State v. StarkState v. Stark
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This is а consolidated appeal from a jury trial on one count and a bench trial on two counts of second degree assault. At both , trials, Calvin Stark was found guilty of intentionally exposing his sexual partners to the human immunodeficiency virus (HIV),
On March 25, 1988, Calvin Stark tested positive for HIV, which was confirmed by further tests on June 25 and on June 30, 1988. From June 30, 1988, to October 3, 1989, the staff of the Clallam County Health Department had five meetings with Stark during which Stark went through extensive counseling about his infection. He was taught
Stark did not cease and desist, and, consequently, on March 1, 1990, Dr. Locke went to the county prosecutor‘s office intending to seek the prosecutor‘s assistance, pursuant to
Count 1: The victim and Stark engaged in sexual intercourse on October 27 and October 29, 1989. On both occasions, Stark withdrew his penis from the victim prior to ejaculation. The victim, who could not become pregnant because she had previously had her fallopian tubes tied, asked Stark on the second occasion why he withdrew. He then told her that he was HIV positive.
Count 2: The victim and Stark had sexual relations on at least six ocсasions between October 1989, and February 1990. Stark wore a condom on two or three occasions, but on the others, he ejaculated outside of her body. On each occasion, they had vaginal intercourse. On one occasion Stark tried to force her to have anal intercourse. They also engaged in oral sex. When she told Stark that she had heard rumors that he was HIV positive, he admitted that he was and then gave the victim an AZT pill “to slow down the procеss of the AIDS.”
Count 3: The victim and Stark had sexual relations throughout their brief relationship. It was “almost nonstop
Before the trials, Stark moved to suppress Dr. Locke‘s testimony as well аs all information the prosecutor learned from Dr. Locke, and to dismiss the charges. The trial court denied the motions. At the jury trial, the victim in count 1 testified to her contacts with Stark and the jury received Dr. Locke‘s deposition testimony regarding the health department‘s contacts with Stark. Stark did not testify. In the bench trial, Dr. Locke testified. There the State also presented the testimony of one of Stark‘s neighborhood friends. She testified that one night Stark came to her apartment after drinking and told her and her daughter that he was HIV positive. When she asked him if he knew that he had to protect himself and everybody else, he replied, “I don‘t care. If I‘m going to die, everybody‘s going to die.”
The jury found Stark guilty on count 1. A second trial judge found Stark guilty of the second and third counts at a bench trial. On count 1, Stark was given an exceptional sentence of 120 months based on his future danger to the community. The standard range for that offense was 13 to 17 months. On counts 2 and 3, Stark was given the low end of the standard range, 43 months each, to be served concurrently, but consecutively to count 1.
I
Confidentiality
Stark first contends that this court should dismiss his convictions because the prosecutor‘s use of confidential information regarding Stark‘s HIV status made it public. When Stark requested the HIV testing, he was informed that the test results would be confidential. Furthermore,
The trial court rejected this argument because RCW 70-.24.034(2) specifically refers to the prosecuting attorney.
Obviously, a prosecutor cannot file such a petition without information regarding the identity and conduct of persons who have sexually transmitted diseases. Although prosecuting attorneys are not mentioned in the section specifically dealing with confidentiality (
Stark complains, however, that the prosecutor did not use the information to file a civil action under
The Legislature sought to protect the confidentiality of those infected with HIV, which implicates sensitive
sexually transmitted diseases constitute a serious and sometimes fatal threаt to the public and individual health and welfare of the people of the state. . . . the incidence of sexually transmitted diseases is rising at an alarming rate and that these diseases result in significant social, health, and economic costs, including infant and maternal mortality, temporary and lifelong disability, and premature death.
While civil remedies also existed in the present case, prosecutors have an obligation to enforce criminal laws.
II
Sufficiency of the Evidence
Stark also contends that his convictions should be dismissed because the State failed to present sufficient evidence of an intent to inflict bodily harm. In determining whether sufficient evidence supports a conviction, “[t]he standard of review is whether, after viewing the evidence in a light most favorable to the State, any rational trier of fact could have found the essеntial elements of the charged crime beyond a reasonable doubt.” State v. Rempel, 114 Wn.2d 77, 82, 785 P.2d 1134 (1990) (citing State v. Green, 94 Wn.2d 216, 221, 616 P.2d 628 (1980)). Under this standard, we resolve all inferences in favor of the State. State v. Smith, 104 Wn.2d 497, 507, 707 P.2d 1306 (1985).
Stark contends that there is insufficient evidence to prove that he “exposed” anyone to HIV or that he acted with intent to inflict bodily harm. Since Stark is undisputedly HIV positive, he necessarily exposed his sexual partners to the virus by engaging in unprotected sexual intercourse. The testimony of the three victims supports this conclusion.
