                   COURT OF APPEALS OF VIRGINIA


Present: Judges Coleman, Frank and Senior Judge Hodges
Argued at Salem, Virginia


DANIEL JAVAN HAIRSTON
                                         MEMORANDUM OPINION * BY
v.   Record No. 2814-98-3                JUDGE WILLIAM H. HODGES
                                            DECEMBER 21, 1999
COMMONWEALTH OF VIRGINIA


          FROM THE CIRCUIT COURT OF THE CITY OF ROANOKE
                     Jonathan M. Apgar, Judge

          Steven P. Mahar Milani, Senior Assistant
          Public Defender, for appellant.

          H. Elizabeth Shaffer, Assistant Attorney
          General (Mark L. Earley, Attorney General, on
          brief), for appellee.


     Daniel Javan Hairston, appellant, appeals his convictions for

robbery, use of a firearm in the commission of a robbery, and

possession of a firearm as a convicted felon.   Appellant contends

(1) that the trial court erred by allowing Officer K. D. Garrett

to testify, over appellant's hearsay objection, regarding the

victim's description of the alleged robber, and (2) that the

circumstantial evidence was insufficient to support the

convictions.   For the following reasons, we find no error and

affirm the convictions.




     * Pursuant to Code § 17.1-413, recodifying Code
§ 17-116.010, this opinion is not designated for publication.
                                 Facts

        Regina Payne spent the evening of January 24, 1998 playing

cards at a friend's house.    Payne left around 12:30 a.m. on

January 25, 1998 to find the person who was supposed to give her a

ride home.    Not seeing this person, Payne walked around the corner

to call a cab from the pay phone.    She noticed four men standing

near a car arguing over a large bag of marijuana.

        As she walked by the car, appellant approached her and

pointed a "big gun" with a bright, shiny barrel directly in her

face.    Holding the gun only a half-inch from Payne's face,

appellant demanded, "Bitch, what have you got?"     Fearing that

appellant would shoot her unless she cooperated, Payne gave him

what was in her pockets -- $42 she won playing a game and her rent

money of "two hundred and something."

        Appellant took Payne's money and got into the car with the

other three men.    The car had four doors, looked green under the

streetlights, and "it had shiny, shiny wheels on it . . . [that]

looked like the gun."    Payne called the police.   Seeing the person

who was supposed to have given her a ride, Payne got a ride away

from the area, and then called the police again.

        When the police officers arrived, Payne told them what had

happened.    She described appellant as a light-skinned black male

with light facial hair, in his early twenties, wearing "a weird

shaped hat and coat, and . . . that the bill of the hat was shaped

different than most hats were shaped."

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     Thereafter, the police determined that Payne was wanted on an

outstanding warrant.   Payne got into the police car.    Payne was

talking to the officers as they drove when she suddenly saw the

car in which appellant rode away from the robbery scene.     Payne

said, "Excuse me, but this is the car back here that we are

looking for. . . . the guy in the back seat on the driver's side,

that is him, that is the one."    The four men were seated in the

car the same way they were seated when they left the robbery

scene.   When the officers pulled up behind the car, Payne

repeated, "The person that robbed me is sitting directly behind

the driver in the back seat."

     Officer Garrett approached the vehicle and asked appellant to

get out of the car.    Garrett found two bags of marijuana in

appellant's pockets.   Garrett ordered the other three men out of

the car, and found a large amount of marijuana in the other back

seat passenger's possession.    A silver-colored .38 caliber

five-shot revolver was in the seat where appellant had been

sitting, hidden under a towel and pushed down into the seat.

     Appellant was dressed in "bulky clothing" and a hat with a

bill in front that was "pulled up . . . a kangaroo style hat," not

like a "normal looking ball cap."      None of the other three men

wore an "oddly shaped hat."

                                  I.

     Appellant contends that the trial court erred by allowing

Officer Garrett to testify regarding Payne's description of the

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robber given just after the robbery occurred.    The court did not

err in admitting Garrett's testimony concerning Payne's

identification of appellant.

