Commonwealth v. Ogumoro

IN THE Supreme Court OF THE Commonwealth of the Northern Mariana Islands COMMONWEALTH OF THE NORTHERN MARIANA ISLANDS, Plaintiff-Appellee, v. AMBROSIO T. OGUMORO, Defendant-Appellant. Supreme Court No. 2017-SCC-0028-CRM OPINION Cite as: 2020 MP 8 Decided April 30, 2020 ASSOCIATE JUSTICE JOHN A. MANGLOÑA JUSTICE PRO TEMPORE WESLEY M. BOGDAN JUSTICE PRO TEMPORE TIMOTHY H. BELLAS Superior Court Criminal Case No. 15-0055 Associate Judge Kenneth L. Govendo, Presiding  Commonwealth v. Ogumoro, 2020 MP 8 MANGLOÑA, J.: ¶1 Defendant-Appellant Ambrosio T. Ogumoro (“Ogumoro”) appeals his conviction and sentence for theft by deception and misconduct in public office. For the following reasons, we AFFIRM Ogumoro’s conviction for theft by deception but REVERSE the conviction for misconduct in public office because it is time-barred by the statute of limitations. We REMAND this matter for re- sentencing consistent with this opinion. I. FACTS AND PROCEDURAL HISTORY ¶2 In September 2012, the Commonwealth of the Northern Mariana Islands Department of Public Safety (“DPS”) incurred $2,500 in expenses, including $1,553 for auto parts, for repair of a 1995 automobile by ELS Auto Shop (“ELS”). Weeks later, in October 2012, Ogumoro, then DPS Deputy Commissioner, submitted to the Division of Procurement and Supply a “request for survey” form, which represented that the vehicle had “[n]o value except as scrap.” Appellant’s Appendix (“App.”) 869. The request was approved. The same day, Ogumoro and Herman Manglona (“Manglona”)1 appeared before Division of Procurement and Supply, where Manglona purchased the vehicle for $50. ¶3 The Commonwealth of the Northern Mariana Islands (“Commonwealth”) charged Ogumoro with several offenses including theft by deception under 6 CMC § 1603 (“Section 1603”)2 and misconduct in public office under 6 CMC § 3202.3 It argued Ogumoro purposely deceived the government by facilitating the sale of the vehicle to Manglona. The Commonwealth presented evidence that Ogumoro knew of but failed to disclose substantial recent repairs when he submitted the request for survey. It therefore argued, through the testimony of Manny Vitug (“Vitug”), that Ogumoro misrepresented the vehicle’s value. Vitug testified that he believed that, if properly cared for, the vehicle would have been operable for years following the repair. Tr. 646. The Commonwealth also presented evidence of Manglona’s July 2013 sale of the vehicle to a third party for $700 and of the vehicle’s December 2012 and July 2013 safety inspections, which were struck from the record after testimony that the business had a practice of issuing such documents without conducting inspections. 1 The trial court made no factual finding as to whether Herman Manglona was Ogumoro’s brother-in-law, but the prosecutor made several references to him as such throughout his closing arguments and arguments at the sentencing hearing. Tr. 1055, 1064, 1081, 1096, 1185, 1191. In view of our holding, the relationship between a defendant and a transferee is immaterial for the purposes of the elements of theft by deception. 2 6 CMC § 1603 reads, in pertinent part: “A person commits theft if he or she purposely obtains property of another by deception.” 3 6 CMC § 3202 reads, in pertinent part: “Every person who, being a public official, does any illegal act under the color of office, or wilfully neglects to perform the duties of his or her office as provided by law, is guilty of misconduct in public office[.]”  Commonwealth v. Ogumoro, 2020 MP 8 ¶4 At trial, Ogumoro disputed the court’s interpretation of the theft by deception statute, asserting that to have “obtained” the vehicle, he had to either acquire a legal interest in the vehicle or transfer it to himself. He also argued the value was not misrepresented. He claimed the vehicle continued to have problems after it was repaired such that evidence of the repairs did not reflect the value. Three police officers testified in support of the claimed defense. When Ogumoro moved to admit expert testimony to rebut Vitug’s opinion testimony, the court denied his motion on the basis that the proposed expert, Manny Manuel, “never . . . saw the vehicle.” Tr. 946. Ogumoro also argued in a pre-trial motion that the applicable statute of limitations barred the misconduct in public office charge. ¶5 A jury found Ogumoro guilty of theft by deception and the trial judge found him guilty of the misconduct in public office count, predicated on the illegal act of theft by deception. The court sentenced him to six years of imprisonment, all suspended, and placed him on probation. The court imposed a number of probation conditions, including writing an apology