FILED JULY 24, 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STATE OF WASHINGTON, ) ) No. 35111-4-III Respondent, ) ) v. ) ) UNPUBLISHED OPINION EMANUEL HUBBART, ) ) Appellant. )
FEARING, J. — Emanuel Hubbart raises the unique argument that a trial exhibit
constitutes an impermissible judicial comment on the evidence and a common argument
that the prosecution engaged in misconduct. We reject his arguments and affirm, on
appeal, his convictions for rape and molestation of his stepdaughter.
FACTS
In February 1993, Dawn and Emanuel Hubbart wed. Dawn bore three children
from a previous relationship, including daughters Kathy, born October 26, 1988, and
Bertha, born on an unidentified later date. Although both daughters allege that Hubbart
sexual molested them, the prosecution only concerns acts directed at Kathy. Kathy and
Bertha are pseudonyms. No. 35111-4-III State v. Hubbart
From 1996 until 2003, Emanuel Hubbart sexually abused his stepdaughter Kathy.
During trial testimony, Kathy described a number of attacks, although she could not date
the attacks nor give detailed descriptions of some of the attacks, since the attacks
occurred as often as four times per week. Hubbart first directed Kathy and Bertha to
masturbate him while Dawn Hubbart was at work. Bertha was as young as four during
these occurrences.
On a later occasion, Emanuel Hubbart attempted to penetrate Kathy’s vagina with
his penis until she stopped him. On other dates, Hubbart forced Kathy to digitally
copulate him. He often touched Kathy on her breasts and buttocks.
Sometime in 2003, Dawn and Emanuel Hubbart argued over when fourteen-year-
old Kathy should retire for bed. The disagreement escalated and Hubbart hit Dawn in the
face, which punch broke her jaw. Kathy waited with her mother in the hospital until
Kathy’s grandfather instructed Kathy to return home. On the return home, Hubbart
attacked Kathy for the last time. During trial, Kathy described the attack:
I just remember it being in the afternoon after I had woke [sic] up because I was up late, and all I can remember is just when it happened. I don’t really remember prior to, but I just remember him pinning me down and like forced himself on me and pried my legs open. All the while I was just saying like, “Stop. No.” Crying. He told me if I didn’t stop crying that he would hit me. Then he had sex with me, and I just remember just looking at the clock just thinking, “Can my sister hurry up and come home and save me.”
2 No. 35111-4-III State v. Hubbart
Report of Proceedings (RP) at 174. Following the sexual assault, Kathy wiped her
vaginal area with a sanitary napkin, which she fortuitously stored in her dresser drawer.
Emanuel Hubbart’s attack on Dawn led to Kathy’s disclosing to her mother of
Hubbart’s abuse. On August 25, 2003, Kathy and Dawn Hubbart visited Todd Dronen of
the Kennewick Police Department to report the abuse. On August 29, Kathy and Dawn
delivered to the police the sanitary napkin Kathy used to clean herself. An examination
revealed Hubbart’s and Kathy’s deoxyribonucleic acid (DNA) on the sanitary napkin.
In October 2003, the State of Washington charged Emanuel Hubbart with rape of a
child in the third degree. On November 7, 2003, the trial court released Hubbart on his
own recognizance. Hubbart signed a court order establishing conditions of pretrial
release, wherein Hubbart listed a South Stewart Street, Kennewick, address. No such
street exists in the city of Kennewick. The order banned Hubbart from contacting Dawn
and her two daughters. The order listed Kathy’s birthdate as October 26, 1988.
In part because of the fictitious address for Emanuel Hubbart’s home, Kennewick
Police Officer Craig Hanson could not locate Hubbart weeks after his release. Officer
Hanson later received a tip that Hubbart lived in Kent, and Officer Hanson attempted to
locate him in the Seattle suburb. In early 2004, the Kent Police Department discovered
Kathy and Bertha residing with Emanuel and Dawn Hubbart in a Kent domicile. On
February 4, 2004, the State returned Hubbart to the trial court, and the court reset bail.
