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FILED JUNE 13, 2019 In the Office of the Clerk of Court WA State Court of Appeals, Division Ill
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IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION THREE
STATE OF WASHINGTON, ) No. 35128-9-111 ) (consolidated with Respondent, ) No. 35516-1-111) ) V. ) ) ASIL L. HUBLEY, ) ) Appellant. ) UNPUBLISHED OPINION ) ) In the Matter of the Personal Restraint of ) ) ASIL L. HUBLEY, ) ) Petitioner. )
PENNELL, J. - In this combined direct appeal and personal restraint petition
(PRP), Asil L. Hubley challenges his convictions and sentences for child molestation
and rape. We affirm. Nos. 35128-9-III; 35516-1-III State v. Hubley
FACTS
Mr. Hubley was arrested after his two daughters disclosed multiple acts of sexual
abuse. The older daughter, L.H., revealed that Mr. Hubley began molesting her in 2010
when she was aged 13. L.H. reported that Mr. Hubley’s conduct grew increasingly severe
and ended with Mr. Hubley engaging L.H. in intercourse when she was 15. Mr. Hubley’s
younger daughter, Z.E., also disclosed multiple instances of molestation, beginning when
she was either 7 or 8. Z.E.’s allegations included acts of sexual intercourse.
The State charged Mr. Hubley with two counts of child molestation and two
counts of child rape. One of the rape counts pertained to L.H. and the other to Z.E.
The child molestation counts pertained solely to L.H. Those counts were separated into
second and third degree child molestation, due to L.H.’s age at the time of the offenses.
Count I alleged Mr. Hubley committed second degree child molestation by engaging in
sexual contact with L.H. (age 13) on or about July 9, 2010 to July 18, 2011. Count II
alleged Mr. Hubley committed third degree child molestation by engaging in sexual
contact with L.H. (age 14-15) between July 19, 2011 and August 30, 2012. Count III
alleged Mr. Hubley committed third degree rape of a child by engaging in sexual
intercourse with L.H. (age 15) between August 1, 2012 and August 31, 2012. Count IV
2 Nos. 35128-9-III; 35516-1-III State v. Hubley
alleged Mr. Hubley committed first degree rape of a child by engaging in sexual
intercourse with Z.E. (age 7-8) between June 1, 2012 and December 31, 2012.
A jury found Mr. Hubley guilty on all four counts. At sentencing, the trial
court calculated Mr. Hubley’s offender score as 9. The court imposed 116 months of
incarceration for count I, 60 months each for counts II and III, and an indeterminate
sentence of 276 months to life on count IV. All sentences were ordered to run
concurrently.
Mr. Hubley has filed a timely appeal which has been consolidated with his PRP. 1
ANALYSIS
Argument raised on direct appeal—challenge to offender score
Under the Sentencing Reform Act of 1981, chapter 9.94A RCW, the sentencing
range for each discrete conviction is calculated according to the offense and the
defendant’s criminal offender score. RCW 9.94A.505(1), .525, .530. When a defendant
is sentenced for multiple offenses during the same proceeding, the default rule treats other
current offenses as if they were prior convictions for the purpose of
1 Mr. Hubley has also filed a two-page statement of additional grounds for review (SAG), alleging four errors with his judgment and sentence. The arguments set forth in the SAG are conclusory and repetitive of arguments raised in Mr. Hubley’s PRP and by legal counsel. They therefore do not warrant separate analysis.
3 Nos. 35128-9-III; 35516-1-III State v. Hubley
calculating the offender score. RCW 9.94A.589(1)(a). However, if the sentencing court
finds that some or all of the defendant’s current offenses encompass the “same criminal
conduct,” then those offenses shall be counted only as one crime when computing the
score. Id.; State v. Reyna Valencia, 2 Wn. App. 2d 121, 125, 416 P.3d 1275, review
denied, 190 Wn.2d 1020, 418 P.3d 798 (2018).
Whether multiple crimes constitute the same criminal conduct is a question of
fact. State v. Aldana Graciano, 176 Wn.2d 531, 536, 295 P.3d 219 (2013). The inquiry
turns on whether the crimes “require the same criminal intent, are committed at the same
time and place, and involve the same victim.” RCW 9.94A.589(1). The defendant bears
the burden of proving that two or more current offenses are based on the same criminal
conduct. Reyna Valencia, 2 Wn. App. 2d at 125.
We review the trial court’s disposition of this issue for abuse of discretion or
misapplication of law. Aldana Graciano, 176 Wn.2d at 536.
Mr. Hubley argues that Count II (third degree child molestation against L.H.)
and Count III (third degree rape against L.H.) involved the same criminal conduct and,
as a result, should not have been counted separately in his offender score. We disagree.
The trial court did not abuse its discretion in counting the two child molestation
convictions separately. Although the time periods recited in Counts II and III overlapped,
4 Nos. 35128-9-III; 35516-1-III State v. Hubley
L.H. testified to multiple instances of sexual assault during this time period. At one point,
L.H. said that, when she was aged 14, Mr. Hubley assaulted her every other day. The trial
court had ample basis for treating Counts II and III separately for purposes of calculating
the offender score.