letter for publication, paying $2,500 in restitution, and prohibition from CNMI Government employment for ten years, to begin after the conclusion of his period of probation in a separate criminal case, Criminal Case No. 12-0134. He now appeals his conviction and sentence. II. JURISDICTION ¶6 We have jurisdiction over final judgments and orders of the Commonwealth Superior Court. NMI CONST. Art. IV, § 3. III. STANDARDS OF REVIEW ¶7 Seven issues are presented on appeal. First, we review the court’s denial of Ogumoro’s motion for judgment of acquittal de novo. Commonwealth v. Pua, 2009 MP 21 ¶ 23; Commonwealth v. Fitial, 2015 MP 15 ¶ 15; Commonwealth v. Tian, 2019 MP 9 ¶ 16. “The test applied is the same as that for a challenge to the sufficiency of the evidence.” Commonwealth v. Ramangmau, 4 NMI 227, 237 (1995). We consider “whether any reasonable trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Fitial, 2015 MP 15 ¶ 15 (quoting Commonwealth v. Caja, 2001 MP 6 ¶ 3). Our review “must encompass all of the evidence, direct or circumstantial, viewed in the light most favorable to the government.” Ramangmau, 4 NMI at 237. Second, we review alleged evidentiary errors for abuse of discretion. Commonwealth v. Blas, 2018 MP 2 ¶ 7. Third, we review whether the trial court’s jury instructions misstated the law. Jury instructions challenged as a misstatement of the law are reviewed de novo. Commonwealth v. Sanchez, 2014 MP 3 ¶ 11 (reviewing de novo an instruction which plaintiff alleged misstated an element); Commonwealth v. Demapan, 2008 MP 16 ¶ 12; Ramangmau, 4 NMI at 238. We then review de novo whether the applicable statute of limitations barred Ogumoro’s misconduct in public office charge. Demapan, 2008 MP 16 ¶ 12. ¶8 We then turn to whether the trial court erred in denying Ogumoro’s motion for a mistrial, which he based on prosecutorial misconduct allegations. A trial  Commonwealth v. Ogumoro, 2020 MP 8 court’s denial of a motion for a mistrial is reviewed for abuse of discretion. Ishimatsu v. Royal Crown Ins. Corp., 2010 MP 8 ¶ 49 (citing Commonwealth v. Camacho, 2002 MP 6 ¶ 21). We next review prosecutorial misconduct claims de novo when a timely objection was made and for plain error when no timely objection was made. See Commonwealth v. Jing Xin Xiao, 2013 MP 12 ¶ 16; see also Commonwealth v. Saimon, 3 NMI 365, 379–80 (1992). Finally, we review cumulative error claims de novo. Commonwealth v. Cepeda, 2014 MP 12 ¶ 37. IV. DISCUSSION ¶9 For the theft by deception count, Ogumoro takes issue with the court’s findings on each of the elements because the evidence was allegedly insufficient. But we reach the opposite conclusion and affirm that count. In doing so, we find the third-party sale price relevant, the safety inspection exhibits’ relevance moot, and the admission of Vitug as a lay witness and the exclusion of Manny Manuel to be harmless errors. We also find the statements and conduct allegedly constituting prosecutorial misconduct either not plain error, or if error, harmless. Finally, we likewise find no cumulative error. However, Ogumoro’s count for misconduct in public office is reversed because the statute of limitations had run before the Commonwealth brought the charge. Because we remand for resentencing based on this reversal, we do not address Ogumoro’s sentencing arguments. A. Judgment of Acquittal ¶ 10 Ogumoro contends the evidence was insufficient to support his conviction for theft by deception for three reasons. He argues the Commonwealth failed to show: (1) he “obtained” the vehicle within the meaning of 6 CMC § 1603(a); (2) he used deception to obtain the vehicle in violation of 6 CMC § 1603(a); and (3) the violation occurred on or about December 5, 2012, the date alleged in the information. When reviewing a judgment of acquittal, we consider “whether any reasonable trier of fact could have found the essential elements of the crime in question beyond a reasonable doubt.” Fitial, 2015 MP 15 ¶ 15. i. Definition of “Obtain” ¶ 11 Ogumoro claims the Commonwealth failed to show he “obtained” the vehicle within the meaning of 6 CMC § 1603(a). He posits that the court should interpret the statute’s language to apply only to situations in which the defendant himself receives the transferred property. Because he never acquired a legal interest in it or transferred it to himself, Ogumoro concludes he never “obtained” the vehicle.4 4 Ogumoro argues that “[i]f the Government seeks to assert criminal liability for a transfer to a third person it may do so through the use of the conspiracy statute or through a charge of aiding and abetting the commission of theft by deception.” Br. 8. We are not persuaded by the argument that the Commonwealth may impose criminal liability through the use of the conspiracy statute or an aiding and abetting charge. Criminal conspiracy requires that a person “agree[] with one or more persons” to engage in or solicit criminal conduct. 