(dissenting) — I write separately in this case because James Hickman waived his right to raise issues regarding venue. The majority’s decision is at odds with prior Washington venue cases and our decision in State v. Dent, 123 Wn.2d 467, 869 P.2d 392 (1994), muddling our jurisprudence on venue in a criminal case.
Lost in the majority’s analysis are two critical facts: Hickman himself presented the “to convict” jury instruction, instruction 6, to the trial court and he did not raise the issue of sufficiency of the evidence of venue until he appealed his insurance fraud conviction to the Court of Appeals. Cf. Clerk’s Papers at 33, 47. Hickman erroneously included a requirement that the act of insurance fraud occur in Snohomish County, Washington, as part of the elements of the offense in the “to convict” instruction. The State did not object to this erroneous instruction. As a consequence, the majority concludes venue constitutes an element of insurance fraud under the law of the case doctrine. Majority op. at 102-05. Such disposition is not supportable under the rules for assignment of error regarding venue which we recognized in Dent.
Hickman’s tardy assertion of the venue issue is crucial. Under our case law regarding venue, Hickman waived any argument regarding the sufficiency of the evidence of venue.
*107In Dent, we reiterated the long-held rule in Washington that venue need not be proved beyond a reasonable doubt and further made clear venue is not an element of the crime which must be so proved. See Dent, 123 Wn.2d at 479 (noting venue need not be proved beyond a reasonable doubt, direct evidence of venue is not required, and circumstantial evidence may establish proper venue) (citing State v. Hardamon, 29 Wn.2d 182, 188, 186 P.2d 634 (1947); State v. Johnson, 45 Wn. App. 794, 796, 727 P.2d 693 (1986), review denied, 107 Wn.2d 1035 (1987); and clarifying State v. Marino, 100 Wn.2d 719, 727, 674 P.2d 171 (1984)). Moreover, the defendant may waive the right to challenge venue if the defendant fails to challenge venue by the time jeopardy attaches or, during the course of trial, if the issue of venue is raised for the first time in the case. In Dent, the defendant objected to the trial court’s instruction to the jury on the elements of the offense which indicated venue was properly laid in the State of Washington and also objected to the trial court’s failure to give the “to convict” instruction which included a requirement the State prove venue in Snohomish County beyond a reasonable doubt. Dent, 123 Wn.2d at 478. We stated at 479-80:
The defendant may waive the right to challenge venue. State v. Hardamon, supra at 188. The essential question is what actions or inactions of the defendant constitute waiver? In other words, what must the defendant do to preserve a challenge to venue? State v. McCorkell, [63 Wn. App. 798, 801, 822 P.2d 795, review denied, 119 Wn.2d 1004 (1992)] states:
We hold that a criminal defendant waives any challenge to venue by failing to present it by the time jeopardy attaches. Jeopardy attaches in a jury trial when the jury is sworn and in a bench trial when the court begins to hear evidence.
We agree, in general principle, with that holding, but refinement is required. The facts of a particular case may call for different rules.
CrR 5.1(b) is the starting point for one possible scenario. It provides for the situation where there is reasonable doubt whether the offense has been committed in one of two or more *108counties. The right of a defendant to change to the other county is strictly time limited. CrR 5.1(c).[8]
Absent facts which require application of CrR 5.1, the 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. Although the record does not reflect whether the venue issue was raised at the omnibus hearing, at least as to Dent, waiver probably did not occur here because of Dent’s pretrial motions for a change of venue to King County.
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. If a defendant demonstrates a lack of any proof, the court should permit reopening, unless the defendant makes a showing of actual prejudice.
(Emphasis added.)
In discussing the waiver of venue in Dent, we made clear venue issues not raised by a defendant at trial were waived. We also cited with approval language from the 11 Washington State Pattern Jury Instructions: Criminal 4.21 cmt. (2d ed. 1994) (WPIC) and State v. Brown, 29 Wn. App. 11, 14, 627 P.2d 132 (1981), which are dispositive of Hickman’s case: *109convict” instruction requiring proof beyond a reasonable doubt. WPIC 4.21. Despite the form of the instruction, the official comment states that venue need not be proved beyond a reasonable doubt and is waived if not challenged during the course of the trial. WPIC 4.21 comment. See State v. Brown, 29 Wn. App. 11, 14, 627 P.2d 132 (1981).
*108If 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. We note some confusion from the Washington Pattern Jury Instructions which include venue in the “to
*109Dent, 123 Wn.2d at 480-81. In Brown, as in Hickman’s case, the instruction at issue was based on WPIC 4.21, and the Court of Appeals rejected the same argument Hickman makes here, noting as follows:
To convict any defendant in a Washington court of a crime, the State must prove it has subject matter jurisdiction over that crime. RCW 9A.04.030. Under the Washington long-arm criminal jurisdiction statute, Washington has jurisdiction over any “person who commits an act without the state which affects persons or property within the state, which, if committed within the state, would be a crime.” RCW 9A.04.030(5). No matter where Brown actually forged the 10 checks, Washington had criminal jurisdiction over these crimes because all the checks were passed in Washington and therefore affected persons and property within Washington.
