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    IN THE COURT OF APPEALS OF THE STATE OF WASHING ,                                                    A+
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                                                BY
                                            DIVISION II

 STATE OF WASHINGTON,                                                         No. 44884 -0 -II


                                  Respondent,


          v.



 ANDREW JOSEPH STEARMAN,                                                PUBLISHED OPINION


                                  Appellant.


       WoRSwIcK, J. —       Andrew Stearman appeals his convictions for unlawful possession of a

firearm and possession of a stolen firearm. He argues that the trial court abused its discretion by

 1) denying his motion to change venue, and (2) refusing to consider his renewed motion to

change venue at the close of evidence. We reverse the convictions because the trial court abused


its discretion by refusing to consider Stearman' s renewed motion to change venue and because

this error was not harmless. We dismiss the convictions without prejudice to the State' s right to


refile, in the appropriate venue, the charges of unlawful possession of a firearm and unlawful


possession of a stolen firearm.


                                                   FACTS


       Three burglars stole 41 operable firearms from a sporting goods store in Fife. The

firearms made their way to Tacoma, then to West Seattle. One of the burglars, Soeun Sun, was

acquainted with Stearman. Stearman lived in a single- family residence with his brother in King

County. Several days after the burglary, the burglars sent a photo in a text message to Stearman

showing   multiple   firearms displayed   on a   bed.   Subsequently,   Sun   and another   burglar, David
No. 44884 -0 -II



Bunta, brought about 10 firearms in a duffel bag to Stearman' s house. At this time, Sun owed

Stearman    about $ 400.   Sun left the duffel bag of firearms at Stearman' s house. The firearms

remained at Stearman' s house for a time, during which people purchased some of the guns

directly from Sun.

         Police initiated an investigation into the burglary and its aftermath. After several months,

the investigation led police to Stearman. Police arrested him in West Seattle and brought him to


Fife for questioning.

         During the interrogation, Stearman maintained that he neither bought nor sold the

firearms Sun brought to his house. He claimed he liked one of them in particular and accepted it


as payment for the $ 400 debt Sun owed him, but he denied knowing of or participating in the

trafficking of stolen firearms from his residence. He claimed that he learned of the burglary and

its connection to the firearms at his house later, when he saw a news video and recognized the

burglars.   Stearman admitted to exchanging text messages with Sun shortly after the burglary,

including receiving a photograph of the guns. But the interrogation included no discussion of

any phone calls.


          The State charged Stearman in Pierce County with first degree trafficking in stolen

property    as an accomplice,'   and possession of a stolen firearm as an accomplice.2 Both of these

charges bore aggravators for their connection to criminal street gang activity. The trafficking

charge reflected the State' s contention that Stearman allowed the guns to remain at his house and




1 RCW 9A.82. 050( 1).

2
    RCW 9A. 56. 140( 1);   9A.56. 310( 1).




                                                    2
No. 44884 -0 -II



assisted in their sale. The declaration of probable cause stated that one of the burglars' phones


contained text messages from Stearman referencing weapons, and that Stearman was friends on

social media with one of the burglars. It also stated that Stearman lived at an address described


by one of the purchasers of firearms, suggesting that trafficking occurred at Stearman' s

residence. It further stated that Sun' s cell phone records showed that the phone " pinged" off of a


tower near Stearman' s house 11 days after the burglary, corroborating the allegation that the
                                                               3
burglars   were   physically   at   Stearman'   s residence.       Clerk' s Papers   at   6.   Finally, the declaration

of probable cause summarized Stearman' s interrogation, saying that he admitted the burglars

brought a duffel bag of firearms to his house after the burglary. It said Stearman owed Sun $ 400

and that he accepted one of the guns as payment.


        Before the jury was empanelled, Stearman moved to change venue from Pierce County to

King County. Stearman argued that " none of his alleged crimes occurred in whole or even in

part in Pierce County. Further, even if there was a reasonable doubt as to where these crimes

occurred, [   Stearman] has the sole discretion to pick his court of venue and wishes his case to be

heard in   King County."       CP at 10.


        In response to the motion to change venue, the State amended Stearman' s information to


add one count of conspiracy to traffic in stolen property in the first degree. The State based this

count on the allegation that " those responsible for the burglary phoned [ Stearman] from Pierce


3 The declaration of probable cause discusses Sun' s phone' s " ping" near Stearman' s house. The
police report, which the State attached to its brief in opposition to the motion to change venue,
avers that Bunta' s phone " pinged" at Stearman' s house. Thus, this cell phone evidence showed
only that the two burglars were near Stearman' s house, and did not show that the burglars were
in contact with Stearman from Pierce County.