6 CMC § 303(a)(1). A person who, acting alone, causes the transfer of property to an unknowing party through the use of deception  Commonwealth v. Ogumoro, 2020 MP 8 ¶ 12 Statutory language is reviewed “for its plain meaning if it is clear and unambiguous.” Commonwealth v. Sanchez, 2014 MP 3 ¶ 14. A statute is ambiguous if it is “capable of more than one meaning.” Id. “A person commits theft if he or she purposely obtains property of another by deception.” 6 CMC § 1603(a). “Obtain” is defined as “[i]n relation to property, to bring about a transfer or purported transfer of a legal interest in the property.” 6 CMC § 103(a)(1) (“Section 103(a)(1)”). ¶ 13 According to the statute’s plain language, Ogumoro is not required to receive the transferred property. Section 1603(a)’s elements of theft by deception and the attendant definition of “obtain” at Section 103(a)(1) do not preclude Ogumoro from being guilty of theft. Placing the definition of “obtain” into Section 1603(a) yields a clear and unambiguous meaning that encompasses transfers to those other than Ogumoro. We thus construe theft by deception as applicable to anyone who purposely and deceptively brings about a transfer of property to themselves or others. In this case, Ogumoro purposefully and deceptively brought about a transfer of the government’s vehicle to Manglona. In its jury instructions, the court applied Section 103(a)(1) when it stated that “[i]n the Commonwealth, ‘Obtain’ means, to bring about a transfer or purported transfer of a legal interest in the property.” App. 937. A reasonable trier of fact could have found that Ogumoro brought about a transfer of the vehicle because it was his survey request that eventually resulted in the sale of the vehicle to Manglona.5 We find the court correctly interpreted and applied the definition of “obtain” and that there was sufficient evidence that Ogumoro obtained the could therefore avoid criminal liability for conspiracy. Both those who aid or abet the commission of a crime and “a principal who commits the offense” incur liability. 6 CMC § 201. If the Court were to accept Ogumoro’s arguments, Section 1603 would stand for the proposition that a person may purposely use deception to transfer the legal interest in another’s property, yet remain immune to prosecution, so long as the property is transferred to another person. Such interpretation runs afoul of the rule that “[a] court should avoid interpretations of a statutory provision which would defy common sense [or] lead to absurd results . . .” Commonwealth Ports Auth. v. Hakubotan Enters., 2 NMI 212, 224 (1991). Read in conjunction with 6 CMC § 103(a)(1), the “obtain” element in Section 1603(a) is satisfied when a person causes the “transfer or purported transfer of a legal interest” in property. Such a person commits the offense of theft by deception as a principal, making an aiding and abetting charge unnecessary and inappropriate. 5 Ogumoro concludes his argument on this element by asserting that should his argument as to the interpretation of “obtain” be rejected, the rule of lenity should be applied to construe the statute in his favor, i.e., that the statute means to obtain property for himself. He fails to analyze this argument and therefore waives it. Ki Dong Kim v. Hong Sik Baik, 2016 MP 5 ¶ 30 (“An issue is insufficiently developed when the party’s principal brief fails to ‘provide[] legal authority or public policy, [or] appl[y] the facts of the case to the asserted authority in a non-conclusory manner.’” (quoting Commonwealth v. Calvo, 2014 MP 10 ¶ 8)).  Commonwealth v. Ogumoro, 2020 MP 8 vehicle within the meaning of Section 103(a)(1).6 ii. Deception ¶ 14 Ogumoro argues that there was insufficient evidence to support a finding beyond a reasonable doubt that he deceived DPS as to the value. Even though the vehicle underwent repairs, three police officers testified that it continued to have problems.7 Despite this testimony, Ogumoro claims that they were the only people with knowledge of the vehicle between the time it was repaired and when it was surveyed. Ogumoro further argues that, although Vitug quoted $700 to $800 for additional repairs, that was not conclusive evidence of the vehicle’s value on the day it was surveyed. ¶ 15 It is the exclusive province of the jury to determine the credibility of witnesses and to resolve evidentiary conflicts. Commonwealth v. Castro, 2007 MP 9 ¶ 11 (citing United States v. Ramos, 558 F.2d 545, 546 (9th Cir. 1977)). In reviewing a challenge to the sufficiency of the evidence, the court “must resolve issues of witness credibility in favor of the prosecution.” Castro, 2007 MP 9 ¶ 9 (citations omitted). “A person deceives if he or she purposely . . . [c]reates or reinforces a false impression, including false impressions as to . . . value[.]” 