Filed Washington State Court of Appeals Division Two
January 9, 2018
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II STATE OF WASHINGTON, No. 49469-8-II
Respondent,
v.
ANTHONY EUGENE WHITFIELD, UNPUBLISHED OPINION
Appellant.
WORSWICK, J. — In 2004, Anthony Eugene Whitfield was convicted of 17 counts of first
degree assault with sexual motivation. In 2016, Whitfield filed a motion under RCW 10.73.170
seeking postconviction deoxyribonucleic acid (DNA) testing, which the trial court denied.
Whitfield appeals, arguing that the court erred in denying his motion because DNA evidence was
material to his sentence. Whitfield also raises several issues in his statement of additional
grounds for review (SAG). Because the DNA evidence was not material to a sentence
enhancement, we affirm the trial court’s order denying Whitfield’s RCW 10.73.170 motion for
postconviction DNA testing.
FACTS
In 1992, Whitfield was diagnosed HIV-positive (human immunodeficiency virus) and
was informed of the consequences of the disease. Between 1999 and 2004, Whitfield had sexual No. 49469-8-II
encounters with 17 women without informing any of his partners that he was HIV-positive. It
was reported that at least five of Whitfield’s partners contracted HIV.
In 2004, the State charged Whitfield with 17 counts of first degree assault with a sexual
motivation special allegation.1 Whitfield waived his right to a jury trial, and the trial court found
Whitfield guilty of all 17 counts of first degree assault for intending to expose all 17 partners to
HIV. The trial court also found that all 17 counts were committed with sexual motivation.2
At sentencing, the trial court organized Whitfield’s convictions into three categories.
One of these categories involved the five convictions pertaining to “victims who have become
HIV-positive.”3 Suppl. Clerk’s Papers (CP) at 55. The trial court imposed a maximum sentence
within the standard range for eight of the first degree assault with sexual motivation convictions,
including the five convictions that involved victims who had become HIV-positive. The trial
court imposed a sentence above the midpoint of the standard range, but lower than the
maximum, for Whitfield’s nine remaining first degree assault with sexual motivation
convictions. Whitfield was sentenced to a total of 2,137 months of confinement. Notably,
Whitfield received neither an exceptional sentence nor a sentence enhancement.
1 RCW 9A.36.011(1)(b); former RCW 9.94A.127 (1999), recodified as 9.94A.835 (LAWS OF 2001, ch. 10, § 6. Fourteen of the 17 first degree assault charges included a domestic violence designation. Former RCW 10.99.020(3)(a) (2000). 2 Whitfield was also convicted of two counts of witness tampering and three counts of violation of a no-contact order. These convictions are not at issue in this appeal. 3 The other two categories included victims who Whitfield assaulted after receiving a cease and desist order and victims who have children with Whitfield.
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In 2016, Whitfield filed a RCW 10.73.170 motion, seeking DNA testing of the five
women who reportedly contracted HIV.4 Whitfield argued that the evidence would show that the
strain of HIV contracted by the victims would be different than the strain Whitfield was infected
with. The trial court denied Whitfield’s motion. Whitfield appeals.
ANALYSIS
I. MOTION FOR POSTCONVICTION DNA TESTING
Whitfield argues that the trial court erred in denying his RCW 10.73.170 motion for
postconviction DNA testing because DNA evidence was material to his sentence. Specifically,
Whitfield argues that his maximum standard range sentence is a “sentence enhancement” within
the meaning of RCW 10.73.170 because the trial judge distinguished five of his convictions
because his victims became HIV-positive. He argues that if the DNA evidence were to show
that he did not transmit HIV to these victims, the trial judge would have given him a lesser
sentence. We disagree. Whitfield did not receive a sentence enhancement and, thus, did not
make the showing required to receive postconviction DNA testing.
