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IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

DIVISION ONE 

STATE OF WASHINGTON,

Respondent,

 v.

JEREMIAH ANDREW WITTCOFF,

Appellant.

 No. 82037-1-I

 DIVISION ONE

UNPUBLISHED OPINION

COBURN, J. — Jeremiah Wittcoff appeals his 198-month sentence for 

multiple successive crimes involving a firearm. First, Wittcoff contends that the 

trial court commented on the evidence by instructing the jury on voluntary 

intoxication. Applying the invited error doctrine, we decline to review this claim. 

Second, Wittcoff contends that the firearm enhancement statute is a separate 

crime and convicting him multiple times of that crime when he used a single gun 

violated double jeopardy. The firearm enhancement statute, RCW 9.94A.533(3), 

is not itself a crime. Imposing consecutive firearm enhancements for multiple 

different offenses does not violate double jeopardy. Accordingly, we affirm.

FACTS

On October 8, 2019, after days of no sleep and using methamphetamine, 

Jeremiah Wittcoff, while “high out of [his] mind,” took his father’s handgun from a 
No. 82037-1/2

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nightstand without permission. He then engaged in a series of acts that led to 

the State charging him, through an Amended Information, with multiple crimes 

totaling six counts. Because we address only raised legal issues and Wittcoff 

does not challenge the sufficiency of the evidence, we briefly summarize each 

count.

Count I – Attempted Robbery in the second degree: Wittcoff reached 

through a partially open driver’s side window and unsuccessfully directed the 

driver to let him in.

Count II – Robbery in the first degree while armed with a firearm: Later 

that same day, Wittcoff approached two elderly women on a walk with the gun 

raised and demanded their wallets and phones. One of the women gave him her 

phone. 

Counts III and IV – Assault in the first degree while armed with a firearm: 

While Wittcoff was running away from the two women, he ran past a car 

containing two men and one of the men’s two-year-old son inside. Wittcoff fired 

his gun in their direction. 

Count V – Attempted robbery in the first degree: About a week later, a 

police officer saw Wittcoff wearing a face covering near a gas station. Wittcoff’s 

text messages later uncovered that he was texting a friend about how he was 

“seriously debating knocking over a few gas stations.” 

Count VI – Unlawful possession of a firearm in the first degree: Wittcoff 

was charged with possession of a firearm on the same date of the robbery and 

assaults. 
No. 82037-1/3

3

On the day the State amended its Information, Wittcoff pleaded guilty to 

Counts II and VI and proceeded to trial on the remaining counts. At trial, Wittcoff

requested a voluntary intoxication instruction. The trial court granted Wittcoff’s 

request and instructed the jury:

No act committed by a person while in a state of voluntary 

intoxication is less criminal by reason of that condition. However, 

evidence of intoxication may be considered in determining whether 

the defendant acted with intent to inflict bodily injury or intent to 

create apprehension and fear of bodily injury. 

The jury acquitted Wittcoff on Count I and deadlocked on Count V. The 

jury convicted Wittcoff of the lesser included offense of assault in the second 

degree on both Counts III and IV and found he was armed with a firearm at the 

time of the commission of the crimes. 

The trial court sentenced Wittcoff on Counts II, III, IV, and VI. The court 

imposed 66 months on Count II, 29 months on Count III, 29 months on Count IV, 

and 41 months on Count VI. Wittcoff would serve that part of the sentence 

concurrently, meaning a maximum of 66 months. The court also applied 

statutory mandatory firearm enhancements to Counts II, III, and IV. See RCW 

9.94A.533 (requiring firearm enhancements to be served in total confinement and 

to run consecutive to all other sentence provisions, including other firearm 

enhancements).1 These enhancements increased Wittcoff’s total sentence to 198 

months. 

