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The People v. Mark Joseph Hawes

October 5, 2012

THE PEOPLE, PLAINTIFF AND RESPONDENT,
v.
MARK JOSEPH HAWES, DEFENDANT AND APPELLANT.



(Super. Ct. No. 10F05538)

The opinion of the court was delivered by: Raye , P. J.

P. v. Hawes CA3

NOT TO BE PUBLISHED

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

An accused child molester denied he asked his girlfriend and then wife to wear ponytails, dress and behave like a little girl, and call him "Daddy"; denied that his own daughter saw him with his head between his stepdaughter's legs and his face in her crotch; and denied he raped, molested, orally copulated, and sodomized his stepdaughters for approximately eight years. A jury rejected his testimony and returned guilty verdicts on all 17 counts.

Defendant Mark Joseph Hawes now tries to shift blame to his court-appointed lawyer. But the record does not support defendant's claims that the representation he received was constitutionally deficient or that he suffered prejudice as a result. His challenges to the admissibility and sufficiency of the evidence are equally without merit. We affirm.

FACTS

Defendant was in law enforcement from 1990 to 2001, then went to work for United Parcel Service. When he married the victims' mother, she had three small children: two little girls and a boy. He took charge of the family, and the children complied with his orders. For the girls, this meant years of subjugation and sexual abuse. Their testimony at trial was harrowing.

The Victims

M. was 17 when she testified. The abuse began when she was nine. She was lying in her bed when defendant began rubbing her leg and then her vagina. The prosecutor asked her to chronicle the molestations -- oral, vaginal, and anal sex -- that occurred during the two-year period that preceded her disclosure.

As for the molestations, she estimated that defendant would rub her leg and vagina as he tucked her in at night at least twice a week. He threatened her, telling her she would never see her mother again if she ever told anyone. If she said no, he would stomp off, slam the door, retreat to his room, and not speak to anyone for days. He molested her while the family watched television or went swimming. On four occasions, he instructed her to pretend she was sick and unable to go to church with her mother. When the family was gone, he would molest her. On another occasion he jumped out of the closet in her room while other family members were outside swimming, and touched her vagina underneath her clothes.

M. estimated that she had put her mouth on defendant's penis 8 to 10 times, and he put his mouth on her vagina 10 to 15 times. The oral copulation occurred in both her bed and his. On one occasion, he came into her room, pulled down his pajama bottoms, began rubbing his penis, and then, holding the bars on her bed, thrust his penis into her mouth. When she tried to turn her head, he moved it back and held it there. On other occasions, he would kneel beside her bed or get on the bed on his knees, hold the bars, and put his mouth on her vagina and lick it.

During the same two-year period, defendant had sexual intercourse with M. 10 to 15 times. If she grimaced, he made her smile. If she cried, he made her stop. Sometimes he made her masturbate in front of him before sexual intercourse because, he said, it made him hard and got him in the mood. On one of the mornings when he made her pretend to be sick, he went into her bedroom and instructed her to come into his room. When she walked into the room, he was lying naked on the bed. He made her sit on him, and eventually he penetrated her vagina.

Defendant put his fingers inside M.'s vagina about 30 times over those two years. She described one incident when the rest of the family was in the backyard swimming: she and defendant were in the living room with the blinds closed, and he started kissing her neck and forehead. Eventually, he placed his hands down her shorts and his fingers in her vagina.

Frequently, defendant asked M. to wear a skirt with no underwear. Once, he ordered her downstairs to try something different. He put her on the couch with her buttocks up to him. Standing, he put his penis in her "butt." She told him to stop because it hurt, but he assured her the pain would only last a few minutes. On another occasion, he put his penis in her anus and she bled.

Although during this time defendant was having very little sex with his wife, he was having sex regularly with not only M., but her younger sister K. as well. Following a back injury, defendant had difficulty sustaining an erection. Although he told his wife he had discontinued the medication he was taking for this condition because of the side effects, in fact he refilled the prescription many times. Empty and near-empty bottles were found among his things.

K. was only four or five years old when defendant began exploiting her. Her account, like that of her sister, is gut wrenching. She was 12 at the time of trial. When she was four or five she would pretend to be a princess by taking off all of her clothes and wrapping herself in a Mickey Mouse blanket as her gown. Defendant would kiss her neck and put his finger "in my private." She testified that defendant put his finger in her private every time her mother left the house. She estimated it was more than 100 times. Defendant also made her grab on to his penis, and he licked her vagina several times.

When K. was in about the third grade and under 10 years old, defendant had her take off her pants and underwear and sit on his shoulders with his face towards her vagina. He shoved her against the wall and started licking her vagina. She remembered that this incident occurred in defendant's bedroom.

The many other incidents were equally sordid. While her aunt was out of town, defendant and K. went to her house, and on multiple occasions, he made her give him a "big kissy," licked her vagina, and put his finger in her vagina. While K. was naked, defendant would "spank" her by rubbing her bare buttocks and putting his fingers in her vagina. He made her look at his penis, even though she told him she did not want to see it.

K. described some of the things her father said to her when she was doing things he made her do, such as, "[Y]ou didn't think this was creepy a few years ago and now you are all freaked out." Referring to her ability to make his penis hard, he said, "[O]h, [K.], baby you are making me feel so good." After every encounter, he warned her never to tell anyone.

On one occasion, defendant made K. get on her hands and knees like a dog, placed his penis in her vagina, and went back and forth with it. He instructed her to "[l]et it go." When he finished, he made her "pinky promise" not to tell anyone.

Defendant's charade all fell apart before a family pizza and movie night on Friday, August 20, 2010. K. testified that after she arrived home from school, defendant instructed her to wear a skirt without shorts on underneath. He signaled to her to come into his bedroom, and he locked the door. He made K. kiss him on the mouth and get on the bed. He put a vibrator inside K.'s vagina and started moving it around, all the while instructing her to "[l]et it go" and to just "go crazy." He put his fingers in her ...


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