                                                           3
No. 44884 -0 -II



County and during the phone conversations there was an agreement that the burglars would bring

the stolen firearms to [ Stearman] and sell the firearms. "4 CP at 28 -29. There was no factual

support for these phone conversations in the declaration of probable cause or the police report.


         At a hearing on Stearman' s motion to change venue, the trial court considered both the

initial charges and the proposed conspiracy charge. The court heard argument from Stearman

and the State describing the relevant facts. Stearman argued to the court that the probable cause

statement showed that Stearman' s actions clearly took place in King County. He averred that,

based on his review of the discovery, none of the alleged acts occurred in Pierce County.

         The State informed the court that it had discovered that the burglars contacted Stearman


by a telephone call made from Pierce County to King County shortly after the burglary. The

State alleged that after this phone call, the burglars proceeded to Stearman' s residence in King

County to sell the weapons to Stearman. The State characterized this phone conversation as an

agreement forming the basis of a conspiracy, and argued that the burglars' trip to King County

was an overt act in furtherance of the conspiracy to traffic firearms. Thus, the State argued that

the evidence showed an agreement to traffic the firearms fouuied in Pierce County.

         The court denied the motion to change venue, based on the original trafficking and

possession of a stolen firearm charges, as well as on the proposed conspiracy count. It found that

the State   had   charged   Stearman   with
                                              trafficking   under   two theories: (   1) organizing, planning,

financing, directing, managing, or supervising the theft of property for sale to others and (2)

knowingly trafficking in stolen property. It also found that, supporting the possession of stolen

firearms    count, "[
                        t] he theft of the firearms clearly occurred in Pierce County. The fact they were


4
    Conspiracy is proscribed by RCW 9A.28. 040.


                                                            4
No. 44884 -0 -II



stolen   firearms   was generated   because   of actions   that   occurred   in Pierce   County. [   Stearman was]


charged in Count II with possession of stolen firearms. The firearms were allegedly stolen

because   of actions   that occurred in Pierce   County."      Verbatim Report      of   Proceedings ( VRP) ( Jul.


10, 2012) at 15. The trial court ruled that there was no reasonable doubt that at least part of each


offense charged occurred in Pierce County.

         Thereafter, the State amended Stearman' s information, adding one count of first degree

conspiracy to   commit    trafficking. 5 The amended information also charged Stearman as a

principal, not an accomplice,    to both   trafficking   and possession of a stolen        firearm. Several


months later, the State again amended the information, adding one count of second degree

unlawful possession of a firearm, based on a previous felony conviction.

          After these pretrial motions, Stearman' s case was transferred to a different judge in


Pierce County. At trial, the State' s evidence consisted principally of Stearman' s April 11, 2012

videotaped interrogation. The State offered no evidence regarding the existence or substance of

the telephone call from Pierce County. At the close of evidence, Stearman moved to dismiss the

conspiracy and trafficking counts for insufficient evidence. He argued that the evidence merely

established Stearman' s presence at the house while the firearms were there, and it did not


demonstrate that Stearman had the intent to assist in trafficking them. The trial court granted

Stearman' s motion to dismiss the conspiracy charge, but it denied his motion to dismiss the

trafficking charge.




5
    RCW 9A.28. 040 ( conspiracy);     RCW 9A.82. 050 ( trafficking).



                                                           5
No. 44884 -0 -II.



          After the trial court dismissed the conspiracy charge, Stearman attempted to renew his

motion to change venue. He told the trial court that the earlier motion before a different judge


had been denied due to the judge' s ruling that sufficient evidence existed to show that a portion

of Stearman' s crimes occurred in Pierce County. He argued that the State had not produced any

evidence at trial that demonstrated that the trafficking occurred in Pierce County. The prosecutor

urged   the trial court    not   to consider venue, saying: "       That decision was already made by another

judge before trial, and certainly after the evidence and the State' s close, is not exactly timely."

VRP ( Apr. 3, 2013)        at   148. The trial   court refused   to      consider   this   motion,   stating only: "[ I] t' s


part of   the   record   that the   motion was   denied ...    so, you know, assuming there is an appeal from

this case, that' s part of the record; and we know cases are sometimes reversed based on pretrial


motions."       VRP ( Apr. 3, 2013) at 148.


