                                                                            FILED 

                                                                          JAN 22, 2015 

                                                                 In the Office of the Clerk of Court 

                                                               WA State Court of Appeals, Division III 





          IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON 

                             DIVISION THREE 


STATE OF WASHINGTON,                         )          No. 31897-4-111
                                             )
                    Respondent,              )
                                             )
             v.                              )
                                             )
BILLIE J. MILLIKEN,                          )          UNPUBLISHED OPINION
                                             )
                    Appellant.               )

      BROWN, J. - Billie Jo Milliken appeals her conviction for theft in the first degree.

She contends the trial court erred in admitting a report prepared by a forensic

accountant as the report contained an improper opinion of her guilt. We affirm.

                                         FACTS

      KAYU-TV employed Ms. Milliken as their sole accounts payable clerk from 1999

through 2010. Her job involved entering invoices 1 into the accounting system, coding

them to the relevant accounts, and paying the invoice after a department head

authorized payment. This process created KAYU-TV financial statements. KAYU-TV

authorized Ms. Milliken to' purchase their supplies from Office Depot. When the Office

Depot invoices arrived, Ms. Milliken was to place them in the Office Depot file and


       1 Throughout the record, it appears "invoice" and "voucher" are used
interchangeably. (See, e.g., Report of Proceedings (RP) at 162).
    No. 31897-4-111
    State v. Milliken
1

J   attach the corresponding check stubs to the invoice to provide support for payment.

I
t
    KAYU-TV's policy was to pay the balance due to its vendors every month. KAYU-TV

    required approval to carry a balance.

           When Ms. Milliken was placed on leave in December 2010, her supervisor,

    Lowell Pederson, business manager and assistant controller for the television group,

    became aware of an issue with the Office Depot account. The December Office Depot

    statement showed a balance of $4,000-$5,000, including finance c~arges owed. Mr.

    Pederson noticed unaccounted-for money owing to Office Depot. Examination of the

    Office Depot statement showed a number of unauthorized gift cards 2 had been

    purchased. Purchase of gift cards had to be authorized by KAYU-TV. Even so,

    Melanie Funaro, an Office Depot manager, recalled Ms. Milliken buying gift cards on

    multiple occasions. Ms. Milliken maintained she had been told by different managers to

    purchase the gift cards for KAYU-TV use and the gift cards should have been included

    in KAYU-TV's records. She explained she was not the sole person inputting the data

    into the accounting system.

           Continuing his investigation, Mr. Pederson went online to retrieve Office Depot

    statements dating from late 2008. While these statements should have been in KAYU-

    TV's records, they were not. KAYU-TV's records indicated Ms. Milliken submitted

    invoices for purchase of routine office supplies, not gift cards. Mr. Pederson agreed to

    have a fraud examination conducted.


          2 The term "prepaid debit card" is used interchangeably with "gift card"
    throughout the record. (See, e.g., RP at 53). "Gift card" is used here.

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No. 31897-4-111
State v. Milliken


       Shelly Heston, a certified public accountant and fraud examiner, worked on the

KAYU-TVexamination. Focusing on a three-year period, from 2007 through 2010, her

investigation revealed there were 30 vouchers in KAYU-TV's records that could not be

traced to Office Depot statements and 91 purchases on Office Depot statements that

were never entered in KAYU-TV's records. Of those 91 purchases, Ms. Heston was

able to obtain copies of the invoices for 69 purchases; the invoices showed Ms.

Milliken's signature. Ms. Heston concluded the amount of actual unaccounted-for

purchases was $25,570. With the inclusion of finance charges, KA YU-TV lost a total of

$27,660. Ms. Heston prepared a report with her findings.

