COURT OF APPEALS OF VIRGINIA
Present: Judges Baker, Bray and Overton
Argued at Norfolk, Virginia
RICKY DEWAYNE ROGERS
MEMORANDUM OPINION* BY
v. Record No. 2269-96-1 JUDGE NELSON T. OVERTON
OCTOBER 7, 1997
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF NORFOLK
John C. Morrison, Jr., Judge
B. Thomas Reed for appellant.
Richard B. Smith, Assistant Attorney General
(James S. Gilmore, III, Attorney General, on
brief), for appellee.
Ricky DeWayne Rogers (defendant) was convicted by a jury of
the murder, rape, robbery, credit card theft, and credit card
fraud of Grace Payne (victim). On appeal, defendant presents two
arguments for consideration: 1) the trial court erred by allowing
a witness to identify defendant in an ATM videotape and 2) the
evidence is insufficient as a matter of law to support the
convictions. For the reasons that follow, we affirm the decision
of the trial court on both issues.
The parties are fully conversant with the record in the
cause, and because this memorandum opinion carries no
precedential value, no recitation of the facts is necessary.
“We will review the evidence and all reasonable inferences
fairly deduced therefrom in the light most favorable to the
*Pursuant to Code ? 17-116.010 this opinion is not
designated for publication.
Commonwealth, the prevailing party below.” Lee v. Commonwealth,
253 Va. 222, 223, 482 S.E.2d 802, 803 (1997).
Defendant contends that the trial court erred when it
allowed Mr. O’Connor, the victim’s fianc? and defendant’s
co-worker, to identify defendant in a videotape taken at an ATM
when the victim’s stolen credit card was used. His contention is
twofold. First, he argues that Mr. O’Connor is a lay witness
and, therefore, his identification of defendant in the videotape
should not have been allowed. However, identification of a
person has long been “considered a matter of fact” and well
within the competence of a witness familiar with the subject to
testify. See 2 Charles E. Friend, The Law of Evidence in
Virginia ? 17-10, at 21 (4th ed. 1993) (“The scarcity of case law
on the point is probably due to a general failure to regard
identification as an opinion problem.”).
One of the few cases addressing this “problem” is Jordan v.
Commonwealth, 66 Va. (25 Gratt) 625 (1874). In that case, a
witness was given the description of two men alleged to have
recently perpetrated a robbery. The witness then searched for
and found two men matching the description given to him. Upon
examination at trial, the witness testified that the men matched
the description. Defense counsel alleged error in this
testimony, claiming that the witness should have simply recited
the description and let the jury decide for themselves whether
the defendants fit it. On appeal, the Supreme Court of Virginia
held that “upon questions of identity it is competent to the
witness to give his opinion.” Id. at 626. Even though the
Supreme Court characterized the testimony as “opinion” rather
than “fact” the result is the same; 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.
Additionally, defendant invites us to hold that his
identification in the videotape was “the precise or ultimate fact
in issue, which must be left to the jury . . . for
determination.” Webb v. Commonwealth, 204 Va. 24, 33, 129 S.E.2d
22, 29 (1963). He reasons that because one of the crimes of
which he was convicted was credit card fraud, and Mr. O’Connor
testified that defendant was the person making the ATM
transaction in the videotape, this testimony went to an ultimate
issue of fact. We disagree.
While it is true that “the admission of expert opinion upon
an ultimate issue of fact is impermissible because it invades the
function of the fact finder,” Llamera v. Commonwealth, 243 Va.
262, 264, 414 S.E.2d 597, 598 (1992) (citations omitted), Mr.
O’Connor’s testimony did not implicate such an issue. The court
in Llamera concluded that when the prosecution was seeking to
prove possession of cocaine, the statutory elements of the
offense “were the ultimate issues of fact to be resolved by the
jury.” Id. at 265, 414 S.E.2d at 599. This holding follows a
long line of previous cases which have found that the elements of
a crime or cause of action constituted its “ultimate issues”.
See, e.g., Bond v. Commonwealth, 226 Va. 534, 539, 311 S.E.2d
769, 772 (1984) (whether death was suicide, accident, or homicide
was an ultimate issue of fact); Webb v. Commonwealth, 204 Va. 24,
32-33, 129 S.E.2d 22, 29 (1963) (whether effect of two deposit
slips was to replace converted funds was an ultimate issue of
fact); Ramsey v. Commonwealth, 200 Va. 245, 250-51, 105 S.E.2d
155, 159 (1958) (whether a fire was incendiary or accidental was
an ultimate issue of fact); Jenkins v. Commonwealth, 22 Va. App.
508, 517, 471 S.E.2d 785, 790 (1996) (en banc) (whether the
victim had been sexually abused was the ultimate issue of fact
where the defendant was charged with aggravated sexual battery),
rev’d on other grounds, Jenkins v. Commonwealth, No. 961459 (Va.
Sept. 12, 1997).
None of the elements of Code ? 18.2-1931 were testified to
by Mr. O’Connor. Mr. O’Connor simply testified that the person
in the videotape appeared to be the defendant. He did not
1Code ? 18.2-193 states that a person is guilty of credit
card fraud when:
(c) He, not being the cardholder or a person
authorized by him, with intent to defraud the
issuer, or a person or organization providing
money, goods, services or anything else of
value, or any other person, forges a sales
draft or cash advance/withdrawal draft, or
uses a credit card number of a card of which
he is not the cardholder, or utters, or
attempts to employ as true, such forged draft
knowing it to be forged.
testify that defendant used the victim’s credit card, had the
intent to defraud, or to any other element of the offense.
Accordingly, we hold that Mr. O’Connor’s testimony did not
implicate an ultimate issue of fact and the trial court did not
err by allowing his testimony.
Finally, defendant asks that this Court find, as a matter of
law, that the evidence is insufficient to support his
convictions. It is true that the case against him is
circumstantial, but even convictions based on circumstantial
evidence will be upheld on appeal as long as “all necessary
circumstances [are] consistent with guilt and inconsistent with
innocence and exclude every reasonable hypothesis of innocence.”
Moran v. Commonwealth, 4 Va. App. 310, 314, 357 S.E.2d 551, 553
(1987) (citations omitted). Whether defendants’ explanations are
“reasonable hypotheses of innocence” is a question of fact and
will not be disturbed upon appeal unless plainly wrong. See
Cantrell v. Commonwealth, 7 Va. App. 269, 290, 373 S.E.2d 328,
In light of these principles we find that the record
contains sufficient evidence to support defendant’s convictions;
there was a wealth of physical evidence that, while not
conclusive, pointed towards defendant; he had both motive and
opportunity to commit the crime, and he was seen with the fruits
of the robbery subsequent to its commission. The jury was free
to find from this and all other relevant evidence that defendant
was guilty, and we will not displace that finding.
The decision of the trial court is accordingly affirmed.