6 CMC § 1603(a)(1). ¶ 16 Here, although witnesses testified that the vehicle continued to exhibit problems after it was repaired and that a quote for additional repairs was provided, this countervailing testimony was disputed. Vitug testified that he did not see the vehicle again after the September 2012 repairs. He also testified that he believed the vehicle would have been operable for “years” after the initial repairs. Tr. 646. Moreover, the jury was presented with the following evidence: (1) a September 12, 2012 repair invoice for $2,500 that included $1,553 for a timing belt, water pump, radiator, battery, air-conditioning and radiator fan motors, and a transmission tune-up; and (2) a bill of sale showing the vehicle was sold for $700 on July 1, 2013. It was undisputed that Ogumoro was aware of the 6 Because Ogumoro argues that “obtain” means he had to transfer the property to himself, he contends the court erred because it failed to instruct the jury that “obtain” had that meaning. Here, the jury was instructed that “[i]n the Commonwealth, ‘Obtain’ means, to bring about a transfer or purported transfer of a legal interest in the property.” App. 937. This is the definition of “obtain” throughout Title 6 of the Commonwealth Code. 6 CMC § 103(a)(1). Ogumoro did not have to transfer the vehicle to himself in order to “obtain” it. See supra ¶¶ 11–13. The instructions contained all the legal elements and correctly stated the law as written, and we therefore find no error. 7 The following police officers testified that the vehicle continued to exhibit problems after it was repaired: (1) former DPS Officer Tarcisio K. Olopai, who testified that he was operating the vehicle in October 2012 when it overheated and stopped running; (2) former DPS Officer Martin I. Kapileo, who testified that he retrieved the vehicle at ELS after it was repaired and that, within a week’s time, it exhibited overheating problems and could not operate in reverse; and (3) DPS Officer Ramon S. Pangelinan, who testified that the vehicle was towed to ELS after the September repairs and that Vitug informed him it would cost an additional $700 to $800 to repair it. Tr. 795, 975, 839.  Commonwealth v. Ogumoro, 2020 MP 8 September 2012 repairs but did not disclose them at the time he submitted the survey request. Ultimately, the jury weighed all testimony and evidence and found the vehicle had a value of over $250 but less than $20,000 when it was surveyed. Based on the evidence, we find a reasonable trier of fact could have found Ogumoro used deception to obtain the vehicle within the meaning of Section 1603(a) and therefore find there was sufficient evidence Ogumoro used deception. iii. Date of Deception ¶ 17 Ogumoro claims the Commonwealth must show the elements of the crime occurred reasonably close to December 5, 2012, the date as charged. He contends that because the element of deception could have occurred only on the day the vehicle was surveyed, October 25, 2012, the Commonwealth could not have shown the violation occurred reasonably close to December 5, 2012. ¶ 18 Generally, the alleged date in an indictment does not have to be exact. See, e.g., United States v. Austin, 448 F.2d 399, 401 (9th Cir. 1971). As long as the applicable date is within the statute of limitations and there is no prejudice, generality in dates may be permitted. See, e.g., United States v. Nunez, 668 F.2d 10, 12 (1st Cir. 1981) (“great generality in the allegation of date” is permitted where the time of the offense is unimportant under the statute violated (quoting 1 Wright, Federal Practice and Procedure: Criminal § 125 at 246–47)); see also Austin, 448 F.2d at 401 (rejecting appellant’s error claim where indictment stated “on or about August 29, 1969” when “correct dates were some time after July 9, 1969” and “some time before August 25, 1969,” because no prejudice was shown). ¶ 19 Here, the jury was instructed that the Commonwealth had to show the elements of the crime occurred “on or about December 5, 2012,” App. 935, when it alleged Ogumoro completed the sale to Manglona constituting the theft by deception. At trial, the Commonwealth argued the deception occurred on October 25, 2012, when Ogumoro represented that the vehicle was valued at $50. That date was within the applicable statute of limitations and the statute’s language does not indicate the time of