UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 10-5069
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
ROY ANTRON LOWE,
Defendant - Appellant.
Appeal from the United States District Court for the Middle
District of North Carolina, at Greensboro. James A. Beaty, Jr.,
Chief District Judge. (1:07-cr-00071-JAB-2)
Submitted: September 8, 2011 Decided: September 29, 2011
Before NIEMEYER, MOTZ, and DUNCAN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Michael W. Patrick, LAW OFFICE OF MICHAEL W. PATRICK, Chapel
Hill, North Carolina, for Appellant. Ripley Rand, United States
Attorney, Angela H. Miller, Terri-Lei O’Malley, Assistant United
States Attorneys, Greensboro, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Roy Antron Lowe was found guilty by a jury of bank
robbery (Count 1), armed bank robbery (Count 2), and use and
carry of a firearm (brandishing) during a crime of violence
(Count 3). On appeal, he raises one issue: whether the district
court erred by allowing the lay opinion testimony of two police
officers in violation of Fed. R. Evid. 701. For the reasons
that follow, we affirm.
Rule 701 of the Federal Rules of Evidence permits lay
opinion testimony as long it is based on the witness’ own
perception, helpful to the jury in understanding the facts at
issue, and “not based on scientific, technical, or other
specialized knowledge.” Fed. R. Evid. 701. A lay witness may
give an opinion concerning the identity of a person depicted in
a surveillance photograph if there is some basis for concluding
that the witness is more likely to correctly identify the
defendant from the photograph than the jury. United States v.
Robinson, 804 F.2d 280, 282 (4th Cir. 1986); see United
States v. Allen, 787 F.2d 933, 936 (4th Cir. 1986), vacated and
remanded on other grounds, 479 U.S. 1077 (1987).
Normally we review a trial court’s evidentiary rulings
for an abuse of discretion. United States v. Patterson, 150
F.3d 382, 387 (4th Cir. 1998). Errors not objected to at trial,
however, are reviewed for plain error. United States v. Olano,
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507 U.S. 725, 731-32 (1993); United States v. Hastings, 134 F.3d
235, 239 (4th Cir. 1998). Lowe concedes that we review the
matter for plain error, as his trial counsel did not object to
the disputed testimony. (Appellant’s Br. at 7).
Lowe has failed to establish plain error on appeal.
In particular, we note that Lowe’s trial counsel relied on
Officer Gerald Stephens’ video identification of him during the
bank robbery in closing arguments. Lowe argued to the jury that
he was forced to participate in the bank robbery by a co-
Defendant and relied on Stephens’ opinion that he was the second
robber involved, contrasting Stephens’ and the other detective’s
testimony against other trial witnesses. (J.A. 176). Under
these circumstances we do not find that the district court
plainly erred by allowing the officers’ disputed testimony at
trial. Olano, 507 U.S. at 735.
Accordingly, we affirm. We dispense with oral
argument because the facts and legal contentions are adequately
presented in the materials before the court and argument would
not aid the decisional process.
AFFIRMED
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