          The jury found Stearman not guilty of first degree trafficking in stolen property, but

found him guilty of possession of a stolen firearm and unlawful possession of a firearm.

Stearman appeals.


                                                      ANALYSIS


          Stearman argues that the trial court abused its discretion by failing to grant his timely

motion    to    change venue     before trial. Stearman also argues that the trial court abused its


discretion by refusing to address his renewed motion to change venue after the close of the

State' s evidence. The State concedes that the trial court erred by not entertaining the renewed.

motion, but it argues that the error was harmless. We hold that the trial court did not abuse its


discretion      when   it denied Stearman'   s   initial   motion   to   change venue.       But   we   hold that the trial
No. 44884 -0 -II



court did abuse its discretion by refusing to consider Stearman' s renewed motion to change

venue and that this error was not harmless.


A.           Standard ofReview

             We review a trial court' s ruling on a motion to change venue for an abuse of discretion.

State   v.   Jackson, 150 Wn.2d 251, 269, 76 P. 3d 217 ( 2003).         A trial court abuses its discretion


when its decision is manifestly unreasonable or based on untenable grounds or reasons. State v.

Jackson, 111 Wn.        App. 660, 669,   46 P. 3d 257 ( 2002). A trial court abuses its discretion when it


fails to exercise its discretion, such as when it fails to make a necessary decision. State v.

Flieger, 91 Wn.       App. 236,   242, 955 P. 2d 872 ( 1998). We review questions of law, such as


statutory interpretation, de novo. State v. Rockl, 130 Wn. App. 293, 297, 122 P. 3d 759 ( 2005).

B.           Denial ofPretrial Motion

             Stearman argues that the trial court abused its discretion by denying his pretrial motion to

change venue. We disagree.


             As an initial matter, we note that the trial court based its venue decision, in part, on the


State' s verbal offer of proof. Washington law does not establish the procedure the trial court


must employ before trial in evaluating the facts to determine whether venue is proper. But

neither party contests the trial court' s ability to rely on an offer of proof in its consideration of

the facts relevant to venue. And in other criminal contexts, a trial court may rely on the State' s

offer of proof to resolve preliminary matters. For example, the trial court may rely on the State' s

offer of proof to establish the relevance and admissibility of evidence. State v. Kilgore, 147

Wn.2d 288, 295, 53 P. 3d 974 ( 2002); ER 103(         a)(   2). Thus,   we   hold that   a   trial   court   may rely   on
No. 44884 -0 -II



the State' s offer of proof of facts in its determination whether an element of each offense


occurred in the subject county under CrR 5. 1( a).

             Article I, section 22 of the Washington Constitution provides criminal defendants the


right to a speedy and public trial by an impartial jury "of the county in which the offense is

charged       to have been committed."          Additionally, CrR 5. 1 applies to venue decisions. 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."       CrR 5. 1(   a).   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).


             But 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."   See also Rockl, 130 Wn.


App.    at   298.    Put another way, 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. Rockl, 130 Wn. App. at 296.

              Conspiracy" is acting with " intent that conduct constituting a crime be performed" and

agreeing " with one or more persons to engage in or cause the performance of such conduct, and

any   one of    them takes     a substantial        step in   pursuance of such agreement."   RCW 9A.28. 040.


 On a charge of conspiracy, venue is proper in any county where an overt act in furtherance of

the conspiracy took          place."   State   v.   Dent, 123 Wn.2d 467, 481, 869 P. 2d 392 ( 1994) ( citing


State   v.   Mardesich, 79 Wash. 204, 208, 140 P. 573 ( 1914)).                 In reviewing whether an overt act



                                                                   8
No. 44884 -0 -II



giving rise to proper venue occurred in a county, we look to the sufficiency of the evidence that

such an act took place in that county. Dent, 123 Wn.2d at 481.

          At the time of the pretrial motion to change venue, the trial court heard argument from


both Stearman and the State describing the evidence. In addition, the State gave an offer of

proof that the burglars, while still in Pierce County, called Stearman. The State submitted the

police report. The court file also contained the declaration of probable cause and the


information. Thus, the trial court had the following allegations before it: Stearman was in

contact with the burglars, possibly shortly after the burglary. The burglars called Stearman from

Pierce County. They came to his residence with a duffel bag full of firearms. One of the

burglars owed Stearman money, and Stearman accepted one of the firearms as payment for the

debt. The firearms remained at Stearman' s residence for some time, and some of them were sold


from his residence.


