### FILED JAN22,2015 In the Office oftheClerkofCourt WA StateCourtofAppeals, 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## v. ) ) BILLIE J. MILLIKEN, ) UNPUBLISHED OPINION ) Appellant.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 herconviction fortheft in thefirst degree. She contendsthe trial court erred in admitting a report prepared by a forensic accountant as the report contained an improperopinion of herguilt. Weaffirm. FACTS KA YU-TVemployed Ms. Milliken astheir sole accounts payable clerk from 1999 through 2010. Herjob involved entering invoices1 into the accounting system, coding them to the relevant accounts, and paying the invoice aftera department head authorized payment. This process created KAYU-TVfinancial 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 Depotfile and

1 Throughoutthe 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 

# I J attach the corresponding check stubs to the invoice to provide supportfor payment. KAYU-TV's policywas to paythe balance due to its vendors every month. KAYU-TV t required approval to carry a balance. When Ms. Milliken was placed on leave in December2010, hersupervisor, Lowell Pederson, business manager and assistant controllerforthe television group, became aware ofan 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 ofthe Office Depot statement showed a numberofunauthorized gift cards2 had been purchased. Purchase ofgift 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 purchasethe 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. Whilethese statements should have been in KAYUTV's records, theywere not. KAYU-TV's records indicated Ms. Milliken submitted invoices for purchase ofroutine office supplies, not gift cards. Mr. Pederson agreed to have a fraud examination conducted.

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

### 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 Depotstatements and 

### 91 purchases on Office Depot statements that
were never entered in KAYU-TV's records. Ofthose 

### 91 purchases, Ms. Heston was ableto obtain copies ofthe invoices for 69 purchases; the invoices showed Ms. Milliken's signature. Ms. Heston concluded the amountofactual unaccounted-for purchases was $25,570. With the inclusion offinance charges, KAYU-TV lost a total of $27,660. Ms. Heston prepared a reportwith herfindings. The State charged Ms. Milliken with first degreetheft otherthan 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 ofthejury." Report of Proceedings (RP) at 

### 143. In a later hearing outside the presence ofthejury, defense counsel argued the report "seem[ed] to be kind ofan expert opinion that a theft occurred" and was an "improper commentthat 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 bythe redaction process,"
as the court believed the reportwould be helpful because the structure of Ms. Heston's testimonywas not cohesive and the testimony was a bit ambiguous. RP at 161, 162. Thejuryfound her guilty as charged. Ms. Milliken moved unsuccessfully for a newtrial; the trial court again rejected her expert witness concerns. She appealed.



### 3No. 31897-4-111 State v. Milliken
ANALYSIS The issue is whetherthe trial court erred in admitting the report prepared by Ms. Heston. Ms. Milliken contendsthe report, even in its redacted form, is an expert opinion
on Ms. Milliken's guilt and its admission was not harmless error. 

# I On appeal, a party may assign evidentiary error only on a specific ground made attrial. State v. Guloy, 104Wn.2d 412, 422,705 P.2d 1182 (1985). Requiring such objections attrial gives thetrial courtthe chance to prevent or cure the error. State v. 

# I i Boast, 87Wn.2d 447, 451,553 P.2d 1322 (1976). 

## t 

# I Contraryto the State's contention, Ms. Milliken did object attrial to the report on 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, 112Wn. 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 ordeny evidence will be upheld. Id. "In this context, [a] trial court abuses its discretion only ifno reasonable person would adoptthe view espoused by the trial court." Id. (alteration in original). No abuse ofdiscretion exists where "reasonable people can disagree aboutthe propriety ofthe trial court's decision." Id. Experts may nottestify, either directly or by inference, about a defendant's guilt. Id. at 530. "Such an improperopinion undermines ajury's independent determination of



### 4No. 31897-4-111 State v. Milliken
the facts, and may invade the defendant's constitutional right to a trial byjury." Id. at 

