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 

¶ 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. 
2 

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. 
3 

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
4 

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 
5 

“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. 
6 

¶ 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. 
7 

¶ 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 
8 

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 

 

3 Colorado 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. 
9 

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. 
10 

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 
11 

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 
12 

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 
13 

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

 

4 We do not address whether the evidence was admissible under 

CRE 403 because, surprisingly, McGill did not argue on appeal that 
14 

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).