State v. Ndao

[Cite as State v. Ndao, 2017-Ohio-8422.] IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT MONTGOMERY COUNTY STATE OF OHIO : : Plaintiff-Appellee : Appellate Case No. 27368 : v. : Trial Court Case No. 2015-CR-3807 : GORGUI S. NDAO : (Criminal Appeal from : Common Pleas Court) Defendant-Appellant : : ........... OPINION Rendered on the 3rd day of November, 2017. ........... MATHIAS H. HECK, JR., by ALICE B. PETERS, Atty. Reg. No. 0093945, Assistant Prosecuting Attorney, Montgomery County Prosecutor’s Office, Appellate Division, Montgomery County Courts Building, 301 West Third Street, Dayton, Ohio 45422 Attorney for Plaintiff-Appellee GEORGE A. KATCHMER, Atty. Reg. No. 0005031, 1886 Brock Road N.E., Bloomingburg, Ohio 43106 Attorney for Defendant-Appellant ............. TUCKER, J. -2- {¶ 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, -3- 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. ...

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