RCW 10.73.170 provides a means for convicted persons to seek DNA testing to establish
their innocence and is “limited to situations where there is a credible showing that [DNA testing]
could benefit a possibly innocent individual.” State v. Crumpton, 181 Wn.2d 252, 258, 261, 332
P.3d 448 (2014). Generally, we review a trial court’s decision on a RCW 10.73.170(3) motion
for postconviction DNA testing for an abuse of discretion. State v. Thompson, 173 Wn.2d 865,
870, 271 P.3d 204 (2012). However, where, as here, resolution of the case turns on a question of
4 The DNA evidence location is not clear from the record on appeal. The State argued to the trial court that it is not in possession of the evidence Whitfield seeks to have tested. From our record, it appears that only the Washington State Department of Health tested the victims for HIV.
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statutory interpretation, our review is de novo. State v. Ervin, 169 Wn.2d 815, 820, 239 P.3d 354
(2010).
The primary goal of statutory interpretation is to discern and implement the legislature’s
intent. State v. Armendariz, 160 Wn.2d 106, 110, 156 P.3d 201 (2007). In interpreting a statute,
we first look to the statute’s plain language. 160 Wn.2d at 110. To determine the plain meaning
of a statute, we look at the context of the statute, related provisions, and the statutory scheme as a
whole. Ervin, 169 Wn.2d at 820.
If the statutory language is subject to more than one reasonable interpretation, it is
ambiguous. 169 Wn.2d at 820. However, if the statute is unambiguous, we must give effect to
its plain meaning as an expression of legislative intent. Armendariz, 160 Wn.2d at 110. “We
cannot add words or clauses to an unambiguous statute when the legislature has chosen not to
include that language.” State v. Delgado, 148 Wn.2d 723, 727, 63 P.3d 792 (2003).
RCW 10.73.170(1) provides that a convicted person who is currently serving a term of
imprisonment may submit a motion requesting DNA testing. RCW 10.73.170(2) lists the
procedural requirements of a postconviction motion for DNA testing. A petitioner’s motion
must state the basis for the DNA testing request and “[e]xplain why DNA evidence is material to
the identity of the perpetrator of, or accomplice to, the crime, or to sentence enhancement.”
RCW 10.73.170(2)(b). If the petitioner satisfies these procedural requirements, and if the trial
court also concludes that the petitioner “has shown the likelihood that the DNA evidence would
demonstrate innocence on a more probable than not basis,” the court must grant the petitioner’s
motion. RCW 10.73.170(3). Here, Whitfield argues that DNA evidence is material to a sentence
enhancement.
4 No. 49469-8-II
“Sentence enhancement” is a term of art that is not defined by RCW 10.73.170. When a
statutory term is undefined, we generally apply the term’s “‘plain and ordinary meaning unless a
contrary legislative intent is indicated.’” State v. Jones, 172 Wn.2d 236, 242, 257 P.3d 616
(2011) (quoting Ravenscroft v. Wash. Water Power Co., 136 Wn.2d 911, 920-21, 969 P.2d 75
(1998)). However, when a term of art is used, we look to the technical definition of the term,
even where a common definition is available. State v. Veliz, 176 Wn.2d 849, 854, 298 P.3d 75
(2013).
“Sentence enhancement” has a technical meaning regarding criminal sentences. RCW
9.94A.533 of the Sentencing Reform Act of 1981 provides for adjustments to a defendant’s
standard range sentence. RCW 9.94A.533(1). These adjustments, referred to in the statute as
“enhancements,” are statutorily-mandated increases in a defendant’s standard range sentence due
to the particular circumstances of the offense committed. See generally RCW 9.94A.533. RCW
9.94A.533 requires that the trial court add a specific number of months to a defendant’s standard
range when the offense committed involves a firearm, deadly weapon, sexual motivation, or
gang activity. See generally RCW 9.94A.533.
Defining “sentence enhancement” as a statutorily-mandated increase in a defendant’s
standard range comports with the construction of RCW 10.73.170. RCW 10.73.170 provides a
form of postconviction relief to a defendant who can show that DNA evidence is material
regarding the perpetrator of the crimes the defendant was convicted of or to a sentence
enhancement. Both a conviction and a sentence enhancement require a finding of guilt and
involve the trial court adding a specific amount of time to a defendant’s sentence. RCW
10.73.170 creates a procedure to absolve a defendant of this finding of guilt and additional time
5 No. 49469-8-II
in confinement. Accordingly, we determine that the legislature intended that “sentence
enhancement” be given its term-of-art meaning.
