HIV AIDS Resource Guide/HIV-AIDS Resource Guide.iso/STAT/CASES/STARKE.ASC

Text File | 1993-01-14 | 29KB | 549 lines

/* This case is reported as Stark v. State of Washington, 832
P.2d 109(Wash.Ap..Dist. 2 1992). It is quite important since it
is one of the few cases to

Calvin Edward STARK, Appellant.

Court of Appeals of Washington, Division 2.

July 13, 1992.



PETRICH, Chief Judge.

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 one, 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 two and three, 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 one was
unjustified.  We affirm the convictions, but remand for
resentencing on count one.

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 counselling about his
infection. He was taught 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 prosecutor's office intending
to seek the prosecutor's assistance, pursuant to RCW 70.24.030,
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). [footnote 1] Each count
involved a different victim:

Count One: 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 Two: 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 Three: The victim and Stark had sexual relations throughout
their brief relationship.  It was "almost nonstop with him,"
"almost every night" during August 1989.  Stark never wore a
condom and never informed the victim he was HIV positive.  When
pressed, Stark denied rumors about his HIV status.  The victim
broke off the relationship because of Stark's 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.

Before the trials, Stark moved to suppress Dr. Locke's 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 one 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 one.  A second trial judge
found Stark guilty of the second and third counts at a bench
trial. On count one, 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
two and three, Stark was given the low end of the standard range,
43 months each, to be served concurrently, but consecutively to
count one.



I. Confidentiality

[1]  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, RCW 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. 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 Stark's identity and the
HIV test result.

The trial court rejected this argument because RCW 70.24.034(2)
specifically refers to the prosecuting attorney.  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 does not comply with the order, the public health officer
"may request a warrant be issued by the superior court" to ensure
the person's 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
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).

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 statute as a whole
makes clear that prosecutors may, at some point, have access to
otherwise confidential information held by public health
officers.  We read statutes as a whole in construing their
meaning, not piecemeal. State v. Parker, 97 Wash.2d 737, 741, 649
P.2d 637 (1982). 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 Stark's
statutory right to confidentiality by discussing the case with
the prosecutor.

[2]  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 Wash.2d 30, 640 P.2d 716 (1982), whereas the
hearing in a civil action under ch. 70.24 RCW is "closed and
confidential" unless the defendant requests otherwise.  RCW
70.24.034(5). [footnote 2]

The Legislature sought to protect the confidentiality of those
infected with HIV, which implicates sensitive privacy issues, by
designing 70.24 RCW 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 1988, ch. 906,
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 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 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, includ
ing 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 ch. 70.24 RCW precludes the prosecutor from choosing
to file criminal charges rather than first exhausting the
available civil remedies. 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 Wash.2d 706, 713, 675 P.2d 219
(1984). The trial courts did not err in refusing to suppress the
information obtained from the Health Department or in refusing to
allow Dr. Locke's deposition and testimony.



II.  Sufficiency of the Evidence

[3]  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
essential elements of the charged crime beyond a reasonable
doubt."  State v. Rempel, 114 Wash.2d 77, 82, 785 P.2d 1134
(1990) (citing State v. Green, 94 Wash.2d 216, 221, 616 P.2d 628
(1980)).  Under this standard, we resolve all inferences in favor
of the State. State v. Smith, 104 Wash.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 counselled
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 beyond a reasonable doubt.  The
existence of non-criminal explanations does not preclude a
finding that a defendant intended to harm his sexual partners.
State v. Gosby, 85 Wash.2d 758, 539 P.2d 680 (1975).  With regard
to the later victims, we have, in addition to this same evidence,
Stark's neighbor's testimony that Stark, when confronted about
his sexual practices, said, "I don't care.  If I'm going to die,
everybody's going to die."  We also have the testimony of the
victim in count two that Stark attempted 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, -
Pa.Super. -, 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 positive and that he could transmit the
virus through his bodily fluids.); State v. Haines, 545 N.E.2d
834 (Ind.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.App.1990) (sufficient evidence that defendant transmitted
virus to victim).



III. Unconstitutional Vagueness

[4, 5]  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 they must avoid. Statutes
that are susceptible to arbitrary and discriminatory enforcement
are invalid. State v. Smith, 111 Wash.2d 1, 5, 759 P.2d 372
(1988).  Criminal statutes must contain ascertainable standards
for consistent adjudication.  Seattle v. Shepherd, 93 Wash.2d
861, 865, 613 P.2d 1158 (1980).