 1 Wittcoff contends that the weapons enhancement laws are particularly 

harsh because it requires the trial court to stack the enhancements for multiple 

counts regardless of the facts. Wittcoff is correct and not alone with that 

concern. As noted in a recent report for the state Criminal Sentencing Task 

Force, “[o]f particular concern are the firearm and deadly weapon enhancements 

which must be served consecutively to all other sentences and enhancements, in 
No. 82037-1/4

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DISCUSSION

Judicial Comment on Evidence

Wittcoff argues for the first time on appeal that the voluntary intoxication 

instruction constituted an impermissible judicial comment on the evidence. The 

State asserts that this jury instruction was invited error because defense counsel 

requested the instruction. We agree with the State. 

At trial, defense counsel requested the following jury instruction:

No act committed by a person while in a state of voluntary 

intoxication is less criminal by reason of that condition. However, 

evidence of intoxication may be considered in determining whether 

the defendant acted with intent to inflict bodily injury or intent to 

create apprehension and fear of bodily injury. 

The court instructed the jury as requested. 

We review alleged jury instructional errors de novo. State v. Barnes, 153 

Wn.2d 378, 382, 103 P.3d 1219 (2005). Under the invited error doctrine, even 

where constitutional rights are involved, we are precluded from reviewing jury 

instructions when the defendant has proposed an instruction or agreed to its 

wording. State v. Winings, 126 Wn. App. 75, 89, 107 P.3d 141 (2005). Further, 

 

instances where a defendant is charged with multiple firearm or deadly weapons 

enhancements, the confinement time associated with the enhancements are 

‘stacked’ on top of one another, creating the potential for large increases in 

sentence length above the standard range.” WASH. STATE INST. FOR PUB.

POLICY, EXAMINING WASHINGTON STATE’S SENTENCING GUIDELINES: A REPORT FOR 

THE CRIMINAL SENTENCING TASK FORCE 8 n.23 (May 2021) (Document No. 21-05-

1901), 

Wsipp_Examining-Washington-State-s-Sentencing-Guidelines-A-Report-for-theCriminal-Sentencing-Task-Force_Report.pdf. The legislature in 2019 created the 

task force. See ENGROSSED SUBSTITUTE H.B. 1109, 66th Leg., Reg. Sess. (Wash. 

2019).
No. 82037-1/5

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a party may not request an instruction and then later complain on appeal that the 

instruction was given, even if the error is of a constitutional magnitude. State v. 

Hood, 196 Wn. App. 127, 131, 382 P.3d 710 (2016); City of Seattle v. Patu, 108 

Wn. App. 364, 374, 30 P.3d 522 (2001).

Here, Wittcoff proposed the very jury instruction he now asserts 

constituted a judicial comment on the evidence. Wittcoff’s invited error precludes 

our review of his claim.

Double Jeopardy

Wittcoff next contends that RCW 9.94A.533(3) constitutes a crime, and 

convicting him multiple times under that statute violates double jeopardy when he 

used a single firearm during a continuous criminal episode. We disagree. 

Double jeopardy claims are questions of law that are reviewed de novo. 

State v. Kelley, 168 Wn.2d 72, 76, 226 P.3d 773 (2010). The Fifth Amendment 

to the United States Constitution provides, “[n]o person shall . . . be subject to the 

same offence to be twice put in jeopardy of life or limb.” Additionally, article I, 

section 9 of the Washington State Constitution provides, “[n]o person shall . . . be 

twice put in jeopardy for the same offense.” Both clauses are “ ‘identical in 

thought, substance, and purpose.’ ” State v. Ervin, 158 Wn.2d 746, 752, 147 

P.3d 567 (2006) (quoting In re Pers. Restraint of Davis, 142 Wn.2d 165, 171, 12 

P.3d 603 (2000)). In addition, both clauses disallow a person from being 

prosecuted for the same offense after being convicted or receiving multiple 

punishments for the same offense. State v. Villanueva-Gonzalez, 180 Wn.2d 

975, 980, 329 P.3d 78 (2014). Here, the issue is whether Wittcoff’s multiple 
No. 82037-1/6

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consecutive firearm sentence enhancements constitute receiving multiple 

punishments for the same offense. 

