COURT OF APPEALS OF VIRGINIA 

Present: Chief Judge Fitzpatrick, Judges Coleman and Lemons 

Argued at Salem, Virginia 

HENRY BOWMAN 

 OPINION BY 

v. Record No. 1734-98-3 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. We disagree and affirm 

the convictions. 

I. BACKGROUND 

 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 

the person seen on both video surveillance tapes. Smith stated 

that he was the grandfather of Bowman’s children. Smith stated 

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. The court 

denied both motions. The court stated that although the 

videotapes themselves were insufficient to allow an 

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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 -– at the time the evidence is offered or 

the statement made.” Marlowe v. Commonwealth, 2 Va. App. 619, 

621, 347 S.E.2d 167, 168 (1986); see Rule 5A:18. Because Bowman 

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did not raise this objection at trial, we will not consider it 

for the first time on appeal. 

B. Lay Testimony

 Bowman also argues that Smith was prohibited from making an 

identification of the person on the videotape because he was a 

lay witness testifying about matters that require the testimony 

of an expert. We disagree. “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.” Brown v. Commonwealth, 21 Va. App. 552, 555, 466 

S.E.2d 116, 117 (1996). “Evidence which tends to cast any light 

upon the subject of the inquiry is relevant.” Cash v. 

Commonwealth, 5 Va. App. 506, 510, 364 S.E.2d 769, 771 (1988). 

“Relevant evidence which has the tendency to add force and 

effect to a party’s defense is admissible, unless excluded by a 

specific rule or policy consideration.” Evans v. Commonwealth, 

14 Va. App. 118, 122, 415 S.E.2d 851, 853-54 (1992). 

 In Jordan v. Commonwealth, 66 Va. (25 Gratt.) 625 (1874), 

the Supreme Court of Virginia considered whether a witness who 

had been given a description of two men alleged to have recently 

committed a robbery could testify at their trial. At trial, the 

witness testified that the men matched the description he had 

been given. On appeal, the Court held that “upon questions of 

identity a witness is competent to give his opinion.” Id. at 

626. 

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 “A lay witness may offer an opinion as to the identity of a 

person.” 2 Charles E. Friend, The Law of Evidence in Virginia

§ 17.10, at 21 (4th ed. 1993). Here, Smith was Bowman’s 

father-in-law and the grandfather of Bowman’s children. Smith 

testified that he had known Bowman for two years and that he 

recognized Bowman not only in the videotapes but also in the 

Commonwealth’s still photographs of the perpetrator made from 

the videotape. “The scarcity of case law on the point [of 

whether a witness may identify a person] is probably due to a 

general failure to regard identification as an opinion problem, 

it being considered a matter of ‘fact.’” Friend, supra, at 21. 

C. “Ultimate Issue of Fact”

 Bowman also argues that the court erred in allowing Smith’s 

testimony because “[o]pinion testimony on ultimate issues of 

fact is not admissible in criminal proceedings.” Bowman 

contends that Smith’s testimony “goes directly to the ultimate 

issue: the identity of the culprit.” We disagree. 

 Smith’s identification of Bowman did not implicate an 

“ultimate issue of fact.” “Ultimate issues of fact” for 

purposes of the conviction of a crime are the statutory elements 

of that offense. See Llamera v. Commonwealth, 243 Va. 262, 414 

S.E.2d 597 (1992) (in prosecution for possession of cocaine with 

intent to distribute, the Commonwealth is required to prove the 

element of possession and the intent to distribute which are 

both ultimate issues of fact); Bond v. Commonwealth, 226 Va. 

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534, 539, 311 S.E.2d 769, 772 (1984) (where “the crucial issue 

was whether death was brought about by criminal agency . . . 

[t]he ultimate question was whether the decedent jumped 

intentionally, fell accidentally, or was thrown to her death”). 

The court did not err in allowing Smith to identify Bowman as 

the person shown on the videotape and the still photos. 

III. DENIAL OF WRIT “ON THE MERITS” 

 In an earlier unpublished decision, we considered the exact 

issue now before us: whether a witness may identify a person 

from a videotape and whether that identification may be 

considered by the fact finder. See Rogers v. Commonwealth, 97 

Vap. UNP 2269961, Record No. 2269-96-1 (October 7, 1997). In 

Rogers, appellant appealed his conviction of murder, rape, 

robbery, credit card theft, and credit card fraud. At trial, 

the court allowed a witness who knew both the victim and the 

appellant to identify the appellant in a videotape taken at a 

bank machine where the victim’s stolen credit card was used. On 

appeal, Rogers argued that a lay witness should not have been 

permitted to identify the person on the videotape. See id. In 

addition, Rogers argued that by allowing the witness to identify 

him, the witness was usurping the role of the fact finder in 

making a determination of an “ultimate fact in issue.” Id. at 

2. 

