FILED
MARCH 22, 2018
In the Office of the Clerk of Court
WA State Court of Appeals, Division III
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION THREE
STATE OF WASHINGTON, ) No. 35070-3-III
)
Respondent, )
)
v. ) UNPUBLISHED OPINION
)
KEVIN JOHN HUBBARD, )
)
Appellant. )
PENNELL, J. — Kevin Hubbard appeals his convictions for second degree rape of a
child, second degree child molestation, and distribution of a controlled substance, with
sexual motivation, to a person under 18. He raises claims regarding the sufficiency of the
evidence and prosecutorial misconduct during closing argument. We affirm.
FACTS 1
S.L. 2 was born in August 1998. Mr. Hubbard and S.L.’s mother became
romantically involved when S.L. was a young child. Mr. Hubbard purported to be a
1
The factual statement is taken from trial testimony.
2
To protect the privacy interests of S.L., a minor, we use her initials throughout
this opinion. General Order of Division III, In Re the Use of Initials or Pseudonyms for
Child Victims or Child Witnesses (Wash. Ct. App. June 18, 2012),
http://www.courts.wa.gov/appellate_trial_courts/?fa=atc.genorders_orddisp&ordnumber=
2012_001&div=III.
No. 35070-3-III
State v. Hubbard
father figure to S.L. and her siblings. But once S.L. reached adolescence, Mr. Hubbard
began a long-standing practice of sexual assault.
S.L. recalled a specific incidence of assault that occurred in the summer of 2012,
when she was 13 years old. The incident stood out in S.L.’s memory because it involved
Mr. Hubbard introducing S.L. to marijuana. Mr. Hubbard shared some marijuana with
S.L. while the two were at a park. Mr. Hubbard made some sexually suggestive
comments to S.L. and then, during the car ride home from the park, Mr. Hubbard groped
S.L.’s legs and vaginal area. S.L. was fully clothed at the time. Once back at the family
home, Mr. Hubbard pulled down S.L.’s pants and engaged S.L. in sexual intercourse as
S.L. was laying on a living room couch.
For Mr. Hubbard, the practice of supplying S.L. with drugs and then committing
sexual assault became “routine.” 1 Report of Proceedings (RP) (Nov. 30, 2016) at 194;
2 RP (Dec. 1, 2016) at 213. The primary drug used by Mr. Hubbard was marijuana.
But he also used lysergic acid diethylamide (LSD). As explained by S.L., with one
exception, LSD and sex always went “hand in hand.” 2 RP (Nov. 30, 2016) at 206.
Mr. Hubbard’s last act of sexual assault occurred in 2014, when S.L. was 15 years
old. Mr. Hubbard engaged S.L. in sexual intercourse while the two were seated on a
couch made from a converted car seat.
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State v. Hubbard
A few days after Mr. Hubbard’s last assault, S.L. told her mother and the police
about what had been happening. An investigation uncovered Mr. Hubbard’s DNA 3 on a
pair of S.L.’s underwear. In addition, DNA from both S.L. and Mr. Hubbard was
discovered on the converted couch, the place where S.L. described the last act of assault
taking place.
At trial, Mr. Hubbard took the stand and testified in his defense. He admitted to
having sexual intercourse with S.L. more than once. But he claimed it happened only
after S.L. turned 15. Mr. Hubbard denied consuming LSD with S.L. or providing her
with the drug.
Under the court’s instructions, the jury was required to find Mr. Hubbard
committed second degree rape and molestation in 2012, prior to S.L. turning 14. The
third degree rape charge required the jury to find Mr. Hubbard assaulted S.L. at some
point prior to S.L.’s 16th birthday in August 2014.
During closing argument, the prosecutor addressed the third degree rape charge
and made the following comments:
Now Count III [regarding third degree rape] is going to be easy,
because we all know what dog and pony show you saw today.
[Defense Counsel]: Objection.
[Prosecutor]: Anybody buying it?
THE COURT: It’s closing. Go ahead.
3
Deoxyribonucleic acid.
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State v. Hubbard
[Prosecutor]: Anybody buying it? Anybody buying it? All of
a sudden now he’s just starting to have sex with her when she’s 15. Rape of
a child in the third degree. I only charged him with one count. He admitted
to two. But as we all know, there was many other times that he did this
count. And she talked about multiple, multiple acts.
2 RP (Dec. 1, 2016) at 309 (emphasis added).
When addressing Mr. Hubbard’s testimony again later in closing, the prosecutor
stated, “Did you believe this defendant over here when he came up there? Were you
buying what he was selling? Did you think he was credible?” Id. at 318 (emphasis
added). The prosecutor then went on to argue reasons, based on the evidence, that the
jury should find Mr. Hubbard was not credible.
At one point, the prosecutor addressed the jury as if she were vocalizing Mr.
