No. 25307-4-III.The Court of Appeals of Washington, Division Three.
July 24, 2007.
Appeal from a judgment of the Superior Court for Benton County, No. 05-1-01071-5, Vic L. VanderSchoor, J., entered May 17, 2006.
Affirmed by unpublished opinion per Kulik, J., concurred in by Sweeney, C.J., and Schultheis, J.
KULIK, J.
Jorge Perez appeals his convictions for first degree child molestation and third degree child molestation. On appeal, Mr. Perez asserts the trial court abused its discretion by denying his motion for a change of venue for the charge of third degree child molestation. Mr. Perez also claims he received ineffective assistance of counsel because his counsel failed to request a voluntary intoxication instruction or a lesser-included offense instruction.
We hold that Mr. Perez received effective assistance of counsel and the trial court did not abuse its discretion by denying the motion for a change of venue. Accordingly, we affirm.
FACTS
Jorge Perez was initially charged with first degree rape of a child and second degree rape of a child. The State amended the information to include an additional charge of first degree child rape and a charge of third degree child molestation. In the amended information, the charge of third degree child molestation was alleged to have occurred in Franklin County. The other three charges were alleged to have occurred in Benton County.
On the date of trial, the State filed a second amended information that charged Mr. Perez with two counts of first degree child molestation, one count of second degree rape of a child, and one count of third degree child molestation. The State informed Mr. Perez and the trial court that the amended information merely reduced the first degree rape of a child charges to the lesser charge of first degree child molestation. But the second amended information erroneously listed Benton County as the county where the alleged charge of third degree child molestation took place. This error was hand corrected.
On direct examination, A.C. stated that Mr. Perez molested her in the apartment he was renting in Pasco. Pasco is located in Franklin County.[1]
On cross-examination, defense counsel asked A.C. where in Pasco Mr. Perez was living at the time that he allegedly molested her. Mr. Perez was also asked by defense counsel whether he molested A.C. during the time that he lived in Pasco.
Mr. Perez denied having any sexual contact with A.C. at that time and he denied that any inappropriate touching occurred between them. Mr. Perez asserted complete innocence as a defense to the charges. But Mr. Perez also testified that he drank during the time that the charges were alleged to have occurred. The State asked whether it was possible that Mr. Perez drank so much that he blacked out and might have done things he could not remember. Mr. Perez responded: “I don’t think so.” Report of Proceedings (RP) (Mar. 21-22, 2006) at 206. The alleged victim, A.C, also stated: “I don’t know if [Mr. Perez] was drunk or not,” when he molested her. RP (Mar. 21-22, 2006) at 40.
At the close of argument, Mr. Perez requested that the trial court provide the jury with an instruction on child molestation as a lesser-included offense of the second degree rape of a child charge. Defense counsel did not request an instruction on voluntary intoxication and also did not request an instruction on fourth degree assault as a lesser-included offense of the child rape charge.
Mr. Perez asked the trial court to dismiss the charge of third degree child molestation because the State improperly listed Benton County in the second amended information. Mr. Perez argued that proper venue requires a criminal charge to be filed in the county where the alleged conduct took place. Because the conduct forming the basis for the third degree child molestation charge was alleged to have occurred in Franklin County, Mr. Perez requested that the trial court dismiss this charge or, in the alternative, bifurcate the trial so that the jury would not consider the third degree child molestation charge.
The State responded that Mr. Perez was aware of the third degree child molestation charge, upon the filing of the amended information, prior to trial. The State argued that, if Mr. Perez wanted a change of venue, he could have asked for one upon receiving the amended information. Because he made no such request, the State asserted that Mr. Perez waived the issue of venue. The State also reiterated that it made clear that any amendments that were part of the second amended information were only to the charges of first degree rape of a child.
The trial court adopted the State’s arguments and denied Mr. Perez’s motion. The trial court further concluded that Mr. Perez suffered no prejudice as a result of the typographical error. Because this request was made so late in the trial, the trial court found Mr. Perez’s motion to be untimely.
Mr. Perez was convicted of two counts of first degree child molestation and one count of third degree child molestation, but was acquitted of the charge of second degree rape of a child. He was sentenced to 130 months’ confinement. He appeals.
ANALYSIS
I. Venue
“A decision denying a change of venue will be disturbed only for an abuse of discretion.” State v. Rockl, 130 Wn. App. 293, 297, 122 P.3d 759 (2005). Criminal actions generally must be commenced in the county where the offense, or an element of the offense, was committed. CrR 5.1(a). And, under article I, section 22 of the Washington State Constitution, a defendant has the right “to have a speedy public trial . . . [in] the county in which the offense is charged to have been committed.”
But a criminal defendant may waive the right to challenge venue. State v. Dent, 123 Wn.2d 467, 479, 869 P.2d 392 (1994). As a general rule, a defendant waives any challenge to venue by failing to challenge it by the time a jury is sworn in or the court begins to hear evidence. Id. at 480 (quoting State v. McCorkell, 63 Wn. App. 798, 801, 822 P.2d 795
(1992)). Otherwise, an objection to venue must be made as soon after the initial pleading is filed as the defendant has knowledge upon which to make the objection. CrR 5.1(c).
