State v. Rangel , 140 Ohio App. 3d 291 ( 2000 )

OPINION. [EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] Defendant-appellant Antonio Rangel was charged with falsification under R.C. 2921.13(A)(3), which states that "[n]o person shall knowingly make a false statement, or knowingly swear or affirm the truth of a false statement previously made, when * * * [t]he statement is made with purpose to mislead a public official in performing the public official's official function." After a bench trial, Rangel was found guilty and sentenced as appears on record. Rangel now appeals, asserting two assignments of error, neither of which is well taken.

The evidence at trial established that Rangel, a citizen of Mexico, wanted to obtain a driver's license, so he went to a Bureau of Motor Vehicles ("BMV") and presented to the clerk, Rae Jean Whitaker, a social-security card and a resident-alien card, known as a "green card," as evidence of his identification. Whitaker testified that she thought that the cards were fraudulent and notified her supervisor, Sandra Scott. Scott examined Rangel's social-security card and green card. Scott testified that Rangel's picture on the green card did not cover the entire seal, which indicated to her that the card was fraudulent. Additionally, she testified that Rangel's social-security card appeared to be fraudulent because it did not have raised pillars, ink dots, or a perforated edge. Scott stated that, based on her observations, she called the local police for assistance.

Officer Daniel Carter responded and took Rangel to the police district to fill out a suspect investigation report. While filling out the report, Officer Carter asked Rangel to state his date of birth. According to Officer Carter, Rangel replied that March 15, 1979, was his date of birth. Officer Carter further testified that the green card identified Rangel's date of birth as March 15, 1974. Rangel testified at trial that his date of birth was March 15, 1979. Rangel also testified that he had obtained the social-security card and the green card from an unknown person at a shopping mall, but he denied that the cards were fraudulent.

In his first assignment of error, Rangel asserts that the trial court erred in allowing expert testimony as to the authenticity of the social-security card and the green card, because Whitaker and Scott were not qualified as experts. Under Evid.R. 702, three requirements must be met for expert testimony to be admissible. First, the testimony must relate to matters beyond the knowledge or experience of lay persons or dispel a misconception common among lay persons.¹ Second, the witness must be "qualified as an expert by specialized knowledge, skill, experience, training, or education regarding the subject matter of the testimony."² And, third, the testimony must be "based on reliable scientific, technical, or other specialized information."³ A trial court's admission of expert testimony will not be reversed absent an abuse of discretion.⁴

The state never proffered Whitaker or Scott as an expert witness at trial, and it is unclear whether the court accepted them as experts. Regardless, the state argues that Evid.R. 702 is inapplicable because the authenticity of the social-security card and the green card could have been established by lay opinion testimony. We disagree. A determination of whether a social-security card or a green card is authentic does not fall within the common knowledge of a lay person. Further, the social-security card and the green card in this case do not appear on their face to be fraudulent. Under the first prong of Evid.R. 702, expert testimony was required here. While it is preferable for the trial court to explicitly find that a witness qualifies as an expert, because the testimony of Whitaker and Scott related to knowledge beyond the scope of a lay person, we can infer from the record that the trial court considered them to be experts.⁵ Therefore, the question before us is whether Whitaker and Scott were properly qualified as expert witnesses.

The standards in Ohio relating to the admissibility of the opinion of an expert are relatively lenient as to a determination of who is an expert but relatively strict in governing the admissibility of the expert testimony. To qualify a witness as an expert under the second prong of Evid.R. 702, the court should consider the witness's knowledge, skill, experience, training, or education. An expert must only possess knowledge that will aid the trier of fact in assessing the evidence.⁶ And the expert need not possess special education, certification, or complete knowledge of the field in question.⁷ When applying the third prong of Evid.R. 702, the court must act as a "gatekeeper" to ensure that the proffered scientific, technical, or other specialized information is sufficiently reliable.⁸ While the relevant evidence must satisfy a threshold reliability standard, the credibility afforded to the expert's opinion still remains for the trier of fact.⁹