We first address whether “.533(3),” as Wittcoff prefers to call it, is a crime 

in and of itself. It is not. Subsection (3) of RCW 9.94A.533 states:

(3) The following additional times shall be added to the standard 

sentence range for felony crimes committed after July 23, 1995, if 

the offender or an accomplice was armed with a firearm as defined 

in RCW 9.41.010 and the offender is being sentenced for one of the 

crimes listed in this subsection as eligible for any firearm 

enhancements based on the classification of the completed felony 

crime. If the offender is being sentenced for more than one offense, 

the firearm enhancement or enhancements must be added to the 

total period of confinement for all offenses, regardless of which 

underlying offense is subject to a firearm enhancement. If the 

offender or an accomplice was armed with a firearm as defined in 

RCW 9.41.010 and the offender is being sentenced for an 

anticipatory offense under chapter 9A.28 RCW to commit one of 

the crimes listed in this subsection as eligible for any firearm 

enhancements, the following additional times shall be added to the 

standard sentence range determined under subsection (2) of this 

section based on the felony crime of conviction as classified under 

RCW 9A.28.020:

(a) Five years for any felony defined under any law as a class A 

felony or with a statutory maximum sentence of at least twenty 

years, or both, and not covered under (f) of this subsection;

(b) Three years for any felony defined under any law as a class B 

felony or with a statutory maximum sentence of ten years, or both, 

and not covered under (f) of this subsection;

(c) Eighteen months for any felony defined under any law as a 

class C felony or with a statutory maximum sentence of five years, 

or both, and not covered under (f) of this subsection;

(d) If the offender is being sentenced for any firearm enhancements 

under (a), (b), and/or (c) of this subsection and the offender has 

previously been sentenced for any deadly weapon enhancements 

after July 23, 1995, under (a), (b), and/or (c) of this subsection or 

subsection (4)(a), (b), and/or (c) of this section, or both, all firearm 

enhancements under this subsection shall be twice the amount of 

the enhancement listed;
No. 82037-1/7

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(e) Notwithstanding any other provision of law, all firearm 

enhancements under this section are mandatory, shall be served in 

total confinement, and shall run consecutively to all other 

sentencing provisions, including other firearm or deadly weapon 

enhancements, for all offenses sentenced under this chapter. 

However, whether or not a mandatory minimum term has expired, 

an offender serving a sentence under this subsection may be:

(i) Granted an extraordinary medical placement when authorized 

under RCW 9.94A.728(1)(c); or

(ii) Released under the provisions of RCW 9.94A.730;

(f) The firearm enhancements in this section shall apply to all felony 

crimes except the following: Possession of a machine gun or bumpfire stock, possessing a stolen firearm, drive-by shooting, theft of a 

firearm, unlawful possession of a firearm in the first and second 

degree, and use of a machine gun or bump-fire stock in a felony;

(g) If the standard sentence range under this section exceeds the 

statutory maximum sentence for the offense, the statutory 

maximum sentence shall be the presumptive sentence unless the 

offender is a persistent offender. If the addition of a firearm 

enhancement increases the sentence so that it would exceed the 

statutory maximum for the offense, the portion of the sentence 

representing the enhancement may not be reduced.

We derive legislative intent solely from the plain language enacted by the 

legislature, considering the text of the provision in question, the context of the 

statute in which the provision is found, related provisions, and the statutory 

scheme as a whole. State v. Evans, 177 Wn.2d 186, 192, 298 P.3d 724 (2013). 

“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). Issues of statutory construction are a 

question of law subject to de novo review. Evans, 177 Wn.2d at 191.
No. 82037-1/8

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By its own title, RCW 9.94A.533 addresses “Adjustments to standard 

sentences.” It is not a crime defined by the legislature. The statute, in fact, 

explains how the adjustments are to be applied to “persons convicted . . . under 

chapter 9A.28 RCW” or when offenders are sentenced “for one of the crimes 

listed in this subsection.” RCW 9.94A.533(2), (3). Wittcoff was not charged with 

committing “.533(3).” The crimes he committed while armed with a firearm were 

robbery in the first degree under RCW 9A.56.200 and assault in the first degree

under RCW 9A.36.011(1)(a) committed against two different people. The 

punishment he received, because he was armed with a firearm, constituted 

additional punishment for the crimes he committed.

