State v. Barringer, 10100-5-I

• Decision Date: 07 September 1982
• Docket Number: No. 10100-5-I,10100-5-I
• Citation: 32 Wn.App. 882,650 P.2d 1129
• Court: Washington Court of Appeals
• Parties: STATE of Washington, Respondent, v. James Michael BARRINGER, Appellant.

Page 882

32 Wn.App. 882

650 P.2d 1129

STATE of Washington, Respondent, v. James Michael BARRINGER, Appellant.

No. 10100-5-I.

Court of Appeals of Washington,

Division 1.

Sept. 7, 1982.

Gibbs, Douglas, Theiler, Yaroshefsky & Drachler, Paul Drachler, Seattle, for appellant.

Norman K. Maleng, King County Pros. Atty., Kathrine Goater, Deputy Pros. Atty., Seattle, for respondent.

CORBETT, Judge.

James Michael Barringer appeals his judgment and sentence for uttering a false or forged prescription for a controlled substance, contrary to RCW 69.50.403(a)(5). We reverse.

A pharmacist identified the defendant from a photo montage and at trial as the customer who had asked him to fill the forged prescription on June 14, 1980. He testified that the name on the prescription was James Barringer and that the customer had produced two identification cards: a Lockheed identification card bearing a color photograph, and a bank card. After comparing the customer's features with the photograph, he concluded that the identification was valid, recorded the identification numbers and filled the prescription. The physician whose name appeared on the prescription testified that the defendant was not his patient and that he had not written the prescription.

In an effort to show mistaken identity, the defendant sought to admit certain business records of Lockheed through a witness who would testify that defendant had reported the identification badge lost before the prescription was presented. The court refused to admit the proffered evidence. However, it did permit a representative from Lockheed to testify that when the defendant terminated employment on May 2, 1980, he turned in his identification badge. On cross-examination the representative testified that the defendant may have been issued up to three separate Lockheed identification cards and that he turned in only one card on May 2. The defendant also offered, and the court refused, testimony by a record custodian of the Washington Mutual Savings Bank and an affidavit of lost pass card which recorded a reported loss of his card on June 4, 1980, 10 days prior to the alleged offense. Defendant assigns error to the exclusion of the Lockheed and bank business records, which he claims are substantive evidence of his lost identification.

Our Uniform Business Records as Evidence Act ¹

does not render admissible material contained in such records which would otherwise be inadmissible. Benjamin v. Havens, Inc., 60 Wash.2d 196, 201, 373 P.2d 109 (1962). If hearsay in a business record goes to the heart of an issue at trial so that, when believed by the jury, it could be regarded as proof on that issue, the hearsay should be rejected. State v. White, 72 Wash.2d 524, 530, 433 P.2d 682 (1967); State v. Tharp, 26 Wash.App. 184, 186, 612 P.2d 11 (1980). That defendant reported the loss of his bank card and his employee badge is hearsay as to the issue of whether he actually lost those items. The ruling of a trial judge in admitting or excluding business records is to be given much weight and will not be reversed unless there has been a manifest abuse of discretion. Seattle v. Heath, 10 Wash.App. 949, 955, 520 P.2d 1392 (1974); Cantrill v. American Mail Line, Ltd., 42 Wash.2d 590, 608, 257 P.2d 179 (1953). The trial court did not commit a manifest abuse of discretion by excluding this evidence.

At the close of the State's case, defense counsel moved to exclude impeachment evidence of the defendant's prior convictions for robbery and altering the face of a money order. The motion was denied and the defendant did not testify. Defendant assigns error to the denial of this motion.

If the defendant had taken the stand, his credibility would have been at issue. The conviction for altering the face of a money order would have been admissible under ER 609(a)(2). ² The 1972 robbery conviction would have been admissible under ER 609(a)(1) if the court had determined that its probative value outweighed its prejudicial effect to the defendant. In this case, the trial court did not make that determination on the record. The defense and the State both presented argument pertaining to the trial court's exercise of its discretion as required by ER 609(a)(1). The trial court thereafter ruled: "It does appear both [convictions] would be admissible under Rule 609." After thoroughly reviewing the record, we find little or no reference to the pertinent factors listed in State v. Alexis, 95 Wash.2d 15, 19, 621 P.2d 1269 (1980). The mere conclusion of a trial court that the probative value of the evidence outweighs the prejudice to the defendant is not enough to demonstrate a proper exercise of discretion. State v. Moore, 29 Wash.App. 354, 364, 628 P.2d 522 (1981). Although it is not necessary for the trial court to state its reasons for ruling on the admissibility of prior convictions for impeachment purposes, it is helpful for appellate review if the trial court articulates on the record the factors considered in balancing admissibility against prejudice. State v. Thompson, 95 Wash.2d 888, 893, 632 P.2d 50 (1981). If this issue arises upon retrial, the trial court should consider the factors suggested by Alexis.

Defendant also contends that the certified copy of the conviction for altering the face of a money order did not show that he was afforded counsel. He claims he could not be properly impeached by a constitutionally flawed conviction. We find no indication that this objection was raised at trial and will not consider it for the first time on appeal. RAP 2.5(a); State v. Wicke, 91 Wash.2d 638, 642, 591 P.2d 452 (1979).

Shortly before trial, the pharmacist recalled that on April 24, 1980, he had filled two other forged prescriptions for the defendant. He was allowed to testify to that effect. The defendant made a motion for a continuance to rebut the newly disclosed evidence, which was denied. Defendant assigns error to admission of this evidence and the denial of a continuance. A defendant must be tried for the offenses charged, and evidence of unrelated conduct should not be admitted unless it goes to the material issues of motive, intent, absence of accident or mistake, common scheme or plan, or identity. State v. Bouchard, 31 Wash.App. 381, 384, 639 P.2d 761 (1982); State v. Goebel, 36 Wash.2d 367, 368-69, 218 P.2d 300 (1950). ER 404(b). ³ A continuance rests in the sound discretion of the trial judge, to be disturbed only if there has been a manifest abuse of discretion. State v. Henderson, 26 Wash.App. 187, 190, 611 P.2d 1365 (1980); State v. Eller, 84 Wash.2d 90, 95, 524 P.2d 242 (1974). The trial court did not err by finding the evidence to be relevant and admissible or by denying the motion for a continuance.

Defendant was charged with violation of RCW 69.50.403(a)(5):

(a) It is unlawful for any person knowingly or intentionally:

* * *

(5) To make or utter any false or forged prescription ...

The information alleged that the prescription was for a...