Opinion
66937-1-I
12-19-2011
STATE OF WASHINGTON, Respondent, v. JOSEPH LEE MOORE, Appellant.
UNPUBLISHED OPINION
BECKER, J.
Joseph Lee Moore appeals his convictions for crimes he committed by participating in a home invasion robbery. Moore was sentenced to more than 47 years, of which 26 years was attributable to six special verdicts finding that he and his accomplice were armed with firearms while committing burglary, assault, and robbery. We determine that Moore's conviction for assault must be vacated because it merged into his conviction for robbery under State v. Kier, 164 Wn.2d 798, 194 P.3d 212 (2008). We also determine that the instructions for the special firearm verdicts were erroneous under State v. Bashaw, 169 Wn.2d 133, 234 P.3d 195 (2010), and the error was harmless in only two of the six special verdicts. In all other respects, the judgment and sentence is affirmed.
FACTS
On the night of October 3, 2009, two men with guns pushed their way into the Kelso home occupied by Beverly and Robert Barrett, aged 69 and 70 years old respectively. The Barretts operated a clock repair shop out of their home. At the time, Robert was partly paralyzed from the neck down and mostly confined to bed.
According to the trial testimony of Beverly Barrett, who answered the door, one man was wearing a red hat. He demanded money. The other man was wearing a black hat. He hit Beverly in the head with the butt of his gun, then advanced to the bedroom and pointed his gun at Robert. The robbers left after obtaining an envelope filled with approximately $2, 500 in cash. Alerted by a 911 call from Beverly, police pursued the robbers but did not find them immediately, although they did find a red hat and a black hat. Further investigation led them to conclude the robbers were Joseph Moore and Dennis Repp. Police arrested Moore on October 9 at a local motel.
Moore's trial began on February 8, 2010. The jury convicted him on one count each of first degree burglary, first degree robbery, second degree assault, first degree unlawful possession of a firearm, and tampering with a witness. The jury found several aggravating factors; these served as the basis for an exceptional sentence. The jury returned six special verdicts finding that Moore was armed with a firearm when committing burglary, robbery, and assault and that his accomplice was at the same time armed with a second firearm.
The court imposed an exceptional sentence of 200 months on the burglary count and a concurrent exceptional sentence of 144 months on the robbery count. The court made the 60-month sentence for witness tampering exceptional by running it consecutive to the 200-month sentence. Applying the firearm enhancements required by the special verdicts, the court added 120 months on the burglary count, 120 months on the robbery count, and 72 months on the assault count. With the 312 months in firearm enhancements added to the 260-month sentence for the underlying crimes, the sentence totaled 572 months.
OATH OR AFFIRMATION
Moore seeks reversal of all of his convictions, but the only issue he raises that goes to the fairness of the trial as a whole concerns the testimony of his accomplice, Dennis Repp. Repp had earlier pleaded guilty to various charges. When called by the State to testify in Moore's trial, Repp refused to swear or affirm that he would tell the truth. Moore contends it was a denial of due process to permit the jury to hear Repp's unsworn testimony.
Evidence Rule 603 states that a witness shall be required to swear or affirm that the witness will testify truthfully:
Before testifying, every witness shall be required to declare that the witness will testify truthfully, by oath or affirmation administered in a form calculated to awaken the witness' conscience and impress the witness' mind with the duty to do so.
"The primary function of requiring witnesses to be sworn is to add an additional security for credibility by impressing upon them their duty to tell the truth, and to provide a basis for a charge of perjury." Appeal of Nirk, 30 Wn.App. 214, 218, 633 P.2d 118, review denied, 96 Wn.2d 1023 (1981).
When the trial judge asked Repp to take the usual oath, Repp merely responded that he had nothing to say. After a discussion with the parties and Repp's counsel, the judge concluded that Repp did not have the right to remain silent and would be in contempt if he refused to testify. Repp was informed that he would be guilty of perjury if he did not testify truthfully:
Court: Mr. Repp, do you understand that you are on the witness stand, do you understand that?
Repp: Yes.
Court: All right. And, that I'm going to order you to testify in front of the jury and if you testify untruthfully, it will be perjury. Do you understand that?
Repp: Yes, sir.
Court: All right. And, I'm going to order you to testify in response to the questions of Mr. Smith. Do you understand that? I'm ordering you to do so.
Repp: Yes.
Court: And, that you may face contempt, which means that you will be in jail until you agree to testify, if I find you in contempt, do you understand that?