3 No. 35111-4-III State v. Hubbart
On February 24, 2004, Dawn Hubbart wrote a letter to Emanuel Hubbart’s defense
attorney, which read in pertinent part:
I really need to talk to you concerning my husband’s case, Emanuel Hubbart. I have very crucial information to help you on your case to defend him. He has been falsely accused. My daughter and her biological father have conjured all of this up. I have written statements from my other daughter with info, and she wants to go before the judge and tell what really was said. Plus, my written statement also.
RP at 160. On March 25, 2004, Dawn penned another letter to the attorney, which
second letter read:
Around the end of February [Kathy] called our house and was talking with [Bertha]. I was on the other phone listening, and [Kathy] wanted to make sure that [Bertha] was still going to ‘stick to the story’ about Emanuel touching her when we went to trial. [Bertha] told [Kathy] that she was not gonna[’] lie anymore and tell the judge the truth that none of this ever happened. I was in shock and flew off the handle and said, ‘How could she make up such a horrific lie?’ I was disgusted because I am the one who pressed charges in the first place.
RP at 162. Bertha also wrote a letter to Hubbart’s defense attorney explaining that she
fabricated the claims against Hubbart in order to protect her mother.
On August 30, 2004, the State dismissed the charges against Emanuel Hubbart
without prejudice. The State wrote in the dismissal: “[t]he victim in this case has
evidently moved to the Las Vegas area and this office is unable to contact [her] at this
time.” Ex. 7.
Following the dismissal of the original charges, Dawn Hubbart continued to reside
4 No. 35111-4-III State v. Hubbart
with Emanuel Hubbart despite his domestic violence and Kathy’s claims of sexual abuse.
During trial testimony, Dawn explained her behavior:
When all of this came about and [Kathy] told me everything and, um, at the time I had been havin’ extreme—I mean, I’d been havin’ so many problems with [Kathy], um, at the time, you know, before she told me about the assault. I just figured it was a teenager just the way they are. I had no idea that it was actually because of this. Now I understand why, but at the time I didn’t understand, and when she was with her Dad, um, she was talkin’ about [Bertha] and I had picked—I don’t know what I did. I don’t know if I answered the phone or if I didn’t know they were on the phone but I overheard [Kathy] telling— .... A. I didn’t believe it. I didn’t believe it because of the circumstances. So, I went back.
RP at 145-46. During trial, Dawn additionally illuminated that she also suffered from
domestic violence in her first marriage. She noted difficulty in leaving Hubbart because
he accepted her children.
In June 2015, the biological father of Bertha and Kathy called Kennewick Police
Detective Randy Maynard and asked about the police investigation of Emanuel Hubbart.
Detective Maynard subsequently contacted Bertha and Kathy to discuss Hubbart.
PROCEDURE
On January 26, 2017, the State of Washington brought a renewed prosecution.
The State charged Emanuel Hubbart with rape of a child in the first degree, child
molestation in the first degree, rape of a child in the second degree, rape of a child in the
third degree, and child molestation in the third degree. In each count, the State identified
5 No. 35111-4-III State v. Hubbart
Kathy as the victim.
Before reception of trial testimony, Emanuel Hubbart moved in limine to prevent
the State from admitting as an exhibit any court records from the State’s initial
prosecution of Hubbart in 2003, which case the State dismissed. In response, the State
asked permission to introduce as an exhibit the November 7, 2003, order that listed
conditions for Hubbart’s pretrial release. The State sought admission of the court order
to show the jury that Hubbart provided a false address for his home and that the order
prohibited Hubbart from contact with Dawn Hubbart and her two daughters. The State
deemed the exhibit relevant because Hubbart violated the court order by residing with
Dawn and her daughters, including the victim in the prosecution. This violation of the
order permitted Hubbart to influence Dawn to write a letter seeking dismissal of charges
and to manipulate Bertha to retract her allegations of abuse. In turn, the violation of the
order explained the delay in prosecuting Hubbart.
In reply, Emanuel Hubbart argued that the order of release conditions lacked any
relevance to the charges. The trial court agreed to admit the exhibit because the order
and its violation substantiated the coercion that Hubbart imposed on his wife and her
daughter and the false address substantiated his desire to avoid detection of his contact
with the women.
