John Frederick Hamm v. Commonwealth

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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