State v. Ndao , 99 N.E.3d 1127 ( 2017 )

[Cite as State v. Ndao, 2017-Ohio-8422.]
IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
MONTGOMERY COUNTY
STATE OF OHIO :
:
Plaintiff-Appellee : Appellate Case No. 27368
:
v. : Trial Court Case No. 2015-CR-3807
:
GORGUI S. NDAO : (Criminal Appeal from
: Common Pleas Court)
Defendant-Appellant :
:
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OPINION
Rendered on the 3rd day of November, 2017.
...........
MATHIAS H. HECK, JR., by ALICE B. PETERS, Atty. Reg. No. 0093945, Assistant
Prosecuting Attorney, Montgomery County Prosecutor’s Office, Appellate Division,
Montgomery County Courts Building, 301 West Third Street, Dayton, Ohio 45422
Attorney for Plaintiff-Appellee
GEORGE A. KATCHMER, Atty. Reg. No. 0005031, 1886 Brock Road N.E.,
Bloomingburg, Ohio 43106
Attorney for Defendant-Appellant
.............
TUCKER, J.
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{¶ 1} Defendant-appellant Gorgui Ndao appeals from his conviction for tampering
with records. He contends that the State did not present evidence sufficient to support
the conviction and that the conviction is not supported by the weight of the evidence.
Ndao further contends that the trial court abused its discretion by permitting the State to
present opinion testimony from witnesses not qualified as experts.
{¶ 2} We conclude that there is evidence in this record upon which a juror could
find the essential elements of the offense to have been proven beyond a reasonable
doubt. We further conclude that the jury did not lose its way in convicting Ndao. Finally,
we find no abuse of discretion with regard to the trial court’s decision to permit the opinion
testimony provided by two witnesses who were not qualified as experts. Accordingly,
the judgment of the trial court is affirmed.
I. Facts and Procedural History
{¶ 3} On October 31, 2015, Ndao attempted to renew his driver’s license at the
Bureau of Motor Vehicles (“BMV”) office located on Main Street in Dayton. Since Ndao
is a non-citizen of the United States, he was required to provide additional identification,
including his permanent resident card. After determining that Ndao’s permanent
resident card was not valid, the BMV forwarded all of his documentation and identification
to the investigative arm of the BMV.
{¶ 4} On March 10, 2016, Ndao was indicted on one count of tampering with
records (kept by government entity) in violation of R.C. 2913.42(A)(2). A jury trial was
conducted in October 2016. At trial, the State presented the testimony of Theresa Maki,
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a clerk at the BMV who assisted Ndao when he attempted to renew his license.
According to Maki, she took an expired license from Ndao and used it to pull up his
information on her computer. Because he is a non-citizen, the computer indicated that
Ndao would also need to present his Social Security card as well as his permanent
resident card, also known as an I-551.1 Ndao filled out, and signed, a license application
form. Maki, per standard policy, took all of his forms of identification, as well as the
application, to her manager. The manager raised a concern regarding the permanent
resident card, and did not approve the application. She told Maki to continue processing
the license request, and to mark it for investigative review. Maki then returned to Ndao
where she asked him to read statements on a computer screen and then sign the screen
page. Ndao signed the computer screen and paid his fee. Maki then took the
application form, scanned it, and forwarded it to the BMV’s central office in Columbus.
When she scanned the document, she checked it for investigative review. She then took
a photograph of Ndao and generated a new driver’s license. The documents, social
security card, permanent resident card, as well as the new and expired licenses were
then given to her manager.
{¶ 5} Amanda Banks, Maki’s supervisor and officer manager at the BMV, indicated
that she has reviewed hundreds of immigration documents as part of her job duties. She
testified that she receives training regarding the security features of valid documents
every two years, and that she has seen fake documents in the past. Banks indicated
that Ndao’s Social Security Card and expired driver’s license appeared to be valid.
However, she had numerous concerns about the permanent resident card. Specifically,
1
This card is also referred to as a “Green Card.”
