State v. Witherspoon

Decision Date16 October 2012
Docket NumberNo. 40772–8–II.,40772–8–II.
Citation286 P.3d 996,171 Wash.App. 271
PartiesSTATE of Washington, Respondent, v. Alvin L. WITHERSPOON, Appellant.
CourtWashington Court of Appeals


Jodi R. Backlund, Backlund & Mistry, Olympia, WA, for Appellant.

Brian Patrick Wendt, Clallam County Prosecuting Attorney's Office, Port Angeles, WA, for Respondent.


¶ 1 A jury found Alvin Witherspoon guilty of first degree burglary and second degree robbery while armed with a deadly weapon after Witherspoon broke into the home of Becky Pittario on November 12, 2009, stole some of her property, and had a brief encounter with Pittario before fleeing the scene. RCW 9A.56.210(1); RCW 9A.56.190; RCW 9A.52.025(1). The jury also found Witherspoon guilty of witness tampering based on a jailhouse phone conversation he made to his fiancee, Violet Conklin, after his arrest. RCW 9A.72.120(1).

¶ 2 On appeal, Witherspoon argues that we should reverse his convictions because (1) his constitutional right to a unanimous jury verdict was violated when the State failed to ask for a unanimity instruction related to alternative means of committing the witness tampering charge, (2) the trial court violated the appearance of fairness doctrine, (3) defense counsel ineffectively represented Witherspoon by failing to request a jury instruction on a lesser included offense and by representing him despite a conflict of interest, (4) the State failed to include specific facts in the charging documents alleging that he used or threatened force in the commission of a robbery, (5) the State failed to establish the corpus delicti of robbery, and (6) the State failed to prove Witherspoon's robbery conviction by sufficient evidence.

¶ 3 We affirm Witherspoon's convictions.

¶ 4 Witherspoon also challenges his persistent offender life sentence arguing that (7A) the trial court violated the appearance of fairness doctrine at sentencing; (7B) his life sentence violates the Eighth Amendment and article I, section 14 of the Washington State Constitution; (7C) finding the existence of his prior convictions by a preponderance of the evidence violated his right to equal protection under the law; (7D) the trial court violated his Sixth Amendment rights in finding by a preponderance of the evidence that the State met its burden of establishing the existence of two prior “most serious offense” convictions for purposes of Washington's persistent offender accountability act (POAA), RCW 9.94A.570; and (7E) the trial court violated his state due process right by finding his prior convictions were proven by a preponderance of the evidence.

¶ 5 In my view, the trial court violated Witherspoon's Sixth Amendment rights by classifying him as a persistent offender, a fact-finding function historically left to the jury, and the trial court violated Witherspoon's state due process right by finding his prior convictions were proven by a preponderance of the evidence.1 Accordingly, I would vacate Witherspoon's sentence for purposes of the POAA and remand for submission of his POAA status to a jury to determine whether the State has proven his prior two most serious offense convictions beyond a reasonable doubt.


¶ 6 On November 12, 2009, Witherspoon and Conklin went for a drive and ended up at Pittario's home. The parties do not dispute that Witherspoon broke into Pittario's home and stole some of her belongings. While Witherspoon was still on the property, Pittario drove up to her house, parked next to Witherspoon's car, and saw Conklin in the passenger seat of Witherspoon's vehicle. Pittario exited her car and saw Witherspoon come from around the side of her house, walking fast. He then asked her about an address, got in the car, and drove away.

¶ 7 During the encounter between Witherspoon and Pittario, Witherspoon held one or both hands behind his back. At trial, Pittario testified that she asked Witherspoon what he had behind his back, and he said, “A pistol.” Report of Proceedings (RP) (Apr. 12, 2010) at 23. Conklin testified that Pittario asked what was behind Witherspoon's back and Witherspoon said, [N]othing.” RP (Apr. 13, 2010) at 57. Witherspoon said Pittario did not ask about his hands.

¶ 8 As Witherspoon drove away, Pittario noticed property she thought was hers in the back of Witherspoon's car. Pittario followed Witherspoon in her own car while on the phone with 911 as Witherspoon fled the scene in excess of 85 MPH. Later that day, police arrested Witherspoon and Conklin at his trailer and obtained a search warrant. The police found multiple items belonging to Pittario, including jewelry and compact disks.

¶ 9 After his arrest, Witherspoon called Conklin from the jail to persuade her to stop talking with law enforcement and to lie about what had occurred at Pittario's residence. The jail recorded this conversation.


