1 Filed 6/25/13 P. v. Rodriguez CA1/2 NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION TWO

THE PEOPLE, Plaintiff and Respondent,

v. FIDEL RODRIGUEZ, Defendant and Appellant. A135640
(San Mateo County Super. Ct. No. SC074543A)

I. INTRODUCTION In December 2011, appellant was convic ted by a jury of committing a lewd and lascivious act upon a child under the age of 14, Jane Doe, then eight-years old. The trial court suspended impositi on of sentence and placed appell ant on three years probation. Claiming that the trial court erred in ad mitting evidence from a witness concerning appellant’s wife’s statements to that witne ss, appellant asks that his conviction be set aside. We disagree with his contentio ns and hence affirm his conviction.
II. FACTUAL AND PROC EDURAL BACKGROUND On November 7, 2011, an information wa s filed charging appellant with violating Penal Code section 288, su bdivision (a), committing a lewd and lascivious act upon a child under the age of 14. Appellant was tr ied before a San Mate o jury on December 14 and 15, 2011. The following is a summary of the evidence pr esented to that jury. In 2011, appellant and his wife shared a house in San Bruno, San Mateo County, with several other people, including a woman named R. C. (hereafter R.) and her three
children. Those three children were T., age 16, Jonathan, age 10, and the alleged victim2 in the case, Jane Doe, age 8. Jane had cl ear developmental problems, and was described by her mother as being “delayed” in her deve lopment, using medication on a daily basis, and having epileptic seizures. The mother also described Jane as usually functioning between the ages of two and four years. T. and Jonathan watched over Jane when their mother, R., was working (at a nearby Laundromat). On the afternoon of July 26, 2011, R. was working and her three children were at their home. The oldest, T., was watching over the younger two, Jona than and Jane, while all three were in their family’s bedroom. Jane then left that room and went into the living room of the house. T. asked her younger br other, Jonathan, to “go get her,” and Jonathan went into the living room, al so then occupied by appella nt, and he a nd Jane began watching some birds kept in birdcages there. Appellant, then 68 years old, was sitting in a wicker chair in the living room and Jane “was standing up . . . [n]ext to hi m.” Appellant asked Jonathan to cover a birdcage—apparently belonging to him—about 10 or 15 feet away from where appellant was sitting. Jonathan did so, but then turned around to se e appellant pull Jane towards him and put “his hand in my sister’s pants” fo r about five seconds. Jane told appellant to “stop,” appellant saw Jonathan watching him, and he then pushed Jane aw ay. Without saying anything, appellant then “just wa lked out of the room after that.”
Jonathan and Jane then re turned to the bedr oom they shared; J onathan told T. (again, the oldest of the three) that “the guy” had touched Jane. T. asked her sister where she had been touched, and Jane “gestured down in her private part and . . . just said here.” T. then called their mother, R., told her what had happen ed, and R. came home five
minutes later. Jonathan told her what had ha ppened, and she was then “like in shock.”
R. also noticed that Jane seemed “[v]ery serious. Very different.”
R. then took Jonathan into her bedroom and asked him what had happened; he responded that appellant had “placed his hand inside [Jane’s] underwear” and “[i]nside the panties.” A little bit later, after R. had gone back to her workplace and arranged to return home, she asked Jane to tell her what had ha ppened. Jane then “p laced one hand over her3 face and lowered her face down,” a very unusua l action for Jane when she was with her mother. When R. pulle d down Jane’s panties to check her vagina, Jane said “ouch,” a word she normally used to indi cate pain. Jonathan then repe ated to his mother what he had seen appellant do in the living room; R. called the police and then went to see appellant’s wife, who was in the kitchen at the time.
After the wife had heard from R. what th e latter had learned from her children, the wife brought appellant out from their bedroom into the shared living room. On direct examination, R. testified that, when he cam e into the living room, appellant appeared
“nervous” and his hands were “s haking.” After he came into the room, R. continued, she
asked Jane “what did this ma n do to you,” and her daught er responded by placing one
hand “over her face” and the ot her “in between her legs.” On cross-examination by defe nse counsel, R. testified that appellant “told me that boy [Jonathan] is lying.” De fense counsel then asked her if appellant had said anything specific “about lying . . . or was he just sayi ng that in general?” R. responded: “When his wife brought him to the room she was . . . standing right next to him. And she told him, ‘I warned you that I didn’t want this type of problems’ ” and “ ‘I warned you to respect them because she is a mother, a singl e mother with children and she needs to be respected.’ And that is when he said , ‘He’s lying. The boy is lying.’ ” 1 At this point, appellant, his wife, R., and both Jane and Jonathan were in the living room of their shared house; Jane was sitti ng between her mother’s legs. R. asked Jane what appellant had done to her, and Jane put one of her hands in front of her genital area
and the other in front of her f ace, and in doing so was “very serious” in her demeanor, as was Jonathan who was also present. Appellant claimed that “he was not the one that did it. But his voice was shaking” and he “could barely hold onto his cane.”

