State of Louisiana v. Jamie Hubbard

NOT DESIGNATED FOR PUBLICATION

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

08-1000

STATE OF LOUISIANA

VERSUS

JAMIE HUBBARD

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APPEAL FROM THE
TWENTY-SEVENTH JUDICIAL DISTRICT COURT,
PARISH OF ST. LANDRY, NO. 06-K-1931-D
HONORABLE DONALD W. HEBERT, DISTRICT JUDGE

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JIMMIE C. PETERS
JUDGE

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Court composed of Ulysses Gene Thibodeaux, Chief Judge, Jimmie C. Peters, and
Michael G. Sullivan, Judges.

AFFIRMED.

Earl B. Taylor
District Attorney
Jennifer M. Ardoin
Assistant District Attorney
Post Office Drawer 1968
Opelousas, LA 70571
(337) 498-0551
COUNSEL FOR APPELLEE:
State of Louisiana

Annette Fuller Roach
Louisiana Appellate Project
Post Office Box 1747
Lake Charles, LA 70602
(337) 436-2900
COUNSEL FOR DEFENDANT/APPELLANT:
Jamie Hubbard

PETERS, J.

A jury convicted the defendant, Jamie Hubbard, of aggravated rape, a violation

of La.R.S. 14:42. Thereafter, the trial court sentenced him to serve life imprisonment

at hard labor, without the benefit of probation, parole, or suspension of sentence. The

defendant timely appealed his conviction, asserting three assignments of error. For

the following reasons, we affirm the conviction in all respects.

The criminal charges arise from events which occurred at the home of P.A.1 on

the night of April 4, 2006. P.A.’s eleven-year-old daughter, Q.B, testified at trial that

the defendant entered the home that night and forced her to have sex with him. In one

of his assignments of error, the defendant asserts that the evidence was insufficient

to support the jury’s conclusion that he committed aggravated rape on Q.B.

When the issue of sufficiency of evidence is raised on appeal, the
critical inquiry of the reviewing court is whether, after viewing the
evidence in the light most favorable to the prosecution, any rational trier
of fact could have found the essential elements of the crime proven
beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct.
2781, 61 L.Ed.2d 560 (1979); State ex rel. Graffagnino v. King, 436
So.2d 559 (La.1983); State v. Duncan, 420 So.2d 1105 (La.1982); State
v. Moody, 393 So.2d 1212 (La.1981). It is the role of the fact finder to
weigh the respective credibilities of the witnesses, and therefore, the
appellate court should not second guess the credibility determinations
of the trier of fact beyond the sufficiency evaluations under the Jackson
standard of review. See Graffagnino, 436 So.2d at 563, citing State v.
Richardson, 425 So.2d 1228 (La.1983).

State v. Freeman, 01-997, pp. 2-3 (La.App. 3 Cir. 12/12/01), 801 So.2d 578, 580.

Furthermore,

In the absence of internal contradiction or irreconcilable conflicts with
physical evidence, the testimony of one witness, if believed by the trier
of fact, is sufficient to support a conviction. State v. Johnson, 00-1552
(La.App. 5 Cir. 3/28/01) 783 So.2d 520, 527, writ denied, 01-1190
(La.3/22/02), 811 So.2d 921. The question of the credibility of the
witnesses is within the sound discretion of the trier of fact, who may
accept or reject, in whole or in part, the testimony of any witness. Id.
The credibility of the witnesses will not be re-weighed on appeal. Id.

1
We use initials in compliance with La.R.S. 46:1844(W).

State v. Dixon, 04-1019, p. 12 (La.App. 5 Cir. 3/15/05), 900 So.2d 929, 936.

Louisiana Revised Statutes 14:42(A)(4) defines aggravated rape as it applies

in this case as “a rape . . . where the . . . vaginal sexual intercourse is deemed to be

without lawful consent of the victim because it is committed . . . [w]hen the victim

is under the age of thirteen years.” The age element is not at issue in this appeal.

