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COURT OF APPEALS OF VIRGINIA

Present: Chief Judge Fitzpatrick, Judges Coleman and Lemons Argued at Salem, Virginia

HENRY BOWMAN v. Record No. 1734-98-3 OPINION BY JUDGE DONALD W. LEMONS JULY 27, 1999

COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF CAMPBELL COUNTY J. Samuel Johnston, Jr., Judge Thomas S. Leebrick (Thomas S. Leebrick, P.C., on brief), for appellant. Leah A. Darron, Assistant Attorney General (Mark L. Earley, Attorney General, on brief), for appellee.

Henry Bowman was convicted in a bench trial of three counts of statutory burglary, three counts of grand larceny and three counts of property damage. On appeal, Bowman argues that the

court erred by allowing a witness to identify him as the man depicted in video surveillance tapes. the convictions. I. BACKGROUND We disagree and affirm

In the summer of 1997, three convenience stores in Campbell County were burglarized. On June 7, 1997, Lester's Market was

burglarized, and a safe containing approximately $2,600 was stolen from the store. On July 26, 1997, Miles Market was

burglarized, and approximately $6,400 in cash, twenty-five

cartons of cigarettes, and several cases of beer were taken from the store. On July 26, 1997, Moore's Country Store was

burglarized, and a safe containing $3,000 in cash and checks was stolen. The evidence revealed that a breaking occurred in the back of Miles Market, approximately nine feet off the ground. The

perpetrator of the burglaries at Lester's Market and Moore's Country Store was captured on tape by video surveillance equipment. At trial, Carl Smith testified that Henry Bowman was Smith stated Smith stated

the person seen on both video surveillance tapes. that he was the grandfather of Bowman's children.

that although he was not present during the commission of any of the charged burglaries, he could positively identify Bowman as the person on the tapes. On cross-examination, Smith testified

that he did not like Bowman because Bowman was unemployed. Smith also identified Bowman as the person in Commonwealth's Exhibits 6 and 7, still photographs taken from the videotapes. Bowman's counsel objected to Smith's testimony,

arguing that his statements constituted "non-verbal hearsay," improper lay testimony, and opinion testimony offered to prove an ultimate issue of fact. Bowman moved to strike at the close of the Commonwealth's case-in-chief and at the close of all evidence. denied both motions. The court

The court stated that although the

videotapes themselves were insufficient to allow an - 2 -

identification of Bowman, when looking at one of the still photos from the videotape the court itself could identify Bowman as "the burglar." On appeal, Bowman argues that the court erred in overruling his objection to the admission of Smith's testimony regarding his identity as the perpetrator of the burglaries that were depicted on the two videotapes. II. IDENTIFICATION OF BOWMAN

Bowman argues that the court erred in allowing Smith to testify about the identity of the perpetrator shown on the videotapes and the still photographs made from the tapes. Bowman contends the Commonwealth "failed to establish Mr. Smith's familiarity with [Bowman] in order to qualify Smith to express an opinion regarding [Bowman's] identity." Bowman

argues that Smith's lack of familiarity with Bowman's appearance, coupled with his bad feelings toward Bowman, undermine the credibility of his testimony. A. Ability of Witness to Identify Appellant

Bowman did not raise at trial the issue of Smith's ability to identify him on the videotape. "In order to be considered on

appeal, an objection must be timely made and the grounds stated with specificity. To be timely, an objection must be made when

the occasion arises -

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