1 As discussed further below, defense objected to this testimony and asked the court to strike it, which the court declined to do although specific ally stating that the “statements should be considered by the jury not for the truth of what they are but just to set up the answer of the defendant.”4 Shortly thereafter, the police arrived. On e of the several officers who responded, Officer Mike Blundell, interviewed Jonathan ; the latter told him that appellant had touched his sister, Jane Do e, “around her groin area.” 2 This statement led the officer to interview Jonathan more fully and privately; he found Jonath an to be more “intelligent than, and articulate in regards to other kids that I have questioned at that age and/or spoken with.” In his continued, 20-minut e or so interview with Jonathan, the latter reiterated that, when he had heard his sister say “stop,” he turned around and “saw the defendant’s right hand on the interi or portion of his sister’s sweat type pants. . . . [¶] . . . in and around her groin area.” Blundell sc anned and photographed the room where the incident took place, and conclude d that Jonathan could have “a direct view to what the defendant was doing to his sister.” Later, another San Bruno police officer, Detective Heidi Schindel, interviewed
Jonathan. He told her essentia lly the same thing, i.e., that after he heard Jane say “stop,”
he turned around and “saw that the defendant had his ha nd underneath her pants touching her private area,” and that he was certain that appellant’s hand “was underneath the pants.” Jonathan also reiterated to Detectiv e Schindel that, when appellant noticed that Jonathan was watching him, “he immediately ki nd of moved the sister and left the room.” Earlier in its case, the prosecution ha d introduced testimony from a San Mateo County Sheriff’s Department criminologist that a person who touc hes another person’s hand “for several seconds” might or might not leave DNA on the latter surface depending on a variety of factors, including the amount of DNA present on each hand, which person is “a better shedder,” and whether the touche d person had washed his or her hands after the touching. After the conclusion of the pr osecution’s case, and before the beginning of the defense case, the parties stipulated that none of Jane’s DNA was found on appellant’s
hands and that a medical examination of Ja ne revealed no indication of trauma or penetration in her genital area.