Repp: Yes.
Following this colloquy, Repp testified, with no objection from Moore. Repp said he was high on drugs when he robbed the Barretts and could not remember if another person had been with him. He claimed that the gun he had with him was a B-B gun. The State impeached Repp with a written statement he made in connection with his plea bargain.
Failure to require sworn testimony taints the integrity of the proceeding. Under some circumstances, it can be raised for the first time on appeal as a manifest constitutional error. In re Interest of M.B., 101 Wn.App. 425, 470 n.117, 3 P.3d 780 (2000), review denied, 142 Wn.2d 1027 (2001). However, any error attributed to the failure to administer an oath can be regarded as waived, or deemed harmless, where the court otherwise impresses upon the witness the importance of telling the truth. See State v. Avila, 78 Wn.App. 731, 739, 899 P.2d 11 (1995) (failure to have child swear or affirm to tell the truth harmless in light of other testimony and because witness "understood that it was important to tell the judge the truth"). We conclude the court's colloquy with Repp adequately impressed upon Repp the importance of truth-telling. Moore's right to a fair trial was not prejudiced by the unsworn testimony.
ASSAULT
Turning to the individual convictions, we note that Moore does not seek to overturn his convictions for burglary and robbery. He does, however, challenge his conviction on the single count of second degree assault.
The State alleged in the information that Moore assaulted Beverly Barrett with a deadly weapon—a firearm. There was testimony that both Moore and Repp pointed guns at Beverly when they pushed their way into the house, and that one of them then used the butt of his gun to hit Beverly in the head. The court gave an accomplice liability instruction. The State argued in closing that Moore was guilty of assault for pistol-whipping Beverly Barrett.
The first basis for Moore's challenge is that the jury did not receive a unanimity instruction in relation to the assault charge. "Where the State presents evidence of several distinct acts, any one of which could be the basis of a criminal charge, the trial court must ensure that the jury reaches a unanimous verdict on one particular incident." State v. Handran, 113 Wn.2d 11, 17, 775 P.2d 453 (1989), citing State v. Petrich, 101 Wn.2d 566, 683 P.2d 173 (1984). This rule does not apply, however, where the evidence indicates a "continuing course of conduct." Petrich, 101 Wn.2d at 571. The pistol-whipping of Beverly Barrett was part of a continuous course of conduct; the acts involving the guns happened close in time and at the same place. A unanimity instruction was not required.
Moore's second basis for challenging the assault conviction is an alleged error in the instructions. As charged, the count of second degree assault required the jury to find the assault was committed with a "deadly weapon." By statutory definition, a "deadly weapon"
means any explosive or loaded or unloaded firearm, and shall include any other weapon, device, instrument, article, or substance, including a "vehicle" as defined in this section, which, under the circumstances in which it is used, attempted to be used, or threatened to be used, is readily capable of causing death or substantial bodily harm.RCW 9A.04.110(6). The court instructed that "A firearm, whether loaded or unloaded, is a deadly weapon." Moore contends the instruction was inadequate because it did not ask the jury to decide if, under the circumstances the gun was used, the gun was capable of causing death or substantial bodily harm.
Because Moore did not object or make this argument below, he has waived review. See State v. O'Hara, 167 Wn.2d 91, 95, 103, 217 P.3d 756 (2009). In any event, his argument is unpersuasive. The plain language of the statute does not demand proof that a firearm be used in a certain way before it can be classified as a deadly weapon. See In re Pers. Restraint of Martinez, 171 Wn.2d 354, 366, 256 P.3d 277 (2011) (firearm is a deadly weapon per se).
Moore's third basis for challenging the assault conviction is grounded in the law of double jeopardy. "Where a defendant's act supports charges under two criminal statutes, a court weighing a double jeopardy challenge must determine whether, in light of legislative intent, the charged crimes constitute the same offense." In re Pers. Restraint of Orange, 152 Wn.2d 795, 815, 100 P.3d 291 (2004). Our review is de novo. State v. Kier, 164 Wn.2d at 804.
One tool for determining legislative intent in the context of double jeopardy is the merger doctrine. State v. Freeman, 153 Wn.2d 765, 777, 108 P.3d 753 (2005). It applies only where the legislature has clearly indicated that in order to prove a particular degree of crime, the State must prove that the crime was accompanied by an act which is defined as a crime elsewhere in the criminal statutes. Freeman, 153 Wn.2d at 777-78; State v. Vladovic, 99 Wn.2d 413, 420-21, 662 P.2d 853 (1983).