The testimony supporting the element of intent to inflict bodily harm includes Dr. Locke‘s statements detailing his counseling sessions with Stark. With regard to the first victim, we know that Stark knew he was HIV positive, that he had been counseled to use “safe sex” methods, and that it had been explained to Stark that coitus interruptus will not prevent the spread of the virus. While there is evidence to support Stark‘s position, all the evidence viewed in a light most favorable to the State supports a finding of intent beyоnd a reasonable doubt. The existence of noncriminal explanations does not preclude a finding that a defendant intended to harm his sexual partners.
State v. Gosby,
85 Wn.2d 758, 539 P.2d 680 (1975). With regard to the later victims, we have, in addition to this same evidence, Stark‘s
Ill
Unconstitutional Vagueness
Stark contends that this court should dismiss his convictions because
When a defendant asserts that a statute is unconstitutionally vague on its face, as opposed to vague as applied, the reviewing court must still look to the facts of the case before looking for hypothetically constitutional situations. State v. Worrell, 111 Wn.2d 537, 541, 761 P.2d 56 (1988). If the defendant‘s conduct fits within the proscribed conduct of the statute, the defendant cannot assert other hypothetical applications of the law. Worrell, at 541.
“[I]mpossible standards of specificity are not required.” Seattle v. Eze, 111 Wn.2d 22, 26, 759 P.2d 366 (1988) (citing Kolender v. Lawson, 461 U.S. 352, 361, 75 L. Ed. 2d 903, 103 S. Ct. 1855 (1983)). “[A] statute is not unconstitutionally vague merely because a person cannot predict with complete certainty the exact point at which his actions would be classified as prohibited conduct.” Eze, at 27. ” ‘[I]f men of ordinary intelligence can understand a penal statute, notwithstanding some possible areas of disagreement, it is not wanting in certainty.’ ” Eze, at 27 (quoting State v. Maciolek, 101 Wn.2d 259, 265, 676 P.2d 996 (1984) (quoting Spokane v. Vaux, 83 Wn.2d 126, 129, 516 P.2d 209 (1973))).
Where as here, the statute requires proof of specific criminal intent, the remaining terms are less vague or indefinite than they might otherwise be considered.
Seattle v. Webster,
115 Wn.2d 635, 644, 802 P.2d 1333 (1990),
cert.
denied, _U.S._, 114 L. Ed. 2d 85, 111 S. Ct. 1690 (1991). Moreover, because the assault statute does not implicate any
Stark complains that the statute “nowhere defines the term expose, nor does it state that it is a crime to transmit the HIV virus to another human being.” No reasonably intelligent person would think the statute criminalizes the transmission of HIV to nonhumans. Stark‘s argument regarding the term “expose” is also unpersuasive. Any reasonably intelligent person would understand from reading the statute that the term refers to engaging in conduct that can cause another person to become infected with the virus. Stark engaged in unprotected sexual intercourse with other human beings after being counseled on several occasions that such conduct would expose his partners to the virus he carries. He was not forced to guess at what conduct was criminal.
IV
Exceptional Sentence
Stark also contends that the trial court erred in imposing an exceptional sentence based solely on future dangerousness.
To reverse a sentence which is outside the sentence range, the reviewing court must find: (a) Either that the reasons supplied by the sentencing judge are not supported by the record which was before the judgе or that those reasons do not justify a sentence outside the standard range for that offense; or (b) that the sentence imposed was clearly excessive or clearly too lenient.
The Supreme Court explained this provision:
[T]he reasons set forth by the trial court for imposing the exceptional sentence shall be upheld by the reviewing courtunless they are clearly erroneous.. . . Under the second part of subsection (a), however, the reviewing court must independently decide as a matter of lаw whether the trial court‘s reasons justify the sentence.
State v. Pryor, 115 Wn.2d 445, 450, 799 P.2d 244 (1990).
Under the second part of subsection (a), “[t]he reasons must be ‘substantial and compelling‘,
The trial court reasoned:
2. By his behavior the defendant has not demonstrated that he will do anything to protect others. He has and he will continue to be a danger to those persons with whom he comes into contact. His past behavior as outlined in testimony and exhibits indicates that he presents a grave risk to the community.
3. The purpose of the Sentencing Reform Act include imposing sufficient punishment upon the offender and protecting the public. Given the history of this defendant and corroborating evidence, the Court concludes that the defendant presents extreme danger to the community. It is the Court‘s conclusion that the threat posed to the community by this defendant is greater than that which could be ameliorated by incarceration for a period of time limited to the standard range (13 to 17 months).
While future dangerousness is an appropriate factor when there is a demonstrated history of similar criminal acts coupled with a finding of nonamenability to treatment,
State v. Pryor,
115 Wn.2d at 453, the Washington Supreme Court has recently held that future dangerousness is an inappropriate factor for justifying an exceptional sentence in nonsexual offense cases.