2 None of the evidence summarized here after is mentioned in the AttorneyGeneral’s brief to us. We find this rather cu rious, because much of it is actually helpful to their position in this appeal.5 Appellant, as noted then age 68, testified in his own defense.
He testified that he and his wife had had six children, all of them daughters. At the time of the event in question, he and his wife we re living in a house owned by one of those daughters and her husband. Other rooms in the house—as noted above—were rented out to others, although all the te nants shared the living room a nd kitchen. R. and her three
children had lived in the h ouse for about two months. On the day in question, July 26, 2011, appe llant testified that he had come into the sitting room and was apparently both “watch ing the birds and cove ring them up” when the two children, Jonathan and Jane, entere d the room moments later. Jane was, per appellant, wearing a T-shirt a nd sweat pants. The two child ren were, according to him, “looking at the birds” and, in the process, Jane had removed the cover from one of the bird cages. Appellant asked Jonathan to repl ace it and, as he did so, Jane was standing “close by” to him. Appellant testified that he was concerned Jane might step on his sore foot. He thus got up and left the room an d, in so doing, placed his hands “along her waist” on the outside of her pants, whereupon Jane uttered the word “stop.” Although appellant admitted physically movi ng Jane, he denied touching her at all below the waist. Before the police arrived, appellant had said the same thing to Jane’s mother, R., i.e., telling her “nothing happened.”
About five minutes after he had gone back into his room , the police arrived. Early the following morning, he was tested for DNA; he claimed he had not washed his hands in the intervening period. Two of appellant’s daughters testified in ap pellant’s defense; both stated that they had never known appellant to act in a sexually inappropriate manner w ith either them or
their children. As noted above, R. testified—during cr oss-examination by defense counsel—that,
in the course of the events of July 26, appellant’s wife made, in her presence, two statements to him reminding him of her earlier alleged “warnings” to him about “this type of problems.” Defense counsel objected on th e basis that the alleged statements of the wife were “irrelevant” and “hearsay” and aske d that they be strick en. The trial court6 denied the request, stating: “The wife’s stat ements should be consid ered by the jury not for the truth of what they are, but just to set up the answer of the defendant. It’s kind of a legal distinction. But you should only consider the wife ’s comments as they put the
defendant’s statement in contex t, not for the statement the wife may or may not have said
herself.” Nothing further was said on this subject, and defense counsel then proceeded with
further cross-examination of R. This specific testimony of R. was not mentioned in either closing argument to the jury. 3 However, a short time after th e jury began its deliberations on December 16, 2011, it delivered several hand-written questions to the court. They read: “We need clarification of the mother’s testimony abou t what the defendant’s wife said to the
defendant. The mother was talking with the defendant a nd his wife before the police
arrived. The mother said th e wife spoke to her husband, th e defendant. An attorney objected, the judge gave the jury instructions. 1. What are the judge’s instructions? 2. Is the wife’s statements as repeated by the mo ther admissible? 3. If admissible, what did she say?” The trial court responded by informing th e jury, in writing: “The Court reporter will read the exchange of testim ony and the Court’s remarks at th at time.” It also advised the jury to re-read “instructi on 303” (i.e., CALCRIM No. 30 3), an instruction regarding the limited purpose of certain evidence. As instructed, the court reporter then re-read to the jury the relevant portion of R.’s testimony, and the immediately-following adm onishment the court gave the jury with respect to this testimony. Shortly thereafter, the jury returned its verdict finding appellant guilty of the single charged offense.

3 In her closing arguments to the jury, th e prosecutor stressed, indeed often, the testimony of Jonathan and what he had seen, labeling him as “the most important witness in this entire trial.” R. was mentioned only briefly by the prosecutor, and only with regard to her after-the-incident cari ng attitude toward he r three children.7 After that verdict had been entered, on April 9, 2012, new defense counsel filed a motion for a new trial. In it, he argued—among other things 4 —that the trial court erred in not striking the answer given by R. The tr ial court denied that motion on May 9, 2012, stating: “The Court disagrees there was an error of law in admitting hearsay statements
attributable to the Defendant’s wife. The statements were admitte d for the non-hearsay purpose of giving meaning to the subsequent comment by the defendant and the jury was
so instructed.” On May 25, 2012, the tr ial court suspended imposition of sentence and placed appellant on probation for three years. On May 30, 2012, appellant f iled a timely notice of appeal.
III. DISCUSSION In his briefs to us, appellant asserts that the trial court abused its discretion and violated his constitutional rights by admitting the testimony of R. re garding appellant’s wife’s statements to him on the day in question. He contends that the wife’s statements were inadmissible because they were irrelevant and consisted of hearsay. He continues that, although the trial court was correct in finding “that appellant’s wife’s statements were inadmissible hearsay if offered for the truth of the matter asserted, the trial court erred in permitting the statements to be introduced for the nonhearsay purpose of ‘set[ting] up the answer of the defendant.’ ” Because of the “prejudicial impact of the evidence . . . no limiting instruction could ha ve cured the prejudice” caused by their admission, thus viola ting appellant’s constitutional rights under the Fifth, Sixth, and
Fourteenth Amendments to the federal Constitution. He furt her contends that no trial
court error can be deemed ha rmless because “the record cl early indicates the jury was specifically focused on the statements and was considering them during their
deliberations . . . .”