Robbery, the taking of property by the use or threatened use of force, becomes robbery in the first degree when done by a person who is armed with or displays a deadly weapon or who inflicts bodily injury. RCW 9A.56.190, .200. When an assault elevates a robbery to first degree, "generally the two offenses are the same for double jeopardy." Kier, 164 Wn.2d at 801-02. This was the conclusion in the consolidated case in Freeman as well as in Kier. But it is not a per se rule, and each case requires a "'hard look.'" Kier, 164 Wn.2d at 802, quoting Freeman, 153 Wn.2d at 774.
Moore contends the pistol-whipping of Beverly Barrett was in furtherance of the robbery, such that without it, Moore would have been guilty of only second degree robbery, not first degree robbery. In the State's view, the two crimes were separate; Beverly Barrett was the victim of the assault, while her husband was the victim of the robbery. The State's analysis is unpersuasive in that it does not adequately distinguish Kier.
In Kier, the defendant committed a carjacking. The defendant pointed a gun at the driver of the car. The driver was already out of the car and escaped on foot. The defendant then forced the passenger from the car at gunpoint and took off with the car. As in this case, the defendant was convicted of second degree assault and first degree robbery. The to-convict instructions identified the passenger as the victim in the assault charge but did not specify a particular victim in the robbery charge. If the passenger was the victim of both the assault and the robbery, then the assault elevated the robbery and merged into it. The Supreme Court held that the convictions merged because it was not clear who the jury found to be the victim of the robbery; therefore the rule of lenity applied. The court held that the prosecutor's closing argument identifying the driver as the victim of the robbery was not, by itself, an election sufficient to overcome the ambiguity. Kier, 164 Wn.2d at 813-14.
Like in Kier, the "to-convict" instruction on second degree assault named a specific victim—Beverly Barrett. The "to-convict" instruction on the robbery count did not identify either Robert or Beverly Barrett as the victim of robbery. The prosecutor argued in closing that Robert was the victim of the robbery. But as in Kier, there was evidence presented at trial that supported either one being regarded as the victim of the forcible taking of the cash. Following Kier, we conclude the assault merges with the robbery because the verdict is ambiguous and the rule of lenity must be applied.
The State argues we should apply an exception to the merger doctrine. Under this exception, "offenses may in fact be separate when there is a separate injury to the person or property of the victim or others, which is separate and distinct from and not merely incidental to the crime of which it forms an element." Freeman, 153 Wn.2d at 778-79, internal quotation marks omitted. Thus, second degree assault and first degree robbery do not merge where the two crimes had an independent purpose and effect. Freeman, 153 Wn.2d at 778. For example, in State v. Vladovic, the Supreme Court concluded that kidnapping and robbery convictions did not merge because the kidnappings and robbery involved different victims and created separate and distinct injuries. Vladovic, 99 Wn.2d at 421-22.
The State contends the pistol-whipping of Beverly Barrett went beyond what was necessary to elevate the robbery to first degree, and that it had the independent purpose of inflicting pain for its own sake. It is true that the robbers did not need to actually hit her. Merely pointing the gun would have been sufficient to elevate the robbery to first degree. But the fact that the violence used was excessive in relation to the crime charged "is not an appropriate basis for avoiding merger." Freeman, 153 Wn.2d at 779. "The test is whether the unnecessary force had a purpose or effect independent of the crime." Freeman, 153 Wn.2d at 779. This is not a case where a victim was taken into a separate room to be tortured or beaten while a robbery proceeded independently. See State v. Prater, 30 Wn.App. 512, 516, 635 P.2d 1104 (1981) (shooting a man in the face while the man's wife was looking for money to satisfy robbers' demand was an assault independent of the robbery), review denied, 97 Wn.2d 1007 (1982). Rather the conduct of the robbers bespoke a single objective, to use the gun to intimidate the Barretts into yielding their property. In such a case, the use of force is "often incidental to the robbery." Freeman, 153 Wn.2d at 779.
The assault conviction merged into the robbery. Therefore, it must be vacated, and along with it, the two firearm enhancements attached to that conviction.
SPECIAL VERDICTS
The court imposed exceptional sentences and firearm enhancements. Moore contends that the jury instructions pertaining to the special verdict forms for the aggravators and firearm enhancements were flawed under Bashaw and that the exceptional sentences and firearm enhancements accordingly must be vacated.
