Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County No. RIF130257. Robert W. Armstrong, Judge. Retired judge of the L.A. Super. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const..
Kenneth H. Nordin, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, and James D. Dutton, Sabrina Y. Lane-Erwin, and Alana Butler, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
RICHLI Acting P.J.
On May 16, 2006, defendant Jesus Lopez approached three boys in Villegas Park in Riverside. Defendant asked the boys if they were from Casa Blanca Riva, a criminal street gang whose territory included the park and of which defendant was an active member. When defendant thought one of the boys lied about being a member, defendant threw a beer can at one of them. He then demanded that two of the boys give him their skateboards and money. In fear, they complied. Defendant was seen at the park a short time later, still in possession of the stolen property. He ran from police officers, and the officers had to use a taser three times before they could handcuff him.
Defendant was convicted of two counts of second degree robbery, and the jury found true the allegations that he committed the crimes for the benefit of a criminal street gang. He was also found guilty of a separate charge of active participation in a gang and misdemeanor resisting arrest. Defendant now contends:
1. The trial court erred by allowing a gang expert to testify regarding the ultimate issue that the jury had to decide under Penal Code section 186.22.
2. The trial court erroneously excluded a tape recording of defendant after the crime to support that he was too intoxicated to form the specific intent necessary to commit the crimes.
We find there were no prejudicial trial errors and affirm the judgment in its entirety.
I
PROCEDURAL BACKGROUND
Defendant was found guilty of two counts of second degree robbery (Pen. Code, § 211), with the special allegations that defendant committed the robberies for the benefit of a criminal street gang within the meaning of section 186.22, subdivision (b) found true. Defendant was also found guilty of a separate crime of active participation in a criminal street gang (§ 186.22, subd. (a)) and the misdemeanor crime of resisting arrest (§ 148, subd. (a)(1)). The trial court sentenced defendant to two years on one of the robberies, plus 10 years for the gang enhancement for that robbery, for a total of 12 years in state prison. The remaining sentences were ordered to run concurrently to the above sentence or were stayed pursuant to section 654.
All further statutory references are to the Penal Code unless otherwise indicated.
II
FACTUAL BACKGROUND
A. Evidence of Current Crime
On May 16, 2006, around 6:00 or 7:00 p.m., 13-year-old Christian was at Villegas Park in Riverside with two of his friends, Robert and Victor. Villegas Park was in an area called Casa Blanca, where both Victor and Christian lived. All three of the boys had skateboards.
Since the victims were minors at the time of the incident, we will refer to them by their first names only.
While they were at the park, they were approached by defendant. Victor described defendant as a “gangster guy[].” Defendant spoke to Robert and said that he knew his mother. He also knew where Robert lived. Defendant appeared to be drunk. Defendant asked Victor and Christian where they were from. Christian thought that defendant was asking where they lived. When Christian told defendant Casa Blanca, defendant called him a liar. Defendant threw his can of beer at Victor; it hit him lightly.
He had since learned that defendant was asking what gang they belonged to.
Defendant then asked Christian if he had any money. Christian gave defendant the $10 he had in his pocket because he was afraid defendant might hurt him. Defendant also asked Christian for his skateboard. Christian gave that to defendant as well, because he was afraid defendant might hit him.
Victor (who thought defendant would hurt him) also gave defendant his skateboard and about $40 that he had in his pocket. Defendant then told them not to say anything. Another man approached them, and defendant walked away with him.
Christian walked home and did not call the police because he was afraid something would happen to him if he did. Victor was crying. Christian did not immediately tell his mother what happened, because he was afraid she would call the police. Victor did not call the police because he did not want to “rat” on defendant for fear of retaliation. Christian finally told his mom what happened and she called the police about 45 minutes after the incident in the park.
Riverside Police Officer Lisa Johnson was working patrol in the Casa Blanca area on May 16, 2006, with her partner, Nicholas Vasquez. Approximately 8:17 p.m., they spoke with Christian, and he told them about the incident at Villegas Park. After receiving a description of the assailant, Officers Johnson and Vasquez went to Villegas Park. When they arrived, defendant, who met Christian’s description, was skateboarding in the park.
