McGill v. DIA Airport Parking, LLC, 2016 COA 165

Plaintiff Trina McGill sued DIA Airport Parking, alleging a shuttle-bus side-view mirror struck her head; the jury returned a defense verdict and judgment for DIA.
About 20 years earlier McGill was convicted of check fraud (check kiting); before trial she moved to exclude evidence of the conviction and underlying conduct under CRE 608(b) and CRE 403.
The trial court denied the motion, ruling the underlying conduct was admissible under CRE 608(b); it did not state a CRE 403 analysis in writing.
Expecting cross-examination impeachment, McGill’s counsel instead elicited the check-fraud conduct on direct examination to blunt its impact; DIA also briefly questioned her about it on cross.
On appeal McGill argued the check-fraud evidence was inadmissible under CRE 608(b) and CRE 403; DIA contended McGill invited or waived any error by introducing the evidence herself.
The Court of Appeals held McGill could challenge the ruling on appeal and affirmed, ruling the check-fraud conduct was admissible under CRE 608(b) and that the trial court implicitly performed the CRE 403 balancing.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether McGill is precluded from appealing admissibility because she elicited impeachment evidence on direct examination	McGill argued her pretrial objection preserved the right to appeal; eliciting the evidence was a tactical move and should not bar review	DIA argued McGill invited or waived review by introducing the evidence herself after the adverse ruling	Court: No invited-error or waiver bar; party may introduce evidence strategically and still challenge the pretrial ruling on appeal (rejecting Ohler’s waiver rule for Colorado)
Admissibility of underlying check-fraud conduct under CRE 608(b) and CRE 403	McGill argued the decades-old, low-value check fraud was not sufficiently probative of truthfulness and was unfairly prejudicial under CRE 403	DIA argued the conduct (check kiting, moving funds to cover bad checks) was probative of truthfulness and any prejudicial effect did not substantially outweigh probative value	Court: Evidence was admissible under CRE 608(b) because fraud-related conduct bears on truthfulness; any mitigating features (age, amount) go to weight not admissibility; trial court implicitly performed CRE 403 balancing and did not abuse discretion

Ohler v. United States, 529 U.S. 753 (U.S. 2000) (Supreme Court held a defendant who voluntarily testified to a conviction on direct appeal waived right to challenge admissibility)
United States v. Olano, 507 U.S. 725 (U.S. 1993) (definition of waiver as intentional relinquishment of a known right)
People v. Segovia, 196 P.3d 1126 (Colo. 2008) (CRE 608(b) analysis focuses on nature of conduct to assess probative value for truthfulness)
People v. Caldwell, 43 P.3d 663 (Colo. App. 2001) (fraudulent acts are probative of a witness’s truthfulness under CRE 608(b))
People v. Harris, 633 P.2d 1095 (Colo. App. 1981) (where prejudice was argued below and court admitted evidence, admission implies weighing of probative value versus prejudice)