Appellant Brown alleges the State failed to offer substantial evidence that he made or completed each of the 10 checks in King County. As the final “element” of each of the 10 “to convict” jury instructions, the State included the following language:
(3) That the acts occurred in King County, Washington.
If you find from the evidence that each of these elements has been proved beyond a reasonable doubt, then it will be your duty to return a verdict of guilty . . .
Brown claims the plain meaning of this language that occurrence of the acts (venue) in King County had to be proved beyond a reasonable doubt became the law of the case. Because the State did not offer substantial evidence of venue, he argues the trial court should have dismissed each count when he challenged the sufficiency of the evidence in a motion for arrest of judgment.
*110Brown, 29 Wn. App. at 13-14. The Court of Appeals noted the governing law as follows:
[T]he situs of a crime is not an element of that crime but is a matter of venue. The State may prove venue by circumstantial evidence. It is sufficient if it appears at trial indirectly that the venue is properly laid.
Id. at 14 (citations omitted) (citing State v. Hardamon, 29 Wn.2d 182, 187-88, 186 P.2d 634 (1947); State v. Escue, 6 Wn. App. 607, 495 P.2d 351 (1972); State v. Stafford, 44 Wn.2d 353, 356, 267 P.2d 699 (1954); and State v. Smith, 65 Wn.2d 372, 397 P.2d 416 (1964)). While acknowledging the State produced evidence from which the jury could reasonably conclude the offenses took place in King County, the Court of Appeals also held: “Brown failed to object to venue until his motion for arrest of judgment so that he waived any objection.” Brown, 29 Wn. App. at 15.
Likewise, in Escue, the defendant appealed his robbery conviction asserting the State’s evidence was insufficient to support the jury’s findings that the alleged robberies occurred in King County. The Court of Appeals opined:
Proof of venue is necessary in a criminal prosecution, but it is not an element of the crime. Neither is it a question of jurisdiction. It is a right which can be waived, and proof of venue is waived if it is not challenged.
Not until the verdict was in and the trial concluded did appellant Escue challenge the sufficiency of the state’s proof of venue. A failure to challenge the state’s proof of venue at some point during the trial waives any objection to venue. This question was first presented in appellant’s post-trial motion for arrest of judgment, which comes too late.
Escue, 6 Wn. App. at 607-08 (citations omitted) (citing State v. Hardamon, 29 Wn.2d 182, 186 P.2d 634 (1947); State v. Miller, 59 Wn.2d 27, 365 P.2d 612 (1961); State ex rel. Howard v. Superior Court, 88 Wash. 344, 153 P. 7 (1915); State v. Lane, 40 Wn.2d 734, 246 P.2d 474 (1952)). In Escue, the Court of Appeals also quoted a passage from one of our *111earlier venue opinions regarding proof of venue:
It is first claimed that the venue was not sufficiently proven. The trial was being had in Snohomish county, and there was evidence that the offense was committed at Pinehurst in that county. The question was not raised until after verdict and upon motion for a new trial. To now hold, when no substantial right of the appellant has been invaded, that the venue was not sufficiently proven seems to us would be too technical.
Escue, 6 Wn. App. at 608 (quoting State v. Neadeau, 137 Wash. 297, 298, 242 P. 36 (1926)).
The majority’s opinion ignores all of the principles of waiver set forth in Dent, and simply assumes defendant’s inclusion of venue as part of the elements of insurance fraud in the “to convict” instruction required the State to prove venue beyond a reasonable doubt. The State did not do so. But the case law cited above makes clear that by failing to timely raise questions regarding venue at the time of the omnibus hearing, or at the time of trial, Hickman waived any error on venue, even if couched as a challenge to the sufficiency of the evidence of venue.
This result is consistent with our criminal rules and fairness in the handling of the case. As the Court of Appeals in Escue noted: “[w]e have passed the time when trials are conducted by ambush rather than by a search for the truth
Due process and fair play regarding criminal defendants do not require a criminal trial to be a game of chance with all of the odds heavily weighted in favor of the defendant. ... It seems fairly obvious that the ultimate in a criminal trial should be the ascertainment of the truth; that is, whether the accused is innocent and should be set free, or whether the accused is guilty and should be incarcerated for the protection of society. Again, it should not be a matter of luck or perhaps misadventure of one of the contestants during the course of a trial; nor should the outcome depend substantially upon the skill or luck of the attorney representing one side of the controversy.
*112Escue, 6 Wn. App. at 608 (quoting State v. Stacy, 43 Wn.2d 358, 367, 261 P.2d 400, 405 (1953)). Hickman’s ambush trial tactics should not be condoned by this Court. I would affirm the Court of Appeals and Hickman’s conviction for insurance fraud.
Durham, C.J., and Dolliver and Guy, JJ., concur with TalMADGE, J.
The pertinent part of CrR 5.1(c) states:
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.