State Of Washington, Resp. v. Isatou Ceesay, App.

2015 MAR 16 AH 9: 2U
IN THE COURT OF APPEALS FOR THE STATE OF WASHINGTON
STATE OF WASHINGTON,
No. 70905-4-1
Respondent,
v. DIVISION ONE
ISATOU CEESAY, UNPUBLISHED OPINION
Appellant. FILED: March 16,2015
Leach, J. — Isatou Ceesay appeals her convictions for criminal
impersonation and forgery. Ceesay challenges the trial court's admission of a
police investigator's identification opinion testimony, which he based only on
photos of Ceesay and his observation of her in court. Because any alleged error
was harmless, we affirm.
Background
Isatou Ceesay was a registered nursing assistant, but the State revoked
her credential beginning April 30, 2010. From May 2010 until September 2011,
Ceesay worked at Alpha Supported Living Services. During this time, coworkers
at Alpha knew her as Sainabou Hydara. Hydara was also a nursing assistant.
She submitted an application to the State Department of Health to reinstate her
expired credential on August 17, 2010.
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The job application and form authorizing direct deposit that Ceesay
submitted to Alpha listed her name as Sainabou Hydara. But the name of the
account holder on the voided check that Ceesay attached to the authorization
form was Isatou Ceesay, and the address was Ceesay's. And a telephone
number on the application was registered to Joseph King, Ceesay's husband.
After discovering a discrepancy between Ceesay and the documents
identifying her as Hydara, an Alpha manager contacted Bellevue police.
Detective Raymond Lofink obtained driver's licenses issued to Ceesay and
Hydara. When Lofink called the telephone number listed on the employee's
Alpha application, the person who answered identified herself as "Isatou."
When Alpha staff compared the signature and photo on the driver's
license issued to Sainabou Hydara with the employee photo and signature of the
person they knew as Hydara, the photos and signatures did not match. A human
resources representative at Alpha also called the telephone number from the
application file and asked Ceesay to meet to discuss her driver's license. But
Ceesay did not attend the meeting and never returned to Alpha. A State
investigator and Lofink both attempted to locate Hydara but were unsuccessful.
The State charged Ceesay with criminal impersonation in the first degree,
forgery, and identity theft in the first degree. At trial, the court admitted, without
objection, driver's license photos of Ceesay and Hydara. During direct
examination, the State asked Lofink if either of the photos resembled anyone in
the courtroom. Lofink replied, "Yes, they do," and explained, "It's my opinion that
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the person depicted in exhibit 9, or the driver's license for Isatou Ceesay, is the
young lady sitting at the table in front of me." After hearing this answer, defense
counsel objected, "I'm going to object as improper opinion." The court overruled
the objection.
Three Alpha employees who had worked with Ceesay testified that they
knew her as Sainabou Hydara. Another witness testified that she had worked
with Ceesay at a different social services agency and knew her only as Isatou
Ceesay.
A jury found Ceesay guilty of impersonation and forgery and not guilty of
identity theft. Ceesay appeals.
Analysis
This court reviews a trial court's ruling admitting evidence for abuse of
discretion.1 A court abuses its discretion when its decision is manifestly
unreasonable or based on untenable grounds or reasons.2
The Washington Rules of Evidence allow lay opinion testimony when it is
rationally based on perception and helpful to a clear understanding of the
evidence.3 A witness may not express an opinion concerning the defendant's
guilt, either by direct statement or inference.4 But the fact that opinion testimony
supports a finding of guilt does not make the testimony improper.5
1 State v. Maqers. 164Wn.2d 174, 181, 189 P.3d 126 (2008).
2 Maqers. 164 Wash. 2d at 181.
3 State v. Collins. 152 Wash. App. 429, 436, 216 P.3d 463 (2009); State v.
Hardy. 76 Wash. App. 188, 190, 884 P.2d 8 (1994); ER 701.
