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State v. Zeiler

March 3, 1997

STATE OF WASHINGTON, RESPONDENT,
v.
RICHARD WAYNE ZEILER, APPELLANT. IN RE THE PERSONAL RESTRAINT PETITION OF: RICHARD W. ZEILER, PETITIONER.



Appeal from Superior Court of King County. Docket No: 93-1-02336-3. Date filed: 07/02/93. Judge signing: Hon. Patricia H. Aitken.

Authored by C. Kenneth Grosse. Concurring: Susan R. Agid, Faye C. Kennedy.

The opinion of the court was delivered by: Grosse

GROSSE, J. -- Three of Richard Zeiler's children alleged that he sexually and physically assaulted them repeatedly over several years. After a jury found him guilty of 15 counts, including child rape, molestation, assault, and indecent liberties, Zeiler appeals. His principal claim is that the trial court erred in admitting an expert's testimony without conducting a Frye hearing. Because an expert may testify about observations derived from practical experience and acquired knowledge, the trial court did not err in admitting the testimony. We affirm, finding no error on this claim or his other assignments of error.

Expert Witnesses

Zeiler claims that the trial court abused its discretion in admitting the testimony of Lucy Berliner regarding the psychological effects of reporting child abuse without conducting a Frye hearing, arguing that the scientific foundation of her testimony was not established. *fn1 The State argues that Frye does not apply because Berliner's testimony was based on her clinical experience, studies, and treatment of hundreds of children.

Berliner testified as an expert from both her clinical and research experience. She discussed the symptoms of children who have experienced sexual abuse and the symptoms observed after the report of abuse. Considerable testimony at trial established that after disclosures of sexual abuse children experience significant problems. Berliner did not evaluate the experiences of the Zeiler children, providing only general testimony.

Allowing the testimony over Zeiler's Frye objection, the trial court admitted the testimony "not to prove that because the children were upset they were sexually abused, but rather to let the jury know emotional upset can be the result of reporting[.]" The trial court ruled that a Frye hearing was unnecessary under State v. Ortiz, *fn2 as Berliner's testimony did not involve a new method of proof or novel scientific principle, but rather was a result of practical experience and acquired knowledge. We agree with the trial court's ruling. *fn3 Under the standard of Frye v. United States, *fn4 the court allows novel scientific testimony if the scientific theory or principle from which the evidence is derived has garnered general acceptance in the relevant scientific community. *fn5 The court evaluates whether the evidence being offered is based on established scientific methodology with both an accepted theory and a valid technique to implement that theory. *fn6 But the Frye inquiry is not necessary if the expert testimony is based on training, experience, professional observations, and acquired knowledge, *fn7 rather than sophisticated or technical scientific matters. *fn8 This is because courts recognize a difference between testimony about scientific testing and an expert testifying to facts based on his or her own experience. *fn9 In State v. Ortiz, the Supreme Court emphasized that testimony that "does not involve new methods of proof or new scientific principles from which Conclusions are drawn need not be subjected to the Frye test." *fn10 Thus, the trial court properly decided that Berliner could testify to her own personal experience without a Frye hearing. *fn11 To the extent that Berliner's testimony involved more than her own observations and clinical work, given that she mentioned studies and scientific theories, *fn12 Zeiler did not properly object. Counsel must adequately object to testimony in order for an issue to be preserved for review. *fn13 Moreover, not only did Zeiler's counsel not object, he cross-examined Berliner by asking her about several studies in order to support the defense theory that there are other explanations for the same symptoms. Thus, Zeiler did not preserve this issue for review.

Zeiler claims that the trial court erred by admitting the testimony of Dr. Rebecca Wiester as both an expert witness and treating physician. Dr. Wiester is a pediatrician with the Seattle-King County Department of Public Health and a consulting physician with the King County Sexual Assault Resource Center. Dr. Wiester examined the children after they had allegedly been raped. Additionally, Dr. Wiester treated both P.Z. and D.Z. on a few occasions before the disclosures. She testified about patterns in children with a history of sexual abuse and the limits to the diagnostic value this information provides. She reviewed several years of the children's medical records, including records of her own examinations performed before the allegations of sexual abuse. She also discussed her post-disclosure physical examinations and her interviews with the children in which they told her they had been abused.

