COURT OF APPEALS OF VIRGINIA
Present: Judges El der, Frank and Haley Argued at Chesapeake, Virginia

KAREEM JEMAR BENNETT MEMORANDUM OPINION * BY v. Record No. 2811-05-1 JUDGE LARRY G. ELDER OCTOBER 31, 2006 COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF THE CITY OF NEWPORT NEWS H. Vincent Conway, Jr., Judge Charles E. Haden for appellant. Donald E. Jeffrey, III, Assist ant Attorney General (Robert F. McDonnell, Attorney General, on briefs), for appellee.
Kareem Jemar Bennett (appellant) appeals from his bench trial conviction for driving after having been declared a habitual offende r. On appeal, he contends the eyewitness identification testimony of the polic e officer who instituted the ch arge was insufficient to prove he was the person driving during the incident in question. We hold the evidence, viewed in the light most favorable to the Commonwealth, was suffi cient, and we affirm. In reviewing the sufficiency of the evidence on appeal, we examine the record in the light most favorable to the Commonwea lth, granting to the evidence all reasonable inferences fairly deducible therefrom. Martin v. Commonwealth , 4 Va. App. 438, 443, 358 S.E.2d 415, 418 (1987). The judgment of a trial court will be dist urbed only if plainly wrong or without evidence to support it. Id. The credibility of a witness, th e weight accorded the testimony, and the

* Pursuant to Code § 17.1-413, this opin ion is not designated for publication.- 2 - inferences to be drawn from proven facts are matte rs to be determined by the fact finder. Long v. Commonwealth , 8 Va. App. 194, 199, 379 S.E.2d 473, 476 (1989). At trial, the Commonwealth bears the burden of proving the identity of the accused as the perpetrator beyond a reasonable dou bt. Brickhouse v. Commonwealth , 208 Va. 533, 536, 159 S.E.2d 611, 613-14 (1968). In determining the sufficiency of the evidence to support a conviction where a witness’ iden tification is challenged, we l ook to the reliability factors enunciated in Neil v. Biggers , 409 U.S. 188, 93 S. Ct. 375, 34 L. Ed. 2d 401 (1972), as significant circumstances that may be consid ered along with other evidence. Charity v. Commonwealth , 24 Va. App. 258, 262-63, 482 S.E.2d 59, 61 (1997). Those factors include: “the opportunity of the witness to vi ew the criminal at the time of the crime, the witness’ degree of attention, the ac curacy of the witness’ prior description of the criminal, the level of certainty demonstrated by the witness at the confrontation and the length of time between the crime and the confrontation.” Currie v. Commonwealth , 30 Va. App. 58, 73, 515 S.E.2d 335, 343 (1999) (quoting Biggers , 409 U.S. at 199-200, 93 S. Ct. at 382, 34 L. Ed. 2d at 411). Those circumstances also may include the fact that the person making the identification was “a trained police officer on duty” rather than “a casual or passing observer” and, as suc h, that “he could be expected to pay scrupulous attention to detail, for he kne w that subsequently he would have to find and arrest [the perpetrator].” Manson v. Brathwaite , 432 U.S. 98, 115, 97 S. Ct. 2243, 2253, 53 L. Ed. 2d 140, 154 (1977) (involving undercover narcotics officer who made controlled purchase of drugs). Although “‘a single photograph disp lay is one of the most suggestive methods of identification and is always to be viewed with suspicion, ’” Wise v. Commonwealth , 6 Va. App. 178, 184, 367 S.E.2d 197, 200 (1988) (quoting Hudson v. Blackburn , 601 F.2d 785, 788 (5th Cir. 1979)), “[ p]re-trial show-ups are not per se violative of constitutio nal rights,” Ford v. Commonwealth , 28 Va. App. 249, 258, 503 S.E.2d 803, 807 (1998).- 3 - Blevins v. Commonwealth , 40 Va. App. 412, 423, 579 S.E.2d 658, 663-64 (2003), aff’d on other grounds , 267 Va. 291, 590 S.E.2d 365 (2004). Absent evid ence of a process so suggestive as to “giv[e] rise to a ‘very substant ial likelihood of irreparable [mis]i dentification,’” th e identification evidence is admissible, and “the wei ght to be attributed to the evid ence [is] for the [fact finder] to decide.” Bryant v. Commonwealth , 10 Va. App. 421, 427, 393 S.E.2d 216, 220 (1990) (quoting Brathwaite , 432 U.S. at 116, 97 S. Ct. at 2254, 53 L. Ed. 2d at 155 (quoting Simmons v. United
States , 390 U.S. 377, 384, 88 S. Ct. 967, 971, 19 L. Ed. 2d 1247, 1253 (1968))). Here, the issue on appeal is not the ad missibility of the eyewitness identification testimony but rather the sufficiency of the evidence to prove appell ant was the driver. Under the principles set out above, we hold the evidence, viewed in the light most favorable to the Commonwealth, was sufficient to pr ove this element of the offense. Officer C. Godbot, a trained police officer acting within the sc ope of his duties, observed appellant when Godbot attempted to stop appellant’s vehicle for an equipment violat ion and appellant fled the scene of the stop. Although the stop occurred at 12: 30 a.m., Officer Godbot testified that he “had [his] headlights on, [his] overhead lights on and [his] spotlight on f acing the [driver’s] vehicle.” In addition, the area of the stop was illuminated by streetlights. Although Officer Godbot saw appellant for only a few seconds before appellant fl ed, Godbot testified that appellant looked directly back at him before fleeing and that he had a clear, unobstructe d view of appellant’s face from a distance of approximately twenty-five feet. Although Officer Godbot’s written descript ion of the driver--a “black male about 5-foot-9, 160 pounds”--was fair ly general, Godbot said he remembered the driver’s “facial features” and that he “didn’t forget [the driver ’s] face.” Also, within a short time after the stop, Officer Godbot vi ewed a photograph and identified the person depicted therein as the person driving at the time of the traffic stop. He emphasized he did not need to include a- 4 - detailed written description of the driver in hi s notes regarding the offe nse because he actually had “[the driver’s] picture” “[t]he night he ran.” Thus, the totality of the circumstances, in cluding Officer Godbot’s training as a police officer, his opportunity to view th e driver clearly before he fled, the level of certainty of Officer Godbot’s identification both on the night of the offense and at trial, and the short period of time that passed between his viewi ng the driver and first viewi ng the photograph, support the trial court’s finding that Officer Godbot’s identification of appellant wa s sufficient to prove appellant drove on the night at issue. A lthough Officer Godbot saw the driver ’s face clearly for only about two seconds before he fled, the length of the opport unity for viewing is merely one factor in the totality-of-the-circumstances analysis. There is no minimum time for which a witness must observe a person before being able to make an identification of him sufficient to support a conviction, and our Supreme Court has upheld a c onviction involving a lay witness identification made under similar circumstances. See Satcher v. Commonwealth , 244 Va. 220, 252-54, 421 S.E.2d 821, 840-42 (1992) (upholding conviction where bystander saw suspect’s face for no more than two to five seconds as he ran past he r and she identified him short time later while he stood in group of people in which he was “[the] lone black man”). For these reasons, we hold the challenged eyewitness identification testimony, found credible by the trial court, was sufficient to support appellant’s convi ction for driving after having been declared a habitual offende r. Thus, we affirm the conviction. Affirmed.