During its opening statement, the State presented a slideshow to the jury. The first
slide included a title, which read: “20 year search for justice.” Clerk’s Papers at 90.
6 No. 35111-4-III State v. Hubbart
Emanuel Hubbart did not testify during his trial. His defense posited that Kathy
and Bertha fabricated their allegations in order to live with their natural father. Bertha
testified at trial that she lied in her letter to Hubbart’s initial defense counsel about
fabricating the allegations because she was young and her mother pressured her to lie.
Bertha averred regarding her letter:
So, I did lie, but, I mean, I did what I was told. I was a kid, and I just did what they told me to do because, I mean, this has been goin’ on for so long. It was very scary, and so we did what we were told for a long time until we got away. Q. Who was telling you to lie? A. My mom, and I think—I’m sure D told her to lie, you know. Those were serious charges, and, I mean, how I would know to address it to whoever—I don’t even know who that guy is, you know? How would I know who to address it to? I just did what I was told.
RP at 198.
Dawn Hubbart also testified that she lied in her letter to the first defense counsel
because Emanuel Hubbart frightened her. Dawn declared that Hubbart’s physical abuse
caused her to posit excuses for his actions and blame his violence on herself. Dawn
testified:
and you have to understand that even if he was in jail I was still scared and if—if I did—you know, I knew if I would, you know, more things were to get—it would just cause more problems, you know? When you’re in a relationship like that I don’t know what it is, I don’t know why, but you just continue to make excuses all the time. I just didn’t want charges pressed and I didn’t want him to be in jail because I thought, you know, it was all my fault and he didn’t, you know, just—yeah.
7 No. 35111-4-III State v. Hubbart
RP at 144.
Kathy testified extensively at trial. She had by then reached the age of twenty-
eight.
During closing argument, the prosecution addressed Emanuel Hubbart’s theory
that Kathy fabricated the allegations of rape and abuse. The prosecution remarked:
I would like you to think of these facts or these factors in considering what the evidence is in this case—what the actual facts are in the case. First of all, I’d like you to consider [Kathy], and I would like you to consider her motive to come to court yesterday and testify. Remember, she hasn’t had any contact with the gentleman seated at counsel table for over six years. Remember the defense—the theory of the defense is that, well, these two girls plotted. They wanted their stepfather out of the picture because he was beating up their mom, and therefore, they came up with this story about sexual abuse. . . . [Kathy] doesn’t have any contact with the defendant, and frankly she doesn’t have any contact with her mother. There’s no motive. None. Zero motive for [Kathy] to tell you anything other than what’s actually happened. . . . .... It wasn’t [Kathy]. Detective Maynard was the one that went out and talked to [Bertha] and [Kathy]. It wasn’t [Kathy] calling up and saying, “I want this case reinvestigated.” [Kathy] doesn’t have any motive at this point other than to just tell you the truth. Also consider, you know, the factors here are really compelling. We know that [Kathy] is telling the truth about the starting point, about the very first episode that this happened, which was in Federal Way or Seattle where the defendant got both girls onto the bed and you heard their descriptions of it. We know that [Bertha] confirmed that absolutely. So, we know the starting date. . . . .... I would suggest to you without any doubt that [Kathy’s] testimony is accurate, you know, at least about the start and about the finish. We also know that [Bertha] saw the defendant and [Kathy] having
8 No. 35111-4-III State v. Hubbart
oral sex. You heard [Bertha’s] testimony about that. You heard [Kathy’s] testimony. We also know concerning [Kathy] that she’s been consistent. Here she’s been interviewed forensically—by a forensic interviewer. She’s been interviewed by a police officer. She’s been interviewed by Doctor Zirkle. She’s been interviewed by the defense attorney. You haven’t heard any inconsistencies in those interviews. .... I’d also ask you to consider the fact that he [Emanuel Hubbart] coerced statements from [Bertha] and Dawn. Let’s go over a couple things. [Bertha]—[Bertha] has no motive to lie in this case, and really, you know, one thing the judge has told you in assessing the credibility of witnesses you can look at their demeanor on the witness stand, and frankly, how could you not believe [Bertha]? I’ll leave it at that. I’ll just leave it at that. How could you not believe her with the way she testified? The sincerity and the tearfulness about, you know, the fact that she lied [in 2003]. That really got to her. She was just 14. That’s just not realistic to think that she wrote the letter that’s been admitted just on her own.