Hubbard’s thoughts:
Who is the only person in this courtroom that has a personal interest in this
case? Ding ding ding. [Mr. Hubbard]’s the only one. Do you think he has
motive to be dishonest with you when he got up there? Do you think he’s
got a motive to be dishonest with you? He listened to all the evidence.
“Ooh, boy. That DNA. This is looking bad. I’m going to have to admit to
that rape III. Oh, wait. My wife came and testified and said, ‘I watched
you—’ oh, I—that’s looking bad.[4] I’m—oh. Oh, but I didn’t do that. I
didn’t touch her when she was 13. Oh, no, no, no.” Are you buying what
he’s selling? Don’t give in to that. The fact that he has a motive to be
dishonest with you is something you can take into consideration regarding
his credibility, regarding whether you believe him.
4
S.L.’s mother testified at trial and described an occasion when she walked in on
Mr. Hubbard and S.L. engaged in intercourse.
4
No. 35070-3-III
State v. Hubbard
Id. at 324 (emphasis added).
A jury found Mr. Hubbard guilty of second degree rape of a child (occurring in
2012), second degree child molestation (occurring in 2012), third degree rape of a child
(occurring in 2015), and distribution of a controlled substance, with sexual motivation, to
a person under 18. Mr. Hubbard appeals. He has also filed a statement of additional
grounds for review.
ANALYSIS
Sufficiency of evidence
Our inquiry in a sufficiency challenge is limited. We do not reweigh evidence or
substitute our judgment for that of the trier of fact. State v. Green, 94 Wn.2d 216, 221,
616 P.2d 628 (1980). Instead, we consider the evidence in the light most favorable to the
State and ask whether “any rational trier of fact could have found guilt beyond a
reasonable doubt.” State v. Salinas, 119 Wn.2d 192, 201, 829 P.2d 1068 (1992). As
explained below, the trial evidence readily met this standard.
Rape and molestation convictions 2012 offense conduct
Mr. Hubbard contends the evidence cannot support his convictions for second
degree child rape and molestation because the State did not present competent evidence
that S.L. was assaulted in 2012. Although S.L. testified the assault took place the summer
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No. 35070-3-III
State v. Hubbard
after she was in the seventh grade, which would have been 2012, Mr. Hubbard claims this
testimony was patently incredible. Mr. Hubbard points to S.L.’s testimony that a kitchen
table was present in the family home on the date of the 2012 assault. Yet testimony from
S.L.’s mother indicated the table was purchased in 2014. According to Mr. Hubbard, this
discrepancy between S.L.’s testimony and other evidence fully refuted S.L.’s claim about
the timeline of events.
Mr. Hubbard’s argument amounts to nothing more than an attack on S.L.’s
credibility. It is inconsistent with the applicable standard of review. A rational jury could
have found S.L. was mistaken as to the presence of the table, but nevertheless accurate as
to the date of the assault. 5 Alternatively, the jury could have found S.L.’s testimony was
entirely accurate and that her mother had been mistaken about when the table was
purchased. 6 We will not second-guess the jury’s reasoning on appeal. Sufficient
evidence supports the jury’s guilty verdicts.
5
S.L. did not identify the table as something that played a key role in her memory.
Instead, she anchored the timing of the 2012 assault around her birthday and her year in
school.
6
When asked when she purchased the table, S.L.’s mother said she was “not sure
exactly.” 1 RP (Nov. 30, 2016) at 73. She estimated the purchase was two years prior to
trial, which would have been 2014. Id.
6
No. 35070-3-III
State v. Hubbard
Sexual motivation enhancement
S.L.’s testimony made clear Mr. Hubbard regularly shared drugs with her prior to
engaging in sexually assaultive conduct. While Mr. Hubbard’s drug of choice appeared
to have been marijuana, S.L. also testified that Mr. Hubbard used LSD and that LSD and
sex went “hand in hand” with only one exception. 2 RP (Nov. 30, 2016) at 206. S.L.’s
testimony provided a sufficient basis for the jury to find Mr. Hubbard provided drugs to
her for the purpose of sexual gratification, as required by RCW 9.94A.030(48).
Prosecutorial misconduct
Allegations of prosecutorial misconduct are reviewed for abuse of discretion.
State v. Lindsay, 180 Wn.2d 423, 430, 326 P.3d 125 (2014); State v. Brett, 126 Wn.2d
136, 174-75, 892 P.2d 29 (1995). A defendant bears the burden of showing that the
prosecutor’s comments are both improper and prejudicial. Lindsay, 180 Wn.2d at 430;
State v. Warren, 165 Wn.2d 17, 26, 195 P.3d 940 (2008). Mr. Hubbard argues the
prosecutor impugned the integrity of defense counsel and shifted the burden of proof
through her “dog and pony show” remark. 2 RP (Dec. 1, 2016) at 309. 7
7
Mr. Hubbard does not argue that the prosecutor’s comments impinged on his jury
trial rights by suggesting he tailored his testimony to fit the evidence at trial. See State v.