deception is important. See 6 CMC § 1603. Ogumoro also fails to provide any evidence that he was prejudiced. We find the date as charged, December 5, 2012, to be only forty-one days from the date of deception, October 25, 2012, and therefore reasonably close. ¶ 20 A reasonable trier of fact could have found the essential elements of the crime beyond a reasonable doubt. The court correctly interpreted “obtain” and found sufficient evidence that Ogumoro obtained the vehicle within the meaning of Section 103(a)(1). It also correctly found Ogumoro deceived DPS as to the value of the vehicle. Finally, the date charged for Ogumoro’s theft by deception was only forty-one days from the date Ogumoro contends any alleged deception occurred. We find there was sufficient evidence to convict Ogumoro of theft by deception and the court therefore properly denied the motion for judgment of acquittal. We now turn to whether the court made evidentiary errors that warrant reversal. B. Relevance ¶ 21 Ogumoro contends the court erred when it initially admitted evidence of the vehicle’s safety inspections and sale price. He asserts that evidence of the  Commonwealth v. Ogumoro, 2020 MP 8 safety inspections and sale price was inadmissible as irrelevant, and that, though the safety inspections were ultimately struck from the record, “the damage was already done.” Opening Br. 15. He argues the time between the inspections and the sale renders this evidence irrelevant, which affects whether the Commonwealth could prove Ogumoro’s deception as to the vehicle’s value. He contends that for this evidence to be relevant and therefore admissible, the Commonwealth must show that the vehicle’s condition when it was inspected and sold was the same as it was when it was surveyed. Ogumoro further asserts that even if this evidence was relevant, that relevance was outweighed by the danger of unfair prejudice. We review evidentiary errors for abuse of discretion. Blas, 2018 MP 2 ¶ 7. ¶ 22 Under NMI Rule of Evidence 401, “[e]vidence is relevant if: (a) it has any tendency to make a fact more or less probable than it would be without the evidence; and (b) the fact is of consequence in determining the action.” NMI R. EVID. 401. Evidence “may relate to acts committed or conditions existing prior to, concurrent with, or subsequent to, the commission of the crime.” Ramangmou, 4 NMI 227, 235 (1995) (quoting Charles E. Torcia, WHARTON’S CRIMINAL EVIDENCE § 91 (14th ed. 1985)). “The only limitation with respect to time is that the evidence should not be so remote as to cease to have any probative value.” Id. Generally, remoteness in time affects the “weight of evidence,” not its admissibility. See, e.g., United States v. 428.02 Acres of Land, 687 F.2d 266, 271 n.4 (8th Cir. 1982) (recognizing, in a condemnation proceeding, that “even sales remote in time are admissible, remoteness going to the weight of the evidence rather than its admissibility”); United States v. Becktold Co., 129 F.2d 473, 479 (8th Cir. 1942) (finding purchase price of building fourteen years prior to condemnation, “went to the weight of the evidence, rather than to its admissibility”). Under Rule 104(b), “[w]hen the relevance of evidence depends on whether a fact exists, proof must be introduced sufficient to support a finding that the fact does exist.” NMI R. EVID. 104(b). Importantly, Rule 104(e) “does not limit a party’s [right] to introduce before the jury evidence that is relevant to the weight or credibility of other evidence.” NMI R. EVID. 104(e). ¶ 23 Relevant evidence may be excluded, however, “if its probative value is substantially outweighed by a danger of one or more of the following: unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence.” NMI R. EVID. 403. Evidence is unfairly prejudicial if it has “an undue tendency to suggest decision on an improper basis[.]” Xiao, 2013 MP 12 ¶ 79 (quoting Dream Games of Ariz., Inc. v. PC Onsite, 561 F.3d 983, 993 (9th Cir. 2009)). “The term ‘unfair prejudice,’ as to a criminal defendant, speaks to the capacity of some concededly relevant evidence to lure the factfinder into declaring guilt on a ground different from proof specific to the offense charged.” Old Chief v. United States, 519 U.S. 172, 180 (1997). The court must consciously balance the evidence’s costs and benefits. Blas, 2018 MP 2 ¶ 28 (quoting Commonwealth v. Hong, 2013 MP 19 ¶ 18). An evidentiary ruling may be made on either an explicit or implicit balance of the evidence’s probative value and prejudicial effect without constituting an abuse of discretion. Id. ¶ 20. ¶ 24 Even if relevant evidence is prejudicial, the impact may be mitigated by curative instructions. See State v. Koedetich, 548 A.2d 939, 