First, we examine whether Scott properly qualified as an expert under the second prong of Evid.R. 702. Scott was a deputy registrar in charge of a branch of the BMV and she had worked there since 1983. Through her employment at the BMV, Scott had received extensive training on how to identify fraudulent documents in yearly regional meetings and at office training sessions. These credentials qualified Scott as an expert. Next, we consider whether Scott's testimony was based on reliable scientific, technical, or other specialized information and whether her testimony was sufficiently reliable under the third prong of Evid.R. 702. Scott testified that certain characteristics helped to identify whether a document was authentic. For instance, Scott testified that, to determine whether a green card was authentic, the holder's picture had to completely cover the seal. Additionally, Scott testified that, when determining whether a social-security card was authentic, the pillars on the card had to be raised, ink dots had to appear on the card, and the edges of the card had to be perforated. Moreover, she testified that, under a "black light," the seal on the social-security card had to glow in the dark, and the words "Social Security Administration" or "Social Security Office" had to appear on the signature line. Finally, she testified that she used reference books to determine whether documents were authentic. Based upon Scott's knowledge and experience, we hold that Scott's opinion related to specialized information and was sufficiently reliable. Accordingly, the trial court did not abuse its discretion in admitting Scott's testimony relating to the authenticity of Rangel's documents.

Conversely, we hold that Whitaker did not qualify as an expert. Even with the lenient standards set forth in the second prong of Evid.R. 702, Whitaker was not qualified to determine whether Rangel's documents were authentic, because she had only received one two-hour training session on how to identify false documents in the course of her employment with the BMV. This was not sufficient. Although the admission of her testimony relating to the authenticity of Rangel's social-security card and green card was erroneous, we hold that the error was harmless beyond a reasonable doubt because Whitaker's testimony was similar to that of Scott, who properly qualified as an expert.¹⁰ Accordingly, we overrule Rangel's first assignment of error.

In his second assignment of error, Rangel alleges that, after he expressed his desire to appeal, the trial court erroneously enhanced his sentence. There was no objection to the sentence at trial. Thus, Rangel has waived all but plain error.¹¹ Rangel's sentence does not rise to the level of plain error because his sentence falls within the confines of R.C.2929.21(B)(1), which states that, for a misdemeanor of the first degree, a term of imprisonment up to six months may be imposed. Further, while the record reflects that the court did correct Rangel's sentence at the sentencing hearing, a trial court speaks only through its journal.¹² The journal here reveals that Rangel was sentenced only once to a six-month term in prison. Under these circumstances, we are unpersuaded that the trial court improperly enhanced Rangel's sentence, and we overrule his second assignment of error and affirm the judgment of the trial court.

Judgment affirmed. Gorman, P.J., concurs.

Painter, J., dissents.

¹ See Evid.R. 702(A).

² Evid.R. 702(B).

³ Evid.R. 702(C).

⁴ See State v. Williams (1983), 4 Ohio St.3d 53, 58,446 N.E.2d 444, 448.

⁵ See State v. Gray (Aug. 19, 1998), Lucas App. No. L-87-393, unreported.

⁶ See State v. Baston (1999), 85 Ohio St.3d 418, 423,709 N.E.2d 128, 133.

⁷ See id.

⁸ See Kumho Tire Co., Ltd. v. Carmichael (1999),526 U.S. 137, 119 S.Ct. 1167; Daubert v. Merrell Dow Pharmaceuticals, Inc. (1993), 509 U.S. 579, 590, 113 S.Ct. 2786, 2795; State v. Nemeth (1998), 82 Ohio St.3d 202, 211, 694 N.E.2d 1332, 1339.

⁹ See State v. Nemeth, supra.

¹⁰ See Crim.R. 52(A).

¹¹ See Crim.R. 52(B).

¹² State ex rel. Worcester v. Donnellon (1990) 49 Ohio St.3d 117,118, 551 N.E.2d 183, 184.