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IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

THE STATE OF WASHINGTON, )

)

Respondent, )

)

v. )

)

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

No. 75298-7-1

DIVISION ONE

UNPUBLISHED OPINION
No. 75298-7-1/2

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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No. 75298-7-1/3

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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No. 75298-7-1/4

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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No. 75298-7-1/5

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 Wn. 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,
No. 75298-7-1/6

when its decision is manifestly unreasonable or based on untenable grounds or

reasons. State v. Powell, 126 Wn.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 Wn. 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 Wn. 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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No. 75298-7-1/7

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 Wn.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 Wn.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 Wn.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 Wn.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 Wn. 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 Wn. 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 Wn.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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No. 75298-7-1/11

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 Wn. App. 798, 800, 822 P.2d 795 (1992); Dent, 123 Wn.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 Wn. 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 Wn. 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 Wn.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 Wn. App. at 299.

There is a strong presumption that counsel's representation was effective. State 

v. McFarland, 127 Wn.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 Wn.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 Wn.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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