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1 of 1 DOCUMENT
The State of Washington, Respondent, v. Calvin Edward Stark, Appellant
Nos. 14261-9-II, 14930-3-II
COURT OF APPEALS OF WASHINGTON, Division Two
66 Wn. App. 423; 832 P.2d 109; 1992 Wash. App. LEXIS 292
July 13, 1992, Decided
July 13, 1992, Filed
SUBSEQUENT HISTORY: [***1] Reconsideration Denied September 15, 1992.
CASE SUMMARY:
PROCEDURAL POSTURE: Defendant sought review of the judgment of the Superior Court for Clallam County
(Washington) that convicted him of three counts of second-degree assault and that, after a verdict of guilty in count one,
imposed a sentence that exceeded the standard range.
OVERVIEW: Defendant was convicted of three counts of second-degree assault after he intentionally exposed his
victims to the HIV virus. This act was a criminal offense under Wash. Rev. Code § 9A.36.021(1)e. The trial court
imposed an exceptional sentence after his conviction for count one. The court imposed standard range sentences for the
other counts. On appeal, the court held that there was sufficient evidence to show that defendant intentionally exposed
his victims to the HIV virus after being counseled concerning safe sex. The court found that the public health doctor had
not violated Wash. Rev. Stat. § 70.24.105(1) by informing the prosecutor of defendants identity and the HIV test result
because the statute allowed prosecutors access to otherwise confidential information held by public health officers. The
court ruled that Wash. Rev. Code § 9A.36.021(1)e was not unconstitutionally vague because any reasonably intelligent
person would understand what he was being charged with. Lastly, the court concluded that the trial court abused its
discretion in imposing an exceptional sentence. Future dangerousness was not appropriate to justify an exceptional
sentence in nonsexual offense cases.
OUTCOME: The court affirmed defendants convictions for second-degree assault on three counts, but remanded the
case for resentencing on count one.
CORE TERMS: prosecutor, sentence, sexual, virus, exceptional, confidentiality, criminal laws, cease, sexually
transmitted disease, intercourse, assault, expose, health officer, desist order, unconstitutionally vague, intent to inflict,
bodily harm, future dangerousness, confidential information, vague, degree assault, partners, sex, vagueness, health
departments, public interest, civil remedies, criminal charge, sufficient evidence, reasonable doubt
LexisNexis(R) Headnotes
Criminal Law & Procedure > Criminal Offenses > Crimes Against Persons > Assault & Battery > Simple Offenses >
Elements
[HN1] Wash. Rev. Code § 9A.36.021(1)(e) provides that a person is guilty of assault in the second degree if he or she,
under circumstances not amounting to assault in the first degree, with intent to inflict bodily harm, exposes or transmits
human immunodeficiency virus (HIV) as defined in Wash. Rev. Code chapter 70.24.
Page 2
66 Wn. App. 423, *; 832 P.2d 109, **;
1992 Wash. App. LEXIS 292, ***1
Healthcare Law > Business Administration & Organization > Patient Confidentiality > General Overview
[HN2] Wash. Rev. Code § 70.24.105(1) provides, with certain exceptions, that no person may disclose or be compelled
to disclose the identity of any person who has requested an HIV test. Wash. Rev. Code § 70.24.105(2) similarly
prevents the disclosure of the identity of a person upon whom an HIV test is performed or the disclosure of the results
of that test.
Criminal Law & Procedure > Criminal Offenses > Crimes Against Persons > Assault & Battery > General Overview
Healthcare Law > Business Administration & Organization > Patient Confidentiality > General Overview
Public Health & Welfare Law > General Overview
[HN3] Wash. Rev. Code § 70.24.024 allows public health officers to counsel persons with sexually transmitted diseases
and, if necessary, order them to cease and desist from conduct that endangers the health of others. If the person does not
comply with the order, the public health officer may request a warrant be issued by the superior court to ensure the
persons presence at a hearing at which the officer has the burden of proving that grounds exist for issuing the order.
