McGill v. DIA Airport Parking, LLC

COLORADO COURT OF APPEALS 2016COA165

Court of Appeals No. 14CA1987
City and County of Denver District Court No. 13CV32470
Honorable Morris B. Hoffman, Judge

Trina McGill,

Plaintiff-Appellant,

v.

DIA Airport Parking, LLC, d/b/a Wally Park,

Defendant-Appellee.

JUDGMENT AFFIRMED

Division I
Opinion by JUDGE ASHBY
Taubman and Dunn, JJ., concur

Announced November 17, 2016

James T. Reed, Denver, Colorado, for Plaintiff-Appellant

Hall & Evans, LLC, Ryan L. Winter, Bryan Gogarty, Conor P. Boyle, Denver,
Colorado, for Defendant-Appellee
¶1 Plaintiff, Trina McGill, appeals the trial court’s judgment

entered on jury verdicts in favor of defendant, DIA Airport Parking

LLC (DIA). McGill challenges the trial court’s admission of evidence

of her character for truthfulness. We conclude that neither invited

error nor waiver precludes our review of her argument, but she is

not entitled to relief. We therefore affirm.

I. Background

¶2 McGill filed a negligence claim against DIA based on her

allegation that the side-view mirror of a DIA shuttle bus struck her

in the head.

¶3 Approximately twenty years before trial, McGill was convicted

of bank fraud for check kiting.1 Before trial in her negligence case,

she moved to exclude evidence of her conviction and the underlying

conduct. She argued that the underlying conduct was inadmissible

under both CRE 608(b) and CRE 403. The trial court denied

McGill’s motion and ruled that the underlying conduct was

1 In the trial court record, “check kiting” was defined as “[writing]
checks from one bank to another bank knowing that the funds were
not in that bank account . . . and the purpose of check kiting is to
falsely inflate the balance of a checking account in order to allow
written checks that ordinarily would bounce to clear.” We will refer
to “check kiting” as check fraud throughout the opinion.

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admissible under CRE 608(b). Despite its ruling that the evidence

was admissible, the court did not explicitly conduct a CRE 403

analysis in its written order.

¶4 At trial, anticipating that the evidence would be elicited by DIA

on cross-examination, McGill’s counsel questioned her about the

conduct underlying her conviction on direct examination. DIA also

briefly questioned McGill about it on cross-examination.

¶5 The jury returned a verdict in favor of DIA, and the trial court

entered judgment accordingly.

¶6 On appeal, McGill argues that the trial court erred by

admitting the check fraud evidence under both CRE 608(b) and

403. DIA argues that McGill may not challenge the admissibility of

that evidence on appeal because by first introducing it herself, she

invited any error in admitting the evidence.

¶7 We conclude that neither invited error nor waiver precludes

McGill from challenging the admission of the evidence on appeal.

But, addressing the merits of her argument, we conclude that the

trial court properly admitted the check fraud evidence.

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II. McGill May Challenge the Court’s Pretrial Ruling on Appeal

¶8 DIA argues that because McGill, not DIA, first introduced the

check fraud evidence at trial, she invited any error and is precluded

from appealing the trial court’s order admitting this evidence. We

disagree.

¶9 Invited error rests on the principle that “a party may not

complain on appeal of an error that he has invited or injected into

the case; he must abide the consequences of his acts.” People v.

Rediger, 2015 COA 26, ¶ 52 (quoting People v. Zapata, 779 P.2d

1307, 1309 (Colo. 1989)) (cert. granted Feb. 16, 2016). The doctrine

“prevents a party from inducing an inappropriate or erroneous

[ruling] and then later seeking to profit from that error.” Id.

(alteration in original) (quoting Horton v. Suthers, 43 P.3d 611, 618

(Colo. 2002)).

¶ 10 Invited error applies when a party expressly acquiesces in a

proposed action by the court or the opposing party, see Hansen v.

State Farm Mut. Auto. Ins. Co., 957 P.2d 1380, 1384-85 (Colo.

