State v. McKague, 246 P.3d 558

McKague stole a can of smoked oysters from Kee Ho Chang in Olympia; Chang attempted to detain him in the parking lot and McKague punched him multiple times, then fled in a car; Chang sustained a concussion, scalp contusion, and neck/shoulder pain, with a CT scan showing a possible occult fracture; photos showed facial bruising and swelling on the day of the incident and three days later; the State charged first degree robbery or, in the alternative, second degree assault, and McKague sought to waive a jury trial.
McKague attempted to waive jury trial; the trial court refused, citing seriousness of charges, defense counsel’s jury trial expertise, and the appearance of fairness.
The court later instructed on second degree assault and third degree assault as an inferior offense, along with third degree theft and first degree robbery; McKague did not challenge the second degree assault instruction.
The jury convicted McKague of second degree assault and third degree theft; McKague was sentenced as a persistent offender to life imprisonment without the possibility of parole based on prior strikes (second degree assault, first degree kidnapping, first degree robbery).
McKague appealed arguing (1) improper denial of jury waiver, (2) insufficiency of evidence for second degree assault, (3) improper mandatory presumption in instruction, (4) ineffective assistance for not pursuing fourth degree instruction, and (5) due process/equal protection issues in POAA sentencing.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Jury waiver denial was proper	McKague argues denial of waiver violated rights	McKague contends waiver should have been granted	No abuse of discretion; denial upheld
Sufficiency of evidence for substantial bodily harm	Chang sustained substantial bodily harm	Evidence insufficient to show substantial harm	Sufficient: rational juror could find temporary but substantial disfigurement or impairment
Recklessness instruction creates mandatory presumption	Recklessness instruction improperly presumes harm from intentional act	Instruction does not create mandatory presumption	Instruction does not create mandatory presumption; proper under authorities
Ineffective assistance regarding lesser-included instruction	Withdrawal of fourth degree instruction harmed defense	Strategy; third degree instruction reflected theory of the case	Defense strategy was legitimate; no reversible error on prejudice
POAA sentencing procedure and equal protection	Judge finding prior convictions by preponderance violates rights	Permissible under Almendarez-Torres and current law; rational basis	No due process or equal protection violation; prior-conviction finding by judge upheld

State v. Thiefault, 160 Wn.2d 409 (2007) (Apprendi-like issue in POAA sentencing; prior convictions exception recognized)
State v. Roswell, 165 Wn.2d 186 (2008) (Apprendi framework; prior convictions not always jury-found in POAA context)
State v. Smith, 150 Wn.2d 135 (2003) (Apprendi/Blakely era; prior convictions and POAA sentencing stance)
State v. Thorne, 129 Wn.2d 736 (1996) (POAA sentencing historically allowed judge-found prior convictions)
State v. Wheeler, 145 Wn.2d 116 (2001) (POAA sentencing procedure respected; judge finding prior convictions acceptable)
Blakely v. Washington, 542 U.S. 296 (2004) (Sixth Amendment jury-trial right; limits on sentencing factors vs. elements)
Apprendi v. New Jersey, 530 U.S. 466 (2000) (Jury trial requirement for sentencing-enhancing factors; prior conviction exception recognized)
Cunningham v. California, 549 U.S. 270 (2007) (Blakely principle applied to sentencing; limits on judge-found facts for enhanced sentences)
State v. Rudolph, 141 Wn. App. 59 (2007) (Reversals in POAA identity/fact-finding discussions; guidance on sentencing procedures)