                                             COURT OF APPEALS OF VIRGINIA
UNPUBLISHED


              Present: Judges Decker, Malveaux and Senior Judge Clements
              Argued at Richmond, Virginia


              STERLING CAPERS, S/K/A
               STERLING BERNARD CAPERS
                                                                            MEMORANDUM OPINION*
              v.     Record No. 1893-16-2                               JUDGE JEAN HARRISON CLEMENTS
                                                                                OCTOBER 31, 2017
              COMMONWEALTH OF VIRGINIA


                                FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND
                                             Beverly W. Snukals, Judge

                               Samantha Offutt Thames, Assistant Public Defender, for appellant.

                               Virginia B. Theisen, Senior Assistant Attorney General (Mark R.
                               Herring, Attorney General, on brief), for appellee.


                     In a jury trial, Sterling Capers (appellant) was convicted of robbery. On appeal, appellant

              argues the trial court erred: 1) in refusing his proposed jury instructions regarding the

              consideration of eyewitness identification testimony; 2) in denying his motions to strike the

              evidence because it was insufficient to prove his guilt beyond a reasonable doubt; and, 3) in

              denying his motion to exclude the testimony of Angela Taylor. We find no error on the part of

              the trial court and affirm appellant’s conviction.

                                                        BACKGROUND

                     “On appeal, ‘we review the evidence in the light most favorable to the Commonwealth,

              granting to it all reasonable inferences fairly deducible therefrom.’” Archer v. Commonwealth,

              26 Va. App. 1, 11, 492 S.E.2d 826, 831 (1997) (quoting Martin v. Commonwealth, 4 Va. App.

              438, 443, 358 S.E.2d 415, 418 (1987)).


                     *
                         Pursuant to Code § 17.1-413, this opinion is not designated for publication.
       On the night of August 9, 2015, Cyrus Kingdom was working as a clerk at a Walgreen’s

store on Chamberlayne Avenue in Richmond. A few minutes before closing time, a man

approached the check-out counter and purchased a candy bar. After Kingdom handled the sale,

the man said he wanted to buy another candy bar. When Kingdom opened the cash register

drawer to complete the transaction, the man reached across the counter and put his hand in the

drawer. Kingdom grabbed at the man’s hand. The man then pushed Kingdom’s torso down and

pinned him on the counter. Although Kingdom could not see it, he could hear the man grabbing

money from the drawer. The man released Kingdom and left the store. By telephone, Kingdom

immediately notified store management and the police about the incident.

       Kingdom provided the police with a description of the assailant. Kingdom said the

robber was an African-American male who was between the ages of forty-five and sixty, was

about six feet to six feet two inches in height, and weighed one hundred fifty to one hundred

eighty pounds. Kingdom said the assailant had long facial stubble, “salt and pepper” hair, and

brown eyes that were yellowed. The man had worn a white t-shirt and jean shorts.

       Two days after the robbery, the police showed Kingdom a photographic lineup

containing eight pictures of African-American males. Appellant’s photograph was contained in

the lineup. Police officers who knew appellant was the suspect displayed the photos to Kingdom

sequentially. Kingdom indicated appellant might be the perpetrator. After viewing the photos

further, Kingdom identified appellant as the perpetrator and said he was ninety-five percent

certain about his selection.

       At trial, the Commonwealth introduced and played for the jury video recordings from

Walgreen’s surveillance camera system. In the video, the assailant was shown as he entered the

store, committed the robbery, and left the store. At trial, Kingdom, a Caucasian, identified

appellant as the person who committed the robbery.

                                               -2-
       Taylor was the manager of the Walgreen’s store where the robbery occurred, but she was

not there when it happened. Taylor was familiar with appellant because he was in the store

frequently. Taylor had seen appellant in the store five times or more in the month preceding the

robbery. In addition, while driving in the vicinity of the store, Taylor had seen appellant about

six times on neighboring streets.

       At trial, Taylor viewed the video footage of the robbery from the store’s surveillance

camera. Taylor identified appellant as the person who robbed Kingdom. The trial court denied

appellant’s motion to exclude Taylor’s testimony regarding the videotape on grounds that it was

hearsay, was irrelevant, and was not sufficiently founded upon personal knowledge.