Wash. Rev. Code § 70.24.024(4)(a). If the procedures set forth in Wash. Rev. Code § 70.24.024 have been exhausted
and the public health officer has reason to believe the person is continuing to engage in behavior dangerous to the public
health, the officer may bring an action in superior court to detain the person in a designated facility for a period of
counseling and education not to exceed 90 days. Wash. Rev. Code § 70.24.034(1). If an action is filed under §
70.24.034(1), the superior court, upon the petition of the prosecuting attorney, shall issue other appropriate court orders
including, but not limited to, an order to take the person into custody. Wash. Rev. Code § 70.24.034(2).
Evidence > Privileges > Government Privileges > Official Information Privilege > Reports Privilege
Governments > Legislation > Interpretation
[HN4] A court reads statutes as a whole in construing their meaning, and not piecemeal.
Criminal Law & Procedure > Accusatory Instruments > Indictments > General Overview
[HN5] The exercise of prosecutorial discretion on whether to criminally charge someone involves a number of
considerations, not the least of which is the public interest.
Criminal Law & Procedure > Appeals > Standards of Review > General Overview
[HN6] In determining whether sufficient evidence supports a conviction, the 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 essential
elements of the charged crime beyond a reasonable doubt.
Governments > Legislation > Interpretation
[HN7] Statutes that are susceptible to arbitrary and discriminatory enforcement are invalid. Criminal statutes must
contain ascertainable standards for consistent adjudication.
Governments > Legislation > Overbreadth
Governments > Legislation > Vagueness
[HN8] 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. If
the defendants conduct fits within the proscribed conduct of the statute, the defendant cannot assert other hypothetical
applications of the law. Impossible standards of specificity are not required. 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. If men of ordinary intelligence can understand a penal statute, notwithstanding some possible
areas of disagreement, it is not wanting in certainty.
Criminal Law & Procedure > Sentencing > Ranges
Criminal Law & Procedure > Appeals > Standards of Review > Clearly Erroneous Review > Sentences
Criminal Law & Procedure > Appeals > Standards of Review > De Novo Review > General Overview
[HN9] To reverse a sentence which is outside the sentence range, the reviewing court must find: (a) either that the
Page 3
66 Wn. App. 423, *; 832 P.2d 109, **;
1992 Wash. App. LEXIS 292, ***1
reasons supplied by the sentencing judge are not supported by the record which was before the judge 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. Wash. Rev. Code § 9.94A.210(4). Thus the reasons set forth by the trial court for
imposing an exceptional sentence, outside the sentence range, shall be upheld by a reviewing court unless they are
clearly erroneous. Under the second part of subsection (a), however, the reviewing court must independently decide as a
matter of law whether the trial courts reasons justify the sentence. The reasons must be substantial and compelling,
Wash. Rev. Code § 9.94A.120(2), and must take into account factors other than those which are necessarily considered
in computing the presumptive range for the offense. Once substantial and compelling factors exist to support an
exceptional sentence, the length of the sentence is left to the discretion of the sentencing court.
Criminal Law & Procedure > Sentencing > Imposition > Factors
[HN10] In the state of Washington, future dangerousness is an inappropriate factor for justifying an exceptional
sentence in nonsexual offense cases.
SUMMARY: Nature of Action: In separate prosecutions, the defendant was charged with a total of three counts of
second degree assault for intentionally exposing his sexual partners [***2] to HIV.
Superior Court: The Superior Court for Clallam County, No. 90-1-00030-2, Gary W. Velie, J., on September 10, 1990,
entered a judgment on a verdict of guilty of one of the counts and a sentence exceeding the standard range. The
Superior Court for Clallam County, No. 90-1-00030-2, Grant S. Meiner, J., on June 8, 1990, entered a judgment of
guilty of two of the counts and a sentence within the standard range.
Court of Appeals: Holding that a physician had not violated the defendants right to confidentiality by discussing the
case with the prosecutor, that there was sufficient evidence of intent, and that the statute under which the defendant was
charged is not unconstitutionally vague, but that the aggravating factor of future dangerousness did not justify the
exceptional sentence, the court affirms the judgments except for the sentence exceeding the standard range, which is
reversed, and remands the case for resentencing on one of the counts.