When Officers Johnson and Vasquez got within about 75 feet of defendant, he picked up the skateboard he was riding and ran away. When he was unable to get over a chain-link fence, he turned around and faced them. He refused to get down on the ground, so Officer Vasquez used his taser. Defendant fell to the ground but refused to get on his stomach. The taser was used a second time. Defendant rolled over but refused to put his hands behind his back. Once defendant was tasered a third time, he complied and was handcuffed.
Defendant told Officer Johnson that the skateboard belonged to his brother. A $10 bill and two $20 bills were found in defendant’s pocket.
Christian identified defendant at a field show-up. Robert identified defendant from a six-pack photographic line up. Christian and Robert positively identified defendant in court, but Victor could not identify defendant either before or during trial.
The trial court cautioned the jury prior to the gang expert testimony that the evidence was being admitted to show actual membership in the gang, which was not a crime in itself. The jury was admonished they were not to consider the evidence as showing defendant was a bad person.
Detective Joe Miera testified as a gang expert. Casa Blanca Riva was a criminal street gang consisting of the Evans and Fern Street subsets. Villegas Park was in the Evans Street territory. Symbols of the gang included “CBR,” “Evans St.” the number 32, “Devil Wolves” or “DWS,” “Riva,” and “Diablos” or “DBS.” Defendant had a “CBR” tattoo on his neck, which Detective Miera indicated was a Casa Blanca gang tattoo. Having a tattoo showing membership in a gang shows the individuals level of commitment to the gang.
In May 2004, defendant had an encounter with police in Villegas Park; he claimed the Evans Street subset of the Casa Blanca Riva gang and was wearing a jersey with the number 32. In January 2006, during the execution of a search warrant at defendant’s house in relation to a gang shooting, he was wearing a baseball hat with the words “Casa Malo 13,” which referred to being “bad”; having an association with the Mexican Mafia; and having a connection with the Casa Blanca Riva gang. Defendant denied to officers searching his home that he was member of Casa Blanca Riva. However, he later admitted to an intake deputy at the jail that he was a member of the Casa Blanca gang.
The primary activities of Evans Street was assault, assault with a deadly weapon, and street robberies. The three predicate crimes of the gang were two assaults with a deadly weapon and four counts of attempted murder, all with attendant gang allegations.
The trial court took judicial notice of these cases.
Detective Miera opined that defendant was a current member of the Casa Blanca Riva gang based on previous associations with gang members, including being in the company of members of Evans Street during a gang-related fight; possession of Casa Blanca gang paraphernalia at his home; his repeated presence in Villegas Park, which was controlled by Evans Street; and his gang tattoos.
When defendant asked Christian where he was from, he was asking what gang he was member of. When Christian told him Casa Blanca, which was where he lived, defendant became angry because he took Christian to mean he was claiming Casa Blanca and thought he was lying. Responding “don’t lie to me” is a challenge accusing the person of claiming a false gang membership.
Detective Miera stated that robbing two 13-year-old boys would benefit the gang both financially and by instilling fear in the community. Fear in the community made it less likely that other victims would resist future crimes or report criminal activity. Gang members know that they are expected to commit violent crimes. Further, if someone disrespects the gang, the person is expected to retaliate. A gang member would also want other gang members to know about committing violent crimes as it would increase the gang member’s reputation in the gang.
III
IMPROPER GANG EXPERT TESTIMONY
Defendant contends that the trial court erred by allowing Detective Miera to testify as to the ultimate fact to be decided in this case: whether defendant had the intent to commit the instant crimes for the benefit of the street gang.
A. Additional Factual Background
During direct examination of Detective Miera, the prosecutor asked him if he had been present during both Victor’s and Christian’s testimony, which he had. The prosecutor then asked, “Do you have an opinion as to whether or not the defendant’s contact on that day constituted an actual benefit to Evans Street?” Defendant’s objections on the grounds of improper legal conclusion and legal opinion were overruled. Detective Miera testified, “The actions would benefit the Evans Street Casa Blanca Riva gang.” The prosecutor then asked how it would benefit the gang. Detective Miera stated that the benefit was instilling fear in the community. The following exchange — which is the basis for defendant’s claim on appeal — then occurred,
“Q. I want to ask you a hypothetical question. Basically the one I asked before, but I will rephrase it because it’s been a little while. [¶] We have an Evans Street Casa Blanca gang member with a CBR tattoo on the back of his neck dressed like a gang member in Villegas Park. He sees three unfamiliar young teenagers and robs them. Well, he sees two unfamiliar young teenagers, and the third that he thinks he might know or at least know his mother. [¶] Are you clear on the hypothetical so far?