       Appellant asked the trial court to grant one of three proposed jury instructions regarding

the jury’s consideration of eyewitness identification testimony. The most comprehensive of the

three instructions contained five categories of factors the jury could consider in evaluating

eyewitness identification testimony. Each category contained specific circumstances for the

jury’s consideration, such as “the amount of time the witness had to observe the person

committing the crime,” “whether the witness and the person committing a crime were of

different races,” and “whether the witness made the identification after being exposed to any

outside influences or information.” The trial court rejected appellant’s proposed instructions on




                                                -3-
eyewitness identification. However, the trial court granted model jury instructions regarding the

credibility of witnesses and the Commonwealth’s burden of proof.1

                                              ANALYSIS

                                           Jury Instructions

       Appellant argues on appeal that the trial court erred in denying his proposed instructions

on eyewitness identification because they were supported by the evidence and were founded on

established principles of law and science.2


       1
           Instruction 2 stated:

                          You are the judges of the facts, the credibility of the
                 witnesses and the weight of the evidence. You may consider the
                 appearance and manner of the witnesses on the stand, their
                 intelligence, their opportunity for knowing the truth and for having
                 observed the things about which they testified, their interest in the
                 outcome of the case, their bias, if any has been shown, and their
                 prior inconsistent statements or whether they have knowingly
                 testified untruthfully as to any material fact in the case.

                         You may not arbitrarily disregard believable testimony of
                 any witness. However, after you have considered all the evidence
                 in the case, then you may accept or discard all or part of the
                 testimony of a witness as you think proper.

                         You are entitled to use your common sense in judging any
                 testimony. From these things and all the other circumstances of
                 the case, you may determine which witnesses are more believable
                 and weigh their testimony accordingly.

       Instruction 4 stated:

                         The Commonwealth bears the burden of proving beyond a
                 reasonable doubt the identity of the defendant as the person who
                 committed the crimes charged. If the Commonwealth has not met
                 this burden, you must find the defendant not guilty.
       2
         Appellant also argues the trial court erred in relying on facts not in evidence in denying
the proposed instructions. After the trial court stated its reasons for rejecting the instructions,
appellant did not argue that the trial court had relied upon facts that were not in evidence. Under
Rule 5A:18, “[n]o ruling of the trial court . . . will be considered as a basis for reversal unless an
objection was stated with reasonable certainty at the time of the ruling, except for good cause
                                                  -4-
       “Whether to give or deny jury instructions ‘rest[s] in the sound discretion of the trial

court.’” Hilton v. Commonwealth, 293 Va. 293, 302, 797 S.E.2d 781, 786 (2017) (quoting

Cooper v. Commonwealth, 277 Va. 377, 381, 673 S.E.2d 185, 187 (2009)). “A reviewing

court’s responsibility in reviewing jury instructions is ‘to see that the law has been clearly stated

and that the instructions cover all issues which the evidence fairly raises.’” Darnell v.

Commonwealth, 6 Va. App. 485, 488, 370 S.E.2d 717, 719 (1988) (quoting Swisher v. Swisher,

223 Va. 499, 503, 290 S.E.2d 856, 858 (1982)). Moreover, a jury instruction “may not ‘single

out for emphasis a part of the evidence tending to establish a particular fact.’” Terry v.

Commonwealth, 5 Va. App. 167, 170, 360 S.E.2d 880, 882 (1987) (quoting Woods v.

Commonwealth, 171 Va. 543, 548, 199 S.E. 465, 467 (1938)). “When granted instructions fully

and fairly cover a principle of law, a trial court does not abuse its discretion in refusing another

instruction relating to the same legal principle.” Daniels v. Commonwealth, 275 Va. 460, 466,

657 S.E.2d 84, 87 (2008) (quoting Stockton v. Commonwealth, 227 Va. 124, 145, 314 S.E.2d

371, 384 (1984)).




shown or to enable the Court of Appeals to attain the ends of justice.” “One of the tenets of
Virginia’s jurisprudence is that trial counsel must timely object with sufficient specificity to an
alleged error at trial to preserve that error for appellate review.” Perry v. Commonwealth, 58
Va. App. 655, 666, 712 S.E.2d 765, 771 (2011). Because the requirements of Rule 5A:18 have
not been met, we will not consider this aspect of appellant’s argument on appeal.