990 (N.J. 1988) (holding a prosecutor’s improper remarks were not prejudicial when objected to  Commonwealth v. Ogumoro, 2020 MP 8 and struck from the record with a curative instruction). A jury is presumed to have followed an instruction. See Commonwealth v. Calvo, 2014 MP 7 ¶ 33 (citing Greer v. Miller, 483 U.S. 756, 766 n.8 (1987)) (presuming jury followed a jury instruction). ¶ 25 The safety inspections’ relevance became moot when they were discredited and then struck from the record. The jury instructions, both verbally and in writing, stated that only exhibits received in evidence may be considered. The safety inspection documents were not admitted into evidence. Tr. 731. We presume the jury followed the court’s instructions and did not consider the safety inspections. Striking the safety inspections along with a curative instruction at the conclusion of the trial, Tr. 1125, was sufficient to mitigate any prejudicial impact. We find the striking of the safety inspections and the jury instruction point to the implicit weighing of their probative value and prejudicial effect. ¶ 26 While Ogumoro argues the sale price was irrelevant and therefore inadmissible, the evidence lent weight to other evidence proving Ogumoro’s deception. Here, the sale price demonstrates that, as of July 2013, the vehicle still had a market value of several hundred dollars. This is not conclusive proof alone that Ogumoro falsely represented it to have no value except as scrap as of December 2012, but this evidence makes it substantially more probable that the vehicle had some value greater than $50 in December 2012 and thus that Ogumoro engaged in deception. This evidence was admissible because it was relevant to the weight or credibility of other evidence under Rule 104(b). Ogumoro also argues the third-party sale price was inadmissible due to the period in time between the survey and that sale. The third-party sale occurred on July 11, 2013, nearly nine months after the survey. By showing the vehicle was operable months after the survey, it was more probable the vehicle was operational on the day it was surveyed. This evidence also bears on whether Ogumoro misrepresented the vehicle’s value. The government’s failure to maintain custody of the vehicle after it was surveyed, affected the weight of the evidence, not its admissibility. All of the evidence regarding the third-party sale provides some probative value. ¶ 27 The admissibility of this evidence did not result in any unfair prejudice to Ogumoro. The safety inspections were stricken from the record after they were discredited. As to the sale price, nothing in the court’s consideration of the evidence signals an undue tendency to base its decision of admissibility on an improper basis. The July 2013 sale price contributed to the inference that the vehicle had greater value in December 2012 than Ogumoro let on. Not only was the later sale price probative of the vehicle’s value at the time of Ogumoro’s alleged misrepresentation, but it also in no way tended to mislead the factfinder by, for example, making Ogumoro seem blameworthy for reasons unrelated to the charged offense. We find the court properly weighed the evidence’s probative value against any unfair prejudice and therefore, the court did not abuse its discretion. C. Expert Testimony ¶ 28 Ogumoro claims the court improperly admitted expert opinion testimony because it allowed Vitug to testify that the vehicle could have been operable for “years” after it was repaired. Ogumoro argues the court erred because Vitug was neither listed nor qualified as an expert to give this testimony. In response, the  Commonwealth v. Ogumoro, 2020 MP 8 Commonwealth argues his testimony was never admitted as an expert by the court, but was admitted as lay opinion testimony because it was based on personal knowledge rather than “specialized or scientific knowledge.” Ogumoro also argues the court improperly excluded expert testimony from Manny Manuel because an expert was needed to rebut the opinion that the vehicle would have been operable for years. The Commonwealth objected on the bases that Manny Manuel had no personal knowledge and that Vitug’s testimony was lay opinion, precluding the need for expert rebuttal. The court agreed with the Commonwealth and denied the admission of the rebuttal expert testimony. ¶ 29 Lay opinion testimony is “limited to one that is: (a) rationally based on the witness’s perception; (b) helpful to clearly understanding the witness’s testimony or to determining a fact in issue; and (c) not based on scientific, technical, or other specialized knowledge within the scope of Rule 702.” NMI R. EVID. 701. In contrast, expert testimony under NMI