“A. Yes, sir.
“Q. That gang member walks up to the group and asks the one he thinks he knows, ‘Are you from Evans Street?’ Would that be hitting the group up?”
“A. Yes, sir.
“Q. The same way we talked about earlier?
“A. That’s correct.
“Q. I want you to assume that he says to that young man, ‘I think I know your mother,’ so he focuses on the other two. He says to them, ‘Are you from Casa Blanca?’ Is that also hitting them up.
“A. Yes, sir.
“Q. I want you to assume that he then demands both the skateboards and the money from the two young 13-year-old boys. [¶] Are you clear so far?
“A. Yes sir.
“Q. Would that hypothetical gang member be intending to benefit his gang by committing that crime?
[DEFENSE COUNSEL]: Objection. Improper expert opinion.
THE COURT: Overruled.
“A. Yes.”
B. Analysis
To obtain a true finding on an allegation of a criminal street gang enhancement, the People must prove the crime at issue was committed “for the benefit of, at the direction of, or in association with any criminal street gang, with the specific intent to promote, further, or assist in any criminal conduct by gang members....” (§ 186.22, subd. (b)(1).) The prosecution may rely on expert testimony to establish the required elements of the gang enhancement. (People v. Sengpadychith (2001) 26 Cal.4th 316, 322.) An expert’s testimony is admissible concerning the existence, size, or composition of a gang; an individual’s membership in or association with a gang; the primary activities of a specific gang; the motivation for a particular crime; whether a crime was committed to benefit or promote a gang, and how; rivalries between gangs; gang-related tattoos; and gang colors or attire. (People v. Killebrew (2002) 103 Cal.App.4th 644, 657, and cases cited therein; People v. Valdez (1997) 58 Cal.App.4th 494, 506.)
This expert testimony is permissible because these subjects are “sufficiently beyond common experience that the opinion of an expert would assist the trier of fact....” (Evid. Code, § 801, subd. (a); see People v. Gardeley (1996) 14 Cal.4th 605, 617.) There is no dispute here that gang expert testimony was properly admitted to prove the gang enhancements. (Gardeley, at p. 617.)
“Generally, an expert may render opinion testimony on the basis of facts given ‘in a hypothetical question that asks the expert to assume their truth.’” (People v. Gardeley, supra, 14 Cal.4th at p. 618.) However, an expert cannot opine on the “‘knowledge or intent of a defendant on trial.’” (People v. Gonzalez (2006) 38 Cal.4th 932, 946; see also People v. Killebrew, supra, 103 Cal.App.4th at p. 658.)
Here, we disagree with defendant that the hypothetical question as set forth, ante,was improper. The question was phrased in a proper hypothetical based on the facts already presented in the case.
However, we do find that the trial court erred by overruling the previous objection when the People asked Detective Miera if defendant was committing the instant robbery to benefit the Casa Blanca gang. This goes well beyond what is permissible gang-expert testimony. This was testimony as to the intent of defendant, an ultimate issue to be decided by the jurors.
We find that any error (even if we were to consider the hypothetical question erroneous in addition to the direct response regarding defendant) in this case was harmless. (People v. Watson (1956) 46 Cal.2d 818, 836-837; see also People v. Adan (2000) 77 Cal.App.4th 390, 393 [applying Watson standard to claim expert testimony improperly admitted].)
Defendant contends that he was denied his federal constitutional right to a fair trial and that admission of Detective Miera’s opinion lessened the prosecution’s burden of proof. He does not, however, provide the standard of review. We conclude this type of error is commonly reviewed under Watson, and there are no reasons under the facts here to depart from such review.
There was ample admissible evidence to support the true finding on the gang enhancement and the robberies in the instant case. In actuality, there was no dispute that defendant took the skateboards and money from Christian and Victor. He still possessed these items over an hour later when apprehended by the police, showing his intent to permanently deprive the victims of the items.