                       Although Rule 5A:18 allows exceptions for good cause or
               to meet the ends of justice, appellant does not argue that we should
               invoke these exceptions. See e.g., Redman v. Commonwealth, 25
               Va. App. 215, 221, 487 S.E.2d 269, 272 (1997) (“In order to avail
               oneself of the exception, a defendant must affirmatively show that a
               miscarriage of justice has occurred, not that a miscarriage might
               have occurred.” (emphasis added)). We will not consider, sua
               sponte, a “miscarriage of justice” argument under Rule 5A:18.

Edwards v. Commonwealth, 41 Va. App. 752, 761, 589 S.E.2d 444, 448 (2003) (en banc).
                                          -5-
       In Daniels, 275 Va. at 464, 657 S.E.2d at 86, the Supreme Court of Virginia observed that

“[c]ourts have long recognized dangers inherent in eyewitness identification testimony.”

               [S]ome state and federal courts, citing continued research on
               eyewitness identification, have opined that courts should guard
               against a jury assuming that admitted eyewitness identification
               testimony is unquestionably reliable and credible simply because it
               was admitted in evidence. Accordingly, these jurisdictions have
               allowed a specific jury instruction alerting the jury to the dangers
               of eyewitness identification testimony both with regard to the
               circumstances of the identification and the possibility of a sincere
               mistake in identification. In some jurisdictions, such instructions
               are required in cases in which the defendant requests the
               instruction and identification of the defendant is a central part of
               the prosecution's case. In others, such cautionary instructions are
               permissible, but not required, if the circumstances warrant.

Id. at 465, 657 S.E.2d at 86 (citations omitted). Nonetheless, the Court found that, in Virginia,

“[w]e have not adopted a rule . . . which requires a cautionary instruction on eyewitness

identification in every case in which it is requested and the identification of the defendant is

central to the prosecution’s case.” 3 Id. But “[n]either have we opined that such an instruction

would never be appropriate, nor that a court would abuse its discretion by granting such an

instruction.” Id.

       In Payne v. Commonwealth, 292 Va. 855, 794 S.E.2d 577 (2016), the Court considered

whether the trial court erred in refusing a proffered jury instruction on eyewitness identification

modeled upon an instruction discussed in United States v. Telfaire, 469 F.2d 552 (D.C. Cir.

1972). The Court observed that

               the very specificity of Payne’s instruction counseled against its
               use, in the form and using the precise language he proffered. The
               proffered instruction would have focused the jury’s attention on
               four enumerated factors, thereby suggesting that those four factors
               were exclusive or at least entitled to special consideration or undue
               weight. While it may be appropriate during closing argument for

       3
         Appellant maintains that Daniels was wrongly decided. However, “we are bound by the
decisions of the Supreme Court of Virginia and are without authority to overrule [them].” Roane
v. Roane, 12 Va. App. 989, 993, 407 S.E.2d 698, 700 (1991).
                                              -6-
                 each party to focus the jurors’ attention on the evidence it prefers
                 them to consider during their deliberations, it is not appropriate for
                 the court to do so in a jury instruction because, under the law of
                 Virginia, the jury is free to weigh the evidence how it chooses.

Payne, 292 Va. at 871, 794 S.E.2d at 585. The Court reaffirmed the holding in Daniels that it is

within the trial court’s discretion to deny an instruction on eyewitness identification. Id. at 872,

794 S.E.2d at 586.

          As in Payne, the trial court granted, as Instruction 2, the Virginia model jury instruction

concerning the jury’s role in judging the credibility of witnesses. The jury was appropriately

instructed regarding the Commonwealth’s burden of proving appellant’s identity beyond a

reasonable doubt, as well as on the presumption of innocence. The granted instructions given by

the trial court thus addressed the theory of the defense that the eyewitness testimony lacked

credibility. As such, granting one of appellant’s proposed instructions would have been

duplicative. We find no abuse of discretion in the trial court’s decision to deny appellant’s

proffered instructions on eyewitness identification.

                                      Sufficiency of the Evidence

          Appellant argues the Commonwealth’s evidence did not prove beyond a reasonable doubt

that he was the person who robbed Kingdom. “When considering on appeal the sufficiency of

the evidence presented below, we ‘presume the judgment of the trial court to be correct’ and

reverse only if the trial court’s decision is ‘plainly wrong or without evidence to support it.’”