          We hold that the trial court did not abuse its discretion by denying Stearman' s pretrial

motion to change venue. The trial court had tenable grounds for finding that, beyond a

reasonable doubt, at least some elements of Stearman' s offenses occurred in Pierce County. The

trial   court concluded   that this   action   had been filed   under   CrR 5. 1(   a), not   5. 1( b); in other words,


the trial court found that there was no reasonable doubt whether some element of each offense


occurred in Pierce County, and therefore, Stearman did not have the right under CrR 5. 1( c) to

change venue.




                                                          9
No. 44884 -0 -II


                                                                                                                         6
          The   court   found that   elements of   the   trafficking    offense   had   occurred   in Pierce   County.

The State' s offer of proof that Stearman was in contact with the burglars during a phone call

made from Pierce County after the burglary, during which call the State alleged that Stearman

agreed with the burglars to buy or sell the weapons, was circumstantial evidence that Stearman

organized, planned, or otherwise committed elements of first degree trafficking in Pierce County.

Therefore, regarding the trafficking count, the trial court had tenable grounds and reasons to find

beyond a reasonable doubt that Stearman committed at least some elements of trafficking in

Pierce County.

          The trial court also found that elements of the conspiracy offense had occurred in Pierce

County. At the hearing, the State informed the court that it had cell phone records demonstrating

that the burglars called Stearman shortly after the burglary before coming to his residence with

the firearms. The State argued that these facts would show both an agreement formed partly in

Pierce County, and an overt act in Pierce County ( of driving towards Stearman' s residence with

the   firearms),   forming proper venue in Pierce County. On a charge of conspiracy, the trial court

looks to the sufficiency of the evidence that an overt act occurred in the subject county for



6
    First degree trafficking   can   be   proven   in   one of    1) knowingly initiating, organizing,
                                                                 two   ways: (

planning, financing, directing, managing, or supervising the theft of property for sale to others,
or ( 2) knowingly trafficking in stolen property. RCW 9A. 82. 050. " Trafficking" as proscribed

by part (2) means " to sell, transfer, distribute, dispense, or otherwise dispose of stolen property
to another person, or to buy, receive, possess, or obtain control of stolen property, with intent to
sell,   transfer, distribute, dispense,    or otherwise     dispose     of   the property to   another person."    RCW
9A. 82. 010( 19).    The State charged Stearman under both prongs. Thus, if Stearman had
knowingly organized, planned, financed, directed, managed, or supervised the theft of property
in Pierce County, then some elements of first degree trafficking would have occurred in Pierce
County even if Stearman never physically left King County.




                                                             10
No. 44884 -0 -II



purpose of venue.   Dent, 123 Wn.2d   at   481.   Here, the act of driving in Pierce County towards

Stearman' s residence was an overt act in furtherance of the conspiracy to traffic, and the driving

took place in Pierce County. Thus, the trial court had tenable grounds and reasons to find that

some elements of conspiracy occurred in Pierce County. The trial court did not abuse its

discretion by finding that some of the elements of conspiracy as charged occurred in Pierce

County because the State made an offer of proof that both the agreement and an overt act

occurred in Pierce County.?

        Because, at the time this motion was heard, the trial court had tenable grounds and


reasons to find that Stearman committed some of the elements of the conspiracy and trafficking

offenses in Pierce County, it did not abuse its discretion by denying Stearman' s pretrial motion

to change venue.


C.      Refusal To Reconsider Objection to Venue


        Stearman argues and the State concedes that the trial court abused its discretion by

refusing to entertain Stearman' s renewed motion to change venue at the close of the State' s

evidence, when the trial court had dismissed the conspiracy charge. We accept the State' s

concession that the trial court abused its discretion, because the trial court must allow the


defendant to raise a venue issue at the close of the State' s case when evidence at trial raises a


question of venue. See Dent, 123 Wn.2d at 480. But the State argues that this error was




7 The trial court also ruled that there was no reasonable doubt that the possession of stolen
firearm count occurred in Pierce County. The trial court misapplied the law here. The elements
of possession of a stolen firearm are possessing, carrying, delivering, selling, or being in control
of a stolen firearm. RCW 9A. 56. 310( 1).   The State did not allege that Stearman possessed any
of the stolen firearms in Pierce County. But the trial court analyzed this problem by considering
that the theft of the firearms occurred in Pierce County.



                                                     11
No. 44884 -0 -II



harmless because Stearman waived the issue by failing to provide a jury instruction on venue.

