Oral Argument: February 24, 2015.
Appeal from Pierce County Superior Court. Docket No: 12-1-01292-1. Judge signing: Honorable Katherine M Stolz. Judgment or order under review. Date filed: 04/12/2013.
Kathryn A. Russell Selk (of Russell Selk Law Office ), for appellant.
Mark E. Lindquist, Prosecuting Attorney, and Thomas C. Roberts, Deputy, for respondent.
Authored by Lisa Worswick. Concurring: Thomas R Bjorgen, Lisa Sutton.
[187 Wn.App. 259] ¶ 1 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.
¶ 2 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 [187 Wn.App. 260] 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 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.
¶ 3 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.
¶ 4 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.
¶ 5 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. 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 assisted in their sale. The [187 Wn.App. 261] 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 burglars
were physically at Stearman's residence. Clerk's Papers (CP) 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 that Sun owed Stearman $400 and that he accepted one of the guns as payment.
¶ 6 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.
¶ 7 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 County and during the phone conversations there was an agreement that the burglars would bring the stolen firearms [187 Wn.App. 262] to [Stearman] and sell the firearms."  CP at 28-29. There was no factual support for these phone conversations in the declaration of probable cause or the police report.
¶ 8 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.
¶ 9 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 formed in Pierce County.
¶ 10 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, supporting the possession of stolen firearms count, that " [t]he theft of the firearms clearly occurred in Pierce County. The fact they were stolen firearms was generated because of actions that occurred in [187 Wn.App. 263] 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) (July 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.
¶ 11 Thereafter, the State amended Stearman's information, adding one count of first degree conspiracy to commit trafficking. The amended information also charged Stearman as a principal, not an accomplice, to both trafficking and possession of a stolen firearm. Several ...