RP at 322-26.
The prosecution further argued:
When we were doing jury selection we talked about the wish list. What could you possibly expect to have in a case like this. . . . .... We’ve got an independent witness. We’ve got [Bertha] who actually saw, actually saw the sexual contact, the oral sex between the defendant and [Kathy]. We’ve got consistent statements going back 20 years. You know, if [Kathy] were not telling the truth, she’d be tripped up somewhere along the line.
RP at 335.
The prosecution added in summation:
I would submit to you that if [Kathy] made all this up in 2003 when she was a teenager, when she was mad, when she was upset, when she was just—couldn’t believe that her mom was siding with her abuser, if that was
9 No. 35111-4-III State v. Hubbart
her motive then and she lied about it all, well guess what? She’s got 15 years behind her. She’s got a new life. If it was all a lie, as an adult she could have said, “No, I don’t want to cooperate. Please, let’s let sleeping dogs lie.” That’s not what she did. Kennewick police got in touch with her, and they said, “This is still viable. We have DNA evidence. Do you want to cooperate? Do you want to come to trial? Do you want to face the man that did this to you?” And she said, “Yes.” She got on that stand, and it was not easy for her to do that. As an adult she has a completely different mind-set and arguably no motive, if she ever had a motive, no motive whatsoever in 2017 to take the stand. If it was all a lie in 2003, you could—could you decide that there was no way she would subject herself to getting on the stand and retelling all these lies when there’s no reason to do so? She’s escaped him. She’s gotten away from him. What’s the point other than justice? Other than a search for truth? So, is it ideal that this case is coming to light in 2017? No, not at all, but that is the reality.
RP at 342-43.
The prosecution finished with its summation rebuttal:
They [the defense] can’t get around that. They want to pin that on anyone other than Emanuel Hubbart. There’s no motives here except for a search for the truth that frankly was way too long in coming, but [Kathy] has finally had her day in court. This is the evidence. This is the evidence that you have now to consider, and based on that evidence we would ask that you return verdicts of guilty on all counts.
RP at 350.
The jury convicted Emanuel Hubbart on all five counts.
10 No. 35111-4-III State v. Hubbart
LAW AND ANALYSIS
Judicial Comment on Evidence
Emanuel Hubbart claims the trial court erred by admitting exhibit 6, the order in
the 2003 prosecution that established conditions of pretrial release, because the exhibit
included Kathy’s date of birth as October 26, 1988. Hubbart argues that admission of the
exhibit, with its identification of the birthdate, constituted an impermissible comment on
the evidence by the trial judge.
The State observes that, at trial, Emanuel Hubbart objected to exhibit 6 on
relevance grounds, but not as presenting a judicial comment on the evidence. Thus, the
State argues that Hubbart did not preserve this first assignment of error. We agree that,
under the general rule, the reviewing court will not entertain an assignment of error based
on an evidentiary objection unless the appellant informed the trial court of the correct
basis on which to exclude evidence. Marr v. Cook, 51 Wn.2d 338, 341-42, 318 P.2d 613
(1957).