HEADNOTES WASHINGTON OFFICIAL REPORTS HEADNOTES
[1] Statutes — Construction — Acts Relating to Same Subject — Considered as a Whole Related statutes are read
as a whole, not in a piecemeal fashion.
[2] Health — Sexually Transmitted Diseases — Cease and Desist Order — Violation — Revelation to Prosecutor -Confidentiality. Once a public health officer learns that a person infected with a sexually transmitted disease has
violated a cease and desist order entered pursuant to RCW 70.24.024, the officer does not violate the persons right of
confidentiality (RCW 70.24.105) by informing the prosecutor of the persons identity and conduct for the purpose of
having the prosecutor obtain judicial enforcement of the order.
[3] Health — Sexually Transmitted Diseases — Cease and Desist Order — Violation — Revelation to Prosecutor -Filing Charge — Exhaustion of Civil Remedies — Necessity When a prosecutor is notified by a public health officer
of the violation of a cease and desist order by a person infected with a sexually transmitted disease, RCW 70.24
(including the confidentiality guaranty of RCW 70.24.105) does not prevent the prosecutor from filing a criminal charge
without first exhausting available civil remedies.
[4] Criminal Law — Crimes — Discretion To Charge — Factors — Public Interest The public interest is relevant to
a prosecutors decision whether to file a criminal charge.
[5] Criminal Law — Trial — Taking Case From Jury — Sufficiency of Evidence — Element of Crime. There is
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66 Wn. App. 423, *; 832 P.2d 109, **;
1992 Wash. App. LEXIS 292, ***2
sufficient evidence of an element of a crime if, viewing the evidence and reasonable inferences therefrom in favor of the
State, any rational trier of fact could have found that the element was proved beyond a reasonable doubt.
[6] Criminal Law — Trial — Taking Case From Jury — Sufficiency of Evidence — Innocent Hypothesis The
existence of noncriminal explanations for a criminal defendants conduct does not necessarily mean that there is
insufficient evidence to convict.
[7] Statutes — Validity — Presumption — Burden of Proof — Degree of Proof Statutes are presumed to be
constitutional. A person challenging a statute must prove its invalidity beyond a reasonable doubt.
[8] Criminal Law — Statutes — Vagueness — Test A criminal statute is not unconstitutionally vague unless (1)
persons of common intelligence must necessarily guess at its meaning and differ as to its application or (2) it lacks
ascertainable standards for consistent adjudication thereby rendering it susceptible of arbitrary and discriminatory
enforcement.
[9] Criminal Law — Statutes — Vagueness — Specific Intent — Effect. When a criminal statute requires proof of
specific criminal intent, the remaining statutory terms are rendered less vague or indefinite than they might otherwise
be.
[10] Criminal Law — Statutes — Vagueness — Facial Invalidity — No First Amendment Issue A vagueness
challenge to a criminal statute that does not implicate any First Amendment rights can be made only to the statute as
applied to the particular facts at issue. The court will not consider whether the statute is vague on its face.
[11] Assault, Criminal — Second Degree Assault — Transmission of HIV — Vagueness RCW 9A.36.021(1)(e),
which makes it a second degree assault to expose or transmit HIV with intent to inflict bodily harm, is not
unconstitutionally vague as applied to a person who engages in unprotected sexual intercourse with other human beings
after being counseled more than once that such conduct exposes the others to HIV.
[12] Criminal Law — Punishment — Sentence — Outside Standard Range — Review — Clearly Excessive -Standard of Review Whether an exceptional sentence is clearly excessive or clearly too lenient under RCW
9.94A.210(4)(b) is reviewed under the abuse of discretion standard.
[13] Criminal Law — Punishment — Sentence — Outside Standard Range — Aggravating Circumstances — Future
Dangerousness — Scope — Nonsexual Crimes The aggravating circumstance of future dangerousness applies only to
sex crimes. RCW 9A.36.021(1)(e), which makes it a second degree assault to expose or transmit HIV with intent to
inflict bodily harm, is not a sex crime for purposes of this rule.