[6] 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 Wash.2d 303, 30607, 745 P.2d 479 (1987). This same burden
applies on appeal when the review is de novo.  State v.
Campbell,  103 Wash.2d 1, 26, 691 P.2d 929 (1984), cert. denied,
471 U.S. 1094, 105 S.Ct. 2169, 85 L.Ed.2d 526 (1985).  If persons
of common intelligence must necessarily guess at a statute's
meaning and differ as to its application, the statute is
unconstitutionally vague.  O'Day v. King Cy., 109 Wash.2d 796,
810, 749 P.2d 142 (1988).

[7]  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 Wash.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, 761 P.2d 56.

"Impossible standards of specificity are not required." Seattle
v. Eze, 111 Wash.2d 22, 26, 759 P.2d 366 (1988) (citing Kolender
v. Lawson, 461 U.S. 352, 361, 103 S.Ct. 1855, 1860, 75 L.Ed.2d
903 (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."  Seattle v. Eze, 111 Wash.2d at 27, 759 P.2d 366.
"'[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, 759 P.2d 366
(quoting State v. Maciolek, 101 Wash.2d 259~, 265, 676 P.2d 996
(1984) (quoting Spokane v. Vaux, 83 Wash.2d 126,129, 516 P.2d 209
(1973))).

[8]  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
Wash.2d 635, 644, 802 P.2d 1333 (1990), cert. denied, - U.S. -,
111 S.Ct. 1690, 114 L.Ed.2d 85 (1991). Moreover, because the
assault statute does not implicate any 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 Wash.2d 171,182, 795 P.2d 693 (1990); Hoffman Estates v.
Flipside, Hoffman Estates, Inc., 455 U.S. 489, 495 n. 7, 102
S.Ct. 1186, 1191 n. 7, 71 L.Ed.2d 362 (1982). It is therefore
irrelevant whether the statute gives adequate notice that the
hypothetical conduct he describes is prohibited.

[9]  Stark complains that the statute "n9where 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 counselled 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.

Stark also contends that the trial court erred in imposing an
exceptional sentence based solely on future dangerousness.

RCW 9.94A.210(4) provides:

To reverse a sentence 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 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
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 court's reasons
justify the sentence.

State v. Pryor, 115 Wash.2d 445, 450, 799 P.2d 244 (1990).

[10] 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 Wash.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 court. State v. Oxborrow, 106
Wash.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 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).



IV.  Exceptional Sentence

[11] 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 Wash.2d at 4s3, 799 P.2d 244, the Washington Supreme Court
has recently held that future dangerousness is an inappropriate
factor for justifying an exceptional sentence in nonsexual
offense cases. [footnote 3]  State v. Barnes,  117 Wash.2d 701,
711-12, 818 P.2d 1088 (1991). As the State did not convict Stark
of a sexual offense, it cannot use a finding of future
dangerousness to justify an exceptional sentence.

[12]  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 remains the same even if the victim acquires the virus.

Here, there was no evidence that as of the date of the trial that
any of the victims had contracted 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
l0- year term.  Cf State v. Farmer, 116 Wash.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).

"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 Wash. App. 573, 587, 779 P.2d
732 (citing State v. Fisher, 108 Wash.2d 419, 430 n. 7, 739 P.2d
683 (1987)), review denied, 113 Wash.2d 1026, 782 P.2d 1069
(1989). As future dangerousness was the only basis for the ex
ceptional sentence imposed, this court must remand for
resentencing on count one 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 with
assault because specific statutory prohibitions preempt general
ones.  More specifically, he contends that ch. 70.24 RCW
preempted the more general provisions of RCW 9.94.021(1)(e).

[13] 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
Wash.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.

[14, 15]  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. Stark, 23
Wash.App. 392, 396, 597 P.2d 406 (1979). It is statutory, not of
constitutional magnitude. State v. Boehme, 71 Wash.2d 621, 634,
430 P.2d 527 (1967), cert. denied, 390 U.S. 1013, 88 S.Ct. 1259,
20 L.Ed.2d 164 (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. Pet
ersen v. State, 100 Wash.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 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 prosecutor's use of that
information to charge him criminally extinguished that right,
thereby creating an ex post facto deprivation.  As noted above,
the prosecutor did not exceed his authority in relying on Stark's
otherwise confidential information regarding his HIV status.

We affirm the convictions, but remand for resentencing on count
one.



ALEXANDER and SEINFELD, JJ., concur.



FOOTNOTES:

1.   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 described in chapter 70.24 RCW; ..."

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 defendant's confidentiality see People
v. Anonymous, 582 N.Y.S.2d 350 (N.Y.Co. Ct.l992). 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 defendant's
name be redacted to delete any references to his identity. and
only he 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.

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
two and three.