Under RAP 2.5(a), this court may refuse to review any claim of error not raised in
the trial court. A constitutional right, or a right of any other sort, may be forfeited in
criminal cases by the failure to make timely assertion of the right before a tribunal having
jurisdiction to determine it. United States v. Olano, 507 U.S. 725, 731, 113 S. Ct. 1770,
123 L. Ed. 2d 508 (1993). Good sense lies behind the requirement that arguments be first
asserted at trial. The prerequisite affords the trial court an opportunity to rule correctly
11 No. 35111-4-III State v. Hubbart
on a matter before it can be presented on appeal. State v. Strine, 176 Wn.2d 742, 749,
293 P.3d 1177 (2013). There is great potential for abuse when a party does not raise an
issue below because a party so situated could simply lie back, not allowing the trial court
to avoid the potential prejudice, gamble on the verdict, and then seek a new trial on
appeal. State v. Weber, 159 Wn.2d 252, 271-72, 149 P.3d 646 (2006); State v. Emery,
174 Wn.2d 741, 762, 278 P.3d 653 (2012). The theory of preservation by timely
objection also addresses several other concerns. The rule serves the goal of judicial
economy by enabling trial courts to correct mistakes and thereby obviate the needless
expense of appellate review and further trials, facilitates appellate review by ensuring that
a complete record of the issues will be available, and prevents adversarial unfairness by
ensuring that the prevailing party is not deprived of victory by claimed errors that he had
no opportunity to address. State v. Strine, 176 Wn.2d at 749-50; State v. Scott, 110
Wn.2d 682, 685-86, 757 P.2d 492 (1988).
Countervailing policies support allowing an argument to be raised for the first time
on appeal. For this reason, RAP 2.5(a) contains a number of exceptions. RAP 2.5(a)
allows an appellant to raise for the first time “manifest error affecting a constitutional
right,” an exception upon which a criminal appellant commonly relies. Constitutional
errors are treated specially under RAP 2.5(a) because they often result in serious injustice
to the accused and may adversely affect public perceptions of the fairness and integrity of
judicial proceedings. State v. Scott, 110 Wn.2d at 686-87.
12 No. 35111-4-III State v. Hubbart
Washington courts and even decisions internally have announced differing
formulations for “manifest error.” First, a manifest error is one “truly of constitutional
magnitude.” State v. Scott, 110 Wn.2d at 688. Second, perhaps perverting the term
“manifest,” some decisions emphasize prejudice, not obviousness. The defendant must
identify a constitutional error and show how, in the context of the trial, the alleged error
actually affected the defendant’s rights. It is this showing of actual prejudice that makes
the error “manifest,” allowing appellate review. State v. O’Hara, 167 Wn.2d 91, 99, 217
P.3d 756 (2009); State v. Scott, 110 Wn.2d at 688. A third formulation is the facts
necessary to adjudicate the claimed error must be in the record on appeal. State v.
McFarland, 127 Wn.2d 322, 333, 899 P.2d 1251 (1995); State v. Riley, 121 Wn.2d 22,
31, 846 P.2d 1365 (1993).
In forwarding his appeal, Emanuel Hubbart asserts a provision in the Washington
Constitution. Article IV, section 16 of the Washington Constitution provides: “Judges
shall not charge juries with respect to matters of fact, nor comment thereon, but shall
declare the law.” The purpose of article IV, section 16 is to prevent the jury from being
influenced by knowledge conveyed to it by the court as to the court’s opinion of the
evidence submitted. State v. Lord, 117 Wn.2d 829, 862, 822 P.2d 177 (1991), abrogated
on other grounds by State v. Schierman, 415 P.3d 106 (2018). Emanuel Hubbart relies
on State v. Jackman, 156 Wn.2d 736, 132 P.3d 136 (2006), for support. In Jackman, the
State proposed, and the trial court adopted without objection from the defendant, jury
13 No. 35111-4-III State v. Hubbart
instructions which designated the victims by their initials and included the victims’ birth
dates. The instructions read, in part: “[t]hat on or about June 1, 2002, through October 9,
2002, the defendant aided, invited, employed, authorized or caused B.L.E., DOB
04/21/1985 to engage in sexually explicit conduct.” State v. Jackman, 156 Wn.2d at 740
n.3.
We distinguish Jackman. In Jackman, the jury instructions included the victim’s
date of birth, whereas in Emanuel Hubbart’s trial, a properly admitted exhibit included
Kathy’s date of birth. The trial court’s instructions to the jury did not list Kathy’s date of
birth.
Emanuel Hubbart forwards no decision, in which the court held that an exhibit
constitutes a judicial comment on the evidence. Also, Hubbart never disputed Kathy’s
date of birth. Therefore, we decline to entertain Hubbart’s assignment of error. Hubbart
does not show any error to be palpable, and he fails to demonstrate any prejudice.