### 530-31; see also State 

### v. Black, 109Wn.2d 336, 348, 745 P .2d 12 (1987) (because such testimony "invad[es] the exclusive province ofthe finder offact," it has been characterized as unfairly prejudicial). Just because an opinion involves ultimatefactual issues does not make it improper. CityofSeattle 

### 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 notobjectionable because it embraces an ultimate issue to be decided bythe trier offact."). While "opinion testimony may not be excluded under ER 704 on the basis that itencompasses ultimate issues offact," it must be otherwise admissible under ER 403, ER 701, and ER 702. Heatley, 70 Wn. App. at 578-79. The circumstances ofeach case determine if an expert's testimony is an impermissible opinion on the guilt ofa defendant. Olmedo, 112 Wn. App. at 531. Factors include "the type ofwitness involved, the specific nature ofthe testimony, the nature ofthe charges, the type ofdefense, and the otherevidence before the trier of fact." Heatley, 70 Wn. App. at579. That an expert's opinion "encompassing ultimate factual issues supportsthe conclusion thatthe 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).



### 5No. 31897-4-111 State v. Milliken
In addition to not opining on the defendant's guilt, an expertwitness 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. at581 (an expert opinion is moretroubling if"framed in conclusorytermsthat merely parroted the relevant legal standard"). Ms. Milliken contends Ms. Heston's report expressed an opinion about Ms. Milliken's guiltwhen it concluded she was the individual who committed theft of KAYUTVfunds. While Ms. Heston's report did cast doubton Ms. Milliken's version ofevents, specifically that she was authorized to purchase the gift cards, it is not an opinion on her guilt. Ms. Heston's report did nottell thejurywhat resultto reach by saying Ms. Milliken
was guilty offirst degree theft. The redacted report simply said, based on her investigation, someone was involved in a schemewhich "caused a direct economic loss to KAYU-TV in the amountof$27,660" by using "[f]alse purchase vouchers and unrecorded credits issued for product returns
...to conceal multiple unauthorized purchases ofgift cards [REDACTED]." Ex. 6 at 7. While Ms. Heston's report supports thejury's guilty finding, that alone does not make the report an improperopinion on guilt. Ms. Heston's report relied on the physical evidence and her experience to conclude KAYU-TV's Office Depot accountwas 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 ofa 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, thejury still had to decide whetherto believe the information contained in the report and ifit was Ms. Milliken who took the moneyfrom KAYU-TV. In light ofall the evidence, thejurydecided Ms. Milliken'sversion ofevents 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. Shetestified how she found out a large number ofthe receipts were signed by Ms. Milliken. She testified
as to the amount ofloss. While objections were made to the admission ofexhibits Ms. Heston used in herexamination, no objection was made to her actual testimony. The report prepared by Ms. Heston was merely hertestimony in written form. Properly exercising its discretion, the trial court reasoned the report would be helpful to thejury
as a cohesive document meantto clarify Ms. Heston's testimony. Even ifthe trial court constitutionally erred in admitting the report, the errorwas harmless. "An error ofconstitutional magnitude is presumed prejudicial, and the State bears the burden ofproving the errorwas 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 ofguilt." Id. Without the report, the untainted evidence showed (1) it was Ms. Milliken'sjobto inputthe invoices. including those from Office Depot, into KAYU-TV's system, (2) the problem with the Office Depot accountwas not discovered until Ms. Milliken'sjob was absorbed into Mr. Pederson's office, (3) KAYU-TV's preliminary internal investigation



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# · .

No. 31897-4-111 State v. Milliken
showed the numbers on the Office Depot statementwere not adding up, (4) Ms. Heston'sfraud examination showed there was misappropriation offunds from KAYU-TV using the Office Depot account, (5) the problematic transactions involved the purchase ofgiftcards, (6) Ms. Milliken was authorized to purchase items at Office Depot, (7) it
was not the policy ofKAYU-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 manytimes, and (10) Ms. Milliken admitted manyof 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 ofthe panel has determined this opinion will not be printed in the Washington Appellate Reports, but itwill be filed for public record pursuantto RCW 2.06.040.
Brown, A.C.J, WE CONCUR:



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