Kelly v. Commonwealth, 41 Va. App. 250, 257, 584 S.E.2d 444, 447 (2003) (en banc) (quoting

Davis v. Commonwealth, 39 Va. App. 96, 99, 570 S.E.2d 875, 876-77 (2002)). “On appeal, we

will consider the evidence in the light most favorable to the Commonwealth, as it prevailed in

the trial court.” Whitehurst v. Commonwealth, 63 Va. App. 132, 133, 754 S.E.2d 910, 910

(2014).



                                                  -7-
       “The factors set forth in Neil v. Biggers, 409 U.S. 188 (1972), are used to determine

‘whether the identification evidence is sufficient, standing alone or in combination with other

evidence, to prove beyond a reasonable doubt’ the identity of the perpetrator.” Cuffee v.

Commonwealth, 61 Va. App. 353, 364, 735 S.E.2d 693, 698 (2013) (quoting Brown v.

Commonwealth, 37 Va. App. 507, 522, 559 S.E.2d 415, 423 (2002)).

               [T]he factors to be considered in evaluating the likelihood of
               misidentification include the opportunity of the witness to view the
               criminal at the time of the crime, the witness’ degree of attention,
               the accuracy of the witness’ prior description of the criminal, the
               level of certainty demonstrated by the witness at the confrontation,
               and the length of time between the crime and the confrontation.

Biggers, 409 U.S. at 199-200. “In evaluating the reliability of the identification, this Court looks

to the totality of the circumstances.” Cuffee, 61 Va. App. at 364, 735 S.E.2d at 699.

       Kingdom testified that the perpetrator approached the counter and completed the

purchase of a candy bar. He then said he wanted to buy a second piece of candy. When

Kingdom opened the cash drawer, the man put his hand in the drawer and pushed Kingdom

down on the counter. Although he was unable to view the assailant while he was taking the

money, Kingdom saw the robber both before the incident and after it as the perpetrator fled.

       At trial, the Commonwealth introduced the store’s videotape of the incident. The

surveillance camera system recorded the event from two vantage points in the store, one at the

door and one above the cash register. The footage shows that the store was well-lit. The

recording also demonstrates that the perpetrator and Kingdom were close to each other before

and during the robbery. Kingdom viewed this recording and identified appellant as the person

seen committing the offense. Likewise, Taylor, who was familiar with appellant from seeing

him inside the store and in the neighborhood, viewed the videotape and identified appellant.

       After the police arrived on the scene, Kingdom provided a detailed description of his

assailant. Kingdom had noted the robber’s clothing, height and weight, approximate age, and
                                                -8-
overall appearance. Two days after the robbery, Kingdom selected appellant’s photograph from

a lineup. Kingdom was ninety-five percent certain he had correctly identified appellant.

Contrary to appellant’s suggestion, there was no indication that the identification was the product

of a suggestive procedure employed by the police.4

          Considering all the facts and circumstances, and applying the factors in Biggers, the

evidence was sufficient to prove beyond a reasonable doubt that appellant was the person who

committed the robbery.

                                 Admissibility of Taylor’s Testimony

          Appellant contends the trial court erred in denying his motion to exclude Taylor’s

testimony regarding her observations on the videotape. “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. Blain v. Commonwealth, 7 Va. App. 10, 16, 371 S.E.2d 838, 842

(1988).

          Appellant contends Taylor’s testimony was inadmissible hearsay. “Hearsay is ‘[a]

statement other than one made by the declarant while testifying at trial -- which is offered in

evidence to prove the truth of the matter asserted.’” Brown v. Commonwealth, 25 Va. App. 171,

177, 487 S.E.2d 248, 251 (1997) (en banc) (quoting Black’s Law Dictionary 649 (5th ed. 1979)).

“This Court has previously recognized that where ‘there is no out-of-court asserter,’ there can be

no hearsay.” Bynum v. Commonwealth, 57 Va. App. 487, 491, 704 S.E.2d 131, 133 (2011)

(quoting Tatum v. Commonwealth, 17 Va. App. 585, 588, 440 S.E.2d 133, 135 (1994)). In

Bynum, this Court held that a witness’ testimony about information depicted in an aerial

photograph prepared by another person did not constitute hearsay. Id. at 495, 704 S.E.2d at 135.