¶ 10 The State charged Witherspoon with second degree robbery, residential burglary, and witness tampering. During trial, the State played a recorded jail phone call between Witherspoon and Conklin. During the phone call, Witherspoon told Conklin, “I don't want you to talk to them no more ... [t]o the Sheriff ... I don't know, as long as I saved your ass, that's all that matters okay? I mean, I can do this, you can't.” Ex. 40 at 3–4. In the same phone call, Witherspoon also told Conklin to talk to a man named Burl: 2

[Witherspoon]: You can tell Burl that what it was is that we were on our way back, okay, from my grandma's, which we never even got out there. We never even found it. I mean, we had the right idea where, where it was at but we never was [sic] able to locate her. And um, we were coming back and uh we picked up that, what, what was it, Jesse or James or something?

[Conklin]: Yeah.

[Witherspoon]: And uh, you know um, I'm thinking he was about 45. He had a, he was about my height and had a, like a rusty, rusty color hair. Honey?

[Conklin]: Yeah.

[Witherspoon]: And uh, so anyway, and uh, he mentioned uh that you know, he needed, you know, a ride. And I, I, I[sic] was much obliged to give it to him. And he gave me 15, he gave us $15....


[Witherspoon]: And uh, uh, and then uh so I dropped him off up there, waited for him because he said he needed to get his bag and a couple pillows. And uh, he dropped the bag out. Oh, and a couple of those fucking shoe, shoe boxes or whatever they were. He brings them out. You know, I don't think nothing of it.... And uh, I drive fucking away. I hear a car pull up. So I, you know, you know you saw it too and I turned around. And I didn't, what did I say to the lady? [Conklin]: She told the cops that you told her that you had a pistol.


[Witherspoon]: ... I figured well okay, well obviously you know, what this guy's doing, either a burglary or he's taking all his girlfriend's stuff. So, soon as we got home, you know, I decided to put stuff in the trailer, and then shortly after I'm putting stuff in the trailer the Sheriffs show up. So then I freak up [sic].... I put the stuff under my bed.

Ex. 40 at 4–6.

¶ 11 After the State rested, defense counsel moved to dismiss the robbery charge for insufficient evidence, arguing that the State had not proven that Witherspoon used or threatened the use of force or fear during the encounter with Pittario. The trial court deniedthe motion. The trial court also denied Witherspoon's motion to dismiss the charge of witness tampering after Witherspoon argued there was no proof that he knew that Conklin would be a witness. The jury convicted Witherspoon on all counts. At sentencing, the trial court concluded that Witherspoon had been convicted of two prior most serious offenses and sentenced him to life in prison under the POAA. Witherspoon appeals his convictions and sentence.

Witherspoon's Judgment
1. Unanimous Jury Verdict on Witness Tampering

¶ 12 Witherspoon argues that insufficient evidence supports his witness tampering conviction, infringing on his right to a unanimous jury. He claims that the State did not sufficiently prove that he directed Conklin to withhold information from law enforcement. Witherspoon also argues that the State failed to present evidence as to whether he attempted to induce Conklin to absent herself from an official proceeding; the State concedes this point. The State contends that the lack of a unanimity instruction was harmless because the prosecutor presented evidence of only two means of witness tampering. Because any rational trier of fact would find that Witherspoon encouraged Conklin both to withhold information from law enforcement and perjure herself at trial, we affirm.

¶ 13 There are three alternative means of committing witness tampering: attempting to induce a person to (1) testify falsely or withhold testimony, (2) absent himself or herself from an official proceeding, or (3) withhold information from a law enforcement agency. RCW 9A.72.120(1)(a)-(c). Here, the information and the jury instructions alleged all three alternatives. But the State presented evidence of only two alternatives.

¶ 14 In Washington, criminal defendants have a right to a unanimous jury verdict. Wash. Const. art. I, § 21. In order to safeguard the defendant's constitutional right to a unanimous verdict as to the alleged crime, substantial evidence of each of the relied-on alternative means must be presented. State v. Smith, 159 Wash.2d 778, 783, 154 P.3d 873 (2007) (citing State v. Kitchen, 110 Wash.2d 403, 410–11, 756 P.2d 105 (1988)). Thus, to affirm a conviction where there are alternative means of committing a crime and the jury is instructed on each means, this court must find that (1) substantial evidence must support each alternative means on which evidence or argument was presented, or (2) evidence and argument must have been presented on only one means.” 3State v. Lobe, 140 Wash.App. 897, 905, 167 P.3d 627 (2007); see State v. Johnson, 132 Wash.App. 400, 410, 132 P.3d 737 (2006); State v. Rivas, ...

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