No. 21308-1-IIIThe Court of Appeals of Washington, Division Three. Panel One.
Filed: October 7, 2003 UNPUBLISHED OPINION
Appeal from Superior Court of Grant County Docket No: 01-1-00343-0 Judgment or order under review Date filed: 07/16/2002
Counsel for Appellant(s), Garth Louis Dano, Garth Dano Associates, 100 E Broadway Ave, Moses Lake, WA 98837-1740.
Counsel for Respondent(s), Teresa Jeanne Chen, Grant County Prosecutors Office, P.O. Box 37, Ephrata, WA 98823-0037.
Stephen Phillip Scott, Attorney at Law, Grant Pros Attorney, P.O. Box 37, Ephrata, WA 98823-0037.
KATO, J.
Thomas Daily Prior appeals his conviction for first degree rape of a child. He contends his Grant County trial was improper because the crime occurred in another county. He also contends the evidence does not support the court’s findings that his conduct with the victim satisfies the statutory definition of sexual intercourse. We affirm.
Mr. Pryor was charged in Grant County with raping or molesting 6-year — old A.H. in September 1997. At trial, the evidence showed that during that month Mr. Pryor helped A.H.’s family move from White Salmon to Lyle. At one point, A.H. was riding alone with Mr. Pryor in his pickup truck, and Mr. Pryor stopped on the side of the road. A.H.’s stepfather also stopped, and Mr. Pryor told him he needed to adjust the load and would meet him at the house in Lyle. Mr. Pryor and A.H. arrived at the house 10 to 15 minutes after the stepfather.
In February 2001, A.H. disclosed several incidents involving Mr. Pryor, including one in which she said Mr. Pryor sat her on his lap and licked the front part of her `private area.’ Clerk’s Papers (CP) at 248. A.H. told both her mother and a detective that the licking occurred in a truck when the family was moving.
After a bench trial, the court found Mr. Pryor `licked the vagina of A.H. with his tongue.’ CP at 247. The court found Mr. Pryor engaged in sexual intercourse with A.H. and thus was guilty of first degree rape of a child.
Mr. Pryor first contends he was improperly tried in Douglas County. A defendant has a 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, sec. 22. It is undisputed that the conduct at issue occurred between White Salmon and Lyle, both of which are in Klickitat County. Venue thus was properly in Klickitat County, not Grant County.
However, a defendant may waive his right to challenge venue by failing to assert it. State v. Dent, 123 Wn.2d 467, 479-80, 869 P.2d 392 (1994). [T]he defendant is required to raise the venue question at the omnibus hearing. CrR 4.5 is specific: `Failure to raise or give notice at the hearing of any error or issue of which the party concerned has knowledge may constitute waiver of such error or issue.’ CrR 4.5(d). There is no reason why this principle should not apply to a challenge to venue. 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. . . .
We recognize that evidence introduced during the trial may raise a question of venue for the first time. In such event, the defendant must raise the issue at the end of the State’s case.
Id. at 480.
Here, the record shows that, at least by the time trial began, Mr. Pryor was aware that the alleged conduct occurred outside of Grant County. His failure to raise the issue at that time (or even at the conclusion of the State’s case, when the evidence made it apparent when and where the alleged conduct had occurred), constitutes a waiver of Mr. Pryor’s right to be tried in Klickitat County. Reversal is not required on this ground.
Mr. Pryor next contends the evidence was insufficient to show that he engaged in sexual intercourse with A.H. On a challenge to the sufficiency of the evidence, we must view the evidence in a light most favorable to the prosecution and must determine whether any rational trier of fact could have found the elements of the crime beyond a reasonable doubt. State v. Green, 94 Wn.2d 216, 220-22, 616 P.2d 628 (1980). We must draw all reasonable inferences in the State’s favor and interpret them most strongly against the defendant. State v. Partin, 88 Wn.2d 899, 906-07, 567 P.2d 1136 (1977). The same standard applies regardless of whether the case is tried to a jury or to the court. See State v. Little, 116 Wn.2d 488, 491, 806 P.2d 749 (1991).
A person is guilty of first degree child rape if he has `sexual intercourse’ with a child. RCW 9A.44.073. `Sexual intercourse’ includes `any act of sexual contact between persons involving the sex organs of one person and the mouth . . . of another.’ RCW 9A.44.010(1)(c). “Sexual contact’ means any touching of the sexual or other intimate parts of a person done for the purpose of gratifying sexual desire of either party or a third party.’ RCW 9A.44.010(2).
A polygrapher testified Mr. Pryor admitted that be became aroused when A.H. sat on his lap. A reasonable inference is that Mr. Pryor became aroused, and thus satisfied his sexual desire, when he placed A.H. on his lap and licked her. The issue, then, is whether there was sufficient evidence that Mr. Pryor licked A.H.’s sexual organs. Detective David Matney testified that A.H. told him Mr. Pryor had `licked her on her vagina.’ Report of Proceedings (RP) at 475. This evidence alone supports the court’s finding.
Moreover, A.H. testified Mr. Pryor licked her `private part’ or `private parts.’ RP at 450, 464. She did not know the name of that part of her body, but she testified it was on the front, between her legs. A.H.’s mother testified she had talked to A.H. about sex involving `private areas.’ RP at 400. A reasonable inference is that, when A.H. referred to `private parts’ between her legs, she was referring to her sexual organs. This inference supports the court’s finding that Mr. Pryor licked A.H.’s vagina. The evidence was sufficient.
The conviction is affirmed.
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.
BROWN, C.J. and SWEENEY, J., concur.