[14] Criminal Law — Punishment — Sentence — Outside Standard Range — Review — Affirmance or Remand -Invalidation of Sole Factor When an appellate court invalidates the only aggravating circumstance relied on by a trial
court in imposing a sentence outside the standard range, the case must be remanded for resentencing within the standard
range.
[15] Statutes — Construction — General and Specific Provisions — Applicability — Limitations The rule that a
more recent specific statute prevails in a conflict with a more general earlier statute applies only if the statutes deal with
the same subject matter and the conflict cannot be resolved.
[16] Witnesses — Privileges — Physician-Patient Privilege — Application — Balancing Test. The physician-patient
privilege is of statutory, not constitutional, origin. Its application requires a balancing of the benefits it brings about
against the public interest of having the facts fully revealed.
Page 5
66 Wn. App. 423, *; 832 P.2d 109, **;
1992 Wash. App. LEXIS 292, ***2
COUNSEL: John F. Hayden, Public Defender, for appellant.
David H. Bruneau, Prosecuting Attorney, for respondent.
JUDGES: Petrich, C.J. Alexander and Seinfeld, JJ., concur.
OPINION BY: PETRICH
OPINION
[*426] [**111] This is a 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), RCW 9A.36.021(1)(e). After the jury trial for which he was found guilty of one count,
referred to as count 1, the trial court imposed an exceptional sentence. After the bench trial for which he was found
guilty of two additional counts, referred to as counts 2 and 3, the trial court imposed concurrent standard range
sentences. Stark contends that in both trials the State improperly used confidential information and presented
insufficient evidence of intent to expose his sexual partners to HIV. He also challenges the constitutionality of the
second degree assault statute as vague and contends that the exceptional sentence the court imposed for count 1 was
unjustified. We affirm the convictions, but [***3] remand for resentencing on count 1.
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 [*427]
about safe sex, the risk of spreading the infection, and the necessity of informing his partners before engaging in
sexual activity with them. On October 3, 1989, Dr. Locke, the Clallam County Health Officer, after learning that Stark
had disregarded this advice and was engaging in unprotected sexual activity, issued a cease and desist order as
authorized by RCW 70.24.024(3)(b).
Stark did not cease and desist, and, consequently, on March 1, 1990, Dr. Locke went to the county prosecutors office
intending to seek the prosecutors assistance, pursuant to RCW 70.24.034(1), in obtaining judicial enforcement of the
cease and desist order. The prosecutor instead had Dr. Locke complete a police report. The State then charged Stark
with three counts of assault in the second degree under RCW 9A.36.021(1)(e). [***4] 1 Each count involved a
different victim:
[**112] 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 occasions 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 process of the AIDS.
Count 3: The victim and Stark had sexual relations throughout their brief relationship. It was almost nonstop [*428]
with him, almost every night during August 1989. Stark never wore a condom and never informed the [***5]
victim he was HIV positive. When pressed, Stark denied rumors about his HIV status. The victim broke off the
relationship because of Starks drinking, after which Stark told her that he carried HIV and explained that if he had told
her, she would not have had anything to do with him.
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1992 Wash. App. LEXIS 292, ***5
1 [HN1] RCW 9A.36.021(1)(e) provides: (1) A person is guilty of assault in the second degree if he or she, under circumstances not
amounting to assault in the first degree: . . . (e) With intent to inflict bodily harm, exposes or transmits human immunodeficiency virus as
defined in chapter 70.24 RCW; . . .