PRP
Mr. Hubley has filed a PRP alleging what appear to be six grounds for relief:
(1) prosecutorial misconduct and ineffective assistance of counsel, (2) violation of his
Fourteenth Amendment 2 “protective custody” rights, (3) insufficiency of the evidence,
(4) discrimination in jury selection, (5) errors in the admission of evidence, and (6) a
challenge to his offender score. None of Mr. Hubley’s claims have merit. 3
Prosecutorial misconduct or ineffective assistance of counsel
Mr. Hubley complains he was subjected to prosecutorial misconduct and
ineffective assistance of counsel by references in voir dire summation to the O.J. Simpson
trial. The record indicates that the only references to O.J. Simpson came from defense
counsel, not the prosecution. The statements were made in an attempt to explain the
2 U.S. CONST. amend. XIV. 3 To the extent Mr. Hubley’s PRP references additional claims, they are too vague to warrant review. RAP 16.7(a)(2); In re Pers. Restraint of Williams, 111 Wn.2d 353, 364-65, 759 P.2d 436 (1988).
5 Nos. 35128-9-III; 35516-1-III State v. Hubley
State’s burden of proof. The choice to reference the O.J. Simpson trial as a rhetorical
device was a strategic decision. As such, it is not grounds for relief from conviction
under a theory of ineffective assistance of counsel. State v. McNeal, 145 Wn.2d 352,
362-63, 37 P.3d 280 (2002).
Violation of Fourteenth Amendment “protective custody” rights
Mr.
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I l l I
FILED JUNE 13, 2019 In the Office of the Clerk of Court WA State Court of Appeals, Division Ill
l
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION THREE
STATE OF WASHINGTON, ) No. 35128-9-111 ) (consolidated with Respondent, ) No. 35516-1-111) ) V. ) ) ASIL L. HUBLEY, ) ) Appellant. ) UNPUBLISHED OPINION ) ) In the Matter of the Personal Restraint of ) ) ASIL L. HUBLEY, ) ) Petitioner. )
PENNELL, J. - In this combined direct appeal and personal restraint petition
(PRP), Asil L. Hubley challenges his convictions and sentences for child molestation
and rape. We affirm. Nos. 35128-9-III; 35516-1-III State v. Hubley
FACTS
Mr. Hubley was arrested after his two daughters disclosed multiple acts of sexual
abuse. The older daughter, L.H., revealed that Mr. Hubley began molesting her in 2010
when she was aged 13. L.H. reported that Mr. Hubley’s conduct grew increasingly severe
and ended with Mr. Hubley engaging L.H. in intercourse when she was 15. Mr. Hubley’s
younger daughter, Z.E., also disclosed multiple instances of molestation, beginning when
she was either 7 or 8. Z.E.’s allegations included acts of sexual intercourse.
The State charged Mr. Hubley with two counts of child molestation and two
counts of child rape. One of the rape counts pertained to L.H. and the other to Z.E.
The child molestation counts pertained solely to L.H. Those counts were separated into
second and third degree child molestation, due to L.H.’s age at the time of the offenses.
Count I alleged Mr. Hubley committed second degree child molestation by engaging in
sexual contact with L.H. (age 13) on or about July 9, 2010 to July 18, 2011. Count II
alleged Mr. Hubley committed third degree child molestation by engaging in sexual
contact with L.H. (age 14-15) between July 19, 2011 and August 30, 2012. Count III
alleged Mr. Hubley committed third degree rape of a child by engaging in sexual
intercourse with L.H. (age 15) between August 1, 2012 and August 31, 2012. Count IV
2 Nos. 35128-9-III; 35516-1-III State v. Hubley
alleged Mr. Hubley committed first degree rape of a child by engaging in sexual
intercourse with Z.E. (age 7-8) between June 1, 2012 and December 31, 2012.
A jury found Mr. Hubley guilty on all four counts. At sentencing, the trial
court calculated Mr. Hubley’s offender score as 9. The court imposed 116 months of
incarceration for count I, 60 months each for counts II and III, and an indeterminate
sentence of 276 months to life on count IV. All sentences were ordered to run
concurrently.
Mr. Hubley has filed a timely appeal which has been consolidated with his PRP. 1
ANALYSIS
Argument raised on direct appeal—challenge to offender score
Under the Sentencing Reform Act of 1981, chapter 9.94A RCW, the sentencing
range for each discrete conviction is calculated according to the offense and the
defendant’s criminal offender score. RCW 9.94A.505(1), .525, .530. When a defendant
is sentenced for multiple offenses during the same proceeding, the default rule treats other
current offenses as if they were prior convictions for the purpose of
1 Mr. Hubley has also filed a two-page statement of additional grounds for review (SAG), alleging four errors with his judgment and sentence. The arguments set forth in the SAG are conclusory and repetitive of arguments raised in Mr. Hubley’s PRP and by legal counsel. They therefore do not warrant separate analysis.