Rule of Evidence 702 (“Rule 702”) is not limited to a witness’s perception. “A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if: (a) the expert’s scientific, technical, or other specialized knowledge will help the trier of fact.” NMI R. EVID. 702(a). Opinions may be “common enough” and require limited expertise that they may qualify as lay witness testimony rather than expert witness testimony. United States v. Von Willie, 59 F.3d 922, 929 (9th Cir. 1995). “The mere percipience of a witness to the facts on which he wishes to tender an opinion does not trump Rule 702.” United States v. Figueroa-Lopez, 125 F.3d 1241, 1246 (9th Cir. 1997). ¶ 30 In Commonwealth v. Crisostomo, we discussed the court’s gatekeeping role regarding expert witness testimony under Rule 702. 2018 MP 5 ¶¶ 20–24. As gatekeepers of evidence, the trial court must first “allow presentation of evidence as to the relevance and reliability of the expert’s proffered testimony.” Id. ¶ 21. Then, it “must make specific findings regarding the evaluation of the expert.” Id. ¶ 23. The summary admission or exclusion of “testimony without assessing reliability is inadequate—Daubert and its progeny require ‘some kind of reliability determination’ to be made on the record.”8 Id. In Commonwealth v. Taitano, we elaborated on this requirement, holding that “in the Commonwealth, trial courts must make findings on all four [(a)–(d)] Rule 702 requirements9 so as to avoid unnecessary expense and delay.” 2018 MP 12 ¶ 13. The trial court must provide more than a “mere conclusory statement[], which without any 8 We apply the federal interpretation of Rule 702 in Daubert in the Commonwealth. Crisostomo, 2018 MP 12 ¶ 11. 9 Rule 702(a) requires that “the expert’s scientific, technical, or other specialized knowledge” assist “the trier of fact . . . understand the evidence or to determine a fact in issue.” NMI R. EVID. 702; see also Kumho Tire Co. v. Carmichael, 526 U.S. 137, 141 (1999) (stating that Daubert’s holding is applicable not only to “scientific” knowledge, but also to “technical” and “other specialized knowledge”). Rule 702(b) requires “the testimony is based on sufficient facts or data.” NMI R. EVID. 702(b). “Parts (c) and (d) of Rule 702 require that ‘the testimony is the product of reliable principles and methods’ and that ‘the expert has reliably applied the principles and methods to the facts of the case.’” Crisostomo, 2018 MP 5 ¶ 20 (quoting FED. R. EVID. 702).  Commonwealth v. Ogumoro, 2020 MP 8 meaningful analysis or explanation, manifest[s] an inadequate performance of its gatekeeping duties.” Id. ¶ 17. A Daubert ruling should not, however, be premature; it must be made when the record is “complete enough to measure the proffered testimony against the proper standards of reliability and relevance.” Id. ¶ 13. At the same time, errors in the admission of expert testimony are harmless if it is more probable than not the error did not materially affect the verdict. Crisostomo, 2018 MP 5 ¶ 35. ¶ 31 Here, Vitug testified the vehicle repairs included a transmission tune-up and replacement of a timing belt, water pump, radiator, and air-conditioning and radiator fan motors. The knowledge required to form an opinion on the quality of repairs involving such parts is too technical to qualify as lay opinion testimony. See Asplundh Mfg. Div. v. Benton Harbor Eng'g, 57 F.3d 1190, 1199–1206 (3d Cir. 1995). Although Vitug was familiar with the vehicle, that personal knowledge may not “trump” Rule 702. ¶ 32 Further, the Commonwealth could have qualified Vitug as an expert. Before giving his opinion, he (1) stated he had experience as a mechanic since 1983; (2) stated he had been ELS’s manager since 2012; (3) stated the vehicle could go forward but not in reverse due to transmission fluid leaks that caused “reverse plates” to burn and not “activate”; (4) described parts used to rebuild transmissions; (5) described procedures used to test transmissions after repairs; and (6) test drove the vehicle after it was repaired. Tr. 637, 643, 644. On at least one question, the Commonwealth asked him to respond “as a mechanic.” Tr. 645. Despite eliciting Vitug’s qualifications, the Commonwealth made no attempt to qualify him as an expert under Rule 702. The Commonwealth argues this was permissible because he had personal knowledge. However, a holding in support of the Commonwealth’s argument “would encourage the [g]overnment to offer all kinds of specialized opinions without pausing first [to] properly establish the required qualifications of their witnesses.” Figueroa-Lopez, 125 F.3d. at 1246. Again, such lay opinion testimony must “not [be] based on scientific, technical, or other specialized knowledge