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she noted that instead of the phrase “Given Name,” the card has “Give Name.” She also
noted misspellings on the card including “expirex” rather than “expire” and “resident” is
improperly spelled “Ressident.” Banks also noted that an eagle and a hologram on the
front of the card are not properly reflective. She stated that the back of the card does
not have the appropriate images of State flags nor past presidents. According to Banks,
she took all of Ndao’s documents from Maki, and she then informed Ndao that an
investigator would contact him. All of the forms and documents were turned over to the
BMV investigations unit.
{¶ 6} BMV investigator Elizabeth Cress testified that she was assigned to
investigate Ndao’s case. She testified that she has handled over 25 fraud cases.
According to Cress, Ndao’s permanent resident card had numerous irregularities. She
stated that his picture should be bigger, and that the photo is the wrong color. Cress
noted that some printing that should be raised and tactile is not. The eagle on the front
of the card does not properly change color from gold to green when the card is moved.
She noted the same misspellings as Banks. She also noted that some words that should
be capitalized are not. Cress also noted that Ndao’s name is printed on an angle rather
than straight across. On the back of the card, Cress identified more problems.
Specifically, the “I-551” was cut off, “mailbox” was misspelled as “mailbos,” and miniature
pictures of past presidents and state flags were not properly visible. Finally, Cress
testified that the card was not a legitimate document and that it was not appropriate to
present it for verification in order to obtain a driver’s license.
{¶ 7} Kevin O’Neill also testified at trial. O’Neill is an immigration officer with the
fraud detection arm of the United States Citizenship and Immigration Service (“USCIS”).
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According to O’Neill, the fraud detection unit is a National Security Directorate of USCIS,
and USCIS is a department of the Department of Homeland Security. O’Neill testified
that permanent resident cards are issued by USCIS, and that he has undergone in-depth
training regarding the security features imbedded in permanent resident cards. He
testified that he has been involved in the review of “hundreds, maybe thousands” of
permanent resident cards and associated documents, and that he has found 200 to 250
that were not valid. O’Neill testified that he reviewed Ndao’s card, with this review
including the use of a black light and a loupe, or magnifying glass. O’Neill found the
same problems with the card as did Cress and Banks. He further noted that Ndao’s card,
which purported to have been issued in 2015, had an incorrect number for a card issued
that year. He further noted that the fingerprint on the card was not done correctly, stating
that it was only a “partial roll” rather than the required “full role.” O’Neill stated that a
hologram on the front of the card appeared to be a copy of the correct hologram at a point
when it was fluoresced because it does not appear and disappear properly when the card
is rotated. O’Neill noted that the back of the card should have miniature images of past
presidents and all fifty state flags. He testified that on a valid card, the features of each
president and flag are apparent under magnification, and that they are perfectly detailed.
However, Ndao’s card only has what appear to be silhouettes of the flags and presidents.
O’Neill testified that permanent resident cards are assigned an “A” or “alien” number on
the front. The number on Ndao’s card was registered to a different individual in the
USCIS Central Index System. Further, Ndao had a number associated with him that
indicated he had been permitted to enter the country to work temporarily, but not to seek
permanent residency. The number would have expired by 1996, and the Central Index
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System contained no information on Ndao after 1996. O’Neill testified that the card was
not issued by USCIS.
{¶ 8} Following trial, Ndao was convicted of the offense as charged in the
indictment. The trial court sentenced Ndao to community control sanctions for a period
not to exceed five years. Ndao filed a timely appeal.
II. Sufficiency and Weight of the Evidence
{¶ 9} Ndao’s first and second assignments of error state as follows:
THE APPELLANT’S CONVICTION IS BASED UPON
INSUFFICIENT EVIDENCE
THE APPELLANT’S CONVICTION IS AGAINST THE MANIFEST
WEIGHT OF THE EVIDENCE
{¶ 10} Ndao argues that the State did not present evidence sufficient to support
his conviction and that the conviction is against the weight of the evidence. Specifically,
he contends that the State failed to prove that he had the requisite knowledge required
for a violation of R.C. 2913.42(A)(2).
