State v. Ziegler, No. 56509-1

CourtUnited States State Supreme Court of Washington
Writing for the CourtDORE; CALLOW
Citation114 Wn.2d 533,789 P.2d 79
PartiesSTATE of Washington, Respondent, v. Ernest H. ZIEGLER, Petitioner.
Docket NumberNo. 56509-1
Decision Date12 April 1990

Page 533

114 Wn.2d 533
789 P.2d 79
STATE of Washington, Respondent,
v.
Ernest H. ZIEGLER, Petitioner.
No. 56509-1.
Supreme Court of Washington,
En Banc.
April 12, 1990.
Reconsideration Denied June 14, 1990.

[789 P.2d 80]

Page 534

Thomas D. Koch, Clearwater, Fla., Butigan Legal Services, William C. Butigan, Seattle, for petitioner.

Seth R. Dawson, Snohomish County Prosecutor, Kevin M. Korsmo, Deputy, Everett, for respondent.

DORE, Justice.

Ernest Ziegler appeals his conviction for first degree statutory rape alleging, inter alia, that the trial court erred in admitting laboratory tests as business records. We hold that laboratory reports contained in the medical files of a physician, when the physician ordered the laboratory test and relied upon the test results in treating the patient, constitute part of the business records of the physician admissible into evidence under the Uniform Business Records as Evidence Act (hereinafter UBRA), RCW 5.45.020. We affirm and remand for resentencing.

FACTS

In April 1983, Ernest Ziegler and his wife, Rebecca, experienced marital problems and began to sleep apart. Subsequently, their 4-year-old daughter, J, occasionally

Page 535

slept with her father. In November 1984, J told her mother that someone had been touching her "private place." When Rebecca asked J who had touched her, J initially refused to say stating, " 'No, I can't. I can't tell because,' she said, 'I promised dad. I can't.' " Report of Proceedings, at 35. Rebecca then asked J who she had promised. J replied, " 'I don't know, Scotty or Jason.' " Report of Proceedings, at 101. Scotty (5 years old) and Jason (13 years old) were neighborhood children. Rebecca did not press J for further details.

The following Monday, Rebecca went to work and left J at home in the care of Ziegler. When Rebecca returned home, Ziegler was working outside and J was alone in the house. Rebecca asked J how her day went and J replied, " 'It happened [789 P.2d 81] again.' " Report of Proceedings, at 106. Immediately thereafter Ziegler came to the window and asked J if she wanted to help him outside in the barn. J asked her mother to accompany her to the barn. While at the barn, J got in Ziegler's way and he yelled at her. J walked over to Rebecca and said, " 'Mama, he's the one that hurts me like that.' " Report of Proceedings, at 108. Later that week, Rebecca and J moved out of the house. Shortly thereafter, Dr. Bishop of Snohomish Family Medical Center examined J. In January 1985, Rebecca filed for divorce. The divorce was final in December 1985.

On August 4, 1986, the State charged Ziegler with first degree statutory rape occurring sometime between July 1983 and November 1984. Clerk's Papers, at 268. During trial, J testified to six identifiable sexual encounters with her father and discussed others in more general terms. J testified that these encounters occurred between her fourth and fifth birthdays (February 1983 and February 1984). She also testified to one identifiable event which occurred when she was 5 years old and attending kindergarten, which would place the event sometime after September 1984. J further testified to sexual contact during a hunting trip with Ziegler. Other testimony established that the

Page 536

hunting trip took place in October 1984. Dr. Bradley Gerrish, a partner of Dr. Bishop's at Snohomish Family Medical Center, testified from J's medical file that a laboratory report showed that J had contracted Chlamydia, a sexually transmitted disease. The trial court, over defense counsel's objection, admitted the test results into evidence.

Prior to sending the case to the jury, the State amended the information to include a charge of indecent liberties. Report of Proceedings, at 364-65. The jury convicted Ziegler of first degree statutory rape and indecent liberties. The trial court sentenced Ziegler to 42 months. On appeal, the Court of Appeals, Division One, affirmed the statutory rape conviction, but reversed and dismissed the indecent liberties conviction. The case was remanded for resentencing. The State conceded that its midtrial amendment of the information was error. See State v. Pelkey, 109 Wash.2d 484, 745 P.2d 854 (1987).

Ziegler appealed his statutory rape conviction alleging that the trial court erred in admitting the laboratory results as business records, prosecutorial misconduct, and error by the Court of Appeals in refusing to consider additional evidence under RAP 9.11(a).

ADMISSIBILITY OF LABORATORY TEST RESULTS

At the time of trial, Dr. Bishop was unavailable to testify. The State called Dr. Gerrish, Dr. Bishop's partner at Snohomish Family Medical Center. The doctors maintained common medical files for patients of the partnership. Dr. Gerrish testified that he had examined J in May 1983 and diagnosed her as having vaginitis. Thereafter Dr. Bishop served as the child's treating physician. Using the common medical file, Dr. Gerrish testified regarding Dr. Bishop's examinations of J. The medical record indicated that on November 16, 1984, Dr. Bishop diagnosed J as having vaginitis. A vaginal smear was taken, and a gonorrhea culture was prepared. The gonorrhea culture was analyzed by Dr. Bishop in his office, and the vaginal smear was transferred

Page 537

to a prepared slide and sent to Cooperative Medical Laboratory to be analyzed for Chlamydia.