within the scope of Rule 702.” NMI R. EVID. 701. We conclude the court abused its discretion because it failed to decide whether Vitug was qualified to give an expert opinion. ¶ 33 This abuse of discretion—an error by the court—may be considered harmless, however, if it did not materially affect the verdict. See Crisostomo, 2018 MP 5 ¶ 35. We find other evidence, including the repair expenses and their impact on the vehicle’s value, was sufficient to support the jury’s finding as to the value. It is thus unlikely that the error affected the verdict and was therefore harmless. ¶ 34 As to the exclusion of Manny Manuel as an expert witness, in its ruling, the court stated “[t]he motion to exclude Manny Manuel [the proposed expert witness] from testifying as an expert is granted. I am not going to allow him to testify as an expert witness. He never even saw the vehicle. . . .” Tr. 666. Initially, after hearing arguments on whether Vitug testified as an expert, the court stated it would rule on the matter when the time came. It does not appear that the court allowed the parties to explore the proposed testimony’s relevance and reliability. See Taitano, 2018 MP 12 ¶ 12. Though the record before us is unclear on this issue, we doubt that a sufficient opportunity was given. By not allowing meaningful exploration of the relevance and reliability of the proposed testimony  Commonwealth v. Ogumoro, 2020 MP 8 of Manny Manuel, the court fell short of its gatekeeping role. Crisostomo, 2018 MP 5 ¶ 23. Such a ruling also falls short of making “some kind of determination as to each [Rule 702] requirement.” Taitano, 2018 MP 12 ¶ 17. The court’s statements in support of the ruling were merely conclusory statements, with no meaningful analysis or explanation, constituting an abuse of discretion. ¶ 35 We now consider whether this abuse of discretion was harmless error. Crisostomo, 2018 MP 5 ¶ 35. Here, Vitug was cross-examined extensively, minimizing the need to rebut him with another expert. Ogumoro thereby received the opportunity to challenge Vitug’s opinion that the vehicle would have been operable for years after it was repaired. Vitug admitted it was possible for the vehicle’s transmission to leak fluid after the repairs and that such leaks could lead to the transmission’s failure. While the court refused to admit Ogumoro’s expert, Manny Manuel, Ogumoro’s cross-examination of Vitug served as a rebuttal of Vitug’s testimony. We find it more probable than not the exclusion did not materially affect the verdict and if there was error, it was therefore harmless. D. Misconduct in Public Office ¶ 36 We next review whether the statute of limitations time-barred the misconduct in public office charge. Ogumoro argues that the two-year statute of limitations began to run on March 17, 2013 because he was removed from office on that date and the day he received the employment termination notice. The Commonwealth argues he remained in office for seven days thereafter because the notice indicated it was not effective until March 24, 2013, and so Ogumoro was still employed until that date. We review de novo whether the applicable statute of limitations barred Ogumoro’s misconduct in public office charge. Demapan, 2008 MP 16 ¶ 12. ¶ 37 Generally, a prosecution for misconduct in public office must commence “within two years after it is committed.” See 6 CMC § 107(b)(3). An exception is provided: “[a]ny offense based on misconduct in office by a public officer or employee [is subject to prosecution] at any time when the defendant is in the same public office or employment or within two years thereafter.” 6 CMC § 107(c)(2). Whether Ogumoro was still in the same public office from the date he received his termination notice depends on how we have construed public office. ¶ 38 Although the Commonwealth Code does not define “public office”, we have previously discussed what it means for an individual to hold “public office” in Commonwealth v. Kaipat, 2 NMI 322 (1991). There, we affirmed that police officers are “public officials” who may be prosecuted for misconduct in public office under 6 CMC § 3202. We reasoned that “police officers share in and exercise the power of the sovereign. An officer is called upon to use good judgment and sound discretion in determining whether an offense has been committed, and has the unique authority to arrest persons for violating the law.” Kaipat at 333; see also Commonwealth v. Pangelinan, 3 CR 839, 851 (D.N.M.I. App. Div. 1989) (acknowledging that “[a] police officer is entrusted with the safety and welfare of the citizenry”). This underscored a police officer’s unique power to arrest persons and duty to exercise good judgment and sound discreti