3
State v. Barnes,
117 Wn.2d 701,
Furthermore, the trial court abused its discretion in imposing a 10-year sentence. In order to commit this crime, a person has to know he or she is HIV positive, know hоw the virus is transmitted, and engage in activity with intent to cause harm. Although such conduct is by nature very serious and reprehensible, the Legislature fixed the same relatively light standard range term that applies in all other second degree assault cases. Significantly, since “transmitting” the virus is an alternative means of committing the offense, the standard range remains the same even if the victim acquires the virus.
Here, there was no evidence that as of the date of the trial any of the victims had сontracted the virus, and Stark‘s conduct does not seem to be the “worst possible” example of this offense. The trial court, therefore, abused its discretion in imposing a 10-year term. Cf. State v. Farmer, 116 Wn.2d 414, 431-32, 805 P.2d 200, 812 P.2d 858 (1991) (upholding exceptional 71/2-year sentence based on finding of deliberate cruelty where defendant knowingly exposed his two minor victims to HIV).
“The standard to be used when determining whether a case should be remanded for resentencing is if the appellate court deems the invalidated faсts to be facts upon which the trial court placed considerable weight in determining the sentence, then remand is necessary.” State v. Roberts, 55 Wn. App. 573, 587, 779 P.2d 732 (citing State v. Fisher, 108 Wn.2d 419, 430 n.7, 739 P.2d 683 (1987)), review denied, 113 Wn.2d 1026 (1989). As future dangerousness was the only basis for the exceptional sentence imposed, this court must remand for resentencing on count 1 within the standard range.
V
Pro Se Issues
Stark raises a number of issues in his pro se brief. First, he contends that the State failed to properly charge him
Stark misapplies the rule regarding general and specific statutes. While provisions of a more recent specific statute prevail in a conflict with a more general predecessor, this rule applies only if the statutes deal with the same subject matter and the conflict cannot be harmonized. State v. Becker, 59 Wn. App. 848, 852, 801 P.2d 1015 (1990). Further, he contends that there were no victims in the present case because there were no injuries. We find this cоntention meritless. Clearly, Stark traumatized the women he exposed to HIV by his behavior.
Second, Stark contends that the trial court erred in considering evidence that originated in strict confidence because it was protected by the psychologist-patient privilege. As noted above, Dr. Locke did not violate the privilege as he properly sought enforcement of the cease and desist order from the prosecutor. The physician-patient privilege is applicable “only ‘so far as practicable’ in criminal cases.”
State v. Mark,
23 Wn. App. 392, 396, 597 P.2d 406 (1979). It is statutory, not of constitutional magnitude.
State v. Boehme,
71 Wn.2d 621, 634, 430 P.2d 527 (1967),
cert. denied,
390 U.S. 1013 (1968);
Last, Stark contends that the State committed an ex post facto infirmity by using confidential information to charge him with assault. Stark concedes that if the prosecutor had properly followed the statutory guidelines there would not be an ex post facto infirmity. He contends, however, that the prosecutor‘s use of confidential information in order to secure a conviction created such an infirmity. Stark appears to be arguing that because the Legislature gave him a vested right in the confidentiality of his HIV status, the
We affirm the convictions, but remand for resentencing on count 1.
Alexander and Seinfeld, JJ., concur.
Reconsideration denied September 15, 1992.
Notes
Stark suggests a number of ways that the State could preserve the confidentiality of defendants: (1) assist the health department only if the informаtion remain anonymous; (2) obtain a special prosecutor to handle the civil action, thereby avoiding conflicts; and (3) agree to assist the health department but, as a matter of policy, refuse to pursue criminal charges based upon such information. We need not address these alternatives as we view the matter as one of prosecutorial discretion. For a novel approach at protecting a defendant‘s confidentiality see People v. Anonymous, _Misc. 2d __, 582 N.Y.S.2d 350 (Cy. Ct. 1992). There the district attorney sought an order to compel the defendant to submit to and reveal the results of an HIV test. The court held the prosecution to a showing by clear and convincing evidence that there was a compelling need for the disclosure of information for adjudication of a criminal proceeding and a clear and immediate danger to individuals’ health who may unknowingly be at risk as a result of contact with the defendant. However, the court ordered that thе record be sealed, that the defendant‘s name be redacted to delete any references to his identity, and only be made available to persons with a need to know. The court also ordered that all future proceedings be in camera and titled People v. Anonymous. We make no comment on the constitutionality of such orders.
The trial court did not make a finding of similar criminal acts or of nonamenability to treatment. As to the first, such a finding would violate the real facts doctrine as the only evidence of similar criminal conduct at the time of the sentencing on the first charge was the behavior charged in counts 2 and 3.