Further, other evidence presented supported the gang enhancements, including that defendant was dressed like a gang member; he was in his own gang’s territory; he asked the three boys if they were gang members; he admitted he was a Casa Blanca gang member to the arresting officer; and Detective Miera provided other proper testimony regarding the activities of the gang and that such violent acts benefitted the gang. This was strong evidence that defendant committed the instant crimes to benefit the Casa Blanca gang.
Further, any prejudice was diminished by the trial court instructing the jury with Judicial Council of California Criminal Jury Instructions (CALCRIM) No. 332 regarding expert testimony, which provided in part, “A witness was allowed to testify as an expert and to give an opinion. You must consider the opinions, but you are not required to accept them as correct. The meaning and importance of any opinions are for you to decide.... You must decide whether the information on which the expert relied was true and accurate. You may disregard any opinion that you find unbelievable, unreasonable, or unsupported by the evidence.” The trial court also cautioned the jury during Detective Miera’s testimony that they were not to consider the evidence as proving any crime had been committed or to show defendant was a bad person.
We conclude that the isolated improper testimony was not so prejudicial that it is reasonably probable defendant would have received a more favorable result had this question not been asked and answered by Detective Miera. (See People v. Avitia (2005) 127 Cal.App.4th 185, 194.) As such, there was no reversible error.
IV
EXCLUSION OF DEFENSE EVIDENCE
Defendant contends the trial court erred by excluding evidence of a tape of his voice made at the time of his arrest to show that, due to voluntary intoxication, he was unable to form the specific intent to commit the instant crimes.
A. Additional Factual Background
Defendant brought a written motion to allow introduction of a “belt recording” that was taken by one of the officers who arrested defendant and taped while he was being transported. The first officer was dispatched to the scene at 8:17 p.m., and the recording was done at 9:11 p.m. Defendant’s counsel argued that the tape clearly showed that defendant was under the influence of alcohol at the time the crimes were committed.
At the hearing on the admission of the recording, defendant argued that if the jury believed that he was so intoxicated he could not form specific intent, that was a valid defense. The recording was the best evidence of how defendant sounded approximately 30 minutes after the incident. His speech was clearly slurred. The People opposed admission of the recording because it constituted a diminished capacity defense, which was not permissible. Further, the jury did not know how defendant sounded on a normal basis, so they could not tell just from his speech whether he was intoxicated. Also, he could have become intoxicated between the time of the crimes and his arrest. The trial court ruled, “All right. Well, I just feel that having any person, me or jurors, listening to a recording of someone’s speech, not having heard that person talk before, the People’s position is well-taken. The fact that someone speaks with slurred speech is only one indication of intoxication and certainly wouldn’t prove that fact. I’m certain if we were trying that in this court and all of the evidence the People had was that the defendant’s speech was slurred, the case would be insufficient to go to the jury on that limited amount. Because of the fact of the diminished capacity, the tape will not be admitted.” It does not appear that the trial court listened to the tape recording.
During cross-examination of Christian, he indicated that defendant appeared to be drunk and was mumbling. He said you could see it in “his eyes.” The trial court stated to the jury that mumbling was similar to slurred speech. Christian stated that defendant’s eyes were partially shut, and he was looking around confusedly. The trial court then advised defendant, after the People objected that the testimony that defendant was confused lacked foundation, that no more questions of intoxication for this witness would be allowed.
Victor testified on cross-examination that he thought defendant was drunk because defendant looked like he was about to pass out. Defendant was having a hard time keeping his eyes open. Victor did not see that defendant was stumbling. He was walking normally.
Officer Johnson did not recall if defendant smelled of alcohol. She did not believe that defendant was intoxicated to the point that she would have arrested him for public drunkenness. He was able to run and balance on the skateboard.
Officer Johnson recalled that she had asked defendant what he had had to drink, and he responded, “Budweiser,” but he did not say how many. At this point, the trial court stated to the jury, “... [T]he standard is whether or not a person’s consumption of any drug or alcoholic beverage has so far affected him that he is not able to form a specific intent to do a particular crime. [¶] So that’s what this is about, and that will be an issue that will be eventually submitted to you in the jury deliberations as to whether you find that he was so intoxicated that it constitutes a defense.”
