concurring.
I concur with the majority that our former opinion must be reversed and the trial court’s decision affirmed. I wish to emphasize my understanding, however, that we do so on the basis of the state’s concession as to the materiality of the destroyed evidence. I take it that it still remains an open question, absent such a concession, as to whether the destruction of some other tape in some other case would require dismissal. See, e.g., State v. Hockings, 29 Or App 139, 562 P2d 587, rev den (1977), cert den 434 US 1049 (1978).
JOSEPH, J., joins in this concurring opinion.