Whitfield argues that a maximum standard range sentence is a “sentence enhancement”
for purposes of RCW 10.73.170. But Whitfield’s reading of RCW 10.73.170 is contrary to the
statute’s plain language. RCW 10.73.170 clearly states that a petitioner’s motion for
postconviction DNA testing must explain that DNA evidence is material to the identity of the
perpetrator of a crime, the identity of an accomplice to a crime, or to a sentence enhancement.
“Sentence enhancement” is a term of art and is defined as a statutorily-mandated increase in a
defendant’s standard range due to the particular circumstances of the offense committed. A
standard range sentence, without more, does not involve the trial court adding a specific amount
of time to a defendant’s standard range due to the fact that the defendant committed a crime in
such a way that comports with the enhancements listed in RCW 9.94A.533.
The plain language of RCW 10.73.170 makes clear that the legislature intended to permit
a defendant to request postconviction DNA testing when DNA is material to a sentence
enhancement under RCW 9.94A.533. Therefore, “sentence enhancement” is subject only to one
reasonable interpretation and is unambiguous. And we do not add words or clauses to an
unambiguous statute. Delgado, 148 Wn.2d at 727.
Whitfield’s motion does not comply with the procedural requirements listed in RCW
10.73.170. A review of Whitfield’s judgment and sentence makes it clear that Whitfield
received a sentence within the standard range for each of his first degree assault convictions, and
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he did not receive any type of statutory sentence enhancement.5 Consequently, Whitfield’s
RCW 10.73.170 motion for postconviction DNA testing fails to show that DNA is material to a
sentence enhancement. Thus, the trial court did not err in denying his motion.
II. APPELLATE COSTS
Whitfield asks that we refrain from awarding appellate costs against him because he is
indigent. A commissioner of this court can consider whether to award appellate costs in due
course under the newly revised RAP 14.2 if the State files a cost bill and if Whitfield objects to
that cost bill.
STATEMENT OF ADDITIONAL GROUNDS
In his SAG, Whitfield contends that (1) the trial court judge violated Canon 1 of the
Washington Code of Judicial Conduct (CJC), the appearance of fairness doctrine, and
Whitfield’s right to due process; (2) the prosecutor committed misconduct and violated his due
process and equal protection rights; and (3) the State spoliated evidence and coerced the victims
to falsely testify. Whitfield’s claims either lack merit or require examination of matters outside
the appellate record.
I. APPEARANCE OF FAIRNESS
Whitfield contends that the trial court judge violated Canon 1 of the CJC, the appearance
of fairness doctrine, and Whitfield’s right to due process because Whitfield was not given the
5 We note that even though the trial court found that all 17 first degree assault convictions involved special allegations of sexual motivation, Whitfield did not receive a sexual motivation sentence enhancement. Compare CP at 36-37, with former RCW 9.94A.510 (2002).
7 No. 49469-8-II
opportunity to reply to the State’s arguments at the RCW 10.73.170 motion hearing.6
Whitfield’s claim lacks merit.
Due process, the appearance of fairness doctrine, and the CJC require that a judge
disqualify himself if he is biased against a party or his impartiality may reasonably be
questioned. State v. Dominguez, 81 Wn. App. 325, 328, 914 P.2d 141 (1996). Under the
appearance of fairness doctrine, a judicial proceeding “is valid only if a reasonably prudent,
disinterested observer would conclude that the parties received a fair, impartial, and neutral
hearing.” State v. Gamble, 168 Wn.2d 161, 187, 225 P.3d 973 (2010). Similarly, Canon 1 of the
CJC provides that a judge must comply with the law and must act in a manner that “promotes
public confidence in the independence, integrity, and impartiality of the judiciary, and shall
avoid impropriety and the appearance of impropriety.”
A party alleging judicial bias must present evidence of actual or potential bias.
Dominguez, 81 Wn. App. at 329. We use an objective test to determine if a judge’s impartiality
might reasonably be questioned by a reasonable person who knows all the relevant facts. In re
Marriage of Davison, 112 Wn. App. 251, 257, 48 P.3d 358 (2002). Without evidence of actual
or potential bias, a claim of judicial bias is without merit. Dominguez, 81 Wn. App. at 329.