Before the trials, Stark moved to suppress Dr. Lockes testimony as well as 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. Lockes deposition testimony regarding the health
departments contacts with Stark. Stark did not testify. In the bench trial, Dr. [***6] Locke testified. There the State
also presented the testimony of one of Starks 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 dont care. If Im going to die, everybodys 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 prosecutors use of confidential
information regarding Starks HIV status made it public. When Stark requested the HIV testing, he was informed that
the test results would be confidential. Furthermore, [HN2] [*429] RCW 70.24.105(1) provides, with certain
exceptions, [***7] that no person may disclose or be compelled to disclose the identity of any person who has
requested an HIV test. RCW 70.24.105(2) similarly prevents the disclosure of the identity of a person upon whom an
HIV test is performed or the disclosure of the results of that test. The statute then lists several persons who may
receive such information. Law enforcement officers are not included in this list. Stark, therefore, contends that Dr.
Locke violated the statute by informing the prosecutor of Starks identity and the HIV test result.
The trial court rejected this argument because RCW 70.24.034(2) specifically refers to the prosecuting attorney. [HN3]
RCW 70.24.024 allows public health officers to counsel persons with sexually transmitted diseases and, if necessary,
order them to cease and desist from conduct that endangers the health of others. If the person [**113] does not comply
with the order, the public health officer may request a warrant be issued by the superior court to ensure the persons
presence at a hearing at which the officer has the burden of proving that grounds exist for issuing the order. RCW
70.24.024(4)(a). If the procedures set forth in RCW 70.24.024 [***8] have been exhausted and the public health
officer has reason to believe the person is continuing to engage in behavior dangerous to the public health, the officer
may bring an action in superior court to detain the person in a designated facility for a period of counseling and
education not to exceed 90 days. RCW 70.24.034(1). If an action is filed under RCW 70.24.034(1), the superior court,
upon the petition of the prosecuting attorney, shall issue other appropriate court orders including, but not limited to, an
order to take the person into custody . . .. RCW 70.24.034(2).
[1] [2] 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 (RCW 70.24.105), the [*430] statute as a whole makes clear that prosecutors
may, at some point, have access to otherwise confidential information held by public health [HN4] officers. We read
statutes as a whole in construing their meaning, not piecemeal. State v. Parker, 97 Wn.2d 737, 741, 649 P.2d 637
(1982). [***9] Dr. Locke understood the statute in this manner and spoke with the prosecutor in contemplation of filing
a civil action under RCW 70.24.034. The doctor did not violate Starks statutory right to confidentiality by discussing
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66 Wn. App. 423, *430; 832 P.2d 109, **113;
1992 Wash. App. LEXIS 292, ***9
the case with the prosecutor.
Stark complains, however, that the prosecutor did not use the information to file a civil action under RCW 70.24.034,
but, rather, to file criminal charges under RCW 9A.36.021(1)(e). The difference is significant in terms of further
dissemination of confidential information. Criminal trials are public unless there is a compelling reason to close them,
see Seattle Times Co. v. Ishikawa, 97 Wn.2d 30, 640 P.2d 716 (1982), whereas the hearing in a civil action under RCW
70.24 is closed and confidential unless the defendant requests otherwise. RCW 70.24.034(5). 2
2 Stark suggests a number of ways that the State could preserve the confidentiality of defendants: (1) assist the health department only if the
information 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 defendants 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 the record be
sealed, that the defendants 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.
[***10] [3] [4] The Legislature sought to protect the confidentiality of those infected with HIV, which implicates
sensitive [*431] privacy issues, by designing RCW 70.24 with the intent of affording patients privacy, confidentiality,
and dignity. Its purpose was to provide patients with a secure knowledge that information they provide will remain
private and confidential. RCW 70.24.015. However, the Legislature also sought to protect the public from those who
are infected that act irresponsibly and endanger others. RCW 70.24.015. As part of the same legislation, the
Legislature criminalized the intentional exposure of HIV. Laws of 1988, ch. 206, § 916; RCW 9A.36.021. Dr. Locke
testified that the State Board of Health determined that vaginal intercourse without the use of a condom when one is
HIV positive is a behavior presenting imminent danger to the public health, which is the most serious classification for
risk of infectious disease. We see no evidence that [**114] the Legislature sought to restrict the ability of the
prosecutor to make those who engage in criminal behavior accountable for their behavior. Once Stark crossed the line
and began to intentionally [***11] place other persons lives at risk, he stood the risk of criminal prosecution. As the
Legislature found,
sexually transmitted diseases constitute a serious and sometimes fatal threat 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.