We consider waiver and harmless error separately, and hold that Stearman did not waive the

venue challenge and that the error was not harmless. 8

         1.   Trial Court Abused its Discretion by Failing To Reconsider Venue

         In Dent, our Supreme Court, in dicta, contemplated that the State should be allowed to


reopen its case in chief when evidence during trial brought a venue issue to light for the first

time    123 Wn.2d at 480. When there is a fair question of fact as to where a crime occurred,


venue   becomes    an   issue for the jury to   resolve   by   a preponderance of    the   evidence.   123 Wn.2d


at 480. No case addresses the question of what a trial court must do when a defendant renews an


objection to venue at the close of evidence when evidence, or lack of evidence, brings the venue


issue to light. And no case addresses the question whether the trial court should reconsider


venue when the State has failed to prove necessary facts that it promised in its offer of proof

before trial.


         Here, the State failed to produce any evidence that any of Stearman' s acts occurred in

Pierce County. Before trial, the State made an offer of proof that Stearman made or received a

phone call from Pierce County shortly after the burglary, during which he agreed with the

burglars to traffic firearms from his residence. The State did not present any such evidence at

trial. The evidence established only that Stearman exchanged text messages with the burglars;

there was no evidence of the location of the burglars during these exchanges.




8 Stearman also argues that the trial court erred by allowing the State to amend the information
adding   a charge of    conspiracy " in   order   to defeat the   motion   for   change of venue."     Br. of
Appellant at 12. Because we reverse Stearman' s conviction on the grounds that Pierce County
was an improper venue, we do not reach this argument.



                                                           12
No. 44884- 0- 11



            The trial court abused its discretion here by refusing to consider the venue issue because

it made its decision for untenable reasons. Instead of considering,the merits of Stearman' s

renewed venue motion, the trial court did not allow Stearman to reopen the issue, remarking:
  I] t' s   part of   the   record   that the   motion [ to change venue] was      denied ...   so, you know,


assuming there is an appeal from this case, that' s part of the record; and we know cases are

sometimes reversed            based    on pretrial motions."    VRP ( Apr. 3, 2013)      at   148. Thus, the trial court


treated the issue as closed. A trial court abuses its discretion if its decision is untenable or based

on untenable grounds or reasons. And a trial court abuses its discretion when it fails to exercise


its discretion.. Flieger, 91 Wn. App. at 242. The trial court' s failure to exercise its discretion

here was an abuse of discretion. Faced with a substantive issue about venue, the trial court


declined to consider the objection and instead referred generally to the defendant' s right to raise

the issue on appeal. Thus, the trial court' s refusal to consider Stearman' s renewed motion was


not based on tenable grounds or reasons.


             2. Error Not Harmless


             The State argues that the trial court' s erroneous failure to entertain Stearman' s renewed


motion to change venue was harmless because Stearman " failed to provide the court with the


proper remedy for improper venue, and therefore waived the issue" under Dent. Br. of Resp' t at

20. The State also argues that the error was harmless because the trial court would have denied


Stearman'       s renewed motion         to   change venue   had it   considered   the issue.   We consider waiver


and harmless error separately. We hold that Stearman did not waive his challenge to venue and

that this error was not harmless.




                                                               13
No. 44884 -0 -II



          a. No Waiver


          Venue in the proper county is a constitutional right. Dent, 123 Wn.2d at 479. The

remedy for constitutional error is a new trial unless the error was harmless beyond a reasonable

doubt. State     v.   Coristine, 177 Wn.2d 370, 380, 300 P. 3d 400 ( 2013).           Procedural error regarding

venue is harmless constitutional error when any reasonable jury would have found that the

offense occurred in the county where it was tried. State v. McCorkell, 63 Wn. App. 798, 801,

822 P. 2d 795 ( 1992).


          The State argues that, under Dent, the appropriate remedy for improper venue at the close

of evidence is for the defendant to submit a jury instruction on venue. It argues that if the

defendant does not provide such an instruction, the venue error is harmless because the


defendant failed to provide the appropriate remedy, thus waiving the challenge.9 In Dent, the

court held that, where evidence introduced during trial raises a venue question for the first time,

          the defendant must raise the issue at the end of the State' s case. If a defendant
          demonstrates a lack of any proof, the court should permit reopening, unless the
          defendant makes a showing of actual prejudice.

