State Of Washington, V. Jeremiah Andrew Wittcoff ( 2022 )

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION ONE
STATE OF WASHINGTON,
No. 82037-1-I
Respondent,
DIVISION ONE
v.
UNPUBLISHED OPINION
JEREMIAH ANDREW WITTCOFF,
Appellant.
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
Citations and pin cites are based on the Westlaw online version of the cited material.
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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.
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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
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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 W ASHINGTON 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-the-
Criminal-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).
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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
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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;
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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 bump-
fire 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.
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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
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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.
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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:
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