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.

                                     6
¶ 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



                                     7
            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.

                                    8
  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




                                    11
  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


                                     12
  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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