      The State charged Ms. Milliken with first degree theft other than a firearm. At

trial, after Ms. Heston's testimony, the State moved to admit her report. Defense

counsel objected, arguing the report violated ER 701 and ER 702 and "invade[d] the

province of the jury." Report of Proceedings (RP) at 143. In a later hearing outside the

presence of the jury, defense counsel argued the report "seem[ed] to be kind of an

expert opinion that a theft occurred" and was an "improper comment that Mr. Pederson

is credible and these claims were credible." RP at 163. The court admitted the report,

provided "any opinion that comes close to guilt [ ] be excised by the redaction process,"

as the court believed the report would be helpful because the structure of Ms. Heston's

testimony was not cohesive and the testimony was a bit ambiguous. RP at 161, 162.

      The jury found her guilty as charged. Ms. Milliken moved unsuccessfully for a

new trial; the trial court again rejected her expert witness concerns. She appealed.



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     State v. Milliken


                                              ANALYSIS

            The issue is whether the trial court erred in admitting the report prepared by Ms.

     Heston. Ms. Milliken contends the report, even in its redacted form, is an expert opinion

     on Ms. Milliken's guilt and its admission was not harmless error.

            On appeal, a party may assign evidentiary error only on a specific ground made



I
     attrial. State v. Guloy, 104 Wn.2d 412, 422,705 P.2d 1182 (1985). Requiring such

     objections at trial gives the trial court the chance to prevent or cure the error. State v.
Ii
     Boast, 87Wn.2d 447, 451,553 P.2d 1322 (1976).
t
            Contrary to the State's contention, Ms. Milliken did object at trial to the report on
I
i    the grounds asserted in her appeal. In response to Ms. Milliken's objections, the trial
I
     court ordered "any opinion that comes close to guilt," along with Ms. Milliken's name, be

     redacted. RP at 143, 161, 163. Thus, the issue was preserved for appeal.

            Trial courts have broad discretion in determining the admissibility ofevidence ,

     including testimony. State v. Olmedo, 112 Wn. App. 525, 530,49 P.3d 960 (2002).

     Unless the appellant can show a trial court abused its discretion, a trial court's decision

     to admit or deny evidence will be upheld. Id. "In this context, [a] trial court abuses its

     discretion only if no reasonable person would adopt the view espoused by the trial

     court." Id. (alteration in original). No abuse of discretion exists where "reasonable

     people can disagree about the propriety of the trial court's decision." Id.

            Experts may not testify, either directly or by inference, about a defendant's guilt.

     Id. at 530. "Such an improper opinion undermines a jury's independent determination of



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State v. Milliken


the facts, and may invade the defendant's constitutional right to a trial by jury." Id. at

530-31; see also State v. Black, 109 Wn.2d 336, 348, 745 P.2d 12 (1987) (because

such testimony "invad[es] the exclusive province of the finder of fact," it has been

characterized as unfairly prejudicial). Just because an opinion involves ultimate factual

issues does not make it improper. City of Seattle    v. Heatley,   70 Wn. App. 573, 578, 854

P.2d 658 (1993); see ER 704 ("Testimony in the form of an opinion or inferences

otherwise admissible is not objectionable because it embraces an ultimate issue to be

decided by the trier of fact."). While "opinion testimony may not be excluded under ER

704 on the basis that it encompasses ultimate issues of fact," it must be otherwise

admissible under ER 403, ER 701, and ER 702. Heatley, 70 Wn. App. at 578-79.

       The circumstances of each case determine if an expert's testimony is an

impermissible opinion on the guilt of a defendant. Olmedo, 112 Wn. App. at 531.

Factors include "the type of witness involved, the specific nature of the testimony, the

nature of the charges, the type of defense, and the other evidence before the trier of

fact." Heatley, 70 Wn. App. at 579. That an expert's opinion "encompassing ultimate

factual issues supports the conclusion that the defendant is guilty does not make the

testimony an improper opinion on guilt" as the implication the defendant is guilty is what

makes the opinion relevant and material. Id. at 579 (emphasis in original) (noting

opinions based on inferences from the physical evidence and the expert's experience

are admissible).




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No. 31897-4-111
State v. Milliken


       In addition to not opining on the defendant's guilt, an expert witness may not give

legal conclusions. Olmedo, 112 Wn. App. at 532 (citing ER 704). This includes

testimony that a defendant's conduct violated a particular law. Id.; see also Heatley, 70

Wn. App. at 581 (an expert opinion is more troubling if "framed in conclusory terms that

merely parroted the relevant legal standard").