                If the evidence reveals a genuine issue of fact about venue, it becomes a
          matter for resolution by the trier of fact. If it is a jury case, it will be a jury
          question. The instruction should require proof by a preponderance of the
          evidence, not beyond a reasonable doubt.


123 Wn.2d at 480.




9 We note that, when Stearman renewed his objection to venue, the prosecutor argued that the
trial   court should not consider       the   issue: "   That decision was already made by another judge
before trial,   and
                 certainly      after   the evidence and the State' s close,    is   not   exactly   timely." VRP
 Apr. 3, 2013) at 148. The   State' s argument on appeal that Stearman waived the issue by not
presenting a jury instruction fails to take into consideration that the State argued to the trial court
that the issue was closed.



                                                              14
No. 44884 -0 -II



            In arguing that the error here was harmless because Stearman did not provide a jury

instruction, the State misreads Dent and conflates the separate issues of waiver and harmless


constitutional error. Dent requires the trial court to submit the venue issue to the jury for

resolution by a preponderance standard if it agrees that the defendant has raised a genuine issue

of   fact   about venue at   the   close of evidence.   123 Wn.2d at 480. It does not specify that the

defendant must provide a jury instruction simultaneously, or else waives his challenge. Nor does

Dent discuss the trial court' s obligation where the State has entirely failed to prove venue.

            b. Error Not Harmless


            Venue before a jury of the proper county is a constitutional right. McCorkell, 63 Wn.

App. at 800. Procedural error regarding venue may be harmless where evidence at trial is such

that any reasonable jury would have found proper venue if it considered the question.

McCorkell, 63 Wn. App. at 801. In other words, where the facts at trial clearly establish that

venue was proper, a venue error may be harmless, because the defendant in fact was tried before

a jury of the proper county. In such cases, any jury would have found that venue was proper if

the question were put to them because sufficient facts existed at trial to support venue. But


where no reasonable jury could have found that venue was proper by a preponderance of the

evidence because no facts at trial established venue, this error cannot be harmless. That is, if we

held that constitutional error about venue were harmless even where no facts supported venue in


the county where trial occurred, the constitutional right to venue would lose all force. Venue

error would be harmless in every case, because we presume that juries follow instructions. See

State   v.
             Emery,   174 Wn. 2d 741, 766, 278 P. 3d 653 ( 2012).     And such a holding would relieve the




                                                          15
No. 44884 -0 -II



state of its burden to prove venue even where the defendant timely challenges venue and where

the State presents no facts establishing venue.

              Here, because the trial court dismissed the conspiracy charge, the jury considered only

whether Stearman committed trafficking, unlawful possession of a stolen firearm, and unlawful

possession of a stolen firearm. The State did not allege that Stearman ever possessed a firearm in


Pierce County, and there was no evidence suggesting he did. Thus, the only crime for which the

jury could have found that an element occurred in Pierce County was trafficking. But, as

described above, no evidence supported venue in Pierce County, so no reasonable jury could

have found that Stearman committed his offenses in Pierce County by a preponderance standard.

Thus, this error is not harmless.


              The State also appears to argue that the error was harmless because, had the trial court


considered the motion substantively, it would have reached the conclusion that venue was proper

in Pierce County because the reasons cited by the judge who denied Stearman' s pretrial motion

to change venue were still applicable. We reject this argument because, as discussed above, the


State failed to substantiate its offers of proof about Stearman' s actions in Pierce County. Had the

trial court considered the merits of Stearman' s renewed objection, it would have granted

Stearman relief. The trial court would not have looked forward at the State' s offers of proof, but


would instead have looked back at the State' s failure to produce evidence during the trial itself.

Thus, had the trial court entertained Stearman' s renewed motion, it would have come to the

conclusion that there was reasonable doubt where Stearman' s offenses occurred, and thus that


they fell      under   CrR 5. 1( b).   Stearman would have had the right to change venue under CrR


5. 1(   c).   These facts further support our conclusion that this error was not harmless.




                                                         16
No. 44884 -0 -I1



        Therefore, we hold that the trial court erred by refusing to entertain Stearman' s renewed

motion to change venue at the close of the State' s evidence and after dismissing the conspiracy

charge. This error violated Stearman' s constitutional right to venue in the proper county, and it

was not harmless. Thus, we reverse the convictions and dismiss without prejudice to the State' s


right to refile, in the appropriate venue, the charges of unlawful possession of a firearm and


unlawful possession of a stolen firearm.




 We concur:




                    4p-C.




                                                 17
