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BILLIE J. MILLIKEN, ) UNPUBLISHED OPINION 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 

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

through 2010. Her job involved entering invoices1 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 

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

KAYU-TV's policy was to pay the balance due to its vendors every month. KAYU-TV 

t 

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 cards2 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 KA YU-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 KAYUTV'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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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 KA YU-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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No. 31897-4-111 

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. 

I 

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

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. 

I

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

I Contrary to the State's contention, Ms. Milliken did object at trial 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, 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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No. 31897-4-111 

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 KA YUTV 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 KA YU-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 

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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 KA YU-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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