          4
         We note that appellant did not move to suppress Kingdom’s out-of-court identification
as being the product of an overly suggestive procedure employed by the police.
                                               -9-
In so finding, the Court determined the photograph was not an “out-of-court declarant” in that

“[i]t is not the recordation or compilation of another human being’s assertions [or] . . . a

communication of input from another person. Rather, it is simply a technological reproduction

of an existing reality.” Id. at 492, 704 S.E.2d at 133. Accordingly, we determined that “[s]ince

this aerial photograph is not a declaration of any person, it cannot be said that a witness using the

photograph is ‘reading’ the ‘assertions’ of an out-of-court declarant.” Id. at 492, 704 S.E.2d at

134.

       Similarly, Taylor’s testimony regarding the events depicted in the surveillance video did

not constitute hearsay. Taylor testified regarding what she personally observed on the video at

the time of the offense. Because the surveillance video was not an assertion by an out-of-court

declarant, it follows that Taylor’s testimony was not a mere recitation of a third party’s assertion.

Rather, Taylor’s testimony described a “technological reproduction of an existing reality.”

Bynum, 57 Va. App. at 492, 704 S.E.2d at 133. Accordingly, the trial court did not err in

refusing to exclude Taylor’s testimony on hearsay grounds.

       Appellant contends that, because Taylor was not present when the crime occurred,

Taylor’s testimony about the contents of the videotape was irrelevant and not based upon her

personal knowledge of what happened during the incident.

                       Evidence is relevant if it has any logical tendency to prove
               an issue in a case. Relevant evidence may be excluded only if the
               prejudicial effect of the evidence outweighs its probative value.
               The question whether the prejudicial effect of evidence exceeds its
               probative value lies within the trial court’s discretion.

Goins v. Commonwealth, 251 Va. 442, 461-62, 470 S.E.2d 114, 127 (1996) (citation omitted).

Virginia Rule of Evidence 2:602 provides in pertinent part:

                      A witness may not testify to a matter unless evidence is
               introduced sufficient to support a finding that the witness has
               personal knowledge of the matter. Evidence to prove personal

                                                - 10 -
               knowledge may, but need not, consist of the testimony of the
               witness.

       As the manager of Walgreen’s, Taylor was familiar with the store’s interior. She

obtained for the police the surveillance footage that corresponded to the time the robbery

occurred. Taylor also was familiar with appellant’s appearance, having seen him often inside the

store and in the neighboring vicinity. Taylor viewed the tape, and identified appellant as the

person she saw committing the robbery. Thus, Taylor’s testimony was both relevant, as tending

to establish appellant’s guilt of the crime, and based upon her own personal knowledge.

       Finally, acknowledging he did not raise this issue at trial, appellant asks this Court to

invoke the ends of justice exception to Rule 5A:18 and consider whether Taylor’s testimony

constituted an inadmissible opinion on an ultimate issue in the case. “In order to avail oneself of

the [ends of justice] exception [to Rule 5A:18], a defendant must affirmatively show that a

miscarriage of justice has occurred . . . .” Redman v. Commonwealth, 25 Va. App. 215, 221, 487

S.E.2d 269, 272 (1997).

                        As our Supreme Court has stated, application of the ends of
               justice exception “requires a determination not only that there was
               error . . . but also that application of the exception is necessary to
               avoid a grave injustice.” Charles v. Commonwealth, 270 Va. 14,
               20, 613 S.E.2d 432, 434 (2005). This occurs only in “rare
               instances.” Ball v. Commonwealth, 221 Va. 754, 758, 273 S.E.2d
               790, 793 (1981).

Lacey v. Commonwealth, 54 Va. App. 32, 46, 675 S.E.2d 846, 853 (2009).

       In Bowman v. Commonwealth, 30 Va. App. 298, 303, 516 S.E.2d 705, 707 (1999), this

Court found that the trial court did not err in permitting a witness to identify the defendant as the

man depicted in a video surveillance tape. This Court reasoned that “‘[u]ltimate issues of fact’

for purposes of the conviction of a crime are the statutory elements of that offense,” not the

identity of the perpetrator. Id. Therefore, this is not one of the rare instances where we invoke

the ends of justice exception and consider the argument raised for the first time on appeal.
                                                - 11 -
                                 CONCLUSION

For the foregoing reasons, we affirm appellant’s conviction.

                                                               Affirmed.




                                      - 12 -