 In an unpublished opinion, we disagreed with Rogers’ 

contentions and affirmed his convictions. See id. We held that 

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“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.” Id. In addition, because 

the witness’ identification of Rogers as the man in the 

videotape did not prove an element of any of the charges against 

him, “[the witness’] testimony did not implicate an ultimate 

issue of fact and the trial court did not err by allowing his 

testimony.” Id.

 After his convictions were affirmed, Rogers did not 

petition this Court for a rehearing en banc. Rogers did, 

however, file a petition for appeal with the Supreme Court of 

Virginia. On February 18, 1998, the Supreme Court denied 

Rogers’ petition for appeal. See Record No. 972336 (Va. 

February 18, 1998). The refusal of a petition for appeal 

constitutes a final decision on the merits. See Saunders v. 

Reynolds, 214 Va. 697, 700-01, 204 S.E.2d 421, 424 (1974) (“[w]e 

state unequivocally that a decision to grant or refuse a 

petition for writ of error is based upon one equally-applied 

criterion - the merits of the case”); see also Wright v. West, 

505 U.S. 277, 283 (1992) (“the Supreme Court of Virginia refused 

the petition – a disposition indicating that the [C]ourt found 

the petition without merit”); Jackson v. Virginia, 443 U.S. 307, 

311 n.4 (1979) ("[e]ach petition for writ of error under Va. 

Code § 19.2-317 (1975) is reviewed on the merits . . . and the 

effect of a denial is to affirm the judgment of conviction on 

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the merits); Dodson v. Director, 223 Va. 303, 307 n.5, 355 

S.E.2d 573, 576 n.5 (1987) (“[i]n Virginia, aside from appeals 

from a capital murder conviction, criminal appeals to both the 

Court of Appeals and to this Court are discretionary, and ‘a 

decision to grant or refuse a petition [for appeal] is based 

upon one equally-applied criterion--the merits of the case’”). 

 Additionally, the Supreme Court of Virginia has stated that 

a denial of a writ is on the merits and the issue that is 

decided is binding in other cases. As we stated in Harward v. 

Commonwealth, 5 Va. App. 468, 476, 364 S.E.2d 511, 515 (1988); 

[t]he Supreme Court held “unequivocally that 

a decision to grant or refuse a petition for 

writ of error is based upon equally-applied 

criteria - the merits of the case.” When 

there is “substantial possibility that error 

has been committed in the conviction of the 

defendant,” then a writ is granted. “[A] 

convicted felon whose claims lack substance 

is refused a writ.” The Court has held the 

doctrine to apply even when “the precise 

issue involved” resulted in denial of a 

petition for a writ of error in a separate 

case. 

(Citations omitted). See also Overhead Door Co. v. Lewis, 29 

Va. App. 52, 509 S.E.2d 535 (1999). 

 The Attorney General argues that the denial of a petition 

for writ of error by the Supreme Court of Virginia results in 

binding precedent upon the Court of Appeals for the precise 

issue raised in the appeal and resolved “on the merits.” Given 

the holdings cited above, the Attorney General’s position is not 

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without merit; however, the difficulty comes in application of 

the rule. 

 In Rogers, the Supreme Court of Virginia stated only: 

Upon review of the record in this case and 

consideration of the argument submitted in 

support of the granting of an appeal, the 

Court refuses the petition for appeal. 

Accepting that the petition was refused “on the merits,” in 

order to discern any precedential effect of the denial, the 

“precise issue” that formed the basis for the denial must be 

determined. The Supreme Court of Virginia is silent on this 

issue. The Court could have found error but found it to be 

harmless, which would, nonetheless, be a decision “on the 

merits.” We cannot speculate concerning the “precise issue” 

that served as the basis for the denial of the writ of error in 

Rogers. 

 We hold that, to the extent it can be determined by the 

plain language of an order of the Supreme Court of Virginia 

denying a petition for writ of error that a “precise issue” has 

been decided “on the merits,” the holding is binding on the 

Court of Appeals in future cases raising the same issue. Here, 

we are unable to determine the “precise issue” addressed by the 

Supreme Court in Rogers; consequently, we reject the Attorney 

General’s contention that the denial of a writ of error by the 

Supreme Court creates binding precedent in the case before us 

today. 

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VI. CONCLUSION 

 We hold that the court did not err in allowing a witness to 

identify Bowman as the man depicted in video surveillance tapes, 

and we affirm his convictions. 

Affirmed.

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