State v. Witherspoon

Decision Date17 July 2014
Docket NumberNo. 88118–9.,88118–9.
Citation180 Wash.2d 875,329 P.3d 888
CourtWashington Supreme Court
PartiesSTATE of Washington, Respondent, v. Alvin Leslie WITHERSPOON, Petitioner.


Jodi R. Backlund, Manek R. Mistry, Skylar Texas Brett, Backlund & Mistry, Olympia, WA, for Petitioner.

Lewis M. Schrawyer, Attorney at Law, Port Angeles, WA, for Respondent.

Pamela Beth Loginsky, Washington Assoc of Prosecuting Atty, Olympia, WA, Amicus Curiae on behalf of Washington Association of Prosecuting Attorneys.

Suzanne Lee Elliott, Attorney at Law, Travis Stearns, Washington Defender Association, Seattle, WA, Amicus Curiae on behalf of Washington Defender Association/Washington Assoc of Criminal Defense Lawyers.


¶ 1 Petitioner Alvin Witherspoon challenges his conviction and life sentence for second degree robbery.1 Because the robbery conviction was his third “most serious offense,” he was sentenced to life in prison without the possibility of release under the Persistent Offender Accountability Act (POAA) of the Sentencing Reform Act of 1981(SRA), chapter 9.94A RCW; RCW 9.94A.570. We affirm the Court of Appeals, upholding Witherspoon's conviction and sentence.

Facts and Procedural History

¶ 2 On November 12, 2009, Witherspoon and his fiancee drove to the victim's home. Witherspoon does not dispute that he then broke into the victim's home and stole several items. While the burglary was in progress, the victim returned home and noticed an unknown car parked in her driveway. The victim exited her car and saw Witherspoon walking from around the side of her home. He was holding his left hand behind his back. The victim testified at trial that she asked Witherspoon what he had behind his back, and he said he had a pistol. He then got in his car and drove away. The victim noticed some of her belongings in the back of his car, followed him in her own car, and called 911 as he fled the scene. Police arrested Witherspoon and his fiancee, obtained a search warrant, and found multiple items belonging to the victim in their home. From jail, Witherspoon called his fiancee, attempting to convince her to stop talking to the police and lie about the crime. The phone conversation was recorded by the jail.

¶ 3 A jury found Witherspoon guilty of residential burglary and second degree robbery based on the events of November 12, 2009. SeeRCW 9A.52.025(1); RCW 9A.56.190, .210(1). The jury also found him guilty of witness tampering based on the jailhouse phone conversation he made to his fiancee after his arrest. SeeRCW 9A.72.120(1). At sentencing, the court determined that the certified conviction documents met the State's burden to prove two prior strike convictions. The court found that Witherspoon is a persistent offender and sentenced him to life in prison without the possibility of early release.

¶ 4 On appeal, he challenged his convictions and sentence on a number of grounds. The Court of Appeals affirmed his convictions and sentence. State v. Witherspoon, 171 Wash.App. 271, 286 P.3d 996 (2012). Witherspoon sought discretionary review in this court, which was granted on only four issues. State v. Witherspoon, 177 Wash.2d 1007, 300 P.3d 416 (2013).


¶ 5 1. Whether there was sufficient evidence to support Witherspoon's second degree robbery conviction.

¶ 6 2. Whether Witherspoon's counsel was ineffective in not asking for an instruction on first degree theft as a lesser included offense.

¶ 7 3. Whether Witherspoon's persistent offender sentence constitutes cruel or cruel and unusual punishment.

¶ 8 4. Whether Witherspoon's previous strike offenses should have been proved to a jury beyond a reasonable doubt.

1. There Was Sufficient Evidence To Support Witherspoon's Second Degree Robbery Conviction

¶ 9 Witherspoon claims that insufficient evidence exists to prove all elements of second degree robbery, as instructed to the jury. “The test for determining the sufficiency of the evidence is whether, after viewing the evidence in the light most favorable to the State, any rational trier of fact could have found guilt beyond a reasonable doubt.” State v. Salinas, 119 Wash.2d 192, 201, 829 P.2d 1068 (1992) (citing State v. Green, 94 Wash.2d 216, 220–22, 616 P.2d 628 (1980)). Witherspoon must accordingly admit the truth of the State's evidence and all reasonable inferences that can be drawn from such evidence. Id., We must also defer to the fact finder on issues of witness credibility. State v. Drum, 168 Wash.2d 23, 35, 225 P.3d 237 (2010) (citing State v. Camarillo, 115 Wash.2d 60, 71, 794 P.2d 850 (1990)). In this case, a rational trier of fact could have found guilt beyond a reasonable doubt. Consequently, sufficient evidence exists to support the jury's verdict.

