                   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 fiancé 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



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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




                                  3
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 § 18.2-193 1 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
     1
      Code § 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.




                                 4
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,

339 (1988).

     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



                                 5
was guilty, and we will not displace that finding.

     The decision of the trial court is accordingly affirmed.

                                        Affirmed.




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