4 Collins. 152 Wash. App. at 436.
5 Collins. 152 Wash. App. at 436; ER 704.
No. 70905-4-1 / 4
A lay witness may give opinion testimony about the identity of an
individual in a photo provided that "'there is some basis for concluding that the
witness is more likely to correctly identify the defendant from the photograph than
is the jury.'"6 "[Ijdentity testimony is helpful 'at least when the witness possesses
sufficiently relevant familiarity with the defendant that the jury cannot also
possess, and when the photographs are not either so unmistakably clear or so
hopelessly obscure that the witness is no better-suited than the jury to make the
identification.'"7
At trial, Lofink explained his investigation process, detailing the steps he
took "to firm up the identity of the people involved in the case." He stated that he
performed records checks by requesting driver's license photos from the State
Department of Licensing (DOL) and employment documents, including an
employee photo, from Alpha. He made reference to "several other databases
where I can get photographs," which he then compared to the DOL photos and
the documents he received from Alpha.
Unlike other Washington cases involving identification opinion testimony,8
Lofink did not base his opinion on any previous observations of Ceesay.
Therefore, Ceesay contends, the trial court erred by admitting Lofink's testimony.
6 State v. Georqe. 150 Wash. App. 110, 118, 206 P.3d 697 (2009) (quoting
Hardy, 76 Wash. App. at 190).
7 Collins. 152 Wash. App. at 437-38 (quoting United States v. Jackman. 48
F.3d 1,4-5 (1st Cir. 1995)).
8 See, e.g.. Hardy. 76 Wash. App. at 190-92 (officer was acquainted with
defendant for several years); Georqe. 150 Wash. App. at 119-20 (officer briefly
observed defendants on day of crime); Collins. 152 Wash. App. at 433, 438 (family,
friends, and acquaintances were familiar with defendant).
No. 70905-4-1 / 5
She argues that because Lofink had never met Ceesay, "he had no better basis
for making that identification than did the jury. ... His opinion testimony was
unhelpful to the jury and usurped its function as the fact finder."
Even if we assume that the trial court erred, any error was harmless.
Evidentiary error provides grounds for reversal only where it resulted in
prejudice.9 An error is prejudicial if it materially affects the outcome of a trial.10
Evidentiary error is harmless "if the evidence is of minor significance in reference
to the evidence as a whole."11
Here, three witnesses testified that during the months they knew and
worked with Ceesay at Alpha, she identified herself as Sainabou Hydara. A
former coworker from a different facility confirmed that she knew Ceesay only as
Isatou Ceesay. The jury considered employment documents in Hydara's name
that included the telephone number of Ceesay's husband and a voided check
from Ceesay's bank account. Defense counsel had the opportunity to cross-
examine Lofink about his limited familiarity with Ceesay. As in Hardy. "[t]he jury
was free to disbelieve [the officer]; the ultimate issue of identification was left to
the jury."12 Considering the evidence as a whole, Lofink's identification opinion
9 State v. Neal. 144 Wash. 2d 600, 611, 30 P.3d 1255(2001).
10 Neal. 144 Wash. 2d at 611 (quoting State v. Smith. 106 Wash. 2d 772, 780,
725P.2d951 (1986)).
11 Neal. 144 Wash. 2d at 611 (citing Thieu Lenh Nqhiem v. State. 73 Wn.
App. 405, 413, 869 P.2d 1086 (1994)).
12 Hardy. 76 Wash. App. at 191.
No. 70905-4-1 / 6
testimony was of minor significance, and it did not materially affect the outcome
of Ceesay's trial.13
Conclusion
Because the trial court's admission of Lofink's identification opinion
testimony did not affect the outcome of the trial, any error in admitting it was
harmless. We affirm.
^ct"n
WE CONCUR:
^
13 See Georqe. 150 Wash. App. at 119-20 (evidentiary error harmless where
robbery victim also identified defendant, victim's description of defendant was
consistent with booking information, and other evidence linked defendant to
robbery).
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