1998), implicitly agrees with a trial court’s rejection of the party’s

own tendered instruction, see id. at 1385, or expressly declines a

trial court’s offer to replace a juror with an alternate juror, see

3
People v. Raglin, 21 P.3d 419, 423 (Colo. App. 2000), overruled on

other grounds by Fain v. People, 2014 CO 69.

¶ 11 Here, McGill did not expressly acquiesce in or implicitly agree

with the trial court’s ruling that the check fraud evidence was

admissible. Instead, the trial court ruled, over McGill’s objection,

that the evidence was admissible. Based on this ruling, and her

reasonable expectation that DIA would introduce the evidence on

cross-examination to attack her character for truthfulness, McGill

made the strategic decision to introduce the evidence first on direct

examination to blunt its impact on the jury. This decision, though

willful and strategic, was not an express acquiescence in a proposed

ruling nor was it an expression of agreement with the trial court’s

ruling. Because McGill did not invite, inject, or induce the ruling

that she seeks to challenge on appeal, the doctrine of invited error

does not apply here.

¶ 12 Nor are we convinced that McGill waived her right to challenge

the court’s pretrial ruling. “[W]aiver is the ‘intentional

relinquishment or abandonment of a known right.’” United States v.

Olano, 507 U.S. 725, 733 (1993) (citation omitted). Waiver occurs

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“when a defendant specifically removes claims from the trial court’s

consideration.” Rediger, ¶ 54.

¶ 13 McGill filed a pretrial motion and specifically asked the court

to exclude the impeachment evidence. Her attempt to counter the

effect of the court’s adverse ruling was not an intentional

abandonment of her objection to the ruling. She therefore did not

waive her right to challenge the ruling.

¶ 14 Apart from our analysis above, we recognize that the Supreme

Court and courts in a number of other jurisdictions have addressed

whether a party is precluded from challenging on appeal a ruling

that impeachment evidence is admissible if, after objecting to that

ruling, the party introduces the evidence on direct examination for

strategic reasons. Our consideration of these cases does not alter

our conclusion.

¶ 15 The Supreme Court has held that a party’s preemptive

admission of damaging evidence in the wake of an adverse ruling

that the evidence is admissible constitutes waiver of the right to

challenge that adverse ruling on appeal. Like the majority of courts

in other states that have considered the Supreme Court’s ruling, we

decline to follow it.

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¶ 16 In Ohler v. United States, 529 U.S. 753, 755 (2000), the trial

court ruled at the beginning of trial that Ohler’s prior felony drug

conviction was admissible to impeach her. Rather than wait for the

damaging evidence to be admitted on cross-examination, Ohler

introduced the prior conviction during her direct examination. Id.

The Supreme Court held that, by testifying to the conviction on

direct examination, Ohler waived her right to challenge on appeal

the court’s order that the conviction was admissible.2 Id. at 759.

¶ 17 Ohler is “not binding on state courts because the waiver issue

does not implicate federal constitutional principles.” Cure v. State,

26 A.3d 899, 908 (Md. 2011); see State v. Gary M.B., 661 N.W.2d

435, 440 (Wis. Ct. App. 2003), aff’d, 676 N.W.2d 475 (Wis. 2004).

And a majority of state courts that have considered Ohler’s holding

have rejected it. Instead, these courts have followed the reasoning

of Justice Souter’s dissent. See Cure, 26 A.3d at 908-09 (collecting

cases).

2 Although Ohler v. United States, 529 U.S. 753 (2000), addressed
the admission of a felony conviction and not, as here, the conduct
underlying the conviction, we conclude that this difference is not
legally significant.

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¶ 18 Justice Souter’s dissent asserts that the majority’s decision

was not supported by “precedent, the rules of evidence, or the

reasonable objectives of trial”; failed to adequately consider the

truth-seeking purpose of the rules of evidence; and fosters

unfairness at trial. Ohler, 529 U.S. at 760-62 (Souter, J.,

dissenting); see also Cure, 26 A.3d at 908.

