State v. Whitfield

• Decision Date: 16 May 2006
• Docket Number: No. 32655-8-II.,32655-8-II.
• Citation: 132 Wn. App. 878,134 P.3d 1203
• Court: Washington Court of Appeals
• Parties: STATE of Washington, Respondent, v. Anthony Eugene WHITFIELD, Appellant.

134 P.3d 1203

132 Wn. App. 878

STATE of Washington, Respondent, v. Anthony Eugene WHITFIELD, Appellant.

No. 32655-8-II.

Court of Appeals of Washington, Division 2.

May 16, 2006.

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Peter B. Tiller, The Tiller Law Firm, Centralia, WA, for Appellant.

James C. Powers, Thurston County Prosecuting Attorney Ofc., Olympia, WA, for Respondent.

PART PUBLISHED OPINION

HOUGHTON, P.J.

¶ 1 Anthony Whitfield appeals from his conviction of 2,137 months' confinement on 17 counts of first degree assault with sexual motivation, 2 counts of witness tampering, and 3 counts of no-contact order violations. He raises various constitutional and statutory arguments. We affirm.

FACTS

¶ 2 Whitfield learned that he had HIV (human immunodeficiency virus) in April 1992, while incarcerated in Oklahoma. On April 20, 1995, he wrote: "My family is aware of my current medical status and have been since April of 1992."¹ Exhibit 10A.

¶ 3 In a memorandum dated April 25, 1995, a psychologist at the Howard McLeod Correctional Center stated: "[Whitfield] was diagnosed H.I.V. positive while incarcerated at Dick Conner Correctional Center. Reportedly, he contracted the virus through non-consensual sex while incarcerated." Exh. 10 (Interoffice Memorandum). Whitfield's case manager also wrote: "Whitfield is well aware of the consequence of his disease and this seems to frighten him. If he becomes a threat to the public it will not be because of ignorance." Exh. 10B. After being released from prison in 1995, Whitfield moved to Washington in 1999 and later had multiple sexual encounters with 17 women. He fathered three children with three different women.

¶ 4 During more than a thousand sexual liaisons involving oral, vaginal, and sometimes anal sex, Whitfield rarely wore a condom, even when asked to. And he never informed any of his partners that he had been diagnosed HIV-positive. When asked about his sexually transmitted disease status, he would deny having any disease or would state that he had tested negative. At least five of the 17 women became HIV-positive or ill with Acquired Immune Deficiency Syndrome (AIDS) after having sex with Whitfield.

¶ 5 From time to time during this period, Whitfield made comments about HIV. On one occasion, he asked his sex partner's friend, a home care nurse, whether she cared for people sick with HIV or AIDS. When she replied that she did not, Whitfield stated that if he had HIV, he would infect as many people as he could. And while talking with another sex partner and her friend, Whitfield stated that if he had HIV, he would give it to as many people as possible.

¶ 6 Dr. Diana Yu, the Thurston County Public Health Officer, first became aware of Whitfield in 2002, when a person diagnosed with AIDS named him as a sex partner. Dr. Yu's office tried unsuccessfully to locate Whitfield at that time.

¶ 7 In March 2003, another woman diagnosed with AIDS named Whitfield as her only sex partner. Diana Johnson, a supervisor of the HIV unit,² then located and interviewed Whitfield in May. Johnson met with Whitfield in an Olympia parking lot and tested him for HIV.

¶ 8 Upon receiving the results, Johnson tried to reach Whitfield either at his home and by calling his cellular telephone, but she was initially unable to contact him. On August 1, Johnson contacted Whitfield by telephone and met with him at the Health Department. When she told him that the test results indicated that he was HIV-positive, Whitfield broke into tears. Using a standard HIV post-test counseling form, Johnson then explained to Whitfield about what he needed to do to avoid infecting others, which included notifying all his sexual partners of his HIV status and using condoms to reduce the risk of infection. At the end of the counseling, Whitfield signed the form.

¶ 9 In December 2003, Dr. Yu learned that a third individual diagnosed with AIDS named Whitfield as a sex partner. Dr. Yu contacted a Thurston County deputy prosecutor. On March 11, 2004, Dr. Yu signed a Health Officer Order brought under RCW 70.24.024 (cease and desist order).

¶ 10 The next day, Johnson served Whitfield with the cease and desist order. The cease and desist order required Whitfield to submit names and information about all of his sexual partners to the Health Department. It also ordered Whitfield not to engage in any activity that may involve exchange of vaginal fluid or semen and to inform all of his sexual partners that they may have been exposed to HIV. Dr. Yu then drafted a declaration under RCW 70.24.034 and sent it to the deputy prosecutor to aid the prosecutor in detaining Whitfield.

