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State v. Ndao

Court of Appeals of Ohio, Second District, Montgomery

November 3, 2017

STATE OF OHIO Plaintiff-Appellee
GORGUI S. NDAO Defendant-Appellant

         Criminal Appeal from Common Pleas Court Trial Court Case No. 2015-CR-3807

          MATHIAS H. HECK, JR., by ALICE B. PETERS, Atty. Reg. No. 0093945, Assistant Prosecuting Attorney, Attorney for Plaintiff-Appellee.

          GEORGE A. KATCHMER, Atty. Reg. No. 0005031, Attorney for Defendant-Appellant.


          TUCKER, J.

         {¶ 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, 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, 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"). 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 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 ...

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