RCW 70.24.015.
While civil remedies also existed in the present case, prosecutors have an obligation to enforce criminal laws. RCW
36.27.020. According to the trial court finding and the jury verdicts, Stark committed a felony by intentionally
exposing his victims to HIV. While providing a potential civil remedy, nothing in RCW 70.24 precludes the prosecutor
from choosing to file criminal charges rather than first exhausting the available civil remedies. [HN5] The exercise of
prosecutorial discretion on whether to criminally charge someone involves a number of considerations, not the least of
which is the public interest. State v. Judge, 100 Wn.2d 706, 713, [*432] 675 P.2d 219 (1984). [***12] The trial courts
did not err in refusing to suppress the information obtained from the health department or in refusing to allow Dr.
Lockes deposition and testimony.
II
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66 Wn. App. 423, *432; 832 P.2d 109, **114;
1992 Wash. App. LEXIS 292, ***12
Sufficiency of the Evidence
[5] Stark also contends that his convictions should be dismissed because the State failed to present sufficient evidence
of an intent to inflict bodily harm. [HN6] 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 essential 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
[***13] virus by engaging in unprotected sexual intercourse. The testimony of the three victims supports this
conclusion.
[6] The testimony supporting the element of intent to inflict bodily harm includes Dr. Lockes 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 Starks position, all the evidence viewed in a light
most favorable to the State supports a finding of intent beyond 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, Starks
[*433] neighbors testimony that Stark, when confronted about his sexual practices, said, I dont care. If Im going to
die, everybodys going to die. We also have the testimony of the victim in count 2 that Stark attempted [***14] to
have anal intercourse with her and did have oral sex, both methods the counselors told Stark he needed to avoid. See
also Commonwealth v. Brown, 413 Pa. Super. 421, 605 A.2d 429 (1992) (Defendant threw his feces into face of prison
guard. Court found that there was sufficient evidence to support finding of intent to inflict bodily harm when defendant
had been counseled by both a physician and a nurse about being tested HIV [**115] positive and that he could transmit
the virus through his bodily fluids.); State v. Haines, 545 N.E.2d 834 (Ind. Ct. App. 1989) (sufficient evidence to
convict of attempted murder when defendant, knowing he was HIV positive, spit, bit, scratched, and threw blood at
officer); Scroggins v. State, 198 Ga. App. 29, 401 S.E.2d 13 (1990) (sufficient evidence to convict of aggravated assault
with intent to murder when defendant, knowing he was HIV positive, sucked up excess sputum, bit an officer, and
laughed about it later); Zule v. State, 802 S.W.2d 28 (Tex. Ct. App. 1990) (sufficient evidence that defendant
transmitted virus to victim).
III
Unconstitutional Vagueness
[7] [8] [***15] Stark contends that this court should dismiss his convictions because RCW 9A.36.021(1)(e) is
unconstitutionally vague. He contends that the statute does not define the prohibited conduct with sufficient specificity
to put an ordinary citizen on notice as to what conduct he or she must avoid. [HN7] Statutes that are susceptible to
arbitrary and discriminatory enforcement are invalid. State v. Smith, 111 Wn.2d 1, 5, 759 P.2d 372 (1988). Criminal
statutes must contain ascertainable standards for consistent adjudication. Seattle v. Shepherd, 93 Wn.2d 861, 865, 613
P.2d 1158 (1980).
[*434] To succeed on his claim, Stark must prove beyond a reasonable doubt that the statute is unconstitutionally
vague, thereby defeating the presumption of constitutionality. State v. Aver, 109 Wn.2d 303, 306-07, 745 P.2d 479
(1987). This same burden applies on appeal when the review is de novo. State v. Campbell, 103 Wn.2d 1, 26, 691 P.2d
929 (1984), cert. denied, 471 U.S. 1094 (1985). If persons of common intelligence must necessarily guess at a statutes
meaning and differ as to its application, the statute is [***16] unconstitutionally vague. ODay v. King Cy., 109 Wn.2d
796, 810, 749 P.2d 142 (1988).