Laying a foundation for the admission of the test results from the lab, Dr. Gerrish testified that his clinic consistently used the lab, that the clinic routinely relied upon test results obtained from the lab, and he explained the lab's method of testing for Chlamydia. Dr. Gerrish testified that the lab found that J tested positive for Chlamydia. The medical record indicated that Dr. Bishop took a second smear for Chlamydia testing during a February 1985 examination of the child. Dr. Gerrish testified that the latest lab report was negative as to Chlamydia.

Following Dr. Gerrish's testimony, the State moved to admit the lab reports into evidence under the UBRA, RCW 5.45.020, and State v. Sellers, 39 Wash.App. 799, 695 [789 P.2d 82] P.2d 1014, review denied, 103 Wash.2d 1036 (1985). Defense counsel objected on the grounds that the reports did not fall under the business records exception to the hearsay rule and that no one...

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124 practice notes
  • Randy Reynolds & Assocs., Inc. v. Harmon, No. 95575-1
    • United States
    • United States State Supreme Court of Washington
    • October 25, 2018
    ...may direct additional evidence be taken, provided certain prerequisites are met. RAP 9.11(a) ; State v. Ziegler , 114 Wash.2d 533, 541, 789 P.2d 79 (1990). The rule restricts the use of new evidence to only instances when the evidence is directed to "the merits of the case," among other req......
  • Satomi Owners Ass'n v. Satomi, LLC, No. 80480-0.
    • United States
    • United States State Supreme Court of Washington
    • December 24, 2009
    ...Additional evidence may be taken on review only if all six criteria set forth in RAP 9.11 are met. State v. Ziegler, 114 Wash.2d 533, 541, 789 P.2d 79 (1990). The evidence Blakeley Association seeks to introduce does not meet the six criteria and, accordingly, we deny the 8. The record cont......
  • State v. Hurtado, No. 67478–1–I.
    • United States
    • Court of Appeals of Washington
    • February 19, 2013
    ...890 P.2d 521. 66. RCW 5.45.020. 67. Doerflinger, 170 Wash.App. at 662, 285 P.3d 217. 68. State v. Ziegler, 114 Wash.2d 533, 538–39, 789 P.2d 79 (1990). 69. State v. White, 72 Wash.2d 524, 530, 433 P.2d 682 (1967). 70. SeeER 805 (“Hearsay included within hearsay is not excluded under the hea......
  • State v. Elmore, No. 64085-8.
    • United States
    • United States State Supreme Court of Washington
    • October 7, 1999
    ...by an appellate court only if all six criteria of RAP 9.11(a)24 are met. See also State v. Ziegler, 985 P.2d 320 114 Wash.2d 533, 541, 789 P.2d 79 (1990) (same), and Washington Fed'n of State Employees, Council 28, AFL-CIO v. State, 99 Wash.2d 878, 884-85, 665 P.2d 1337 (1983) (same). Howev......
  • Request a trial to view additional results
124 cases
  • Randy Reynolds & Assocs., Inc. v. Harmon, No. 95575-1
    • United States
    • United States State Supreme Court of Washington
    • October 25, 2018
    ...may direct additional evidence be taken, provided certain prerequisites are met. RAP 9.11(a) ; State v. Ziegler , 114 Wash.2d 533, 541, 789 P.2d 79 (1990). The rule restricts the use of new evidence to only instances when the evidence is directed to "the merits of the case," among other req......
  • Satomi Owners Ass'n v. Satomi, LLC, No. 80480-0.
    • United States
    • United States State Supreme Court of Washington
    • December 24, 2009
    ...Additional evidence may be taken on review only if all six criteria set forth in RAP 9.11 are met. State v. Ziegler, 114 Wash.2d 533, 541, 789 P.2d 79 (1990). The evidence Blakeley Association seeks to introduce does not meet the six criteria and, accordingly, we deny the 8. The record cont......
  • State v. Hurtado, No. 67478–1–I.
    • United States
    • Court of Appeals of Washington
    • February 19, 2013
    ...890 P.2d 521. 66. RCW 5.45.020. 67. Doerflinger, 170 Wash.App. at 662, 285 P.3d 217. 68. State v. Ziegler, 114 Wash.2d 533, 538–39, 789 P.2d 79 (1990). 69. State v. White, 72 Wash.2d 524, 530, 433 P.2d 682 (1967). 70. SeeER 805 (“Hearsay included within hearsay is not excluded under the hea......
  • State v. Elmore, No. 64085-8.
    • United States
    • United States State Supreme Court of Washington
    • October 7, 1999
    ...by an appellate court only if all six criteria of RAP 9.11(a)24 are met. See also State v. Ziegler, 985 P.2d 320 114 Wash.2d 533, 541, 789 P.2d 79 (1990) (same), and Washington Fed'n of State Employees, Council 28, AFL-CIO v. State, 99 Wash.2d 878, 884-85, 665 P.2d 1337 (1983) (same). Howev......
  • Request a trial to view additional results

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