Thomas v. French ( 1983 )

Utter, J.

(dissenting) — The majority recognizes our established rule that we will sustain a trial court's eviden-tiary ruling on any valid theory, even if the ground given at trial is erroneous. The opinion further recognizes that the letter in question may have been admissible for the limited purpose of showing respondents' then existing mental, emotional, or physical condition, but finds admission of the evidence erroneous because no limiting instruction was given. This, however, is not a reason for reversing the trial court. The burden of requesting a limiting instruction is upon the objecting party or the party adversely affected, or else the error is waived. State v. Hess, 86 Wn.2d 51, 52, 541 P.2d 1222 (1975); 5 K. Tegland, Wash. Prac., Evidence § 24, at 65 (2d ed. 1982). Here there was no such request and the defendant should not now benefit by his failure to request a limiting instruction at the trial. For this reason I disagree with the majority and would affirm the Court of Appeals and trial court.

Stafford, J., concurs with Utter, J.

Reconsideration denied August 9, 1983.