Page 9
66 Wn. App. 423, *434; 832 P.2d 109, **115;
1992 Wash. App. LEXIS 292, ***16
[HN8] 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 defendants 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. [***17] 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))).
[9] [10] 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 [*435] First Amendment rights, Stark cannot claim the statute is facially vague; he may only argue that
it is vague as applied to him. Spokane v. Douglass, 115 Wn.2d 171, 182, 795 P.2d 693 (1990); Hoffman Estates v.
Flipside, Hoffman Estates, Inc., 455 U.S. 489, 495 n.7, 71 L. Ed. 2d 362, 102 S. Ct. 1186 (1982). It is therefore
irrelevant whether the statute gives adequate notice that the hypothetical conduct he describes is prohibited.
[11] Stark complains that the statute nowhere defines the term expose, nor does it state that it is a crime [***18] to
transmit the HIV virus to another human being. No reasonably intelligent person would [**116] think the statute
criminalizes the transmission of HIV to nonhumans. Starks 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.
[HN9] RCW 9.94A.210(4) provides:
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 judge 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 [***19] 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 court [*436]
unless they are clearly erroneous. . . . Under the second part of subsection (a), however, the reviewing court must independently
decide as a matter of law whether the trial courts reasons justify the sentence.
State v. Pryor, 115 Wn.2d 445, 450, 799 P.2d 244 (1990).
[12] Under the second part of subsection (a), [t]he reasons must be substantial and compelling, RCW 9.94A.120(2),
and must take into account factors other than those which are necessarily considered in computing the presumptive
range for the offense. State v. Nordby, 106 Wn.2d 514, 518, 723 P.2d 1117 (1986). Once substantial and compelling
factors exist to support an exceptional sentence, the length of the sentence is left to the discretion of the sentencing
Page 10
66 Wn. App. 423, *436; 832 P.2d 109, **116;
1992 Wash. App. LEXIS 292, ***19
court. State v. Oxborrow, 106 Wn.2d 525, 530, 723 P.2d 1123 (1986); RCW 9.94A.210(4).
The trial court reasoned:
2. By his behavior the defendant has not demonstrated that [***20] 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 Courts 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).
[13] 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 [HN10] future dangerousness is an inappropriate factor for justifying an exceptional
sentence in nonsexual offense cases. 3 State v. Barnes, 117 Wn.2d 701, 711-12, [*437] 818 P.2d 1088 (1991). [***21]
As the State did not convict Stark of a sexual offense, it cannot use a finding of future dangerousness to justify an
exceptional sentence.
3 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.
[**117] 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 how 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 [***22] 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 contracted the virus, and Starks
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 7 1/2-year sentence based on finding of deliberate cruelty where defendant knowingly
exposed his two minor victims to HIV).
[14] The standard to be used when determining whether a case should be remanded for resentencing is if the appellate
court deems the invalidated facts 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 [***23] 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 [*438]
with assault because specific statutory prohibitions preempt general ones. More specifically, he contends that RCW
Page 11
66 Wn. App. 423, *438; 832 P.2d 109, **117;
1992 Wash. App. LEXIS 292, ***23
70.24 preempted the more general provisions of RCW 9A.36.021(1)(e).
[15] 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
contention meritless. Clearly, Stark traumatized the women he exposed to HIV by his behavior.
[16] 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 [***24] 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); RCW 5.60.060(4). Application of the privilege requires a balancing of the benefits
of the privilege against the public interest of full revelation of the facts. Petersen v. State, 100 Wn.2d 421, 429, 671
P.2d 230 (1983).
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 prosecutors 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, [***25] the [*439] prosecutors use of that information to charge him criminally
extinguished that right, thereby creating [**118] an ex post facto deprivation. As noted above, the prosecutor did not
exceed his authority in relying on Starks otherwise confidential information regarding his HIV status.
We affirm the convictions, but remand for resentencing on count 1.
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