State v. Ndao
2017 Ohio 8422
| Ohio Ct. App. | 2017Background
- On Oct. 31, 2015, Gorgui Ndao attempted to renew his Ohio driver’s license and presented a Social Security card, expired license, and an alleged permanent resident (I-551) card.
- BMV clerks flagged the I-551 for investigative review due to multiple irregularities and forwarded documents to the BMV investigations unit.
- BMV employees (Maki and supervisor Banks) and BMV investigator Cress identified spelling errors, improper hologram/reflection, incorrect images on the back, and other visible defects on the card.
- USCIS fraud-detection officer Kevin O’Neill examined the card with forensic aids (black light, loupe) and concluded the card was not issued by USCIS; the A-number on the card belonged to a different person and Ndao had no USCIS records after 1996.
- Ndao was indicted and convicted under R.C. 2913.42(A)(2) (tampering with records—uttering a writing known to be tampered with); sentenced to community control. He appealed, arguing insufficiency/weight of evidence and improper admission of non-expert opinion testimony.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Sufficiency of evidence to convict under R.C. 2913.42(A)(2) | State: circumstantial and testimonial evidence (multiple witnesses, forensic exam) shows the card was invalid and Ndao presented it to obtain a license. | Ndao: lacked knowledge the card was invalid; had lived in U.S. long time without USCIS contact; other presented documents were valid. | Conviction affirmed—viewing evidence in prosecution's favor, a rational juror could find guilt beyond a reasonable doubt. |
| Manifest weight of the evidence | State: testimony and document analysis credible; multiple trained witnesses agreed card was fraudulent. | Ndao: jury should not have credited State's witnesses; evidence doesn't prove guilty knowledge. | Court refused to reverse—no manifest miscarriage; credibility determinations for jury. |
| Admission of non-expert opinion testimony (Evid.R. 701/702) | State: witnesses (Cress, O’Neill) offered lay opinions based on firsthand inspection and training helpful to factfinder. | Ndao: witnesses were effectively offering expert opinions without being qualified as experts, violating Evid.R. 702. | Court held testimony was admissible as lay opinion under Evid.R. 701; no abuse of discretion in admitting testimony. |
Key Cases Cited
- State v. Thompkins, 78 Ohio St.3d 380 (1997) (standards for reviewing claims challenging a conviction)
- State v. Jenks, 61 Ohio St.3d 259 (1991) (sufficiency: evidence viewed in light most favorable to prosecution)
- State v. Nicely, 39 Ohio St.3d 147 (1988) (conviction may rest solely on circumstantial evidence)
- State v. McKee, 91 Ohio St.3d 292 (2001) (permitting lay opinion testimony based on personal knowledge/experience)
- Blakemore v. Blakemore, 5 Ohio St.3d 217 (1983) (standard for appellate abuse of discretion)
- State v. Dillard, 173 Ohio App.3d 373 (2007) (officer's lay opinion about drug paraphernalia admissible when based on perception and helpful to factfinder)