                    COURT OF APPEALS OF VIRGINIA


Present: Judges Benton, Annunziata and Overton
Argued at Richmond, Virginia


JOHN FREDERICK HAMM
                                         MEMORANDUM OPINION * BY
v.         Record No. 0250-96-2         JUDGE NELSON T. OVERTON
                                            JANUARY 7, 1997
COMMONWEALTH OF VIRGINIA


             FROM THE CIRCUIT COURT OF NOTTOWAY COUNTY
                      Thomas V. Warren, Judge
           Connie Louise Edwards for appellant.

           Richard B. Smith, Assistant Attorney General
           (James S. Gilmore, III, Attorney General, on
           brief), for appellee.


     John Frederick Hamm was convicted in a bench trial of

attempted sodomy.   He appeals, contending that the witness for

the Commonwealth improperly gave opinion testimony.   We disagree

and affirm his conviction.

     At Hamm's trial, the sole witness for the Commonwealth was

the correctional officer who found Hamm on the floor with another

inmate.   When the prosecutor asked what they were doing, the

officer replied, "They was [sic] in a sexual activity."

     Hamm argues that this statement constitutes improper opinion

testimony because it relates to the ultimate fact at issue.     An

element of the charged offense is an ultimate fact at issue in a

criminal prosecution.   See Jenkins v. Commonwealth, 21 Va. App.

     *
      Pursuant to Code § 17-116.010 this opinion is not

designated for publication.
222, 226, 463 S.E.2d 330, 332 (1995).   An opinion that the

charged offense occurred improperly invades the province of the

fact finder.   See id.; Cartera v. Commonwealth, 219 Va. 516, 519,

248 S.E.2d 784, 786 (1978).

     Assuming that the testimony of the officer qualifies as

improper opinion testimony, its admission was harmless error.     In

testimony both before and after the question and answer objected

to, the correctional officer described in objective details the

incident that he witnessed.   He stated exactly what he saw and

demonstrated the positions and movement that he observed.     From

this testimony the fact finder was able to draw his own

conclusions about the ultimate fact at issue.
     Accordingly, we affirm the conviction.

                                         Affirmed.




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