Bowman v. Com.

• Decision Date: 27 July 1999
• Docket Number: Record No. 1734-98-3.
• Citation: 516 S.E.2d 705,30 Va. App. 298
• Court: Virginia Court of Appeals
• Parties: Henry BOWMAN v. COMMONWEALTH of Virginia.

516 S.E.2d 705

30 Va. App. 298

Henry BOWMAN v. COMMONWEALTH of Virginia.

Record No. 1734-98-3.

Court of Appeals of Virginia, Salem.

July 27, 1999.

Thomas S. Leebrick (Thomas S. Leebrick, P.C., on brief), Lynchburg, for appellant.

Leah A. Darron, Assistant Attorney General (Mark L. Earley, Attorney General, on brief), for appellee.

Present: FITZPATRICK, C.J., and COLEMAN and LEMONS, JJ.

LEMONS, Judge.

Henry Bowman was convicted in a bench trial of three counts of statutory burglary, three counts of grand larceny and three counts of property damage. On appeal, Bowman argues that the court erred by allowing a witness to identify him as the man depicted in video surveillance tapes. We disagree and affirm the convictions.

I. BACKGROUND

In the summer of 1997, three convenience stores in Campbell County were burglarized. On June 7, 1997, Lester's Market was burglarized, and a safe containing approximately $2,600 was stolen from the store. On July 26, 1997, Miles Market was burglarized, and approximately $6,400 in cash, twenty-five cartons of cigarettes, and several cases of beer were taken from the store. On July 26, 1997, Moore's Country Store was burglarized, and a safe containing $3,000 in cash and checks was stolen.

The evidence revealed that a breaking occurred in the back of Miles Market, approximately nine feet off the ground. The perpetrator of the burglaries at Lester's Market and Moore's Country Store was captured on tape by video surveillance equipment. At trial, Carl Smith testified that Henry Bowman was the person seen on both video surveillance tapes. Smith stated that he was the grandfather of Bowman's children. Smith stated that although he was not present during the commission of any of the charged burglaries, he could positively identify Bowman as the person on the tapes. On cross-examination, Smith testified that he did not like Bowman because Bowman was unemployed.

Smith also identified Bowman as the person in Commonwealth's Exhibits 6 and 7, still photographs taken from the videotapes. Bowman's counsel objected to Smith's testimony, arguing that his statements constituted "non-verbal hearsay improper lay testimony, and opinion testimony offered to prove an ultimate issue of fact.

Bowman moved to strike at the close of the Commonwealth's case-in-chief and at the close of all evidence. The court denied both motions. The court stated that although the videotapes themselves were insufficient to allow an identification of Bowman, when looking at one of the still photos from the videotape the court itself could identify Bowman as "the burglar."

On appeal, Bowman argues that the court erred in overruling his objection to the admission of Smith's testimony regarding his identity as the perpetrator of the burglaries that were depicted on the two videotapes.

II. IDENTIFICATION OF BOWMAN

Bowman argues that the court erred in allowing Smith to testify about the identity of the perpetrator shown on the videotapes and the still photographs made from the tapes. Bowman contends the Commonwealth "failed to establish Mr. Smith's familiarity with [Bowman] in order to qualify Smith to express an opinion regarding [Bowman's] identity." Bowman argues that Smith's lack of familiarity with Bowman's appearance, coupled with his bad feelings toward Bowman, undermine the credibility of his testimony.

A. Ability of Witness to Identify Appellant

Bowman did not raise at trial the issue of Smith's ability to identify him on the videotape. "In order to be considered on appeal, an objection must be timely made and the grounds stated with specificity. To be timely, an objection must be made when the occasion arises—at the time the evidence is offered or the statement made." Marlowe v. Commonwealth, 2 Va.App. 619, 621, 347 S.E.2d 167, 168 (1986); see Rule 5A:18. Because Bowman did not raise this objection at trial, we will not consider it for the first time on appeal.