Instead, the defendant asserts that the evidence does not demonstrate beyond a

reasonable doubt that he and Q.B. engaged in the act of sexual intercourse on the

night of April 4, 2006. We disagree.

Q.B. testified that on the night of April 4, 2006, her siblings had fallen asleep

in the living room, but she remained awake watching late-night television. At some

point that evening, she responded to a knock on the door and allowed the defendant

entry into the house. She did so because she recognized him as her mother’s friend.

According to Q.B., after the defendant entered the home he immediately began

to inappropriately touch her. When she attempted to scream, he covered her mouth

with one hand while removing her shorts and underpants with the other. He then

unzipped his pants, forced her onto the sofa, and raped her—all the time holding his

hand over her mouth. Q.B. testified that she could not escape the defendant’s control

and he only released her because he thought he heard a noise. The defendant left after

warning Q.B. that he would kill her if she informed anyone of his actions. He

returned to the house later the same night, entered without knocking, and attempted

to apologize.

Q.B. testified that she informed her mother the next day that the defendant had

been “touching on her,” but did not specifically reveal the rape because of the

defendant’s threat. Two days later, in a discussion with Linda Gallow, one of her

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teachers, Q.B. informed Ms. Gallow that the defendant had raped her. Ms. Gallow

testified that Q.B. told her that a man named Jamie had climbed through her window

and raped her while her mother occupied another room in the house. Ms. Gallow

testified that Q.B. said she did not scream because the man held his hand over her

mouth.

During the ensuing investigation, Q.B. provided the investigating officer with

the unwashed shorts and underwear she had worn on the night of the rape. According

to Carolyn Booker, a forensic scientist with the Acadiana Crime Lab, a mixture of

blood and seminal fluid found on the crotch of Q.B.’s shorts matched the defendant’s

DNA. However, the blood stain on Q.B.’s underwear contained no seminal fluid and,

therefore, could not be matched to the defendant.

Colleen Snyder, a nurse practitioner, testified that she performed the physical

examination when Q.B. was brought into the emergency room on April 11, 2006. Ms.

Snyder did not perform a rape kit evaluation because of the time delay between the

rape and Q.B.’s appearance at the emergency room. She did relate the history

provided to her and stated that Q.B. told her that she began to have abdominal pain

on April 4 after being forced to have sex. Ms. Snyder drew blood from Q.B. to check

for evidence of a gonorrhea, chlamydia, or syphilis infection, and the tests results

were negative. She performed no internal examination of Q.B., but her external

examination revealed no evidence of trauma. Ms. Snyder did not comment as to

whether Q.B.’s hymen was intact.

In arguing on appeal that the evidence is insufficient to establish his guilt

beyond a reasonable doubt, the defendant primarily asserts that the evidence is not

sufficient to establish that he penetrated the victim. Although Q.B. responded in the

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affirmative when the prosecution asked if the defendant had “put himself inside of

you?” as well as to the question “did he rape you? Did he penetrate you?,” the

defendant argues in brief that these terms or phrases, without further explanation, fail

to show “beyond a reasonable doubt, that [the defendant] put his penis inside of her.”

According to the defendant, the remainder of the evidence presented did not provide

proof beyond a reasonable doubt of this essential element of the offense.

As one example of his position, the defendant points to the DNA evidence and

Ms. Booker’s acknowledgment on cross-examination that the seminal fluid found on

Q.B.’s shorts could have been transferred to the shorts from a wet stain on other

clothes in the hamper, had the person wearing the other clothes been sexually active

with the defendant. He suggests in brief that the seminal fluid on Q.B.’s shorts was

transferred from her mother’s clothing in the hamper. However, in making this

argument, he ignores Ms. Booker’s testimony that other factors would play a part in

this proposed scenario, as well as P.A.’s testimony that the sole sexual encounter she

had with the defendant in her home occurred prior to the April 4 offense. If that be

the case, there would have been no wet stain in the hamper to be transferred.