The instructions stated that each juror must agree in order to return a verdict or special verdict:
When completing the special forms, you must fill in the blank with the answer "yes" or "no" according to the decision you reach. In order to answer the special verdict forms "yes", you must unanimously be satisfied beyond a reasonable doubt that "yes is the correct answer. If you unanimously have a reasonable doubt as to the question, you must answer "no."
. . . .
Because this is a criminal case, each of you must agree for you to return a verdict or special verdict. When all of you have so agreed, fill in the verdict form(s) to express your decision.Clerk's Papers at 45-46 (Instruction 30) (emphasis added).
This court found an instruction with similar language to be erroneous under Bashaw in State v. Ryan, 160 Wn.App. 944, 252 P.3d 895, review granted, 172 Wn.2d 1004 (2011). Ryan reasoned that to "require the jury to be unanimous about the negative—to be unanimous that the State has not met its burden—is to leave the jury without a way to express a reasonable doubt on the part of some jurors." Ryan, 160 Wn.App. at 947.
Ryan also held that the issue may be raised for the first time on appeal as a manifest error affecting a constitutional right. There is a split of authority on this issue within the Court of Appeals. Cf. State v. Nunez, 160 Wn.App. 150, 248 P.3d 103, review granted, 172 Wn.2d 1004 (2011). The resolution will have to await decision by the Supreme Court in the pending cases. Subject to that uncertainty, we follow Ryan. We hold that Moore did not waive this issue by his failure to object below and that the instructions were erroneous.
The State contends that if the issue is reached, the Bashaw errors were harmless. For instructional error to be harmless, we must conclude beyond a reasonable doubt that the jury verdict would have been the same absent the error. Bashaw, 169 Wn.2d at 147.
Because the error creates a "flawed deliberative process, " a jury's unanimity on the special verdict "tells us little about what result the jury would have reached had it been given a correct instruction." Bashaw, 169 Wn.2d at 147. Moore contends Bashaw implicitly held that the error can never be harmless.
We do not read Bashaw as holding that this particular instructional error always requires reversal. We conclude beyond a reasonable doubt that two of the firearm special verdicts would have had to be the same if the jurors had received a correct instruction. The guilty verdict on the assault charge established factually that at least one of the robbers was armed with a firearm during the commission of the robbery and burglary.
Before deliberating on the special verdict questions, the jury unanimously found Moore guilty of first degree burglary, first degree robbery, and second degree assault. The to-convict instruction for assault required them to find that "the defendant intentionally assaulted Beverly Barrett with a deadly weapon." One set of special verdict forms (A, B, and C) then asked whether Moore was armed with a firearm during the commission of the burglary, robbery, and assault. Another set of special verdict forms (D, E, and F) asked whether Moore's accomplice was armed with a second firearm during the commission of the burglary, robbery, and assault. The jury was instructed to answer the special verdict forms only if it convicted Moore of the corresponding charge.
Once the jurors all agreed that Moore was guilty of the assault with a deadly weapon, it would have been logically impossible for any one of them to answer "no" to both sets of special verdict forms. The jury would necessarily answer at least one set affirmatively. One set asked whether the defendant was armed with a firearm at the time of the commission of the crimes of burglary, robbery, and assault while the other set asked the same question regarding the defendant's accomplice. While deadly weapons are not synonymous with firearms, the only deadly weapons identified by the victims were firearms. And having thus found that at least one of the robbers committed the assault while armed with a firearm, the jurors necessarily must have found that the same robber was similarly armed at the time he committed the robbery and the burglary. Thus, the Bashaw error was harmless beyond a reasonable doubt as to the findings that one of the robbers was armed.
While the conviction for assault with a deadly weapon necessarily supports a conclusion that one of the robbers was armed with a firearm, i.e., the robber who assaulted Beverly with a deadly weapon, it does not necessarily support a conclusion that both of them were so armed. There was some evidence suggesting the guns used were toys or fakes. Thus, we cannot say beyond a reasonable doubt that the jury, if properly instructed, necessarily would have answered yes to special verdicts for both robbers.
The firearm enhancements based on special verdict forms C and F must be vacated because they pertain to the assault conviction that merged with the robbery conviction. But vacating the assault conviction does not take away the factual premise established by the guilty verdict on the assault charge. It follows that the Bashaw error is harmless as to one enhancement for being armed with a firearm while committing robbery and one enhancement for being armed with a firearm while committing burglary. On remand, the extra time attributable to the other four firearm verdicts must be subtracted from the total sentence.
