                                                                           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                                             )         UNPUBLISHED OPINION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.”




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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.



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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.

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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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                                             17