The defendant next asserts that Q.B.’s testimony at trial was so inherently

inconsistent that it could not support his conviction. He points to the fact that Ms.

Gallow testified that Q.B. told her that her assailant climbed through a window and

raped her, a statement which Q.B. denied in her testimony. He also notes in brief the

inconsistencies in the testimony of Officer Phyllis Pickney of the Opelousas Police

Department, who investigated the offense, as to what Q.B. told her and what Q.B.

testified to, particularly that Q.B. never told her that the defendant came back to the

home a second time on the night of April 4.

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While acknowledging the inconsistencies in the record, we note that Q.B.’s

testimony concerning the rape itself is consistent with her comments to her teacher,

the health care providers, and the investigating officers. Thus, when viewed in a light

most favorable to the prosecution, the evidence was sufficient to establish beyond a

reasonable doubt that the defendant penetrated Q.B. with his penis. Therefore, we

find no merit in this assignment of error.

In a separate assignment of error, the defendant argues that the trial court

abused its discretion in exempting both Q.B. and her mother from the rule of

sequestration. We find no merit in this assignment of error as La.Code Evid. art.

615(A)(4) specifically excludes “[t]he victim of the offense, or the family of the

victim” from the rule of sequestration. We do not agree with the defendant’s

argument that the use of “or” in La.Code Evid. art. 615(A)(4) instead of “and”

suggests that the legislature intended that family members be exempted only in the

absence of the victim, nor do we find any jurisprudence to support that argument.

In his final assignment of error, the defendant asserts that the trial court erred

in including charges to the jury that included four improper responsive verdicts:

guilty of molestation of a juvenile, guilty of attempted molestation of a juvenile,

guilty of indecent behavior with a juvenile, and guilty of attempted indecent behavior

with a juvenile. Specifically, he argues that these offenses were not responsive to

aggravated rape in La.Code Crim.P. art. 814 as it read in 2006. However, when

questioned by the trial court concerning the jury instructions and the verdict form, the

defendant’s counsel voiced no objection to either.

Louisiana Code of Criminal Procedure Article 801(C) provides that:

A party may not assign as error the giving or failure to give a jury
charge or any portion thereof unless an objection thereto is made before

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the jury retires or within such time as the court may reasonably cure the
alleged error. The nature of the objection and grounds therefore shall be
stated at the time of the objection. The court shall give the party an
opportunity to make the objection out of the presence of the jury.

As noted in State v. Dossman, 06-449, 06-450, pp. 14-15 (La.App. 3 Cir. 9/27/06),

940 So.2d 876, 885-86, writ denied, 06-2683 (La. 6/1/07), 957 So.2d 174,

In order to preserve an issue for appeal, a party must make a
contemporaneous objection. Louisiana Code of Criminal Procedure
Article 841(A) provides, in part, that “[a]n irregularity or error cannot
be availed of after verdict unless it was objected to at the time of
occurrence.” Louisiana courts have consistently recognized this as the
contemporaneous objection rule, noting its dual purposes: “(1) to put
the trial judge on notice of the alleged irregularity so that he may cure
the problem and (2) to prevent a defendant from gambling for a
favorable verdict and then resorting to appeal on errors that might easily
have been corrected by objection.” State v. Potter, 591 So.2d 1166,
1169, n. 6 (La.1991), writ denied, 619 So.2d 574 (La.6/18/93) (quoting
State v. Thomas, 427 So.2d 428, 432 (La.1982)). See also State v. Bias,
95-541 (La.App. 3 Cir. 1/31/96), 674 So.2d 265; State v. Stracener,
94-998 (La.App. 3 Cir. 3/1/95), 651 So.2d 463, writ denied, 97-0696
(La.11/7/97), 703 So.2d 1261.

In the absence of a contemporary objection, this issue may not be raised on appeal.

DISPOSITION

We affirm the defendant’s conviction in all respects.

AFFIRMED.

This opinion is NOT DESIGNATED FOR PUBLICATION. Rule 2-16.3,
Uniform Rules, Courts of Appeal.

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