It is true that when convictions are revealed
only on cross-examination, the revelation also
warns the factfinder [about matters bearing on
the defendant’s credibility], but the timing of
their disclosure may do more. The jury may
feel that in testifying without saying anything
about the convictions the defendant has meant
to conceal them. The jury’s assessment of the
defendant’s testimony may be affected not only
by knowing that she has committed crimes in
the past, but by blaming her for not being
forthcoming when she seemingly could have
been. Creating such an impression of current
deceit by concealment is very much at odds
with any purpose behind [Fed. R. Evid.] 609,
being obviously antithetical to dispassionate
factfinding in support of a sound conclusion.
The chance to create that impression is a
tactical advantage for the Government, but
only in the majority’s dismissive sense of the
term; it may affect the outcome of the trial, but
only if it disserves the search for truth.

Allowing the defendant to introduce the
convictions on direct examination thus tends
to promote fairness of trial without depriving

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the Government of anything to which it is
entitled.

Ohler, 529 U.S. at 764 (Souter, J., dissenting).3

¶ 19 We agree with Justice Souter. When a court overrules a

party’s objection to impeachment evidence, it is generally to that

party’s tactical advantage to introduce that evidence through her

direct examination testimony. Doing so may mitigate the

unwarranted and unfair perception resulting from the evidence’s

introduction on cross-examination that the party is actively trying

to conceal the evidence. When a party has objected to the

admission of the impeachment evidence, we conclude that it is

unnecessary and unfair to force her to choose between preserving

that objection for appeal and pursuing the most advantageous trial

strategy. We see no justification to impose such a Hobson’s choice.

¶ 20 We also agree with Justice Souter’s dissent that forcing such a

choice is inconsistent with the truth-seeking purpose of our own

rules of evidence. CRE 102 provides that the purpose of the rules

of evidence is “to secure fairness in administration, elimination of

3Colorado has no comparable rule to Fed. R. Evid. 609. Section
13-90-101, C.R.S. 2016, serves a similar purpose of defining when
criminal convictions may be admitted to impeach a witness.

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unjustifiable expense and delay, and promotion of growth and

development of the law of evidence to the end that the truth may be

ascertained and proceedings justly determined.” Forcing a party to

forego the most appropriate trial strategy and create the perception

that she is trying to conceal impeachment evidence in order to

preserve the right to appeal a ruling to which she has already fully

objected is unfair and advances no truth-seeking or other legitimate

purpose.

¶ 21 Nor does the Ohler majority’s rule further the purpose of CRE

608(b). The purpose of this rule is to allow specific instances of

conduct to be admitted to impeach a witness’s character for

truthfulness. Such evidence allows the jury to evaluate the

witness’s capacity for truthfulness as the rule provides. See CRE

608(b). But which party introduces the impeachment evidence is

irrelevant to the rule’s purpose. See Ohler, 529 U.S. at 764 (Souter,

J., dissenting).

¶ 22 We therefore conclude that McGill may challenge the

admissibility of the impeachment evidence on appeal, and we now

consider the merits of her challenge.

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III. Trial Court Properly Admitted the Check Fraud Evidence

A. CRE 608(b)

¶ 23 McGill argues that the trial court erred by admitting the

underlying facts of her check fraud conviction under CRE 608(b)

because the fact that she passed bad checks many years ago was

not probative of her character for truthfulness. We disagree.

¶ 24 We review a trial court’s evidentiary decisions for abuse of

discretion. People v. Segovia, 196 P.3d 1126, 1129 (Colo. 2008). A

trial court abuses its discretion by admitting evidence if it bases its

ruling on an erroneous view of the law or on a clearly erroneous

assessment of the evidence. Id.