¶ 11 On March 24, 2004, Detective Paul Lower went to Whitfield's residence to execute a search warrant. The detective encountered Whitfield as he loaded household goods into a U-Haul truck. Detective Lower then arrested Whitfield for first degree assault. The next day, the detective saw Whitfield at the jail. Whitfield admitted to Detective Lower that he had had multiple sexual contacts with eight women after his counseling with Johnson in August 2003. According to Detective Lower, Whitfield also admitted that he had discarded the post-HIV counseling documents.

¶ 12 On March 25, the Thurston County Superior Court issued a no-contact order prohibiting Whitfield from contacting B.S., one of his former sexual partners. Whitfield signed the order, indicating that he received a copy of it. Whitfield, however, called B.S from the jail on March 29 and 31, and April 8. During the calls, Whitfield tried to persuade B.S. to testify that he had told her about his HIV status.

¶ 13 On October 28, 2004, the State, in its sixth amended information,³ charged Whitfield with 17 counts of first degree assault with sexual motivation, in violation of RCW 9A.36.011(1)(b) and RCW 9.94A.835; 3 counts of witness tampering, in violation of RCW 9A.72.120(1)(a); and 3 counts of violating a no-contact order, in violation of RCW 26.50.110(1). Fourteen of the 17 first degree assault charges, the three witness tampering charges, and the three no-contact order violation charges included a domestic violence element of RCW 10.99.020.

¶ 14 After Whitfield waived his right to a jury trial, a bench trial ensued. At trial, Dr. Yu testified that medical science currently cannot cure HIV or AIDS and that HIV eventually leads to AIDS. She also stated that the statistical risk of a female getting infected by an unprotected vaginal intercourse with an HIV-positive male is four percent but that science cannot predict who will become infected and who will not.

¶ 15 Dr. Mark Whitehill, a clinical psychologist and a certified sex offender treatment provider, testified on Whitfield's behalf. He said, "I've found no evidence, psychologically, that [Whitfield's] assaultive conduct was intentional. Hence, it seems to me a diminished capacity defense is appropriate." Report of Proceedings (Trial) (RP) at 795. Dr. Whitehill also testified that Whitfield admitted knowing that he was HIV-positive since 1992.

¶ 16 The court found Whitfield guilty as charged on all counts except one count of witness tampering. The court ruled:

For a person prosecuted for Assault in the First Degree by exposing another to HIV, it does not matter whether the exposure resulted in transmission of the virus. Neither does it matter whether the other person was already infected with the virus from another source.

I find that each exposure of HIV by unprotected penile-vaginal intercourse encompasses a risk of transmission of the virus measured at approximately 4 percent. . . . While each single act of exposure carries a transmission risk of 4 percent, and while the risk of transmission does not increase for any particular act of exposure over time, repeated acts of exposing the same person to HIV increased the risk that transmission will occur during one of the repeated acts in a mathematical progression. Thus, 25 or more acts of exposing a person to HIV increases the risk that at least one act will transmit the virus to something near 100 percent.

RP at 907-08. After carefully analyzing all the evidence, the court concluded that Whitfield "intended to expose" all 17 victims to HIV. RP at 929. The court also stated, "I further find that all of the acts in Counts 1 through 17 involved a domestic violence relationship. I further find that all acts in Counts 1 through 17 were committed with sexual motivation." RP at 930.

¶ 17 At sentencing, the court distinguished the following three categories of victims from the rest: (1) victims of unprotected sex after Whitfield received the cease and desist order, (2) victims who have become HIV-positive, and (3) victims who have children with Whitfield. Based on these categories, the court imposed a maximum sentence within the standard range for count I (277 months based on Whitfield's offender score of 8); and counts II, III, VI, VIII, IX, XV, and XVI (123 months for each count). The court imposed a sentence of 111 months for each of the remaining counts, which is above the midpoint of the standard range but lower than the maximum for each count. The court ordered all of the assault sentences to be served consecutively under RCW 9.94A.589.⁴

¶ 18 The court then imposed a standard range sentence of 60 months, to be served concurrently, for the two witness tampering counts, and 365 days, also to be served concurrently, for the three no-contact order violation counts. The sentence totaled 2,137 months of confinement (178.08 years).

¶ 19 Whitfield appeals.

ANALYSIS

SPECIFIC AND GENERAL STATUTES

¶ 20 Whitfield first contends that the State erred by proceeding under RCW 9A.36.011(1)(b) instead of RCW 70.24.024,.034,⁵ and .080, because chapter 70.24 RCW and RCW 9A.36.011 are concurrent statutes. According to Whitfield, chapter 70.24 RCW is a specific statute whereas RCW 9A.36.011(1)(b) is a general one and, as a result, chapter 70.24 RCW ...