2015MAR 16 AH 9: 2U

IN THE COURTOFAPPEALS FOR THE STATE OF WASHINGTON STATE OFWASHINGTON, 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 No. 70905-4-1 DIVISION ONE UNPUBLISHED OPINION FILED: March 16,2015 Leach, J. — Isatou Ceesay appeals her convictions for criminal impersonation and forgery.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 ofCeesay and his observation ofherincourt. 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, Ceesayworked atAlpha Supported LivingServices. 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 ofthe 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 numberon 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 herselfas "Isatou." When Alpha staff compared the signature and photo on the driver's license issued to Sainabou Hydara with the employee photo and signature ofthe person they knew as Hydara, the photos and signatures did notmatch. Ahuman

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 investigatorand Lofink both attempted to locate Hydara butwere unsuccessful. The State charged Ceesaywith criminal impersonation inthe 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 ifeither ofthe photos resembled anyone in the courtroom. Lofinkreplied, "Yes, they do," and explained, "It's my opinion thatNo. 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." Afterhearing this answer, defense counsel objected, "I'mgoing to object as improperopinion." 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 identitytheft. Ceesayappeals. 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 orbased 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, eitherby direct statementor inference.4 Butthe fact that opinion testimony supports a finding of guiltdoes not makethetestimony improper.5 

### 1Statev. Maqers. 164Wn.2d 174, 181, 189 P.3d 126 (2008). 2Maqers. 164Wn.2d at 181. 

### 3State v. Collins. 152 Wn. App. 429, 436, 216 P.3d 463 (2009); State v. Hardy. 76Wn. App. 188, 190, 884 P.2d 8 (1994); ER 701. 

### 4Collins. 152Wn. App. at436. 

### 5Collins. 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 defendantfrom the photograph than 

### isthejury.'"6 "[Ijdentitytestimony is helpful 'atleastwhen 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 thejuryto make the identification.'"7 At trial, Lofink explained his investigation process, detailing the steps he took "to firm up the identity ofthe people involved inthe 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 Ican get photographs," which he then compared to the DOLphotos and the documents he received from Alpha. 

### Unlike other Washingtoncases involving identification opinion testimony,8 Lofink did not base his opinion on any previous observations of Ceesay. 

### Therefore, Ceesaycontends, thetrialcourterred byadmitting Lofink'stestimony. 6State v. Georqe. 150 Wn. App. 110, 118, 206 P.3d 697 (2009) (quoting Hardy, 76Wn. App. at 190). 

### 7Collins. 152 Wn. App. at437-38 (quoting United States v. Jackman. 48 F.3d 1,4-5 (1stCir. 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 (officerbriefly observed defendants on day of crime); Collins. 152Wn. App. at 433, 438 (family, friends, and acquaintanceswerefamiliarwith defendant).No. 70905-4-1 / 5

She argues that because Lofinkhad never met Ceesay, "he had no betterbasis 

### for making that identification than did the jury.
... His opinion testimony was unhelpful to thejury and usurped itsfunction as thefactfinder." 

### 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 Anerror is prejudicial if it materially affects the outcome of a trial.10 Evidentiary error is harmless "ifthe evidence is ofminorsignificance inreference
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 coworkerfrom a differentfacilityconfirmed that she knew Ceesay only as Isatou Ceesay. Thejury 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 crossexamine 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

9Statev. Neal. 144Wn.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)). 12Hardy. 76 Wn. App. at 191.No. 70905-4-1 / 6 

### testimony was of minor significance, and it did not materially affect the outcome ofCeesay'strial.13 Conclusion 

### Because the trial court's admission of Lofink's identification opinion testimony did not affect the outcome ofthe trial, any error in admitting itwas harmless. We affirm. 

# ^ct^^n

# ^ WE CONCUR:



### 13 See Georqe. 150Wn. App. at 119-20 (evidentiaryerrorharmless 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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