                                                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ISATOU CEESAY,                                 UNPUBLISHED OPINION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.
No. 70905-4-1 / 2




       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
No. 70905-4-1 / 3




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 Wn.2d at 181.
       3 State v. Collins. 152 Wn. App. 429, 436, 216 P.3d 463 (2009); State v.
Hardy. 76 Wn. App. 188, 190, 884 P.2d 8 (1994); ER 701.
      4 Collins. 152 Wn. App. at 436.
       5 Collins. 152 Wn. 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 Wn. App. 110, 118, 206 P.3d 697 (2009) (quoting
Hardy, 76 Wn. App. at 190).
      7 Collins. 152 Wn. App. at 437-38 (quoting United States v. Jackman. 48
F.3d 1,4-5 (1st Cir. 1995)).
      8 See, e.g.. Hardy. 76 Wn. App. at 190-92 (officer was acquainted with
defendant for several years); Georqe. 150 Wn. App. at 119-20 (officer briefly
observed defendants on day of crime); Collins. 152 Wn. 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 Wn.2d 600, 611, 30 P.3d 1255(2001).
      10 Neal. 144 Wn.2d at 611 (quoting State v. Smith. 106 Wn.2d 772, 780,
725P.2d951 (1986)).
      11 Neal. 144 Wn.2d at 611 (citing Thieu Lenh Nqhiem v. State. 73 Wn.
App. 405, 413, 869 P.2d 1086 (1994)).
       12 Hardy. 76 Wn. 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 Wn. 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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