COURT OF APPEALS OF VIRGINIA 

Present: Judges Elder, Annunziata and Senior Judge Hodges 

Argued at Norfolk, Virginia 

DAVID HAWKINS 

 MEMORANDUM OPINION* BY 

v. Record No. 1876-94-1 JUDGE LARRY G. ELDER 

 DECEMBER 12, 1995 

COMMONWEALTH OF VIRGINIA 

 FROM THE CIRCUIT COURT OF THE CITY OF NEWPORT NEWS 

Robert W. Curran, Judge 

 Willard M. Robinson, Jr., for appellant. 

 Richard W. Rizk, Assistant Attorney General 

 (James S. Gilmore, III, Attorney General; 

 Richard B. Smith, Assistant Attorney General, 

 on brief), for appellee. 

 David Hawkins (appellant) appeals his convictions for 

abduction in violation of Code § 18.2-48 and rape in violation of 

Code § 18.2-61. Appellant contends the trial court erred (1) in 

allowing testimony from a police detective concerning the 

victim's identification of appellant in a photo spread, and 

(2) in failing to admonish the jury to disregard the prosecutor's 

statement during the sentencing phase that appellant was 

previously convicted of rape, after the trial court ruled the 

rape conviction could not be introduced. Because the trial court 

committed no error, we affirm appellant's convictions. 

 

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

designated for publication. 
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 I. 

 FACTS 

 On October 2, 1993, the victim saw appellant exit a trailer 

at the trailer park where the victim lived. Appellant approached 

the victim and asked her to accompany him to a nearby convenience 

store. When the victim refused, appellant grabbed her hand and 

pulled her out of the trailer park. Appellant dragged the victim 

to a wooded area behind the convenience store where he removed 

her clothes and his own clothes. The victim testified that, 

while on top of her, appellant placed his penis inside her vagina 

four times, despite her protestations. Afterward, the victim 

dressed herself and returned to the trailer park. Subsequently, 

the victim picked appellant's picture from a six-man photo spread 

shown to her by Detective William Hayes of the Newport News 

Police Department. 

 At trial, the victim took the stand and identified appellant 

as her rapist. During lengthy cross-examination, appellant's 

counsel explored inconsistencies in the victim's identification 

of appellant. 

 The prosecutor asked Detective Hayes what he and the victim 

said at the time of the photo-spread identification. Appellant 

objected that such testimony was improper impeachment evidence, 

but the trial court overruled the objection. The prosecutor then 

elicited the following testimony: 

 Q: Could you tell what you said to [the victim] and what 

happened basically without telling us her responses if 
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you could? 

 A: Yes, ma'am, I showed her the photo-spread and I told 

her to look at it carefully and see if she could see 

anyone there that she recognized. 

 Q: Okay. 

 A: And she looked at it. 

 Q: Could you tell us whether you saw her look at all of 

the photos? 

 A: Well, I was setting [sic] next to her while she was 

looking at the photo-spread, I asked her to look at all 

of them. 

 Q: And when you say that she picked out number six, what 

did you say? 

 A: I told her after she picked it out, I told her, 

that's not him, and then she said, yes it is. 

 Appellant's Counsel: 

 Your honor, that's what I objected to. 

 The Court: 

 The portion of that that [sic] is what the young lady 

said is stricken. The portion he said is appropriate 

for him to say that he did say something to her. 

 Prosecutor: 

 Okay. 

 Q: After you said, that's not him did you say anything 

else, Detective Hayes, that you recall? 

 A: Right off I don't remember saying anything else. 

 Q: Could you tell the jury why you said that's not him? 

 Appellant's Counsel: 

 I object to that. 

 The Court: 

 I'll sustain that objection. 

 After the jury found appellant guilty of abduction and rape, 

the trial court held a separate sentencing hearing with the jury 
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present. The prosecutor commenced the proceedings by stating, 

"Your Honor, the only evidence we would have for sentencing are 

copies, certified copies of [appellant's] prior conviction for 

rape." Appellant's counsel immediately asked the trial court if 

he could "clarify a couple of things out of the presence of [the] 

jury," and the jury retired. The trial court ruled the 

Commonwealth could not introduce copies of appellant's prior rape 

conviction because they had not been filed on time. Appellant's 

counsel concedes on brief he did not hear the prosecutor's 

reference to appellant's "conviction for rape," and therefore did 

not object to it or ask for a jury admonishment. Because no 

other sentencing evidence existed, both the Commonwealth and 

appellant agreed neither would argue punishment. The jury 

returned verdicts sentencing appellant on both charges. 

 II. 

 HEARSAY STATEMENTS 

 We hold the trial court did not err in allowing Detective 

Hayes to testify as to statements the victim made when she 

identified appellant from a photo spread. The law regarding 

testimony about out-of-court identifications is well settled in 

Virginia: a party may introduce evidence of extrajudicial 

identifications. Johnson v. Commonwealth, 2 Va. App. 447, 450, 

345 S.E.2d 303, 305 (1986). Specifically addressing this issue, 

the Supreme Court stated: 

Where the witness who identified the accused outof-court is available as a witness, so as to afford the 
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accused the rights of confrontation and crossexamination, 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, 82, 225 S.E.2d 391, 394 

(1976)(emphases added); see Martin v. Commonwealth, 210 Va. 686, 

173 S.E.2d 794 (1970); Ellis v. Commonwealth, 18 Va. App. 340, 

444 S.E.2d 12 (1994); Charles E. Friend, The Law of Evidence in 

Virginia § 18-30(b), at 195 (4th ed. 1993 & Supp. 1994)(stating 

hearsay evidence of pretrial identification is admissible as 

independent substantive evidence of identity). In this case, the 

victim was present in court and available for cross-examination. 

 Hayes' testimony was therefore "properly admitted as evidence 

against [appellant], to be considered and weighed by the jury 

with the other evidence in the case." Niblett, 217 Va. at 83, 

225 S.E.2d at 395. 

 Appellant objected to other aspects of Detective Hayes' 

testimony relating to the victim's comments after the 

identification, and those objections were sustained and certain 
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comments stricken. Consequently these issues are not before this 

Court. 
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 III. 

PROSECUTOR'S IMPROPER STATEMENT 

 Second, we hold the trial court did not err in failing to 

admonish the jury, sua sponte, not to consider the prosecutor's 

reference to appellant's prior rape conviction. "[E]rrors 

assigned because of a prosecutor's alleged improper comments or 

conduct during oral argument will not be considered on appeal 

unless an accused moves for a cautionary instruction or for a 

mistrial." Moore v. Commonwealth, 14 Va. App. 83, 85, 414 S.E.2d 

859, 860 (1992)(quoting Cheng v. Commonwealth, 240 Va. 26, 38, 

393 S.E.2d 599, 605-06 (1990)); Rule 5A:18. Appellant is 

procedurally barred from challenging the remarks on appeal 

because he failed to request a curative instruction. See Martin 

v. Commonwealth, 11 Va. App. 397, 409, 399 S.E.2d 623, 629 

(1990). 

 Accordingly, we affirm the convictions. 

Affirmed.