B. Lay Testimony

Bowman also argues that Smith was prohibited from making an identification of the person on the videotape because he was a lay witness testifying about matters that require the testimony of an expert. We disagree. "The admissibility of evidence is within the broad discretion of the trial court, and a ruling will not be disturbed on appeal in the absence of an abuse of discretion." Brown v. Commonwealth, 21 Va.App. 552, 555, 466 S.E.2d 116, 117 (1996). "Evidence which tends to cast any light upon the subject of the inquiry is relevant." Cash v. Commonwealth, 5 Va.App. 506, 510, 364 S.E.2d 769, 771 (1988). "Relevant evidence which has the tendency to add force and effect to a party's defense is admissible, unless excluded by a specific rule or policy consideration." Evans v. Commonwealth, 14 Va.App. 118, 122, 415 S.E.2d 851, 853-54 (1992).

In Jordan v. Commonwealth, 66 Va. (25 Gratt.) 943 (1874), the Supreme Court of Virginia considered whether a witness who had been given a description of two men alleged to have recently committed a robbery could testify at their trial. At trial, the witness testified that the men matched the description he had been given. On appeal, the Court held that "upon questions of identity a witness is competent to give his opinion." Id. at 945.

"A lay witness may offer an opinion as to the identity of a person." 2 Charles E. Friend, The Law of Evidence in Virginia § 17.10, at 21 (4th ed.1993). Here, Smith was Bowman's father-in-law and the grandfather of Bowman's children. Smith testified that he had known Bowman for two years and that he recognized Bowman not only in the videotapes but also in the Commonwealth's still photographs of the perpetrator made from the videotape. "The scarcity of case law on the point [of whether a witness may identify a person] is probably due to a general failure to regard identification as an opinion problem, it being considered a matter of `fact.'" Friend, supra, at 21.

C. "Ultimate Issue of Fact"

Bowman also argues that the court erred in allowing Smith's testimony because lo[pinion testimony on ultimate issues of fact is not admissible in criminal proceedings." Bowman contends that Smith's testimony "goes directly to the ultimate issue: the identity of the culprit." We disagree.

Smith's identification of Bowman did not implicate an "ultimate issue of fact." "Ultimate issues of fact" for purposes of the conviction of a crime are the statutory elements of that offense. See Llamera v. Commonwealth, 243 Va. 262, 414 S.E.2d 597 (1992)

(in prosecution for possession of cocaine with intent to distribute, the Commonwealth is required to prove the element of possession and the intent to distribute which are both ultimate issues of fact); Bond v. Commonwealth, 226 Va. 534, 539, 311 S.E.2d 769, 772 (1984) (where "the crucial issue was whether death was brought about by criminal agency ... [t]he ultimate question was whether the decedent jumped intentionally, fell accidentally, or was thrown to her death"). The court did not err in allowing Smith to identify Bowman as the person shown on the videotape and the still photos.

III. DENIAL OF WRIT "ON THE MERITS"

In an earlier unpublished decision, we considered the exact issue now before us: whether a witness may identify a person from a videotape and whether that identification may be considered by the fact finder. See Rogers v. Commonwealth, 97 Vap. UNP 2269961, Record No. 2269-96-1, 1997 WL 613299 (October 7, 1997). In Rogers, appellant appealed his conviction of murder, rape, robbery, credit card theft, and credit card fraud. At trial, the court allowed a witness who knew both the victim and the appellant to identify the appellant in a videotape taken at a bank machine where the victim's stolen credit card was used. On appeal, Rogers argued that a lay witness should not have been permitted to identify the person on the videotape. See id. In addition, Rogers argued that by allowing the witness to identify him, the witness was usurping the role of the fact, finder in making a determination of an "ultimate fact in issue." Id. at 2.

In an unpublished opinion, we disagreed with Rogers' contentions and affirmed his convictions. See id. We held that "a witness may identify a person from a description, or, as in the instant case, a videotape, and that identification may be considered by the finder of fact." Id. In addition, because the witness' identification of Rogers as the man in the videotape did not prove an element of any of the charges against him, "[the witness'] testimony did not implicate an ultimate issue of fact and the trial court did not err by allowing his testimony." Id.

After his convictions were affirmed, Rogers did not petition this Court for a rehearing en banc. Rogers did, however, file a petition for appeal with the Supreme Court of Virginia. On February 18, 1998, the Supreme Court denied Rogers' petition for appeal. See Record No. 972336 (Va. February 18, 1998). The refusal of a petition for appeal...