Before Dr. Wiester's testimony, Zeiler sought to exclude opinion testimony based on her review of the records. He acknowledged that she would be testifying as a treating physician and as the physician who examined the children for the purposes of the prosecution. And he conceded that "the doctor can reasonably rely upon histories taken by other providers on an earlier date, that I don't quarrel with." But he was concerned about her rendering an opinion about whether the children's symptoms were consistent with sexual abuse, arguing that that opinion was not helpful to the jury and was misleading.

On appeal, Zeiler argues he was prejudiced by "the lack of separation between testimony on medical history and opinion evidence regarding the cause of the [children's] many symptoms" with the result that the testimony unduly bolstered the credibility of the child witnesses. *fn14 In general, there is nothing to prevent a treating physician from testifying as an expert. "An expert is not restricted by the usual rule requiring a witness to testify from firsthand knowledge. An expert may, of course, testify from personal knowledge, as is the case when a treating physician later testifies as to the nature and extent of the patient's injuries." 5A Karl B. Tegland, Washington Practice, Evidence sec. 304, at 450 (3d ed. 1989) (footnotes omitted). Furthermore, Zeiler did not raise this precise issue below.

Zeiler objected to aspects of Dr. Wiester's testimony, but he did not argue to the trial court that Zeiler was prejudiced by the fact that Dr. Wiester was testifying both as a opinion witness and as a fact witness. Nor does he point to places in Dr. Wiester's testimony where he objected on the basis that doctor's fact and opinion testimony was confusing the jury. Because the objection Zeiler raised at trial is not the same basis that he is arguing before this court, he has lost his opportunity for review. *fn15 Zeiler claims the trial court erred by "allowing the use of hypotheticals to circumvent the prohibition about giving a diagnosis of sexual abuse thereby invading the province of the jury." In general, if properly structured, experts may give answers based on hypothetical questions. *fn16 But again, we do not reach this issue because Zeiler has not preserved it. During a lengthy conversation between the court and the prosecutor about the court's opinion that hypothetical questions were desirable, his counsel did not object to the form of the questions even though he objected to other aspects of Dr. Wiester's testimony. Later he did object "to the form of the question" of one hypothetical question, but did not elaborate further. Since several hypothetical questions had already been asked without objection, this objection did not preserve this issue for review. *fn17

Double Jeopardy

Zeiler claims that overlapping charging periods for three convictions for crimes against D.Z. and overlapping charging periods for two convictions for crimes against P.Z. resulted in him being subjected to double jeopardy by being convicted of multiple offenses for the same criminal conduct. For D.Z., the jury convicted Zeiler of a count of second degree child rape for the period between July 8, 1990 through July 7, 1991, and another count for the period of July 1 through December 31, 1991. The jury convicted him of second degree child molestation for the time period between July 1 and December 31, 1991. For P.Z., the jury convicted him of first degree child rape for the period between September 1, 1989 and February 20, 1991, and of first degree child molestation for the same time period. He contends that nothing informed the jury that it could not rely on the same conduct toward each victim to find him guilty of the separate charges toward each victim.

We reject Zeiler's argument. "A defendant who is charged with a multiple act information is protected from the threat of double jeopardy when . . . the evidence is sufficiently specific as to each of the various acts charged within the alleged time frames." *fn18 As Zeiler acknowledges, the State organized the questions to the victims by the location where they lived and in closing argument told the jury that "what separates one crime from another is the age of the victim at the time that it occurred, in conjunction with the location of where it occurred." Both P.Z. and D.Z. presented specific evidence of different events that if believed would prove the separate child rape and molestation convictions. Additionally, the court instructed the jury to decide each count separately and told the jury that its verdict on one count does not control the verdict on any other count. Unanimity instructions were ...


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