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

2015 MAR 16 	AH 9: 2U
IN THE COURT OF APPEALS FOR THE STATE OF WASHINGTON
STATE OF WASHINGTON,
Respondent,
v.
ISATOU CEESAY,
Appellant.
No. 70905-4-1
DIVISION ONE
UNPUBLISHED OPINION
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

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.

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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).
-6-