review de novo claims of ineffective
assistance of counsel, which present mixed questions of law and fact. State v.
Sutherbv, 165 Wash. 2d 870, 883, 204 P.3d 916 (2009).
To prevail, the defendant must show that (1) defense counsel's
representation was deficient in that it fell below an objective standard of
reasonableness and (2)the deficiency prejudiced the defendant. Id. Trial conduct
that can be characterized as legitimate trial strategy or tactics cannot form the
basis for a claim of ineffective assistance of counsel. Rockl, 130 Wash. App. at 299.
There is a strong presumption that counsel's representation was effective. State
v. McFarland, 127 Wash. 2d 322, 335, 899 P.2d 1251 (1995).
First, Himple argues that counsel should have objected when the State
moved to amend the information the day of trial to include conduct that occurred
in Snohomish County. Himple contends that had those facts not been presented,
he would have been fully acquitted. However, Himple's counsel would not have
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No. 75298-7-1/13
known when the State amended the information that it would not prevail on the
other counts it alleged occurred in King County. Further, as the State argues, if
Himple had successfully objected to venue regarding the Snohomish conduct, the
State could have prosecuted him in Snohomish County for that single count
whether or not he was acquitted on the King County charges. Therefore, counsel's
decision to refrain from objecting could have been a trial tactic to avoid Himple
facing two trials.
Second, Himple argues that both original counsel and counsel appointed
for the posttrial motion for a new trial were deficient when they failed to argue that
the trial court had a duty to determine whether venue was proper. However,
Himple clearly waived his objection to venue when he failed to timely raise the
issue. See Dent, 123 Wash. 2d at 480. Once it was waived there was nothing for the
trial court to address sua sponte or otherwise. See McCorkell,63 Wn.App. at 800;
Dent, 123 Wash. 2d at 480. Thus, it was not ineffective assistance of counsel when
counsel moved for a new trial based on improper venue, but did not argue that the
trial court should have addressed venue on its own initiative.
We affirm.
WE CONCUR:
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