                  Where the witness who identified the
             accused out-of-court is available as a
             witness, so as to afford the accused the
             rights of confrontation and
             cross-examination, the dangers sought to be
             avoided by the hearsay rule are absent and
             the testimony of a third person as to the
             extrajudicial identification has been held
             to be admissible. . . .

                  An identification made by a victim or
             an eyewitness soon after a crime has been
             committed may be more objective and accurate
             and have greater probative value than one
             made later in court when unduly suggestive
             circumstances, if present, or the changed
             appearance of the defendant, might adversely
             affect the identifier's testimony.
             Moreover, the memory of a witness may
             fade . . . . It is also not beyond the
             realm of possibility that an identifying
             witness may be inhibited by threat or
             intimidation from making a positive in-court
             identification. Accordingly, we agree with
             the reasoning of those courts which have
             approved the broad admissibility of
             identification evidence.

Niblett v. Commonwealth, 217 Va. 76, 81-82, 225 S.E.2d 391, 394

(1976) (citations omitted); see Ellis v. Commonwealth, 18 Va.

App. 340, 345-46, 444 S.E.2d 12, 15 (1994).

        In Ellis, the witness positively identified Ellis the day

after the crime occurred.    However, at the trial held nine

months later, the witness made an equivocal in-court

identification of Ellis, saying only that Ellis "looked like

him."     See Ellis, 18 Va. App. at 346, 444 S.E.2d at 15.   This

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Court held that the trial court did not err by allowing the

police officer to testify regarding the witness' out-of-court

identification of Ellis made the day after the crime.     See id.

     In this case, after viewing appellant during the robbery

and when he drove away from the scene, Payne made a positive

identification of appellant twenty-five to thirty minutes later.

While talking to the police officers, Payne identified the car

appellant drove away in and identified appellant as the man in

the back seat on the driver's side of the car.    At the trial

held almost eight months later, Payne identified appellant as

the man who robbed her at gunpoint.     However, during

cross-examination, Payne became equivocal in her in-court

identification.   Obviously, Payne was available for

cross-examination.    We hold that pursuant to the aforementioned

authorities, the trial court did not err by allowing Officer

Garrett to testify about Payne's out-of-court identification of

appellant made twenty-five to thirty minutes after the robbery.

                                 II.

    "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)

(citation omitted).

    So viewed, the evidence proved that appellant robbed Payne

at gunpoint.   Appellant held the gun within a half-inch of

                                - 5 -
Payne's face and demanded, "Bitch, what have you got?"      Fearing

that she would be shot if she refused to cooperate, Payne gave

appellant the $242 she had in her pockets.   Appellant left the

scene in the car with the three men.

    Payne identified, for the police, the car in which

appellant fled from the robbery scene.   Payne told the police

that the person who robbed her was sitting in the back seat

behind the driver.   That person was appellant.   The description

Payne gave Garrett matched appellant's appearance that night.

In addition, Garrett found marijuana in appellant's possession

and in another passenger's possession.   This fact is consistent

with Payne's account that appellant and the three other men were

arguing over marijuana just prior to the robbery.    Garrett also

found a gun in the seat where appellant had been sitting before

the car was stopped.   At trial, Payne said that this gun

appeared to be the gun used in the robbery, and she identified

appellant as the robber.

    At trial, appellant's cousin testified that Payne had

admitted to him that appellant had not robbed her.   According to

appellant's cousin, Payne said "there is a guy in Roanoke that

looks just like him," and that she "was going to get it

straight" when she went to court.

     The fact finder believed the Commonwealth's evidence and

rejected appellant's evidence.    "The credibility of the

witnesses and the weight accorded the evidence are matters

                                 - 6 -
solely for the fact finder who has the opportunity to see and

hear that evidence as it is presented."   Sandoval v.

Commonwealth, 20 Va. App. 133, 138, 455 S.E.2d 730, 732 (1995).

The Commonwealth's evidence was competent, was not inherently

incredible, and was sufficient to prove that appellant was the

person who committed the robbery and other charged offenses.

                                                   Affirmed.




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