4 More extensively, that counsel also ar gued ineffective assistance of trial counsel in several alleged respects.8 We disagree. For a variety of reasons, we find no error in the trial court’s refusal to strike the one specific answer of witne ss R. Cruz adduced on cross-examination, particularly in light of the specific instruc tion it gave the jury immediately after defense counsel’s objection and motion to strike, and then repeated to th e jury during its
deliberations. First of all, an evidentiary ruling of the sort at issue he re is clearly reviewed under
an abuse of discretion standard of review. Thus, both the issues of relevance and the treatment of hearsay testimony are govern ed by that standard. (See, e.g., People v.
Riccardi (2012) 54 Cal.4th 758, 815; People v. Jablonski (2006) 37 Cal.4th 774, 821; People v. Turner (1994) 8 Cal.4th 137, 189 ( Turner ) overruled on different grounds in People v. Griffin (2004) 33 Cal.4th 536, 555, fn. 5; People v. Rowland (1992) 4 Cal.4th 238, 264.) “[A] trial court does not abuse its discretion unless its decision is so irrational or arbitrary that no reasonable person could agree with it.” ( People v. Carmony (2004) 33 Cal.4th 367, 377.) Second, appellant has clearly forfeite d any grounds other than hearsay and relevance to justify the exclusion of the te stimony of R. regarding the answer given by appellant’s wife. At trial, appellant’s c ounsel—the one who framed the question to R.— moved to strike her answer only on the gr ounds that “it goes be yond the scope of the question, it’s irrelevant, it’s hearsay.” Noth ing was mentioned regarding the issues now raised in appellant’s briefs to us regardi ng Evidence Code secti on 352 or any of the several constitutional issues argued therein. Indeed, even in the post-trial motion—filed in the trial court by different defense coun sel—no constitutional issues were raised or even mentioned. Under well-established law, appellant may not now contend, as he does in his briefs to us, that the trial court violat ed any of his constitutiona l rights in its denial
of his motion to strike R.’s answer to his counsel’s question to her.
In People v. Partida (2005) 37 Cal.4th 428 ( Partida ), our Supreme Court explained: “The objection requ irement is necessary in crimin al cases because a ‘contrary rule would deprive the People of the opportun ity to cure the defect at trial and would “permit the defendant to gamble on an acquittal at his trial secure in the knowledge that a9 conviction would be reversed on appeal.” ’ [Citation.] ‘The reason for the requirement is manifest: a specifically grounded objection to a defined body of evidence serves to prevent error. It allows the tr ial judge to consider excluding the evidence or limiting its admission to avoid possible prejud ice. It also allows the prop onent of the evidence to lay additional foundation, modify th e offer of proof, or take othe r steps designed to minimize the prospect of reversal.’ [Citation.] [¶] T hus, the requirement of a specific objection serves important purposes. . . . [¶] In this case, defendant objected at trial that the gang
evidence should be excluded under Evidence Co de section 352. The objection alerted the
court to the nature of the an ticipated evidence and the basis on which its exclusion was sought. It permitted the court to make an informed ruling and gave the People the opportunity to establish the evidence’s admissib ility. On appeal, defendant may argue that the court erred in its ruling. But he may not argue that the court should have
excluded the evidence for a reas on different from his trial objec tion. If he had believed at trial, for example, that the tr ial court should engage in some sort of due process analysis
that was different from the Evidence Code section 352 analysis, he could have, and should have, made this clear as part of his trial objection. He did not do so. Accordingly, he may not argue on appeal that due proc ess required exclusion of the evidence for
reasons other than those articulated in hi s Evidence Code section 352 argument.” ( Partida, supra, 37 Cal.4th at pp. 434-435.) Evidence Code section 353, subdivision (a )—a statute not cited or discussed in either of appellants’ briefs to us—makes this point quite clear. It provides: “A verdict or finding shall not be set aside, nor shall the judgment or decision based thereon be reversed, by reason of the erroneous admission of evidence unless: (a) There appears of record an objection to or a motion to exclude or to stri ke the evidence that was timely
made and so stated as to make clear the specific ground of th e objection or motion . . . .” (Evid. Code, § 353, subd. (a), emphasis su pplied; see, applying this statute, People v.10 Abel (2012) 53 Cal.4th 891, 924, and People v. Kennedy (2005) 36 Cal.4th 595, 612, overruled in part on another ground in People v. Williams (2010) 49 Cal.4th 405, 459.) 5 Even if there was no forfeiture, appellant ’s argument that the admission of that particular testimony of R. was prejudicial error fails. In his briefs to us, appellant argues that if there was any such forfeiture (1) hi s trial counsel was ineffective and (2) his federal constitutional rights were violated by the trial court’s refusal to strike the answer of R. regarding appellant’s wife’s statement to appellant when she came into the sitting room. We disagree with both contentions. Regarding the alleged ineffective assist ance of counsel, our Supreme Court has made clear that a significant burden exists to sustain such a contention on appeal. As that
court held in People v. Farnam (2002) 28 Cal.4th 107, 201: “To prevail on such contentions, defendant must show that coun sel’s representation fell below an objective standard of reasonableness under prevailin g professional norms, and that there is a reasonable probability that, but for counsel’s unprofessional e rrors, the result would have been different.” This holding is, of course , consistent with that of the United States Supreme Court which, in the leading case of Strickland v. Washington (1984) 466 U.S. 668, made clear that “counsel is strongly pr esumed to have rendered adequate assistance and made all significant decisions in the ex ercise of reasonable professional judgment” ( id. at p. 690) and, further, that a “defenda nt must show that there is a reasonable probability that, but fo r counsel’s unprofessional errors , the result of the proceeding would have been different.” ( Id. at p. 694; see also People v. Castaneda (2011) 51 Cal.4th 1292, 1335.)