{¶ 11} When a criminal defendant challenges the sufficiency of the evidence, he
or she disputes whether the State has presented adequate evidence on each element of
the offense to allow the case to go to the jury or sustain the verdict as a matter of law.
State v. Wilson, 2d Dist. Montgomery No. 22581, 2009-Ohio-525, ¶ 10, citing State v.
Thompkins, 78 Ohio St.3d 380, 678 N.E.2d 541 (1997). “An appellate court's function
when reviewing the sufficiency of the evidence to support a criminal conviction is to
examine the evidence admitted at trial to determine whether such evidence, if believed,
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would convince the average mind of the defendant's guilt beyond a reasonable doubt.
The relevant inquiry is whether, after viewing the evidence in a light most favorable to the
prosecution, any rational trier of fact could have found the essential elements of the crime
proven beyond a reasonable doubt.” (Citation omitted.) State v. Jenks, 61 Ohio St.3d
259, 574 N.E.2d 492 (1991), at paragraph two of the syllabus.
{¶ 12} In contrast, when a defendant contests the weight of the evidence, the
argument “challenges the believability of the evidence and asks which of the competing
inferences suggested by the evidence is more believable or persuasive.” (Citation
omitted.) Wilson at ¶ 12. “Here the test is much broader. The court, reviewing the entire
record, weighs the evidence and all reasonable inferences, considers the credibility of
witnesses and determines whether in resolving conflicts in the evidence, the jury clearly
lost its way and created such a manifest miscarriage of justice that the conviction must
be reversed and a new trial ordered. The discretionary power to grant a new trial should
be exercised only in the exceptional case in which the evidence weighs heavily against
the conviction.” State v. Martin, 20 Ohio App.3d 172, 175, 485 N.E.2d 717 (1st
Dist.1983).
{¶ 13} “Although sufficiency and manifest weight are different legal concepts,
manifest weight may subsume sufficiency in conducting the analysis; that is, a finding that
a conviction is supported by the manifest weight of the evidence necessarily includes a
finding of sufficiency.” (Citations omitted.) State v. McCrary, 10th Dist. Franklin No.
10AP-881, 2011-Ohio-3161, ¶ 11; accord State v. Robinson, 2d Dist. Montgomery No.
26441, 2015-Ohio-1167, ¶ 17. As a result, “a determination that a conviction is
supported by the weight of the evidence will also be dispositive of the issue of sufficiency.”
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(Citations omitted.) State v. Braxton, 10th Dist. Franklin No. 04AP-725, 2005-Ohio-2198,
¶ 15.
{¶ 14} “Because the factfinder * * * has the opportunity to see and hear the
witnesses, the cautious exercise of the discretionary power of a court of appeals to find
that a judgment is against the manifest weight of the evidence requires that substantial
deference be extended to the factfinder's determinations of credibility. The decision
whether, and to what extent, to credit the testimony of particular witnesses is within the
peculiar competence of the factfinder, who has seen and heard the witness.” State v.
Lawson, 2d Dist. Montgomery No. 16288, 1997 WL 476684, *4 (Aug. 22, 1997).
{¶ 15} Ndao was convicted of violating R.C. 2913.42(A)(2) which states that “[n]o
person, knowing the person has no privilege to do so, and with purpose to defraud or
knowing that the person is facilitating a fraud, shall * * * [u]tter any writing or record,
knowing it to have been tampered with as provided in division (A)(1) of this section.” R.C.
2913.42(A)(1) prohibits a person from falsifying, destroying, removing, concealing,
altering, defacing, or mutilating any writing, computer software, data, or record. “A
person acts knowingly, regardless of purpose, when the person is aware that the person's
conduct will probably cause a certain result or will probably be of a certain nature. A
person has knowledge of circumstances when the person is aware that such
circumstances probably exist. When knowledge of the existence of a particular fact is
an element of an offense, such knowledge is established if a person subjectively believes
that there is a high probability of its existence and fails to make inquiry or acts with a
conscious purpose to avoid learning the fact.” R.C. 2901.22(B).