We agree with the State that the Bashaw error was harmless as to the findings of aggravating factors to support the exceptional sentences.
Special verdict form G asked four questions related to three aggravating factors—victim vulnerability, invasion of privacy, and victim presence during a burglary:
Did the defendant know, or should have known, that the victims of the current offense were particularly vulnerable or incapable of resistance?
. . . .
Was the victims' vulnerability a substantial factor in the commission of the crime?
. . . .
Did the offenses involve an invasion of the victim's privacy?
. . . .
Was one of the current offenses a burglary w[h]ere the victim was present in the building when the crime was committed?The jury answered yes to all four questions.
The court found the aggravating factors, whether taken together or considered individually, sufficient to justify an exceptional sentence and stated that the court would impose the same sentence even if only one of the aggravating factors was valid. Thus, in order to affirm, we have to be able to conclude that if the jury had been instructed to bring in a "no" verdict if there was at least one doubting juror, the jury still would have unanimously found at least one of the aggravating factors.
Moore contends it is pure speculation to say the jury would have reached the same result if it had been properly instructed. We disagree. An erroneous jury instruction that omits an element of the offense is subject to harmless error analysis. Neder v. United States, 527 U.S. 1, 9, 119 S.Ct. 1827, 144 L.Ed.2d 35 (1999); State v. Brown, 147 Wn.2d 330, 340, 58 P.3d 889 (2002) (following Neder). When applied to an element omitted from, or misstated in, a jury instruction, the error is harmless if that element is supported by uncontroverted evidence. Brown, 147 Wn.2d at 341. Bashaw cites Brown as setting forth the standard to be used in determining harmless error.
Moore's defense at trial was basically one of mistaken identity. The aggravating factors were supported by uncontroverted evidence. We conclude the error was harmless and the exceptional sentences need not be vacated.
FIREARM OPERABILITY
We concluded above that two of the firearm enhancements survive the Bashaw error. Moore argues for vacation of all the firearm enhancements on the additional basis of insufficient evidence that the robbers had firearms that were operable. He contends this problem also requires reversal of his conviction for unlawful possession of a firearm.
Firearm "means a weapon or device from which a projectile or projectiles may be fired by an explosive such as gunpowder." RCW 9.41.010(7). The jury was so instructed.
Moore's position is that a firearm must be "operable" even though the statute does not use that word. There is a line of cases arguably supporting his position. See, e.g., State v. Pam, 98 Wn.2d 748, 659 P.3d 454 (1983), overruled in part on other grounds by State v. Brown, 111 Wn.2d 124, 761 P.2d 588 (1988); State v. Recuenco, 163 Wn.2d 428, 437, 180 P.3d 1276 (2008) ("We have held that a jury must be presented with sufficient evidence to find a firearm operable under this definition in order to uphold the enhancement."); see also State v. Pierce, 155 Wn.App. 701, 714 n.11, 230 P.3d 237 (2010) (Where the firearm is not presented as evidence, there must be "other evidence of operability, such as bullets found, gunshots heard, or muzzle flashes.").
The State contends that operability is not a requirement and that the statement in Recuenco is dicta. Case law can be found to support the State's position as well. See State v. Raleigh, 157 Wn.App. 728, 734-35, 238 P.3d 1211 (2010) (firearm need not be operable during the commission of a crime to constitute a firearm; statement in Recuenco is dicta), review denied, 170 Wn.2d 1029 (2011); State v. Padilla, 95 Wn.App. 531, 535, 978 P.2d 1113 ("a disassembled firearm that can be rendered operational with reasonable effort and within a reasonable time period is a firearm"), review denied, 139 Wn.2d 1003 (1999); State v. Faust, 93 Wn.App. 373, 380, 967 P.2d 1284 (1998) (the language in Pam on operability refers to the difference between a toy gun and a gun in fact; a gun incapable of being fired due to a mechanical defect is still a firearm).
For the sake of Moore's argument, we will assume that the language in Recuenco is not dicta and that evidence of operability is required. But we will not join Moore in concluding that testimony from eyewitnesses who are able to describe the weapon is insufficient to establish operability. Such an exacting test for sufficiency would conflict with other cases such as State v. Mathe, 35 Wn.App. 572, 581-82, 668 P.2d 599 (1983), aff'd, 102 Wn.2d 537, 688 P.2d 859 (1984), and State v. Bowman, 36 Wn.App. 798, 803, 678 P.2d 1273, review denied, 101 Wn.2d 1015 (1984). In Mathe, we held that the State sufficiently proved the defendant "used a real and operable gun" with the testimony of two eyewitnesses who described in detail the guns used by the defendant. Mathe, 35 Wn.App. at 581-82. In Bowman, eyewitnesses similarly described the gun and testified to their belief that the gun was real.
