The opinion
Korsmo, J.
¶33 (dissenting) — The trial court correctly recognized that there needed to be proof of the “terminal or debilitating medical condition.” There was no proof, but only the conclusory statement that one existed. There also is no basis for granting a new trial on theories that were not *651 pursued at the first trial. Adriane Constantine was free to offer the doctor’s business records at trial through a proper custodian of the record, but she made no effort to do so. Having refused to pursue this approach at trial, she does not get a second trial to attempt to pursue a new defense theory for which she also has not provided a factual basis. In other words, the defendant failed to offer adequate evidence or provide a witness who could offer it. For both reasons, I dissent.
¶34 Initially, I take issue with the ruling that the defendant did not have to prove that the “qualifying patient” had been diagnosed with one of the statutory conditions that constitute a “ ‘[tjerminal or debilitating medical condition.’ ” RCW 69.51A.010(6). The majority focuses on the word “diagnosed” in RCW 69.51A.010(4)(b) 5 while ignoring the remainder of the subsection — what the diagnosis must concern. Whether or not the diagnosed condition is a “terminal or debilitating” one is a question of fact for the jury to decide. It is just as much a factual component, subject to jury proof, as the other elements of the defense. The majority correctly concludes that the statute does not require proof that the patient actually has the disease in question, but that conclusion misses the point of the argument. The defendant does not have to show that the diagnosis was accurate, but she does have to show that it involved one of the conditions listed in RCW 69.51A.010(6). 6
¶35 There is no such proof in this case. The salient portion of the medical authorization states, “I am treating *652 the above named patient for a terminal illness or a debilitating condition as defined in RCW 69.51 A.010.” Clerk’s Papers (CP) at 66. Although perhaps the jury could permissibly infer from the word “treating” that a physician must have first “diagnosed” the patient, nothing in this statement conveys what the diagnosis was. Instead, the form simply states the medical professional’s (improper) legal conclusion about the unstated diagnosis. No information is provided for the jury to determine whether the condition is one recognized by statute as a basis for medical marijuana use.
¶36 In a properly presented case, the defense would offer medical evidence that the patient was diagnosed with a particular condition. The jury would receive an instruction based on RCW 69.51A.010(6), determine whether the condition was legally recognized, and find whether the patient was a “qualifying patient.” That did not happen here. Instead, the defense wanted the jury to speculate, based on the doctor’s legal conclusion, that the patient had a qualifying condition. The trial judge, accordingly, properly rejected this offer of proof and told the defense how to cure it — present the medical evidence, which presumably would have meant the doctor’s testimony since the records appeared to lack the necessary information.
¶37 Whether the diagnosis was of one of the legally recognized conditions is no less a factual question for the jury to determine than whether or not the doctor even made a diagnosis. The defense needed to establish both of those facts for the jury. Why the majority allows the doctor to make the jury’s determination is unclear to me. The jury has to find the fact that the doctor “diagnosed” the patient. The fact that the patient’s condition was a “terminal or debilitating” one under the statute is also a jury question. Presumably, if the doctor thought that acne or schizophrenia constituted a debilitating condition, the doctor would not be permitted to opine that the patient had a legally recognized basis for using marijuana. Why the doctor is *653 permitted to opine that some unknown diagnosis does qualify is unclear.
¶38 The trial judge properly concluded that the authorization form was inadequate to establish that there was a “qualifying patient.”
¶39 Secondly, the trial court correctly concluded that there was no foundation for admitting the evidence. The majority overlooks several aspects of the ruling on the motion in limine even while recognizing that the defense could present the evidence through a proper records custodian. Here, the defense simply did not have the appropriate person to present the records and made no attempt to obtain that person even after the judge told the defense what was necessary.
¶40 The prosecutor sought to exclude the patient, Tristan Gilbert, from testifying that the doctor had diagnosed him with a “terminal or debilitating medical condition” that made him a “qualifying patient.” RCW 69.51A-.010(4). The trial court agreed that it would be hearsay for the patient to set forth the doctor’s diagnosis. The majority apparently agrees. The trial judge also ruled that Mr. Gilbert was not a proper custodian to admit the records. Once again, the majority agrees. See majority at 649 n.3. The trial court noted that the medical marijuana statute did not overrule the Evidence Rules, nor did it set up an alternative evidentiary basis for admitting evidence, but simply left those matters to the court system. Report of Proceeding (RP) at 361. Accordingly, the judge told the defense that it would need to find “medical testimony” to establish the defense. CP at 52; RP at 365. These rulings were all correct, and they provide the second reason why the medical marijuana defense was properly rejected— there was no records custodian.
¶41 Instead of seeking a records custodian to admit the records, the defense offered, both at pretrial and again at trial, to put on only Mr. Gilbert to admit the records. RP at 365, 507. Medical records are appropriately admitted at trial under The Uniform Business Records as Evidence Act, *654 chapter 5.45 RCW. See State v. Ziegler, 114 Wn.2d 533 , 789 P.2d 79 (1990). RCW 5.45.020 provides that such a record is “competent evidence if the custodian or other qualified witness testifies” to the method of preparation in “the regular course of business.”
¶42 The authorization form is undoubtedly the doctor’s business record. Mr. Gilbert is not a medical professional and did not work for the doctor. He could not testify that it was the doctor’s record. He was not a records custodian for purposes of RCW 5.45.020. For this reason, also, the trial court correctly ruled that the defense did not have a basis for presenting the authorization form at trial.
¶43 The defense attempted to offer inadequate documentation through a person who was not a custodian of the deficient records. The trial judge rejected the proffer for both reasons. As both reasons were correct, we should be affirming the defendant’s conviction. Since the majority reaches a contrary conclusion, I respectfully dissent.
In pertinent part, RCW 69.51A.010 reads:
(4) “Qualifying patient” means a person who:
....
(b) Has been diagnosed by that health care professional as having a terminal or debilitating medical condition.
The trial judge wisely recognized, “So, the statement that the underlying condition doesn’t have to be provided in the valid documentation does not mean that it doesn’t have to be shown at trial. It does have to be shown at trial.” Report of Proceedings at 364.