{¶ 16} As stated, Ndao argues that the State failed to prove that he acted with
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knowledge that his permanent resident card was invalid when he used it to obtain his
driver’s license. In support, he claims that he has been in the United States for 27 years
without any notification by USCIS that his status had changed. He also claims that his
Social Security card and expired driver’s license were valid which demonstrates that
previous license renewals occurred with “presumably the same vetting process.”
{¶ 17} “Commonly, there is no direct evidence of a defendant's state of mind so
the state must rely on circumstantial evidence to satisfy this element of its case. A
defendant's state of mind may be inferred from the totality of the surrounding
circumstances.” State v. Rodano, 2017-Ohio-1034, N.E.3d, ¶ 43 (8th Dist.), quoting In
re Horton, 4th Dist. Adams No. 04CA794, 2005-Ohio-3502, ¶ 23. In Ohio, it is well-
established that “a defendant may be convicted solely on the basis of circumstantial
evidence.” State v. Nicely, 39 Ohio St.3d 147, 151, 529 N.E.2d 1236 (1988).
“Circumstantial evidence and direct evidence inherently possess the same probative
value.” Jenks, paragraph one of the syllabus. “Circumstantial evidence is defined as
‘[t]estimony not based on actual personal knowledge or observation of the facts in
controversy, but of other facts from which deductions are drawn, showing indirectly the
facts sought to be proved. * * *’ ” Nicely, at 150, 529 N.E.2d 1236, quoting Black's Law
Dictionary (5 Ed. 1979) 221.
{¶ 18} The unrebutted evidence presented at trial demonstrates that the card
presented by Ndao had at least sixteen (or more if each individual State flag and past
president miniature is added) identifiable errors on its face and back. Some of the errors
involved imbedded security features, while some involved simple errors of spelling and
capitalization. In any event, three separate people, familiar with such cards, testified that
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the card was not valid. O’Neill also testified that USCIS did not issue the card. The
evidence further demonstrates that Ndao has not had contact with USCIS since 1996.
However, he was in possession of a permanent resident card purported to be issued by
USCIS in 2015. Finally, he presented the card in an attempt to renew his expired driver’s
license.
{¶ 19} Viewing the evidence presented at trial in a light most favorable to the
prosecution, we conclude that a juror could have found beyond a reasonable doubt that
Ndao committed the crime of tampering with records in violation of R.C. 2913.42(A)(2).
Thus, there was sufficient evidence to support the conviction. We further conclude that
the trier of fact did not create a manifest miscarriage of justice so as to require a new trial.
{¶ 20} Accordingly, the first and second assignments of error are overruled.
III. Opinion Testimony
{¶ 21} The third assignment of error asserted by Ndao is as follows:
THE COURT ERRED IN PERMITTING NON-EXPERT WITNESSES
TO GIVE EXPERT OPINIONS
{¶ 22} Ndao contends that the trial court violated Evid.R. 702 and improperly
permitted O’Neill and Cress to present expert opinion testimony despite the fact that they
were not qualified, nor accepted by the trial court, as expert witnesses.
{¶ 23} “The admission or exclusion of relevant evidence rests within the sound
discretion of the trial court.” State v. Sage, 31 Ohio St.3d 173, 180, 510 N.E.2d 343(1987). A trial court abuses its discretion when it makes a decision that is unreasonable,
arbitrary, or unconscionable. State v. Renner, 2d Dist. Montgomery No. 25514, 2013–
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Ohio–5463, ¶ 24, citing Blakemore v. Blakemore, 5 Ohio St.3d 217, 219, 450 N.E.2d 1140(1983).