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 Wn.2d 192, 201, 829 P.2d 1068 (1992). By claiming insufficiency of the evidence, a defendant admits the truth of the State's evidence and all inferences that reasonably can be drawn therefrom. Salinas, 119 Wn.2d at 201. In view of the latitude afforded to the State by the standard of review for sufficiency of the evidence, we conclude operability may be inferred by the trier of fact through circumstantial evidence, not only by means of bullets and gunshots as discussed in Pierce, but also through eyewitness testimony attesting that the weapons appeared to be real.
Beverly Barrett testified that the man in the red hat had what looked like a .380 caliber black semiautomatic handgun and the man in the black hat had a gun that looked like a MAC 10. Robert, in a statement admitted by stipulation, testified that the man in the black hat had what he believed to be a MAC 10. The person who drove Moore and Repp away from the scene to a hotel testified that he thought he saw Repp put what looked like a gun underneath a bed at the hotel.
Viewed in the light most favorable to the State, the jury could conclude that the firearms in question were operable. Repp did testify that the gun he used was only a B-B gun, but the jury did not have to believe him. State v. Camarillo, 115 Wn.2d 60, 71, 794 P.2d 850 (1990). We therefore adhere to our conclusion that the two firearm enhancements left standing after the Bashaw error do not need to be reversed for insufficient evidence of operability. On the same rationale, we affirm Moore's conviction for possession of a firearm.
JUDGMENT AND SENTENCE
Moore states that the judgment and sentence mistakenly lists the sentence for count 1 (burglary) as 200 months and the sentence for count 2 (robbery) as 144 months, when it should be the other way around. The record indicates there likely was a mistake, as robbery is a more serious crime and the State requested 200 months for the robbery and 144 months for the burglary.When resentencing, the court should address this claim.
Report of Proceedings at 483-83 (February 22, 2010).
STATEMENT OF ADDITIONAL GROUNDS
Moore has filed a statement of additional grounds under RAP 10.10. He asserts the court erred by not granting his motion to bifurcate the charge of unlawful possession of a firearm. The charge of unlawful possession of a firearm brought into the trial evidence of Moore's previous conviction for burglary. The court instructed the jury that the previous burglary conviction was to be used only as it related to the charge of unlawful possession of a firearm. Prejudice created by evidence of a prior conviction may be countered with a limiting instruction. State v. Roswell, 165 Wn.2d 186, 198, 196 P.3d 705 (2008). In view of the limiting instruction and the trial court's wide discretion in the orderly management of trials, we see no grounds for an argument that bifurcation was mandatory.
Moore states he was deprived of effective assistance of counsel because his attorney conceded in closing argument that Moore was guilty of witness tampering. Where the evidence of guilt on a particular count is overwhelming and there is no reason to suppose that any juror doubts it, conceding guilt on that count in closing can be a sound trial tactic. State v. Silva, 106 Wn.App. 586, 596, 24 P.3d 477, review denied, 145 Wn.2d 1012 (2001). Recordings of phone calls made by Moore while in jail provided overwhelming evidence of witness tampering. Moore's claims that they were inadmissible lack merit. Moore's attorney did not concede any other charges and tried to use the concession to place doubt in the minds of the jurors on the other charges.
A photograph of a firearm was admitted for illustrative purposes only and the court gave a limiting instruction that it should not be considered for any other purpose. There is no substance to Moore's contention that the probative value of the photograph was outweighed by its prejudicial effect.
Moore states that cumulative error deprived him of a fair trial. The errors identified in this opinion did not undermine the fairness of the trial.
CONCLUSION
The conviction for assault in the second degree conviction is to be vacated. The convictions for burglary in the first degree, robbery in the first degree, unlawful possession of a firearm in the first degree, and tampering with a witness are affirmed. Four of the firearm verdicts and enhancements are to be vacated—the two (C and F) that correspond to the assault convictions, and one each of the verdicts that correspond to the convictions for robbery and burglary. The exceptional sentences are affirmed. We remand for proceedings consistent with this opinion.