Prosecutorial Misconduct—Vouching
Next, Emanuel Hubbart claims the prosecutor improperly vouched for Kathy’s
honesty because the State told jurors that Kathy “had no interest but the truth” and “had
no motive to fabricate” during closing argument. Appellant’s Br. at 12. Emanuel also
contends that the State, without any evidentiary support, claimed Kathy was credible
because she could have refused to cooperate with the prosecution. Finally, if this court
rules that trial counsel did not preserve the prosecutor’s statements as misconduct,
14 No. 35111-4-III State v. Hubbart
Hubbart argues that his counsel performed ineffectively by failing to object to the
arguments. We disagree that the prosecution committed misconduct and thus do not
address Hubbart’s last contention.
To prevail on a claim of prosecutorial misconduct, Emanuel Hubbart must
establish that the prosecutor’s conduct was both improper and prejudicial in the context
of the entire record and the circumstances at trial. State v. Magers, 164 Wn.2d 174, 191,
189 P.3d 126 (2008). Once a defendant establishes that a prosecutor’s statements are
improper, the reviewing court determines whether the defendant was prejudiced under
one of two standards of review. State v. Emery, 174 Wn.2d at 760 (2012). If the
defendant objected, the defendant must show that the prosecutor’s misconduct resulted in
prejudice that had a substantial likelihood of affecting the jury’s verdict. State v. Emery,
174 Wn.2d at 760. The failure to object to an improper remark constitutes a waiver of
error unless the remark is so flagrant and ill-intentioned that it causes an enduring and
resulting prejudice that could not have been neutralized by an admonition to the jury.
State v. Thorgerson, 172 Wn.2d 438, 443, 258 P.3d 43 (2011).
Improper vouching occurs when the prosecutor expresses a personal belief in the
veracity of a witness or indicates that evidence not presented at trial supports the
testimony of a witness. State v. Ish, 170 Wn.2d 189, 196, 241 P.3d 389 (2010). Whether
a witness testifies truthfully is an issue entirely within the province of the trier of fact.
State v. Ish, 170 Wn.2d at 196. Prosecutors may argue an inference from evidence and
15 No. 35111-4-III State v. Hubbart
prejudicial error will not be found unless the prosecutor unmistakably expressed a
personal opinion. State v. Brett, 126 Wn.2d 136, 175, 892 P.2d 29 (1995).
During closing, the State, in Emanuel Hubbart’s prosecution, never expressed a
personal belief as to Kathy’s veracity. The prosecution instead shared with the jury those
circumstances under which, and the reasons for which, the jury should believe Kathy’s
testimony to be the truth. Because of Hubbart’s attack on Kathy’s credibility, the
prosecution’s comments were appropriate, if not critical.
Emanuel Hubbart also argues that the evidence did not support the prosecution’s
comments that Kathy told a consistent story for twenty years and that she could have
refused to cooperate with law enforcement. We find ample evidence that Kathy always
told an accurate story beginning with the first report of Emanuel Hubbart’s conduct in
2003. Also, we observe that her natural father prompted the reopening of the
investigation and Kathy could then have refused to cooperate with law enforcement.
Prosecutorial Misconduct—Search for Truth
Emanuel Hubbart argues that the State impermissibly suggested the trial was a
search for truth and justice. We agree that any such argument by the prosecution would
be misconduct. A jury’s job is not to declare the truth or determine the truth of what
happened. State v. Emery, 174 Wn.2d at 760 (2012). Nevertheless, the State never told
the jury that its role included a search for truth. Instead, the prosecution responded to
Hubbart’s attack on Kathy’s integrity and credibility and the trial’s underlying question
16 No. 35111-4-III State v. Hubbart
of why the trial occurred fourteen years after reports of the abuse. The prosecution
explained that Kathy underwent years of others disbelieving her and endured the trauma
of a reinvestigation and trial as part of her search for the truth. When the prosecution
referred to a search for justice and truth, the prosecution always commented within the
context of Kathy's search, never in the context of any jury duty.
CONCLUSION
We affirm the convictions of Emanuel Hubbart.
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.
WE CONCUR:
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