“Unless the question involves the consequences of a prior trial, double 

jeopardy analysis is an inquiry into legislative intent. The intent underlying the 

mandatory firearm enhancement is unmistakable: the use of firearms to commit 

crimes shall result in longer sentences unless an exemption applies.” State v. 

Nguyen, 134 Wn. App. 863, 868, 142 P.3d 1117 (2006). 

“A legislature can enact statutes imposing, in a single proceeding, 

cumulative punishments for the same conduct.” Kelley, 168 Wn.2d at 77. “With 

respect to cumulative sentences imposed in a single trial, the Double Jeopardy 

Clause does no more than prevent the sentencing court from prescribing greater 

punishment than the legislature intended.” Missouri v. Hunter, 459 U.S. 359, 

366, 103 S. Ct. 673, 74 L. Ed. 2d 535 (1983). Where a defendant contends that 

his sole act has been punished twice under separate criminal statutes, the 

question is “whether, in light of legislative intent, the charged crimes constitute 
No. 82037-1/9

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the same offense.” In re Pers. Restraint of Orange, 152 Wn.2d 795, 815, 100 

P.3d 291 (2004). If the legislature intended to impose multiple punishments, its 

imposition does not violate the double jeopardy clause. Kelley, 168 Wn.2d at 77.

In Kelley, our Supreme Court held that the “imposition of a firearm 

enhancement does not violate double jeopardy when an element of the 

underlying offense is use of a firearm.” Id. at 84. It also concluded that the 

cumulative punishment of firearms enhancements of RCW 9.94A.533 was 

“clearly intended” by the legislature. Id. at 80.

Later, our Supreme Court decided State v. Allen, 192 Wn.2d 526, 534, 

431 P.3d 117 (2018), which involved a retrial after the defendant was acquitted 

as to aggravating circumstances on multiple murder charges. In Allen, the 

defendant was convicted as an accomplice of four counts of murder in the first 

degree. Allen, 192 Wn.2d at 528. However, the jury unanimously acquitted the 

defendant of two aggravating circumstances under RCW 10.95.020 that were 

alleged on each murder count. Id. at 528-29. On appeal, the court vacated the 

murder convictions and remanded for a new trial. Id. at 529. The issue before 

the court was whether the defendant could be tried a second time on the 

aggravating circumstances, and the court held that retrial on the aggravating 

circumstances was barred by double jeopardy. Id. at 529. The court concluded 

that the aggravating circumstances under RCW 10.95.020 were “elements of the 

offense of aggravated first degree murder for purposes of the double jeopardy 

clause,” and thus barred. Id. at 534. 
No. 82037-1/10

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Wittcoff argues that the issue in Allen is similar to the instant case. We do 

not agree. The issue in the instant case is whether firearm enhancements are 

separate crimes, while the issue in Allen was whether the defendant could be 

tried a second time on aggravating circumstances after being acquitted. Allen, 

192 Wn.2d at 529. Nowhere in Allen does the court state that aggravating 

circumstances are a separate crime. 

Further, the court has since clarified that aggravating circumstances are 

not separately charged crimes. In State v. Whitaker, 195 Wn.2d 333, 339, 459 

P.3d 1074 (2020), our Supreme Court explained that in Allen, “We did not find 

. . . that aggravating circumstances are separately charged crimes.” Allen does 

not support Wittcoff’s argument.

Wittcoff used a single firearm and committed multiple crimes while armed 

with that firearm on the same day against different victims. The fact that he 

received multiple firearm enhancements does not violate double jeopardy. 

We affirm.

WE CONCUR: