NOT TO BE PUBLISHED IN OFFICIAL REPORTS IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FIRST APPELLATE DISTRICT DIVISION ONE A111307

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1 Filed 4/25/07 P. v. Greel CA1/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule (a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule (b). This opinion has not been certified for publication or ordered published for purposes of rule IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FIRST APPELLATE DISTRICT DIVISION ONE THE PEOPLE, Plaintiff and Respondent, v. STEPHEN WILLIAM GREEL, JR., Defendant and Appellant. A (Humboldt County Super. Ct. No. CR042274S) Defendant was convicted of attempted murder, aggravated kidnapping, assault with intent to rape, and other charges. He admitted that he picked up a hitchhiker, attempted unsuccessfully to immobilize her with a stun gun, and, after she jumped from the car, shot her with a handgun. Defendant contends that the evidence was insufficient to support his convictions for kidnapping with intent to rape and assault with a stun gun and that the trial court erred in admitting certain evidence and instructing with CALJIC No We reverse the conviction for assault with a stun gun, but we affirm the judgment in all other respects. I. BACKGROUND Defendant was charged in an information filed June 28, 2004 with attempted murder (Pen. Code, 187, subd. (a), 664; count one), kidnapping with intent to commit another crime (Pen. Code, 209, subd. (b)(1); count two), assault with a firearm (Pen. Code, 245, subd. (a)(2); count three), assault with intent to commit rape (Pen. Code,

2 220; count four), and assault with a stun gun (Pen. Code, 244.5, sub. (b); count five). As enhancements, the information alleged that defendant personally inflicted great bodily injury as to counts one and three (Pen. Code, , subd. (a)), and that he personally discharged a firearm as to counts one, two, and four (Pen. Code, , subd. (d)). Defendant, 19 years old at the time, gave a ride to a woman whose car had broken down. As he later told an investigating officer, he had been fantasizing about raping a woman for some time, and as he picked up the victim he realized he could take her into the woods and rape her. When the car reached a stop sign just before the road traversed a bridge, the victim asked to be let out. Defendant reached into the back seat for a screwdriver to open the passenger side door, which had no inside handle. When his hand fell on a stun gun laying next to the screwdriver, however, defendant grabbed the stun gun, pressed it against the victim s neck, and fired, intending to incapacitate her. 1 As the victim testified about subsequent events, When I tried to get out of the car, there wasn t a door knob. All of a sudden, I felt something on the left side of my neck. It felt like an electronic razor. It started vibrating. I put my hands up to my left and as I said, Stop, stop, stop, and I realized I couldn t stop what was happening. And the window was down, so I tried to jump out the window. When I tried to jump out the window, he drove away across the Miranda bridge. And I was half inside the window and half outside the window, screaming, Help, help, help. I realized that he was going to go up the hill and I would be lost in the country if I didn t jump, so I jumped and rolled on the bridge. The, the end of the bridge and he wasn t going that fast. He was trying to go faster and faster. I hit the ground and my body was hurt, but I rolled. And I was afraid, so I jumped up and I ran away. And he shot me. Defendant, in his statement to the investigating officer, also noted that application of the stun gun had no effect on the victim. According to defendant, as he drove across the Miranda Bridge, he was able to pull her back into the car, but she jumped out when 1 Although the device was variously described as a tazor at trial, an investigating officer testified that it was a stun gun. The officer had not tested defendant s stun gun to see whether, or to what degree, it worked. 2

3 they reached the far side of the bridge, at which point he was traveling about five miles per hour. Although there was no testimony as to the length of the bridge at trial, aerial photographs show it to be about 20 car lengths, or a minimum of 150 feet long. Defendant told the officer that the victim, yelling for help, began running toward a driveway leading to a house above the road. Hoping to prevent her from escaping, he got out of the car and emptied a clip of seven or eight rounds from a stolen handgun at a distance of about 20 feet. One of the bullets hit the victim, passing through her rib cage from the back and seriously damaging several organs. A witness testified that he saw the victim running down the hill before collapsing onto the road, where she was found bleeding. Panicked, defendant tried to throw the gun off the bridge, but the barrel broke off in his hand, and the remainder of the gun landed on a sand bar below. He left the gun barrel on the bridge where it had fallen and drove away. During trial, the prosecution introduced two types of disputed evidence. The first was copies of two pornographic stories, one describing in detail the rape and murder of an eight-year-old girl and the other a son s rape of his mother. 2 The copies were recovered from defendant s bedroom, apparently after having been downloaded and printed from the Internet. The second was a brief account by an officer of her investigation of an earlier incident involving defendant. During an interview with the officer when he was 15 years old, defendant admitted to forced sodomy, oral copulation, and masturbation involving his five-year-old niece. In admitting the latter evidence over an objection under Evidence Code section 352, the trial court ruled, [I]t is true that the earlier offenses are as stated, in essence, child molest allegations [against defendant], [at] the age of 15, 16, against a child at the age of approximately 5 and, again, this matter [involves] an adult. But they are, of course, each sexual offenses which would... be offered to demonstrate a... proclivity, if you will, of the likelihood or not of having committed these charged offenses. [ ] On that basis, it does appear that, although 2 Defendant describes the second story as a five page verbal depiction of a sexual encounter between a father and his nine-year-old daughter. We agree with the Attorney General that the story actually describes sex between a son and mother. There is no mention of a young girl. 3

4 8 months to life. 3 II. DISCUSSION dissimilar, that they are relevant one to another.... [ ]... [ ] Regarding the prejudicial impact on the jurors,... of course, this information, this conduct, is prejudicial. That s somewhat the point of it being offered.... [A]lthough certainly, again, prejudicial, distasteful subject matter... it doesn t appear that it s such an inflammatory nature that it will so bias the jury against the defendant that they cannot rationally make a consideration in this matter. The jury convicted defendant on all counts and found true all of the enhancing allegations except for the discharge of a firearm allegation with respect to the charge of assault with intent to commit rape. Defendant was sentenced to a prison term of 34 years A. Sufficiency of the Evidence of Aggravated Kidnapping Defendant contends that there was insufficient evidence to support his conviction on the charge of aggravated kidnapping, arguing that the victim s travel in the car was merely incidental to the rape and that her transportation across the bridge did not substantially increase the risk of harm to her. On appeal, the test of legal sufficiency is whether there is substantial evidence, i.e., evidence from which a reasonable trier of fact could conclude that the prosecution sustained its burden of proof beyond a reasonable doubt. [Citations.] Evidence meeting this standard satisfies constitutional due process and reliability concerns. [Citations.] [ ] While the appellate court must determine that the supporting evidence is reasonable, inherently credible, and of solid value, the court must review the evidence in the light most favorable to the prosecution, and must presume every fact the jury could reasonably have deduced from the evidence. (People v. Boyer (2006) 38 Cal.4th 412, ) Penal Code section 209, subdivision (b) states, (1) Any person who kidnaps or carries away any individual to commit robbery, rape, spousal rape, oral copulation, 3 Both counsel state that defendant s sentence was 41 years to life. Our examination of the sentencing transcript and the judgment documents they cite suggests this is incorrect. 4

5 sodomy, or any violation of Section 264.1, 288, or 289, shall be punished by imprisonment in the state prison for life with the possibility of parole. [ ] (2) This subdivision shall only apply if the movement of the victim is beyond that merely incidental to the commission of, and increases the risk of harm to the victim over and above that necessarily present in, the intended underlying offense. In People v. Dominguez (2006) 39 Cal.4th 1141 (Dominguez), the Supreme Court reviewed and clarified the nature of the evidence necessary to support a charge of aggravated kidnapping under section 209. In Dominguez, the defendant attacked a woman walking along the side of the road and dragged her down a 10-foot embankment and into an orchard, to a spot approximately 25 feet from the roadway, where she was raped and murdered. (Id. at pp. 1146, 1151.) On this evidence, the court affirmed a conviction for aggravated kidnapping. Commenting generally on the statutory elements, the court noted, Whether a forced movement of a rape victim (or intended rape victim) was merely incidental to the rape, and whether the movement substantially increased the risk of harm to the victim, is difficult to capture in a simple verbal formulation that would apply to all cases. We discussed the standard in [People v.] Rayford [(1994) 9 Cal.4th 1 (Rayford)] and explained that the jury must consider[] the scope and nature of the movement, as well as the context of the environment in which the movement occurred. [Citations.] This standard suggests a multifaceted, qualitative evaluation rather than a simple quantitative assessment. Moreover, whether the victim s forced movement was merely incidental to the rape is necessarily connected to whether it substantially increased the risk to the victim. These two aspects are not mutually exclusive, but interrelated. [Citation.] [ ] The essence of aggravated kidnapping is the increase in the risk of harm to the victim caused by the forced movement. [Citation.] (Dominguez, supra, 39 Cal.4th at pp , italics added by Dominguez.) Addressing the nature of the movement of the victim, the court explained, Although any assessment of the Daniels [4] /Rayford test necessarily must include a 4 People v. Daniels (1969) 71 Cal.2d

6 consideration of the actual distance the victim was forced to move (Rayford, supra, 9 Cal.4th at p. 12), we have repeatedly stated no minimum distance is required to satisfy the asportation requirement (ibid.), so long as the movement is substantial (id. at p. 23). [ ] Measured distance, therefore, is a relevant factor, but one that must be considered in context, including the nature of the crime and its environment. (Dominguez, supra, 39 Cal.4th at p ) The requirement that the movement increase[d] the risk of harm to the victim over and above that necessarily present in, the intended underlying offense, was addressed in Rayford, in which the victim was forced to move about 100 feet from a parking lot to the other side of a wall, which sheltered her and the defendant from ready public view. (Rayford, supra, 9 Cal.4th at p. 23.) Discussing the increased risk of harm, the court noted, This includes consideration of such factors as the decreased likelihood of detection, the danger inherent in a victim s foreseeable attempts to escape, and the attacker s enhanced opportunity to commit additional crimes. [Citations.] The fact that these dangers do not in fact materialize does not, of course, mean that the risk of harm was not increased. [Citations.] (Id. at pp ) There is no question that had defendant managed to carry out his plan to drive the victim to the countryside and take her into the woods, he could have been found guilty of aggravated kidnapping. The forced movement of a rape victim from a relatively public place to a more private place to lessen the risk of detection has been held repeatedly to constitute aggravated kidnapping, even if the distance of forced movement is relatively short. (See, e.g., Dominguez, supra, 39 Cal.4th at p. 1153; Rayford, supra, 9 Cal.4th at p. 23; People v. Aguilar (2004) 120 Cal.App.4th 1044, 1049 [victim dragged up the street to a dark area]; People v. Shadden (2001) 93 Cal.App.4th 164, [victim dragged nine feet from store counter to back room]; People v. Salazar (1995) 33 Cal.App.4th 341, 348 [victim dragged from walkway outside a motel room to the room s bathroom].) Because of the victim s escape, that situation did not arise here; there was no evidence of 6

7 a lesser risk of detection at the far end of the bridge, where her captivity ended, than at the near end of the bridge, where it began. 5 Despite defendant s failure to accomplish his objective, the jury could have found beyond a reasonable doubt that defendant s movement of the victim across the bridge was not incidental to the crime of rape. Because the victim was effectively trapped in the car with him, defendant could have committed the rape at any time; it was unnecessary to cross the bridge. Instead, the evidence suggested that the trip across the bridge was a continuation of his plan to drive toward the countryside to find a place where his crime would be less likely to be detected. 6 Accordingly, there was sufficient evidence from which the jury could have concluded that the trip over the bridge, while abbreviated, was undertaken for a purpose that was not incidental to the crime, regardless of whether defendant was successful in accomplishing his objective. Defendant argues that it would be impossible for the driver of a moving car to rape a passenger without moving off the roadway and stopping the car. While that is, of course, true, it has no bearing on the present issue. Defendant could have accomplished the rape by pulling over on the bridge. This would have exposed him to detection, given the public nature of the bridge, but that is just the point: The movement was undertaken because defendant wanted to avoid detection, not because movement was necessary or merely incidental to accomplishing the rape. 7 5 The parties agree that the victim s forced movement began when she recognized the nature of defendant s intentions and first struggled to escape, approximately at one end of the bridge, and ended when she succeeded, at approximately the other end. 6 Defense counsel essentially acknowledges this, stating in her reply brief, The evidence indicates that [defendant] attempted to move [the victim] from an open, public area to a secluded one in order to commit a sexual assault Defendant also points out that there was no clear evidence as to length of the bridge. As he concedes, however, that lack of evidence would be important only if the movement was otherwise merely incidental to the crime, as in In re Earley (1975) 14 Cal.3d 122, 130. Given the non-incidental nature of the movement, the length of the bridge as revealed in the photographs was plainly sufficient to satisfy the requirement of substantiality. (See, e.g., People v. Shadden, supra, 93 Cal.App.4th at pp

8 Defendant also argues that there was no change in the victim s environment, thus defeating the requirement that the movement substantially increase the risk of harm to her. Unlike the common case in which a victim is moved from a place of high visibility to one of low visibility, thus decreasing likelihood of detection and enhancing the opportunity to commit additional crimes (Rayford, supra, 9 Cal.4th at p. 13), this victim was moved from one place of high visibility to another of equally high visibility. Decreasing the likelihood of detection is not the only way, however, to increase the risk of harm. As noted above, Rayford included the danger inherent in a victim s foreseeable attempts to escape as one of the factors to be considered in evaluating the risk of harm to a victim. (Id. at p. 13.) Transporting a victim by car [gives] rise to dangers, not inherent in [an underlying crime], that an auto accident might occur or that the victim might attempt to escape from the moving car or be pushed therefrom.... (In re Earley, supra, 14 Cal.3d at p. 132.) So it was here. Defendant was transporting the victim in a car that had no door handle on the passenger side. For the victim to escape, she was required to crawl through the car window, making it less likely that she would be able to protect herself from the consequences of falling several feet from a moving car. Even at the speed of five miles an hour, she could have been seriously injured by striking her head in an uncontrolled fall. 8 Moreover, she was traveling across a bridge, creating the risk of a fall over the guard rail. The fact that neither of these risks was realized does not alter the fact that they existed. (People v. Lara (1974) 12 Cal.3d 903, 908.) As it happens, the victim was injured in some manner as she fell from the car, although those injuries did not [victim dragged nine feet]; People v. Salazar, supra, 33 Cal.App.4th at p. 348 [victim dragged into a motel room from the outside walkway].) 8 Defendant s contention that [a]ny risk to [the victim] from jumping out of the car window would have been essentially the same whether the car was stationary or moving at five miles per hour is simply false. While slow for a car, five miles per hour is faster than walking speed and, at one mile per 12 minutes, closer to typical jogging speed. No one would contend seriously that the risks from falling while running are no greater than those from collapsing while standing still. 8

9 prevent her from running away. This additional risk of injury, above and beyond the risk of harm from rape, constituted substantial evidence to support defendant s conviction of aggravated kidnapping. B. Sufficiency of the Evidence of Assault with a Stun Gun We agree with defendant that there was no substantial evidence to support his conviction on the charge of assault with a stun gun. As noted above, On appeal, the test of legal sufficiency is whether there is substantial evidence, i.e., evidence from which a reasonable trier of fact could conclude that the prosecution sustained its burden of proof beyond a reasonable doubt. (People v. Boyer, supra, 38 Cal.4th at p. 479.) Penal Code section 244.5, subdivision (b) states: Every person who commits an assault upon the person of another with a stun gun or taser shall be punished by imprisonment in a county jail for a term not exceeding one year, or by imprisonment in the state prison for 16 months, two, or three years. Stun gun, as used in subdivision (b), is defined as any item, except a taser, used or intended to be used as either an offensive or defensive weapon that is capable of temporarily immobilizing a person by the infliction of an electrical charge. (Pen. Code, 244.5, subd. (a).) Defendant argues that there was no evidence demonstrating that the stun gun he used was capable of temporarily immobilizing a person, as required by the statute. The victim testified that when defendant applied the stun gun to her she felt the sensation of an electric razor. She was not immobilized, even temporarily, by the discharge; on the contrary, it spurred her to attempt to escape through the window. This was the only evidence presented of the capacity of defendant s stun gun to stun. The police apparently never tested the gun to determine whether it was capable of sufficient electric discharge to immobilize a person. Accordingly, there was no evidence suggesting that defendant s weapon satisfied the statutory criteria to qualify it as a stun gun. The Attorney General argues that [w]hile [defendant] did not successfully immobilize [the victim] with the stun gun, this does not mean that the stun gun in [defendant s] possession was incapable of temporarily immobilizing someone. 9

10 Assuming this is true, it was still necessary for the prosecution to present evidence that defendant s gun could stun in order to prove its case. That capacity could not be assumed in the face of testimony from the victim that the stun gun merely created a mild electric sensation. Because the officer who testified at trial described only the operation of a typical stun gun, his testimony did not rebut the inference created by the victim s testimony that defendant s weapon was incapable of immobilizing a person. The Attorney General also argues that [i]t appears that [defendant s] stun gun was capable of at least momentarily stunning an individual so that [defendant] could grab the person and prevent her from escaping from his car. Although we recognize that we are required to construe the evidence in the light most favorable to the judgment, we do not view this as a reasonable deduction from the evidence at trial. The victim testified that she began attempting to escape immediately after having received the shock from the stun gun. The defendant also noted that the stun gun had no apparent effect on her. There was no evidentiary basis for a conclusion that shock from the stun gun was the reason that defendant was able, at first, to restrain the victim from leaving the car. 9 C. Evidence Code Section 352 Rulings Defendant argues that the trial court abused its discretion in refusing to exclude evidence of the pornographic stories and the prior sexual assault on his niece under Evidence Code section 352. Evidence Code section 352 permits a court to exclude evidence if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of 9 Not only was there insufficient evidence that defendant used a stun gun, as defined by the statute, the prosecutor arguably made a binding admission to that effect when he noted in closing argument, [Defendant] may be guilty of attempted [Penal Code section] 245 as opposed to complete 245 not because he didn t stick this in her neck trying to keep her in the car, but because this is not capable of [that] effect, followed by the concession, I would submit to you that the appropriate verdict is the lesser included offense of [Penal Code section] 240 because that s a little nine volt stun gun. (See People v. Hayes (1999) 21 Cal.4th 1211, 1258; People v. Burnett (1999) 71 Cal.App.4th 151, [prosecution bound by position taken during closing argument].) 10

11 confusing the issues, or of misleading the jury. Evidence is prejudicial within the meaning of Evidence Code section 352 if it encourages the jury to prejudge defendant s case based upon extraneous or irrelevant considerations. (People v. Rogers (2006) 39 Cal.4th 826, 863.) We review the trial court s ruling for abuse of discretion. (People v. Ledesma (2006) 39 Cal.4th 641, 701.) 1. The Pornographic Stories The two stories were probative because they tended to demonstrate that defendant had an interest in violent, coerced sexual conduct and in sexual conduct resulting in death. They supported defendant s admission that it was his intent to rape the victim and the prosecution s contention that he intended to kill her following the rape. In addition, the relative ages of the participants in the mother/son story were similar to those of defendant and his victim, since he estimated the victim to be in her late 30 s or early 40 s. The stories were therefore relevant and probative. While the stories themselves are shocking and disturbing, their likely prejudicial impact was not great. There was no contention that defendant was the author of the stories and was responsible for their content. They were merely found in his possession. Evidence that defendant possessed pornography would not, in and of itself, necessarily create a substantial danger of undue prejudice. (Evid. Code, 352.) Accordingly, we cannot say that the trial court abused its discretion in concluding that their probative value was not substantially outweighed by the possibility for prejudice, as required for exclusion under section 352. In any event, any error in the admission of these stories was harmless. To justify reversal, the erroneous admission of evidence over an objection under Evidence Code section 352 must be prejudicial. (People v. Mullens (2004) 119 Cal.App.4th 648, 659.) Prejudice is measured by the standard of People v. Watson (1956) 46 Cal.2d 818, 836, which asks whether it is reasonably probable defendant would have achieved a more favorable result if the court had not committed the evidentiary error. The evidence of defendant s guilt in this case was unusually strong. He confessed the crime to both his mother and the police, and his account of the crime meshed with that of the victim. The 11

12 physical evidence was consistent with these accounts. Although defendant argues that the charge of aggravated kidnapping was close because of the short distance traveled, we do not find it so. The jury could readily have concluded that in refusing to permit the victim to leave when she asked to be let out and then driving away, defendant was attempting to take her by force to a less public place where he could accomplish his crime. 10 In the face of this evidence, there is no likelihood that the admission of the stories made a difference in the jury s decision. 2. Defendant s Past Crime [Evidence Code] section 1101 declares that evidence of a person s character or a trait of his or her character (whether in the form of an opinion, evidence of reputation, or evidence of specific instances of his or her conduct) is inadmissible when offered to prove his or her conduct on a specified occasion. (People v. Rogers, supra, 39 Cal.4th at p. 862.) Evidence Code section 1108, subdivision (a), however, removes this traditional barrier to past acts evidence in the prosecution of sex crimes, stating, In a criminal action in which the defendant is accused of a sexual offense, evidence of the defendant s commission of another sexual offense or offenses is not made inadmissible by Section 1101, if the evidence is not inadmissible pursuant to Section 352. The only evidentiary constraint on the admission of the testimony regarding defendant s confession of a past sexual assault on his niece, therefore, was a weighing of prejudice against probative value under Evidence Code section 352. As the Supreme Court explained in People v. Falsetta (1999) 21 Cal.4th 903 at pages (Falsetta), By reason of section 1108, trial courts may no longer deem propensity evidence unduly prejudicial per se, but must engage in a careful weighing process under section 352. Rather than admit or exclude every sex offense a defendant commits, trial judges must consider such 10 Defendant also points to the jury s conviction of defendant on the stun gun count after the prosecutor had conceded the issue as evidence that the jury acted from passion and prejudice. Assuming only for the sake of argument that this was true, there is no reason to assign responsibility for the passion and prejudice to the stories admitted from defendant s computer. A much more likely source is the very nature of this disturbing crime and the disastrous impact it had on the life of the victim, which was only too evident from her testimony. 12

13 factors as its nature, relevance, and possible remoteness, the degree of certainty of its commission and the likelihood of confusing, misleading, or distracting the jurors from their main inquiry, its similarity to the charged offense, its likely prejudicial impact on the jurors, the burden on the defendant in defending against the uncharged offense, and the availability of less prejudicial alternatives to its outright admission, such as admitting some but not all of the defendant s other sex offenses, or excluding irrelevant though inflammatory details surrounding the offense. Many of the factors listed by Falsetta did not weigh against admission of the past crime here the crime was not remote, having occurred only a few years before; there is no question defendant committed the crime; there was little chance of misleading the jurors; presentation of the evidence took only a few minutes of trial time; and there were no inflammatory details included. However, because molestation of a child is a different crime than the attempted rape of which defendant was accused and the two crimes bore no similarity of execution, the past crime was of limited probative value. Further, child molestation is a particularly shocking crime. The revelation that defendant was an admitted child molester was likely to have some prejudicial impact on the jury beyond that of the present crimes. Because of this added prejudicial impact and the limited probative value of the prior crime, we find this issue a close call. Because we cannot say definitively, however, that the probative value [of the prior crime] is substantially outweighed by the probability that its admission w[ould]... create substantial danger of undue prejudice (Evid. Code, 352), we cannot find an abuse of discretion. Yet even if admission of this past crime was error, for the reasons stated above we would find it to be harmless error. Because the evidence against defendant was very strong, it is not reasonably probable that defendant would have achieved a more favorable result if this evidence had been excluded. (People v. Watson, supra, 46 Cal.2d at p. 836.) Defendant argues that the admission of both this evidence and the stories printed from the Internet was so prejudicial that it made his trial fundamentally unfair and therefore constituted a violation of his right to procedural due process. (E.g., Falsetta, supra, 21 Cal.4th at p. 915.) Regardless of whether either evidentiary ruling was correct, 13

14 D. CALJIC No Defendant contends that the trial court violated his right to procedural due process by instructing the jury with CALJIC No because the instruction permitted the jury to consider the evidence of his past sex crime to prove his disposition to commit sex offenses. As defendant recognizes, the Supreme Court s rejection of this contention in People v. Reliford (2003) 29 Cal.4th 1007, , requires us to reach the contrary conclusion. III. DISPOSITION The jury s verdict on count five, charging assault with a stun gun, is reversed. The eight-month sentence imposed on this count is vacated, and the matter is remanded for entry of an amended judgment consistent with this decision. The remainder of the trial court s judgment is affirmed. Margulies, J. We concur: Marchiano, P.J. Stein, J. we conclude that the admission of this evidence was not so prejudicial as to render defendant s trial fundamentally unfair, and find no constitutional violation. 14