6 Whitfield also appears to contend that the trial court judge violated Whitfield’s right to equal protection of the law at the RCW 10.73.170 motion hearing. RAP 10.10(c) requires that an appellant inform this court of the “nature and occurrence of the alleged errors.” We cannot review a SAG claim if it is too vague to properly inform this court of the claimed error. State v. Bluehorse, 159 Wn. App. 410, 436, 248 P.3d 537 (2011). Whitfield’s claims are too vague to apprise this court of the nature and occurrences of the alleged errors. RAP 10.10(c). Accordingly, we do not consider Whitfield’s equal protection claim.
8 No. 49469-8-II
At Whitfield’s RCW 10.73.170 motion hearing, Whitfield, who was self-represented,
presented his argument to the trial court. The State then presented its argument in response to
Whitfield. After the State completed its presentation, the trial court stated, “The court is ready to
rule,” and denied Whitfield’s motion. Verbatim Report of Proceedings (VRP) (Aug. 31, 2016) at
8. Whitfield was not given an opportunity to reply to the State’s argument at the motion hearing.
Whitfield fails to point to any evidence that the trial court judge was biased against him.
Contrary to Whitfield’s claim, we are unaware of any court rule providing that a party must have
the opportunity to reply to an opposing party’s argument at a motion hearing. Moreover, a trial
court judge has the inherent authority to manage parties and proceedings. State v. Gassman, 175
Wn.2d 208, 211, 283 P.3d 1113 (2012). The trial court judge’s failure to permit Whitfield to
reply to the State’s arguments at the motion hearing does not constitute evidence of actual or
potential bias. Therefore, Whitfield’s claim is without merit.
II. PROSECUTORIAL MISCONDUCT
Whitfield also contends that the prosecutor committed misconduct and violated his due
process and equal protection rights by (1) suggesting that the trial court treat Whitfield’s RCW
10.73.170 motion as a personal restraint petition, (2) arguing that Whitfield’s motion was moot
and referencing Whitfield’s trial, and (3) arguing that the State did not have jurisdiction over
Whitfield’s victims. Whitfield’s claims lack merit.
To establish prosecutorial misconduct, a defendant bears the burden of proving the
prosecutor’s conduct was both improper and prejudicial. State v. Thorgerson, 172 Wn.2d 438,
442, 258 P.3d 43 (2011). If a defendant meets this burden, we may reverse the defendant’s
conviction. State v. Emery, 174 Wn.2d 741, 759-61, 278 P.3d 653 (2012).
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If a defendant establishes that the prosecutor’s conduct was improper, we must determine
whether he was prejudiced. 174 Wn.2d at 760. Where, as here, a defendant fails to object to
alleged prosecutorial misconduct, he is deemed to have waived any error unless he shows the
misconduct “was so flagrant and ill intentioned that an instruction could not have cured the
resulting prejudice.” 174 Wn.2d at 760-61. To meet this heightened standard, the defendant
must show that “(1) ‘no curative instruction would have obviated any prejudicial effect on the
jury’ and (2) the misconduct resulted in prejudice that ‘had a substantial likelihood of affecting
the jury verdict.’” 174 Wn.2d at 761 (quoting Thorgerson, 172 Wn.2d at 455).
A. Treatment of Whitfield’s RCW 10.73.170 Motion
Whitfield contends that the prosecutor committed misconduct by suggesting that the trial
court treat Whitfield’s RCW 10.73.170 motion as a personal restraint petition. We determine
that Whitfield waived any error and that, therefore, Whitfield’s claim lacks merit.
At the RCW 10.73.170 motion hearing, the State noted:
But based on the rules of appellate procedure, I believe there was already an appeal that occurred in this case, and a mandate that was handed down affirming the conviction. I believe this would be a personal-restraint petition. However, if the Court is hearing this case on merits, I would point the Court towards the findings of fact and conclusions of law in this case.
VRP (Aug. 31, 2016) at 6. Whitfield did not object.