3 Nos. 35128-9-III; 35516-1-III State v. Hubley
calculating the offender score. RCW 9.94A.589(1)(a). However, if the sentencing court
finds that some or all of the defendant’s current offenses encompass the “same criminal
conduct,” then those offenses shall be counted only as one crime when computing the
score. Id.; State v. Reyna Valencia, 2 Wn. App. 2d 121, 125, 416 P.3d 1275, review
denied, 190 Wn.2d 1020, 418 P.3d 798 (2018).
Whether multiple crimes constitute the same criminal conduct is a question of
fact. State v. Aldana Graciano, 176 Wn.2d 531, 536, 295 P.3d 219 (2013). The inquiry
turns on whether the crimes “require the same criminal intent, are committed at the same
time and place, and involve the same victim.” RCW 9.94A.589(1). The defendant bears
the burden of proving that two or more current offenses are based on the same criminal
conduct. Reyna Valencia, 2 Wn. App. 2d at 125.
We review the trial court’s disposition of this issue for abuse of discretion or
misapplication of law. Aldana Graciano, 176 Wn.2d at 536.
Mr. Hubley argues that Count II (third degree child molestation against L.H.)
and Count III (third degree rape against L.H.) involved the same criminal conduct and,
as a result, should not have been counted separately in his offender score. We disagree.
The trial court did not abuse its discretion in counting the two child molestation
convictions separately. Although the time periods recited in Counts II and III overlapped,
4 Nos. 35128-9-III; 35516-1-III State v. Hubley
L.H. testified to multiple instances of sexual assault during this time period. At one point,
L.H. said that, when she was aged 14, Mr. Hubley assaulted her every other day. The trial
court had ample basis for treating Counts II and III separately for purposes of calculating
the offender score.
PRP
Mr. Hubley has filed a PRP alleging what appear to be six grounds for relief:
(1) prosecutorial misconduct and ineffective assistance of counsel, (2) violation of his
Fourteenth Amendment 2 “protective custody” rights, (3) insufficiency of the evidence,
(4) discrimination in jury selection, (5) errors in the admission of evidence, and (6) a
challenge to his offender score. None of Mr. Hubley’s claims have merit. 3
Prosecutorial misconduct or ineffective assistance of counsel
Mr. Hubley complains he was subjected to prosecutorial misconduct and
ineffective assistance of counsel by references in voir dire summation to the O.J. Simpson
trial. The record indicates that the only references to O.J. Simpson came from defense
counsel, not the prosecution. The statements were made in an attempt to explain the
2 U.S. CONST. amend. XIV. 3 To the extent Mr. Hubley’s PRP references additional claims, they are too vague to warrant review. RAP 16.7(a)(2); In re Pers. Restraint of Williams, 111 Wn.2d 353, 364-65, 759 P.2d 436 (1988).
5 Nos. 35128-9-III; 35516-1-III State v. Hubley
State’s burden of proof. The choice to reference the O.J. Simpson trial as a rhetorical
device was a strategic decision. As such, it is not grounds for relief from conviction
under a theory of ineffective assistance of counsel. State v. McNeal, 145 Wn.2d 352,
362-63, 37 P.3d 280 (2002).
Violation of Fourteenth Amendment “protective custody” rights
Mr. Hubley claims his rights to “protective custody” were violated because
members of the public were permitted to view his trial. PRP at 4. This claim lacks legal
support. Trials are open proceedings and the public has a right of access. WASH. CONST.,
art. I, §§ 10, 22.
Sufficiency of the evidence
Mr. Hubley contends the State presented insufficient evidence to justify his
convictions. His primary argument is that the State failed to present physical evidence
of assault. This claim fails because physical evidence is not required to prove child
molestation or rape. It is sufficient for the State to present testimonial evidence
from percipient witnesses. Mr. Hubley also complains that the State’s witnesses were
impeached. This claim goes to the weight of the State’s evidence, not its sufficiency.
6 Nos. 35128-9-III; 35516-1-III State v. Hubley
Racial composition of jury
Mr. Hubley objects to the racial composition of his jury. This conclusory
allegation fails for lack of factual support. In re Pers. Restraint of Monschke, 160
Wn. App. 479, 488, 251 P.3d 884 (2010).
Objections to the State’s evidence
Mr. Hubley makes a variety of generalized objections to the evidence introduced
at trial. To the extent Mr. Hubley’s claims can be discerned, it appears he is claiming a
violation of his constitutional right to confront witnesses. 4 He also claims that some of
the State’s witnesses might have been body doubles, fraudulently impersonating the
State’s actual witnesses. Mr. Hubley’s confrontation clause claim fails because the
State’s witnesses testified and were subject to cross-examination. His claim with respect
to the body doubles fails for lack of evidentiary support.
Calculation of offender score
Mr. Hubley challenges his offender score, arguing the trial court improperly used
three domestic violence charges that had been dismissed. He also reiterates the argument
his attorney raised on direct appeal. Mr. Hubley’s claim regarding the domestic violence
4 U.S. CONST. amend VI; WASH. CONST. art I, § 22.
7 Nos. 35128-9-111; 35516-1-111 State v. Hubley
convictions fails for lack of factual support. The remaining claim has already been
addressed.
CONCLUSION
The judgment of conviction is affirmed. Mr. Hubley's PRP is denied.
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:
Lawrence-Berrey, C.J. Fearing, J.