5 In a post-trial motion, appellant’s second trial counsel briefly mentioned Evidence Code section 352 in contending that the wife’s comments had little if any probative value at the trial, and that any such value was outweighed by possible prejudice. But, as the Partida court made clear, “the admissi on of evidence, even if error under state law, violates due process only if it makes the trial fundamentally unfair,” i.e., “a very narrow due process argument on appeal.” ( Partida, supra, 37 Cal.4th at pp. 435, 436, 439.) For the other reasons discussed herein, especially the trial court’s twicerepeated cautionary instruction to the jury, such was not the case here.11 Under these standards, there was no ineffect ive assistance of trial counsel in this case regarding the testimony—again, testim ony adduced on cross-examination—of R. regarding appellant’s wife’s statements to him in the jo intly-shared living room. The hearsay and relevance objections asserted by th at counsel were clearly the most apparent
and obvious ones for him to make under the circ umstances. There is no authority that we are aware of, and indeed none is cited in appe llant’s briefs to us, that holds or even suggests that defense counsel is required to assert “all permissible grounds” of objections
to evidence which is adduced. Thus, there was no reasonabl e likelihood that the trial court would have granted defe nse counsel’s motion to strike the objected-to testimony of R. even if further specific objections regarding appellant’s wife’s statements to him, i.e., objections based on constitutional grounds, had been articulated. Further, it is not at all likely that the jury verdict would have b een different even if any such motion to strike was granted. As noted above, the jury had before it both the specific testimony of Jane’s brother Jonathan as to what he had seen and T.’s testimony
about what Jane had both said and demonstrated to her. As noted above, it also had heard the prosecutor’s argument that the most im portant testimony it had heard was that of Jonathan. And, finally, it had the court’s tw ice-repeated instructio n that it should not consider the wife’s alleged statem ents “for the truth of what th ey are, but just to set up the
answer of the defendant.” Finally regarding the constitutional argumen ts appellant makes in his briefs to us, even if such arguments were not forfeited at trial, they cannot and do not change the outcome here. As our Supreme Court has ma de clear, indeed several times: “Application of the ordinary rules of evidence generally does not impermissibly infringe on a capital defendant’s constitutional rights.” ( People v. Kraft (2000) 23 Cal.4th 978, 1035; People
v. Prince (2007) 40 Cal.4th 1179, 1229; see also People v. Riggs (2008) 44 Cal.4th 248, 304 [“To the extent defendant’s claim is a constitutional gloss on his trial objection and therefore not forfeited, it is without merit beca use there was no abuse of discretion.”].) Most importantly regarding the claimed e rror of the trial court, as noted above it
twice instructed the jury th at: “The wife’s statements should be considered by the jury not12 for the truth of what they are, but just to set up the answer of the defendant. It’s kind of a legal distinction. But you should only consider the wife ’s comments as they put the
defendant’s statement in contex t, not for the statement the wife may or may not have said
herself.” The law is very clear that “[w]e pr esume that the jury followed the court’s instructions.” ( Turner, supra, 8 Cal.4th at p. 190; see also cases cited therein and, additionally, People v. Richardson (2008) 43 Cal.4th 959, 1004; People v. Davis (2005) 36 Cal.4th 510, 537.) Very r ecently, our Supreme Court rea ffirmed this rule; it stated: “We reject as entirely speculative defendant’s assertion that these limiting instructions were inadequate. ‘Any prejudice that the challenged information may have threatened
must be deemed to have been prevented by the court’s lim iting instruction to the jury. We presume that jurors comprehend and accep t the court’s directions. [Citation.] We can, of course, do nothing else. The cruc ial assumption underl ying our constitutional system of trial by jury is that jurors generally unde rstand and faithfully follow instructions.’ [Citation.]” ( People v. Homick (2012) 55 Cal.4th 816, 866-867.) These repeated and clear holdings of our Supreme Court thus u ndermine appellant’s argument