¶ 10 Pursuant to RCW 9A.56.190:

A person commits robbery when he or she unlawfully takes personal property from the person of another or in his or her presence against his or her will by the use or threatened use of immediate force, violence, or fear of injury to that person or his or her property or the person or property of anyone. Such force or fear must be used to obtain or retain possession of the property, or to prevent or overcome resistance to the taking; in either of which cases the degree of force is immaterial. Such taking constitutes robbery whenever it appears that, although the taking was fully completed without the knowledge of the person from whom taken, such knowledge was prevented by the use of force or fear.2(Emphasis added.) The jury instruction in this case included the statutory language above, but omitted the word “such” from the phrase “such force or fear must be used to obtain or retain possession of the property.” It therefore read, in part, “That force or fear was used by the Defendant to obtain or retain possession of the property or to prevent or overcome resistance to the taking or to prevent knowledge of the taking.” Clerk's Papers (CP) at 55 (Instruction 11).

¶ 11 Witherspoon asserts that under the law of the case doctrine, the jury instruction required the State to prove actual force or fear. This doctrine provides that a jury instruction not objected to becomes the law of the case. State v. Willis, 153 Wash.2d 366, 374, 103 P.3d 1213 (2005) (citing State v. Hickman, 135 Wash.2d 97, 102, 954 P.2d 900 (1998)). “In a criminal case, the State assumes the burden of proving otherwise unnecessary elements of the offense when such elements are included without objection in a jury instruction.” Id. at 374–75, 103 P.3d 1213 (citing Hickman, 135 Wash.2d at 102, 954 P.2d 900). Contrary to Witherspoon's assertion, the exclusion of the word “such” does not change the plain meaning of the instruction in a way that requires the State to prove actual force or fear.

¶ 12 Witherspoon claims that he made, at most, an implied threat that instilled no fear. He further claims that even if there had been force or fear, it did not help accomplish the robbery because the victim did not know that Witherspoon had taken any of her property until he drove away. He contends that her ignorance did not stem from force, fear, or threats. Because we determine intimidation based on an objective test, Witherspoon's argument does not stand.

¶ 13 “Robbery encompasses any ‘taking of ... property [that is] attended with such circumstances of terror, or such threatening by menace, word or gesture as in common experience is likely to create an apprehension of danger and induce a man to part with property for the safety of his person.’ State v. Shcherenkov, 146 Wash.App. 619, 624–25, 191 P.3d 99 (2008) (alterations in original) (quoting State v. Redmond, 122 Wash. 392, 393, 210 P. 772 (1922)). To determine whether the defendant used intimidation, we use an objective test. We consider whether an ordinary person in the victim's position could reasonably infer a threat of bodily harm from the defendant's acts. Id. at 625, 191 P.3d 99 (quoting 67 Am.Jur.2d Robbery § 89, at 114 (2003)).

¶ 14 Taking the facts in the light most favorable to the State, a rational jury could have found that Witherspoon used force or the threatened use of force in this case. The victim testified at trial that she noticed an unknown car in her driveway when she arrived home. As she exited her car, she saw Witherspoon come around the side of her home with one hand behind his back. She testified that she asked him what he had behind his back, and he said he had a pistol. A rational jury could have found that this was an implied threat that he would use force if necessary to retain her property. The evidence is sufficient to prove the elements of second degree robbery beyond a reasonable doubt. We accordingly affirm the Court of Appeals, which upheld Witherspoon's robbery conviction.

2. Witherspoon Does Not Prove That Counsel Was Ineffective in Not Asking for an Instruction on First Degree Theft as a Lesser Included Offense

¶ 15 Witherspoon argues ineffective assistance of counsel because his trial counsel did not request an instruction on theft as a lesser included offense. Counsel's performance, however, did not fall below an objective standard of reasonableness.

¶ 16 In order for a petitioner to prevail on an ineffective assistance claim, he must overcome the presumption that his counsel was effective. State v. Thiefault, 160 Wash.2d 409, 414, 158 P.3d 580 (2007). [C]ounsel is strongly presumed to have rendered adequate assistance and made all significantdecisions in the exercise of reasonable professional judgment.” Strickland v. Washington, 466 U.S. 668, 690, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). To overcome this presumption, Witherspoon must demonstrate that (1) counsel's representation fell below an objective standard of reasonableness' and (2) ‘the deficient performance prejudiced the defense.’ In re Pers. Restraint of Yates, 177 Wash.2d 1, 35, 296 P.3d 872 (2013) (quoting Strickland, 466 U.S. at 687–88, 104 S.Ct. 2052). However, “if a personal restraint petitioner makes a...

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