Decision of the Virginia Court of Appeals
Sloan
VIRGINIA:
In The Court of Appeals of Virginia on Tuesday the 19th day of
October, 1993.
M. Ismail Sloan, a/k/a
Samuel Howard Sloan,
Appellant,
against
Record No. 0934-93-3
Circuit Court Nos. CR91003195-00 and
CR92003936-01
Commonwealth of Virginia,
Appellee.
From the Circuit Court of the City of Lynchburg
Before Judges Benton, Coleman and Willis
Appellant's motion to not consider appellee's brief in opposition is
granted. The brief in opposition was not timely filed, and no motion
for extension of time was filed. Rule 5A:13.
This petition for appeal is granted in part and denied in part. And,
an appeal is awarded to the petitioner from a judgment of the Circuit
Court of the City of Lynchburg, dated January 13, 1993, with respect
to the following question:
Whether the language of the indictment alleging a felony violation of
bond specifically by reason of appellant's failure to appear on
January 10, 1992 presents a fatal variance from the evidence
presented.
No bond is required. The clerk is directed to certify this action to
the trial court and to all counsel of record.
Pursuant to Rule 5A:25, an appendix is required in this appeal and
shall be filed by the appellant at the time of the filing of the
opening brief.
The remainder of the petition for appeal is denied for the following
reason:
"When considering the sufficiency of the evidence on appeal of a
criminal conviction, we must view all the evidence in the light most
favorable to the Commonwealth and accord to the evidence all
reasonable inferences fairly deducible therefrom." Traverso v.
Commonwealth, 6 Va. App. 172, 176, 366 S.E.2d 719, 721 (1988).
An order of the circuit court awarded custody of appellant's daughter,
Shamema Honzagool Sloan, to Mr. and Ms. Roberts. On September 5, 1991,
appellant visited with his daughter at the home of appellant's mother.
Richard Groff, who was present to supervise the visit, testified that
appellant took his daughter to an awaiting rental car. After appellant
started the car, Groff opened the door and grabbed the steering wheel.
Appellant accelerated, dragging Groff approximately 100 yards, and
attempted to push Groff away from the car. After a struggle ensued,
Groff broke the key in the ignition, and Groff removed the daughter
from appellant's rental car.
The evidence further proved that appellant had rented a car using the
name Richard Bozulich. The rental was for a one-way trip from
Lynchburg, Virginia to Greenville, South Carolina. Among the documents
found in appellant's possession on September 5, 1991, were two airline
tickets for travel from Greenville, South Carolina to the Orient and
back. The tickets were in the names of Richard Bozulich and S.
Honzagool. Appellant also had in his possession his passport, his
daughter's passport, and his daughter's birth certificate. Appellant
mentioned he had a suitcase in the trunk of the car on that day.
The jury believed the testimony of the Commonwealth's witnesses. "The
weight which should be given to the evidence and whether the testimony
of a witness is credible are questions which the fact finder must
decide." Bridgeman v. Commonwealth, 3 Va. App. 523, 528, 351 S.E.2d
598, 601 (1986). The testimony of the Commonwealth's witnesses was not
inherently incredible or unreliable. This evidence proved beyond a
reasonable doubt that appellant intended to remove his daughter from
the Commonwealth of Virginia on September 5, 1991.
A Copy,
Teste:
Cynthia L. McCoy, Acting Clerk
By:
Deputy Clerk
CERTIFICATE OF CLERK
I, Cynthia L. McCoy, Acting Clerk of the Court of Appeals of Virginia,
do hereby certify that on October 19, 1993 an appeal was awarded as
described in the order to which this certificate is appended. A copy
of this certificate and a copy of the order to which it is appended
were this day mailed to the trial court indicated in the order and to
all counsel of record.
Given under my hand this 19th day of October, 1993.
Cynthia L. McCoy, Acting Clerk
By:
Deputy Clerk