that “no admonition or inst ruction could undo the prejudi ce associated with the
statements.” Consistent with this principle, we mu st and do conclude that the jury both
understood and followed the trial court’s twice-repeat ed instruction that it not consider R.’s testimony regarding appella nt’s wife’s statements in he r presence for the truth of any
matter asserted therein. Finally, there is one more reason there was no prejudicial error in the court’s ruling regarding the challenged testimony of R. It is because the testimony of R. on
cross-examination was the direct result of defense counsel’s probing deeper into the events of July 26 than had th e prosecutor in her direct examination of R. Further,
inasmuch as R. was the first witness for the prosecution, th e jury had not yet heard from
Jonathan about what he had seen and the reac tions of, first, Jane Doe, to the alleged touching and, second, the “lyi ng” response of appellant to Jonathan’s version of the13 events of that day. Thus, on direct examination, R. simply testified that (1) Jane often
used the term “ouch” whenever “she’s in pain for whatever reason” and (2) appellant responded to her questions to him as to what had happen ed by saying—in a “shaking”
voice “that he was not the one that did it.” On cross-examination, de fense counsel opted to purs ue both those points, and
cross-examined R. first with regard to when and under wh at circumstances Jane would say “ouch” (3 RT 57-59) and then regarding what appellant had said about the incident.
In the course of the latter cross-examination, defense counsel asked R.: “When you were
in the same room with Mr. Rodr iguez I think you said that he told you that your son was mistaken; am I right about that?”
R. answered: “Lies. He to ld me that boy is lying.”
Defense counsel followed up on this answer by asking: “Did Mr. Rodriguez explain further his statement that he believed yo ur son was lying?” R. responded: “No. He just said he’s lying.” There then follo wed the question from defense counsel and the answer from R., quoted above, that forms the ba sis for this appeal, i.e., concerning the statements of appellant’s wife in front of her and appellant. What all this strongly suggests is th at the question posed to R. on crossexamination by defense counsel was intended to put in context what appellant knew at that moment concerning the accusations agai nst him. Put another way, R.’s testimony concerning the statements of appellant’s wife explained both appella nt’s understanding of
what he had in fact done and his accusations that the one eye-witness to his acts, i.e., Jonathan, “was lying.” As our Supreme Court explained in Turner , providing context to a defendant’s statements is a permissible purpose valida ting the admission of testimony which would otherwise be inadmissible as hearsay. The Turner court explained: “An out-of-court statement is properly admitted if a non-hearsay purpose fo r admitting the statement is identified, and the non-hearsay purpose is relevant to an issue in dispute.” ( Turner,

supra, 8 Cal.4th at p. 189.) As here, the statements at issue in Turner “gave context and meaning to defendant’s admissions.” ( Id. at p. 190.) Further, and as noted above, here as14 in Turner “the jury was repeatedly instructed that they we re not to consider [the witness’s] statements for the tr uth of the matter asserted, but merely to give context to defendant’s statements. We presume that the jury followed the cour t’s instructions.” ( Ibid .) For this reason, also, the trial court did not err in declining to strike R.’s testimony concerning appellant’s wife statements to him, statements made in R.’s presence. For all of these reasons, we reject appella nt’s argument that the trial court’s denial of its motion to strike the testimony of R. regarding appellant’s wife’s statements constituted prejudicial error.
IV. DISPOSITION The judgment of conviction is affirmed.

_ ____________ ____________ Haerle, J.

We concur:

_____________ ____________ Kline, P.J.

_____________ ____________ Lambden, J.