RCW 10.73.170 motions for postconviction DNA testing are separate from personal
restraint petitions. Compare RCW 10.73.170, with CrR 7.8. While the prosecutor’s statement
may amount to a misstatement of the law, Whitfield fails to show that this error had a substantial
likelihood of affecting the outcome of the motion hearing. Accordingly, Whitfield fails to meet
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his burden in showing that the prosecutor’s conduct was flagrant and ill-intentioned, and he has
waived any error.
B. References to Whitfield’s Trial
Whitfield also contends that the prosecutor committed misconduct by arguing that
Whitfield’s motion was moot and by referencing his trial. Whitfield’s claim lacks merit.
In his motion for postconviction DNA testing, Whitfield argued that DNA testing was
material to the identity of the perpetrator of his first degree assault with sexual motivation
charges because DNA testing would show that the five women who reportedly contracted HIV
contracted the virus from someone other than Whitfield. In arguing the merits of Whitfield’s
RCW 10.73.170 motion, the prosecutor referenced Whitfield’s trial:
Judge McPhee indicated . . . that the defendant acted with the intent to expose each one of the identified victims to HIV. There is no indication that transmission was the basis for the conviction. As such, the defendant’s request is moot: . . . even if there is DNA in an HIV strain . . . there is no basis for it, based upon the findings of fact entered by the bench in the bench trial.
VRP (Aug. 31, 2016) at 7. Whitfield did not object.
Whitfield was convicted of 17 counts of first degree assault for intending to expose 17
victims to HIV. Whether he transmitted the virus to any of the victims is immaterial to the
identity of the perpetrator of his first degree assault charges. The prosecutor correctly noted that
there was no indication that Whitfield was convicted based on the transmission of HIV to any of
the victims. As a result, the prosecutor was also correct in stating that there was no basis for
DNA testing. Thus, Whitfield fails to show that the prosecutor’s conduct was improper, and his
claim lacks merit.
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C. Jurisdiction Over Victims
Whitfield also contends that the prosecutor committed misconduct by arguing that the
State does not have jurisdiction over Whitfield’s victims. Whitfield’s claim lacks merit.
During the RCW 10.73.170 motion hearing, the prosecutor stated that “[t]he State stands
behind the other reasons indicated in [its] brief, not the least of which at this point, the Court has
no jurisdiction over the victims.” VRP (Aug. 21, 2016) at 8. Whitfield did not object.
Whitfield points to RCW 2.08.010 to support his contention that the State has jurisdiction
over the victims of his crimes. RCW 2.08.010 provides that the superior court has original
jurisdiction in all criminal cases amounting to a felony. However, RCW 2.08.010 does not
provide the State with the ability to obtain DNA tests from the five victims who reportedly
contracted HIV. Accordingly, Whitfield fails to show that the prosecutor’s statement was
improper, and his claim lacks merit.
III. SPOLIATION OF EVIDENCE
Whitfield also contends that the State spoliated evidence of his and the five victims’
DNA, requiring an evidentiary hearing, and that the State coerced the victims to falsely testify
against him. We do not review Whitfield’s claim because it relies on matters outside the record
on review.
Whitfield attempts to submit evidence outside the record by attaching exhibits to his
SAG. We do not accept evidence into the record on appeal that was not before the trial court.
RAP 9.11; State v. Madsen, 153 Wn. App. 471, 485, 228 P.3d 24 (2009). Moreover, we do not
consider matters outside the trial record on direct appeal. State v. McFarland, 127 Wn.2d 322,
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338, 899 P.2d 1251 (1995). Because Whitfield’s assertions rely entirely on matters outside the
record, we do not address them.7
CONCLUSION
We affirm the trial court’s order denying Whitfield’s RCW 10.73.170 motion for
A majority of the panel having determined that this opinion will not be printed in the
Washington Appellate Reports but will be filed for public record in accordance with RCW
2.06.040, it is so ordered.
Worswick, J. We concur:
Bjorgen, C.J.
Melnick, J.
7 The appropriate procedure for addressing matters outside the record is through a personal restraint petition. McFarland, 127 Wn.2d at 335.