¶ 25 CRE 608(b) provides that specific instances of a witness’s

conduct that are probative of the witness’s character for

truthfulness or dishonesty may be used to impeach the credibility

of that witness on cross-examination. The conduct may not be

proved by extrinsic evidence, but the witness may be asked about

the conduct on cross-examination. CRE 608(b); see Segovia, 196

P.3d at 1130.

¶ 26 To determine whether specific conduct is probative of

untruthfulness, we consider the nature of the conduct, rather than

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any elemental test for the criminal offense. See Segovia, 196 P.3d

at 1132. Where a person takes property from another for his or her

own benefit, that behavior is untruthful and dishonest; “[s]uch

behavior reflects on one’s truthfulness because a person who stole

from another may be more inclined to obtain an advantage for

herself by giving false testimony.” Id. Similarly, acts involving

fraud are probative of a witness’s character for truthfulness. See

People v. Caldwell, 43 P.3d 663, 670-71 (Colo. App. 2001) (witness’s

involvement in insurance fraud would be admissible under CRE

608(b)).

¶ 27 McGill admitted that she may have passed between six and

ten bad checks. She admitted that the purpose of passing the

checks was to obtain money to which she was not entitled by

writing checks on accounts that she knew did not have sufficient

funds to cover the checks. She purposefully moved funds from one

account to another to hide her fraudulent behavior. And the total

amount of the fraudulent activity totaled just over nine thousand

dollars. Because the check fraud involved taking property that was

not hers in a fraudulent manner, we conclude that the trial court

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did not abuse its discretion by ruling that this was evidence of

McGill’s character for truthfulness.

¶ 28 McGill also argues that the check fraud evidence was not

probative of her character for truthfulness because the number of

checks involved was small and the conduct occurred a long time

ago. But facts that may lessen the degree to which the conduct is

probative of a defendant’s current character for truthfulness, such

as the low value of the item taken or how long ago the conduct

occurred, go to the weight of the evidence, not its admissibility. See

Segovia, 196 P.3d at 1132 (Facts that may “lessen the blame

attached to the act” go “to the weight given the evidence by the jury,

rather than to its admissibility.”).

B. CRE 403

¶ 29 Finally, McGill argues that the trial court erred by failing to

evaluate whether the evidence was admissible under CRE 403.

That rule provides that evidence may be excluded if its probative

value is substantially outweighed by the danger of unfair prejudice,

among other things. CRE 403.

¶ 30 The trial court did not specifically address CRE 403 in its

written order. Nor did it explicitly discuss the probative value of the

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evidence and weigh that against any prejudicial effect. However,

McGill argued that the evidence was inadmissible under CRE 403

in her motion, and DIA responded to this argument in its response.

Based on this record, we conclude that the court’s ruling implicitly

found that the probative value of the evidence was not substantially

outweighed by the danger of unfair prejudice. See People v. Harris,

633 P.2d 1095, 1098 (Colo. App. 1981) (“Where, as here, the

objecting party expressly raises the question of prejudice and the

trial court nevertheless admits the evidence, it cannot reasonably

be assumed that the court neglected to weigh that factor. Under

such circumstances, rather, the decision to admit the evidence

speaks for itself concerning the court’s discretionary conclusion as

to probativeness-versus-prejudice.”).

¶ 31 We acknowledge that it would have been helpful for the court

to address CRE 403 in its written order. However, the fact that it

did not do so does not compel the conclusion that it failed to

conduct such an analysis at all. We therefore conclude that the

trial court acted within its discretion by admitting the evidence.4

4We do not address whether the evidence was admissible under
CRE 403 because, surprisingly, McGill did not argue on appeal that

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IV. Conclusion

¶ 32 The judgment is affirmed.

JUDGE TAUBMAN and JUDGE DUNN concur.

it was inadmissible under the rule. She argued only that the trial
court erred by failing to conduct a CRE 403 analysis and asked that
we remand to the trial court for it to do so. And we address only
the arguments that an appellant raises in its opening brief. See
Casserly v. State, 844 P.2d 1275, 1278 (Colo. App. 1992).

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