State v. Witherspoon, 171 Wash. App. 271

Witherspoon was convicted by a jury of second degree robbery, residential burglary, and witness tampering for a November 12, 2009 home invasion and related jailhouse conversation.
During trial, the State introduced a recorded jail phone call in which Witherspoon urged Conklin to stop talking to police and to lie about events; he also discussed a third party 'Burl'.
The State sought a life sentence under the Persistent Offender Accountability Act (POAA) based on two prior most serious offenses.
The sentencing court determined two prior serious offenses existed, and sentenced Witherspoon to life under POAA.
On appeal, Witherspoon challenged (a) jury unanimity for witness tampering, (b) appearance of fairness, (c) ineffective assistance, (d) sufficiency of the charging information, (e) corpus delicti, (f) sufficiency of evidence for robbery, and (g) POAA sentencing issues.
Concurring opinions criticized the method of proving prior convictions under POAA, with one judge urging jury facts beyond a reasonable doubt and another agreeing with the majority that preponderance suffices.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Unanimity for witness tampering	Witherspoon asserts lack of unanimity instruction for multiple means.	State contends evidence supported two means and unanimity instruction unnecessary.	Unanimity instruction unnecessary; substantial evidence supports two means.
Appearance of fairness at trial	Judge’s past association with Witherspoon could bias proceedings.	Record shows insufficient evidence of actual bias; appearance not reasonably questionable.	Appearance of fairness claim fails.
Ineffective assistance of counsel	Counsel erred by not requesting theft instruction and by conflicts of interest.	Counsel acted reasonably; strategy supported by evidence; no adverse effect.	Ineffective assistance claims fail.
Constitutionally sufficient information and corpus delicti	Information allegedly fails to specify force used; corpus delicti requires independent corroboration.	Information sufficient; corpus delicti not required to exclude precrime statements here.	Information constitutionally sufficient; corpus delicti not require precrime corroboration in this context.
POAA sentencing: jury determination of priors and due process	State can prove priors by preponderance; no jury finding required per Manussier/McKague	Constitution requires beyond-a-reasonable-doubt proof of priors for life sentence.	Majority: no jury required; preponderance suffices; dissenting views noted; remand possible depending on view

State v. Smith, 159 Wn.2d 778 (2007) (unanimity requirement when multiple alternative means)
State v. Lobe, 167 P.3d 627 (2007) (unanimity and alternative means; jury unanimity concerns)
State v. Rivas, 984 P.2d 432 (1999) (multiple means and unanimity issues; later overruled on some grounds)
State v. McKague, 246 P.3d 558 (2011) (POAA priors by preponderance; later affirmed in part)
State v. Manussier, 921 P.2d 473 (1996) (POAA due process; jury not always required for priors)
State v. Thorne, 921 P.2d 514 (1996) (public safety purpose of recidivist statutes; rationale for enhanced penalties)
State v. Rivers, 921 P.2d 495 (1996) (POAA and deterrence; life sentence not per se cruel)
State v. Holsworth, 607 P.2d 845 (1980) (beyond reasonable doubt for habitual offender determinations)
State v. Magers, 189 P.3d 126 (2008) (Blakely and POAA alignment)