{¶ 24} Contrary to Ndao's assertion, the testimony provided by O’Neill and Cress
was not offered as expert testimony. Thus, Evid.R. 702 was not implicated. Evid.R. 701
governs opinion testimony by lay witnesses and provides that “[i]f the witness is not
testifying as an expert, his testimony in the form of opinions or inferences is limited to
those opinions or inferences which are (1) rationally based on the perception of the
witness and (2) helpful to a clear understanding of his testimony or the determination of
a fact in issue.”
{¶ 25} We discussed lay opinion in Hetzer-Young v. Elano Corp., 2016-Ohio-3356,
66 N.E.3d 234 (2d Dist.), wherein we stated:
The line between expert testimony under Evid.R. 702 and lay opinion
testimony under Evid.R. 701 is not always easy to draw. [Sec. Natl. Bank
& Trust Co. v. Reynolds, 2d Dist. Greene No. 2007 CA 66, 2008-Ohio-
4145,] at ¶ 19. However, as recognized by the Supreme Court of Ohio,
courts have permitted lay witnesses to express their opinions in areas in
which it would ordinarily be expected that an expert must be qualified under
Evid.R. 702. State v. McKee, 91 Ohio St.3d 292, 296, 744 N.E.2d 737(2001). “Although these cases are of a technical nature in that they allow
lay opinion testimony on a subject outside the realm of common knowledge,
they still fall within the ambit of the rule's requirement that a lay witness's
opinion be rationally based on firsthand observations and helpful in
determining a fact in issue. These cases are not based on specialized
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knowledge within the scope of Evid.R. 702, but rather are based upon a
layperson's personal knowledge and experience.” (Footnote omitted.) Id.at 296–297, 744 N.E.2d 737; see also State v. Jones, 2015-Ohio-4116, 43
N.E.3d 833, ¶ 107 (2d Dist.) (police detective could testify about typical
behavior of children in child abuse cases based on his training and
experience in such cases); State v. Renner, 2d Dist. Montgomery No.
25514, 2013-Ohio-5463, ¶ 77.
Id. at ¶ 43.
{¶ 26} This holding has been applied in a case involving police identification of
anhydrous ammonia, a chemical used to manufacture methamphetamine. State v.
Vogel, 3rd Dist. Crawford No. 3-05-10, 2005-Ohio-5757, ¶ 11. Therein, the Third
Appellate District held that the State is “entitled to establish the identity of a drug through
circumstantial evidence as long as a lay witness has firsthand knowledge and a
‘reasonable basis—grounded either in experience or specialized knowledge—for arriving
at the opinion expressed.’ ” Id. This court has applied Evid.R. 701 to a case wherein
an officer presented opinion testimony about a hydraulic press found in a garage that
contained heroin, and the typical use of such a press in shaping heroin. State v. Dillard,
173 Ohio App.3d 373, 2007-Ohio-5651, 878 N.E.2d 694, ¶ 91-93 (2d Dist.). We found
such was admissible as lay opinion testimony at trial for possession of heroin where the
officer's opinions are based on the officer's own perceptions and are helpful to the
factfinder. Id.{¶ 27} Here, both Cress and O’Neill had experience dealing with immigration
documents, including both valid and fraudulent permanent resident cards. They both
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testified based upon their visual inspection of Ndao’s card that his card had many
irregularities that are not consistent with valid cards. Further, O’Neill testified that, based
upon his experience and training, the irregularities caused him to believe that the card
was not issued by USCIS.
{¶ 28} We conclude that the trial court did not abuse its discretion by permitting the
testimony of either Cress or O’Neill. Accordingly, the third assignment of error is
overruled.
IV. Conclusion
{¶ 29} Ndao’s assignments of error being overruled, the judgment of the trial court
is affirmed.
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HALL, P.J. and DONOVAN, J., concur.
Copies mailed to:
Mathias H. Heck, Jr.
Alice B. Peters
George A. Katchmer
Hon. Mary Lynn Wiseman