        Ms. Milliken contends Ms. Heston's report expressed an opinion about Ms.

Milliken's guilt when it concluded she was the individual who committed theft of KAYU­

TV funds. While Ms. Heston's report did cast doubt on Ms. Milliken's version of events,

specifically that she was authorized to purchase the gift cards, it is not an opinion on her

guilt. Ms. Heston's report did not tell the jury what result to reach by saying Ms. Milliken

was guilty of first degree theft. The redacted report simply said, based on her

investigation, someone was involved in a scheme which "caused a direct economic loss

to KAYU-TV in the amount of $27,660" by using "[f]alse purchase vouchers and

unrecorded credits issued for product returns ... to conceal multiple unauthorized

purchases of gift cards [REDACTED]." Ex. 6 at 7.

       While Ms. Heston's report supports the jury's guilty finding, that alone does not

make the report an improper opinion on guilt. Ms. Heston's report relied on the physical

evidence and her experience to conclude KAYU-TV's Office Depot account was being

used to misappropriate funds. See State v. Jones, 59 Wn. App. 744, 749, 801 P.2d 263

(1990) (affirming expert opinion where it was not based on an opinion of a witness'

credibility but instead based on inferences from physical evidence). Even after looking



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No. 31897-4-111
State v. Milliken


at the report, the jury still had to decide whether to believe the information contained in

the report and if it was Ms. Milliken who took the money from KAYU-TV. In light of all

the evidence, the jury decided Ms. Milliken's version of events was not credible.

       Ultimately, Ms. Heston was permitted to describe how she conducted the fraud

investigation of KAYU-TV and what the results of her investigation were. Ms. Heston

testified how she determined certain purchase vouchers were false. She testified how

she found out a large number of the receipts were signed by Ms. Milliken. She testified

as to the amount of loss. While objections were made to the admission of exhibits Ms.

Heston used in her examination, no objection was made to her actual testimony. The

report prepared by Ms. Heston was merely her testimony in written form. Properly

exercising its discretion, the trial court reasoned the report would be helpful to the jury

as a cohesive document meant to clarify Ms. Heston's testimony.

       Even if the trial court constitutionally erred in admitting the report, the error was

harmless. "An error of constitutional magnitude is presumed prejudicial, and the State

bears the burden of proving the error was harmless beyond a reasonable doubt."

Olmedo, 112 Wn. App. at 533. But harmless constitutional error occurs "only when the

untainted evidence provides an overwhelming conclusion of guilt." Id.

       Without the report, the untainted evidence showed (1) it was Ms. Milliken's job to

input the invoices. including those from Office Depot, into KAYU-TV's system, (2) the

problem with the Office Depot account was not discovered until Ms. Milliken's job was

absorbed into Mr. Pederson's office, (3) KAYU-TV's preliminary internal investigation



                                              7

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       No. 31897-4-111
       State v. Milliken


       showed the numbers on the Office Depot statement were not adding up, (4) Ms.

       Heston's fraud examination showed there was misappropriation of funds from KAYU-TV

       using the Office Depot account, (5) the problematic transactions involved the purchase

       of gift cards, (6) Ms. Milliken was authorized to purchase items at Office Depot, (7) it

       was not the policy of KAYU-TV to purchase gift cards without authorization, (8) no

       authorizations were seen in the Office Depot file, (9) an Office Depot manager saw Ms.

       Milliken sign receipts for gift cards many times, and (10) Ms. Milliken admitted many of

       the signatures on the receipts were hers. Given the above untainted evidence, we

       decide it provides an overwhelming conclusion of Ms. Milliken's guilt.

              Affirmed.

              A majority of the panel has determined this opinion will not be printed in the

       Washington Appellate Reports, but it will be filed for public record pursuant to RCW

       2.06.040.



                                                 Brown, A.C.J,

       WE CONCUR:




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