After the People rested, defendant again requested that the belt recording be played for the jury. Defendant argued that the belt recording was the best evidence of the state of his intoxication at the time of the crime. The People argued that it was inadmissible to show diminished capacity. Further, “[i]n terms of evidence of the level of intoxication, there is no baseline from which to gauge the speech on this tape.” The trial court ruled, again without listening to the recording, “Right. I think that’s the case. And as indicated before, not knowing what the defendant’s normal speech is, it would be very difficult to evaluate the speech as to whether or not that’s the way he always talks or as to whether or not his speech was affected by ingestion [of] drugs or alcohol.”
Defendant’s counsel then requested that defendant be allowed to read something to the jury so that they would have a point of reference as to his normal speech pattern. The trial court responded, “That is denied. If he is going to testify, he’d have to testify. He is not going to testify — don’t think it’s appropriate to have him read anything, even if it’s something innocuous.”
B. Analysis
Section 22 provides: “(a) No act committed by a person while in a state of voluntary intoxication is less criminal by reason of his or her having been in that condition. Evidence of voluntary intoxication shall not be admitted to negate the capacity to form any mental states for the crimes charged, including, but not limited to, purpose, intent, knowledge, premeditation, deliberation, or malice aforethought, with which the accused committed the act. [¶] (b) Evidence of voluntary intoxication is admissible solely on the issue of whether or not the defendant actually formed a required specific intent, or, when charged with murder, whether the defendant premeditated, deliberated, or harbored express malice aforethought. [¶] (c) Voluntary intoxication includes the voluntary ingestion, injection, or taking by any other means of any intoxicating liquor, drug, or other substance.” As such, evidence of voluntary intoxication is admissible solely on the question of whether a defendant actually formed a specific intent when that intent is an element of a crime charged against him. (People v. Mendoza (1998) 18 Cal.4th 1114, 1124-1129.)
Evidence of a person sounding intoxicated has been found relevant in other cases where a defendant has presented voluntary intoxication to negate specific intent. In People v. Filson (1994) 22 Cal.App.4th 1841, disapproved on other grounds in People v. Martinez (1995) 11 Cal.4th 434, 452, the prosecution failed to turn over a tape to defendant recorded around the time of his arrest that allegedly showed by his voice that he was intoxicated. (Id. at pp. 1846-1847.) The trial court never reviewed the tape, finding it did not need to be turned over to defendant. (Ibid.) The appellate court concluded the tape may have been relevant: “[A] tape preserving the sounds of a grossly intoxicated defendant talking would constitute persuasive circumstantial evidence supporting the defense theory that defendant was too drunk to form the specific intent needed for conviction.” (Id. at p. 1848;see also Pennsylvania v. Muniz (1990) 496 U.S. 582, 590 [110 S.Ct. 2638, 110 L.Ed.2d 528] [“confusion and failure to speak clearly indicated a state of drunkenness”].)
Here, the trial court never reviewed defendant’s proffered evidence. By failing to listen to the belt recording, the trial court could not adequately make an informed decision as to whether the tape was circumstantial evidence supporting the voluntary intoxication defense. Defendant may have sounded so drunk that any reasonable juror would conclude the person was intoxicated, even without knowing defendant’s regular speech pattern. The prosecutor could argue to the jury that defendant was speaking in his regular voice. Finding that the jury did not have a reference for defendant’s voice was a factor going to the strength of the evidence, not whether the evidence was admissible. Under the facts of the instant case, we must conclude that the trial court abused its discretion.
We are not making a determination that the tape should have been admitted into evidence. As we set forth, post, we have reviewed the tape, and it does not conclusively establish that defendant was intoxicated. We only find that the trial court abused its discretion by refusing to even listen to the tape in assessing whether it was relevant evidence.
Both parties argue that the trial court excluded the evidence pursuant to Evidence Code section 352. However, as noted by the court in Filson, such analysis is impossible when the trial court has not reviewed the evidence to be introduced. “By ruling without knowing what was on the tape, the trial court could not make an intelligent evaluation of any probative value of the tape, could not assess any prejudice it might pose, and therefore could not undertake the weighing of these factors required for an informed exercise of the discretion granted by section 352. [Citation.]” (People v. Filson, supra, 22 Cal.App.4th at p. 1850.)