The second amended information improperly alleged that Benton County was where the third degree child molestation was committed. Although the trial court later received a corrected copy that properly alleged that this offense was committed in Franklin County, Mr. Perez disputes that he was informed of this change. The primary issue for this court is whether the trial court abused its discretion when it found that Mr. Perez had the requisite knowledge prior to his motion to dismiss.
Here, there is ample evidence that Mr. Perez had such knowledge. The State filed an amended information several weeks before trial that included the charge of third degree child molestation. In the amended information, the State listed Franklin County as the county where the charged conduct was alleged to have occurred. The State clearly indicated that its second amended information was intended only to reduce the charges against Mr. Perez from first degree rape of a child to first degree child molestation.
Mr. Perez was also demonstrably aware that he was accused of committing third degree child molestation in Franklin County. At trial, the State and Mr. Perez each discussed the acts that were alleged to have occurred in Pasco at length. Pasco is in Franklin County. But Mr. Perez raised no objection to venue even after hearing (and eliciting) testimony about the acts of molestation that occurred in Pasco. The trial court did not abuse its discretion in denying Mr. Perez’s motion to dismiss based upon improper venue.
II. Ineffective Assistance of Counsel
The right to effective assistance of counsel is guaranteed by both theSixth Amendment to the United States Constitution and article I, section 22 of the Washington State Constitution. See, e.g., In re Pers. Restraint of Brett, 142 Wn.2d 868, 873, 16 P.3d 601 (2001). “Counsel is ineffective when his or her performance falls below an objective standard of reasonableness and the defendant thereby suffers prejudice.” Id.
This court engages in a strong presumption that counsel’s performance was effective. In re Pers. Restraint of Davis, 152 Wn.2d 647, 673, 101 P.3d 1 (2004). Deficient performance is not shown by matters that go to legitimate trial strategy or tactics. State v. Studd, 137 Wn.2d 533, 551, 973 P.2d 1049 (1999) (quoting State v. Hendrickson, 129 Wn.2d 61, 77-78, 917 P.2d 563 (1996)).
A. Voluntary Intoxication Instruction. Where the existence of a particular mental state is a necessary element of an offense, the fact of the defendant’s voluntary intoxication may be taken into consideration when determining whether the defendant had that mental state. RCW 9A.16.090. A defendant is entitled to a jury instruction if there is sufficient evidence in the record to support it. See Studd, 137 Wn.2d at 549.
In order to be entitled to a voluntary intoxication jury instruction, the defendant must show that: (1) the charged offense has an element that requires a particular mental state; (2) there is substantial evidence of intoxication; and (3) the intoxication affected the defendant’s ability to acquire the required mental state. State v. Gabryschak, 83 Wn. App. 249, 252, 921 P.2d 549 (1996). Mere evidence of the consumption of alcohol alone is insufficient to warrant a voluntary intoxication instruction. Id. at 253.
Intent is a component of “sexual contact,” as that term is used in defining the elements of child molestation. See State v. Stevens, 158 Wn.2d 304, 312, 143 P.3d 817 (2006).
Mr. Perez testified that he drank a great deal during the overall time period during which the alleged molestation occurred. But he never testified to being intoxicated on the specific dates or during the commission of the charged offenses. Therefore, Mr. Perez did not provide substantial evidence that he was intoxicated at the relevant times, nor that this intoxication affected his ability to form the intent.
Moreover, the failure to request a voluntary intoxication instruction may have been a tactical decision by defense counsel. Voluntary intoxication was never Mr. Perez’s theory of the case. He put forth a theory of absolute innocence of all the charged offenses. In contrast, the defense of voluntary intoxication asserts that the defendant was incapable of forming the required intent behind the criminal act. And Mr. Perez denied under cross-examination that he ever drank to the point where he could have inappropriately touched A.C. and not been aware of it. By his own statements, Mr. Perez refused to assert his state of voluntary intoxication as a defense.
B. Lesser-Included Offense Instruction.
Mr. Perez also claims that his defense counsel rendered deficient performance by failing to request an instruction on fourth degree assault as a lesser-included offense of the charges of molestation. He bases this assertion on Stevens, which held that fourth degree assault was a lesser-included offense of second degree child molestation. Id. at 310-11. But Mr. Perez cannot rely on the holding in Stevens to establish the deficient performance of trial counsel.
Studd is dispositive of this issue. Deficient performance is not shown by the failure of defense counsel to object to a jury instruction where the instruction is only questioned or disapproved by subsequent case law. Studd, 137 Wn.2d at 551.
Here, Mr. Perez was brought to trial and convicted in March 2006 Stevens was not decided until October of that year. Until the court’s decision in Stevens, it was not established law that fourth degree assault was a lesser-included offense of child molestation. Because this court evaluates the effectiveness of trial counsel based on counsel’s perspective at the time of trial, defense counsel did not render deficient performance by failing to request an instruction of fourth degree assault as a lesser-included offense.
We affirm.
A majority of the panel has determined this opinion will not be printed in the Washington Appellate Reports, but it will be filed for public record pursuant to RCW 2.06.040.
SCHULTHEIS, J. and SWEENEY, C.J., concur.