Martin, 171 Wn.2d 521, 252 P.3d 872 (2011).
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No. 35070-3-III
State v. Hubbard
While the prosecutor’s tone was not entirely professional, Mr. Hubbard has not
established a basis for reversing his conviction. The prosecutor’s remarks were aimed at
Mr. Hubbard, not defense counsel. Cf. Lindsay, 180 Wn.2d at 431-32 (prosecutorial
misconduct to impugn the role of defense counsel or counsel’s integrity). Because Mr.
Hubbard testified, the prosecutor was entitled to point out deficiencies in Mr. Hubbard’s
testimony. State v. Hilton, 164 Wn. App. 81, 97-98, 261 P.3d 683 (2011). By referencing
a “dog and pony show” and questioning whether the jury was “buying” Mr. Hubbard’s
testimony, 2 RP (Dec. 1, 2016) at 309, the prosecutor suggested the jury should find Mr.
Hubbard was not credible. However, the prosecutor did not indicate the jury’s verdict
should rest entirely on this assessment. Instead, the prosecutor focused on why the jury
should find S.L. more credible than Mr. Hubbard. This line of reasoning was proper.
State v. Jackson, 150 Wn. App. 877, 886, 209 P.3d 553 (2009).
STATEMENT OF ADDITIONAL GROUNDS FOR REVIEW
Mr. Hubbard raises three arguments in his statement of additional grounds
for review: (1) ineffective assistance of counsel, (2) improper arraignment, and
(3) prosecutorial misconduct. Each is addressed in turn.
Ineffective assistance of counsel
Mr. Hubbard argues defense counsel was ineffective for: (1) allowing in
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No. 35070-3-III
State v. Hubbard
evidence of his previous convictions, (2) failing to conduct an adequate investigation,
and (3) incorrectly telling the trial court he entered a not guilty plea when there was
never any arraignment. To demonstrate ineffective assistance, Mr. Hubbard must show
deficient performance and prejudice. State v. Thomas, 109 Wn.2d 222, 225-26, 743 P.2d
816 (1987); Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d
674 (1984). If either is lacking, the ineffective assistance claim fails. State v. Foster, 140
Wn. App. 266, 273, 166 P.3d 726 (2007).
As to the first argument, S.L.’s mother testified Mr. Hubbard had spent some time
in jail, which was a violation of an order on a motion in limine. The trial court asked
defense counsel if there was going to be a motion for a mistrial, but counsel declined to
seek one. Counsel explained that this decision was based on trial strategy. We will not
second-guess that strategy in the context of an ineffective assistance claim.
For his second argument, Mr. Hubbard cites to two pages in the record without any
explanation for how these pages show an inadequate investigation by defense counsel.
Full consideration of this argument appears to require knowledge of facts and evidence
that are not part of the appellate record. The proper avenue for presenting such facts and
evidence is through a personal restraint petition. See State v. McFarland, 127 Wn.2d 322,
335, 899 P.2d 1251 (1995).
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No. 35070-3-III
State v. Hubbard
Mr. Hubbard last argues defense counsel misrepresented the facts by stating he had
pleaded not guilty to the charges in the first amended information. Even assuming this to
be true, Mr. Hubbard does not attempt to explain how he was prejudiced. Further, as
discussed below, Mr. Hubbard has waived any arguments relating to his lack of formal
arraignment on the amended information.
Lack of arraignment
Mr. Hubbard next argues his due process rights were violated because he was
never properly arraigned on the amended information. He asserts this prevented him
from adequately preparing his defense. Mr. Hubbard did not raise this objection in the
trial court, did not contest defense counsel’s statement he pleaded not guilty to the
amended information, and had a full trial on the merits. Through his actions, Mr.
Hubbard has waived his right to a formal arraignment on the amended information, and
there was no due process violation. State v. Anderson, 12 Wn. App. 171, 173, 528 P.2d
1003 (1974); State v. Graeber, 46 Wn.2d 602, 605-06, 283 P.2d 974 (1955).
Prosecutorial misconduct
Mr. Hubbard last argues it was misconduct for the prosecutor to continue to draw
attention to his marijuana grow operation after counts V and VI were dismissed mid-trial.
We disagree. The marijuana evidence was relevant to show the general link between
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No. 35070-3-III
State v. Hubbard
drugs and Mr. Hubbard's assaultive conduct. It was not utilized as bad character
evidence. In closing, the prosecutor clearly told the jury the marijuana charges were no
longer before it. The prosecutor then focused her argument on the LSD use. The
prosecutor never pushed for a conviction based on the marijuana. Mr. Hubbard has not
asserted a valid claim of misconduct.
APPELLATE COSTS
Mr. Hubbard's motion to deny appellate costs is deferred to the court
commissioner should the State seek costs.
CONCLUSION
The judgment of 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.
Pennell, J.
WE CONCUR:
Fearing,~ J
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