Although we find that the trial court abused its discretion by excluding the tape without listening to it, we conclude that the error was harmless under the Watson standard in that it is not reasonably probable that had the evidence been admitted a result more favorable to defendant would have ensued. (People v. Lawson (2005) 131 Cal.App.4th 1242, 1249, fn. 7 [“the erroneous exclusion of evidence is ordinarily reviewed for harmless error under Watson”].) Defendant contends the instant error is subject to review under the more rigid federal standard as he was denied his federal constitutional right to present a defense.
The People contend that the exclusion of the evidence was harmless because defendant was able to present his defense through other evidence. However, they do not address the excluded evidence itself (they appear not to have listened to it), which is necessary in determining prejudice.
“As a general matter, the ‘[a]pplication of the ordinary rules of evidence... does not impermissibly infringe on a defendant’s right to present a defense.’ [Citations.] Although completely excluding evidence of an accused’s defense theoretically could rise to this level, excluding defense evidence on a minor or subsidiary point does not impair an accused’s due process right to present a defense. [Citation.] If the trial court misstepped, ‘[t]he trial court's ruling was an error of law merely; there was no refusal to allow [defendant] to present a defense, but only a rejection of some evidence concerning the defense.’ [Citation.] Accordingly, the proper standard of review is that announced in People v. Watson (1956) 46 Cal.2d 818, 836 [299 P.2d 243], and not the stricter beyond-a-reasonable-doubt standard reserved for errors of constitutional dimension (Chapman v. California (1967) 386 U.S. 18, 24 [17 L.Ed.2d 705, 710-711, 87 S.Ct. 824, 24 A.L.R.3d 0165]).” (People v. Fudge (1994) 7 Cal.4th 1075, 1102-1103.)
We reject that defendant was foreclosed from presenting his voluntary intoxication defense. He was able to present testimony via the prosecution witnesses that they thought he was drunk, that he was holding a beer at the time of the crime, and that he admitted drinking that night. The jury was instructed with CALCRIM No. 3426, which provided in part that, “You may consider evidence, if any, of the defendant’s voluntary intoxication only in a limited way. You may consider that evidence only in terms of whether the defendant acted with the specific intent required. In other words, the intent to permanently deprive the owner of his property, or the specific intent to promote, further, and assist a criminal street gang.” Finally, defendant’s counsel argued extensively during closing argument that defendant was drunk and could not form the required specific intent. The exclusion of the tape here was the standard exclusion of evidence, not the preclusion of a defense.
In assessing prejudice under Watson, we find any error was harmless. Here, the trial court never reviewed the tape, but defendant’s counsel on appeal has transferred the tape to this court. We have listened to the recordings in their entirety. They shed little or no light on whether defendant was so intoxicated at the time of the crime that he was unable to form specific intent. Although defendant’s speech is somewhat slow and mumbled on the tape, there certainly is no way of knowing whether this was due to excessive intoxication. Defendant complained that he was in pain from the handcuffs and having trouble breathing, both of which could cause changes in his speech pattern. Further, defendant was able to answer the officers’ questions appropriately. Additionally, throughout the tape he was respectful to the officers, calling them “sir” or “madam.” We cannot say that had the jury listened to the tape they would have necessarily concluded that defendant was so intoxicated that he could not form the intent to permanently deprive Christian and Victor of their money and skateboards, or that he intended to commit the robberies to benefit the Casa Blanca gang.
Further, the evidence of defendant’s guilt was overwhelming, and the other evidence of his intoxication was not strong. Defendant approached the three boys and immediately asked if they were Casa Blanca gang members. When he felt one of them was lying about his membership, he threw a beer can at him. Defendant then told Chris and Victor to give him their money and skateboards. They were both afraid of defendant. Defendant then had the wherewithal to tell them not to call the police.
The evidence of his intoxication was weak at best. Although Christian and Victor stated that defendant appeared to be drunk, they based that on his eyes and mumbling. None of the witnesses noticed defendant having trouble walking or stumbling. In fact, Officer Johnson testified that he was able to ride a skateboard and run from them. She would not have arrested him for public drunkenness.
The evidence overwhelmingly supported that defendant possessed the specific intent to commit the instant crimes. We find no reasonable probability the result would have been more favorable to defendant had the court admitted the belt recording.
VI
DISPOSITION
The judgment is affirmed.
We concur, KING J., MILLER J.