Osman v. Commonwealth
| Decision Date | 25 October 2022 |
| Docket Number | Record No. 1416-21-4 |
| Citation | 75 Va.App. 623,879 S.E.2d 40 |
| Parties | Osman OSMAN v. COMMONWEALTH of Virginia |
| Court | Virginia Court of Appeals |
John W. Pickett (Pickett Law Group, PLLC, on brief), for appellant. Appellant submitting on brief.
Katherine Quinlan Adelfio, Assistant Attorney General (Jason S. Miyares, Attorney General, on brief), for appellee.
Present: Judges Huff, Raphael and Lorish
OPINION BY JUDGE GLEN A. HUFF
Osman Osman ("appellant") was convicted by a jury in Fairfax County Circuit Court (the "trial court") of four counts involving violations of a protective order, two counts of felony abduction, and one count of misdemeanor domestic assault against a family member. Appellant now appeals those convictions on the following grounds: First, appellant challenges the trial court's admission of his prior bad acts. Second, appellant argues that the Code § 18.2-47 charge of abducting his child, J.O., should have proceeded as a misdemeanor rather than a felony. Third, appellant alleges that the period of delay between his arrest and eventual trial violated both his statutory and constitutional rights to a speedy trial. Fourth, and finally, appellant claims that the evidence presented at trial was insufficient to sustain a felony conviction of abducting his wife because the abduction was merely incidental to the assault of his wife.
For the following reasons, this Court affirms all of appellant's convictions except for the felony abduction of J.O. As to that single assignment of error, this Court agrees that the trial court erred by permitting the Commonwealth to prosecute appellant's abduction of J.O. as a felony, rather than a misdemeanor, in direct contradiction to the provisions of Code § 18.2-47(D). Therefore, this Court reverses and vacates appellant's felony abduction conviction for J.O. and affirms appellant's remaining convictions.
In accordance with well-settled principles of appellate review, this Court considers the facts "in the light most favorable to the Commonwealth, the prevailing party at trial." Poole v. Commonwealth , 73 Va. App. 357, 360, 860 S.E.2d 391 (2021) (quoting Gerald v. Commonwealth , 295 Va. 469, 472, 813 S.E.2d 722 (2018) ). In doing so, this Court discards any evidence presented by appellant that conflicts with the Commonwealth's evidence and regards as true all credible evidence favorable to the Commonwealth and all reasonable inferences drawn therefrom. Gerald , 295 Va. at 473, 813 S.E.2d 722 ; Parks v. Commonwealth , 221 Va. 492, 498, 270 S.E.2d 755 (1980).
As of March 24, 2018, appellant was married to Ellina Letyvska and they had one child together, named J.O. Due to ongoing physical and emotional abuse by appellant, Ms. Letyvska left the marital home in February 2018 and sought a temporary preliminary protective order for herself and J.O. The Fairfax County Juvenile and Domestic Relations District Court (the "JDR court") issued an ex parte preliminary protective order on February 22, 2018 ("February PPO"), under Code § 16.1-253.1, based on Ms. Letyvska's representations that she believed appellant was a threat to her life and safety.
The February PPO prohibited appellant from having any contact with the protected parties—Ms. Letyvska and J.O.—and from being within five hundred feet of them at all times. A full hearing on the February PPO was scheduled for March 8, 2018, at which appellant requested more time to retain and consult with counsel. In granting appellant's request, the JDR court issued an extended preliminary protective order ("March PPO") and scheduled a full hearing on that order for March 27, 2018. The terms of the March PPO remained the same as those in the February PPO, including the provision prohibiting appellant from having any contact with either Ms. Letyvska or J.O.
Appellant violated the March PPO on March 24, 2018, at approximately 12:00 p.m. in the parking lot next to Gold's Gym in Chantilly, Virginia (the "gym"). On that date, a Saturday, Ms. Letyvska took J.O.—who was two and a half years old at that time—to the gym with her in the morning and parked her car in the lot next to the gym. At approximately 12:00 p.m., Ms. Letyvska left the gym and walked towards her car while holding J.O. in her left arm. As she opened the passenger side door to put down her bags, appellant appeared behind her and demanded that she come with him. When Ms. Letyvska did not immediately comply, appellant began dragging and pushing her towards the open back door of a Ford SUV (the "SUV") parked perpendicularly approximately five to six feet behind Ms. Letyvska's car.
At trial, Ms. Letyvska testified that the SUV was not the vehicle appellant usually drove and that she had in fact never seen that SUV before. She tried to resist appellant by falling to the ground to make it harder for appellant to get her into the SUV. While Ms. Letyvska was sitting on the ground under the open door with her back against the SUV's rear tire, appellant began hitting Ms. Letyvska on the back of her head and neck with a closed fist. Ms. Letyvska was still holding J.O., who was screaming and crying in her arms. Appellant then began trying to pull J.O. away from Ms. Letyvska.
This commotion drew the attention of David Sobeck, who was also a member of the gym as well as an off-duty special agent with the Pentagon Force Protection Agency. After leaving the gym and getting into his car in the parking lot, Mr. Sobeck saw Ms. Letyvska holding J.O. and sitting next to the left rear tire of the SUV with her back pressed against the car while appellant stood over her, gesticulating wildly with his arms. Concerned by what he saw, Mr. Sobeck got out of his car and walked toward Ms. Letyvska and appellant.
When he was approximately twenty to thirty feet away, Mr. Sobeck saw that Ms. Letyvska was "completely distraught," and he heard her screaming to call 9-1-1 because she needed help. Mr. Sobeck also heard the child in Ms. Letyvska's arms crying. Mr. Sobeck continued to approach, but when he was only approximately five to seven feet away, appellant pulled a firearm out from under his sweatshirt and pointed it at Mr. Sobeck, saying, "Get the fuck out of here or I'll fucking shoot you." At appellant's trial, Ms. Letyvska testified to also seeing appellant pointing the gun at Mr. Sobeck, although she didn't see from where appellant had retrieved it. Appellant claimed at trial that he only brandished a "BB gun" at Mr. Sobeck.
Regardless, Mr. Sobeck retreated to his car and called 9-1-1. Appellant then resumed trying to force Ms. Letyvska into the SUV. Before appellant succeeded, another bystander drove by and indicated that the police were on their way. In response, appellant got into the driver's seat of the SUV and drove away without Ms. Letyvska and J.O. Evidence later presented at trial, including appellant's own testimony, established that appellant had rented the SUV from Avis Budget on March 23, 2018, with a return date of March 24, 2018, but that appellant instead abandoned the vehicle on that date and fled to New York after his encounter with Ms. Letyvska and J.O. in the gym parking lot.1 Shortly after appellant left the gym, the police arrived in the parking lot and interviewed both Ms. Letyvska and Mr. Sobeck.
In response to the events of March 24, 2018, Detectives Susan Anderton and T.L. Hulse executed a search warrant of appellant's home on March 29, 2018. Although appellant's parents were in the home at that time, appellant was not present and did not return.
Six months later, on September 20, 2018, police officer Leonardo Buenaventura received a dispatch regarding an abandoned vehicle. Upon arrival, he saw the vehicle was a Ford SUV with tags that had been reported stolen. He found a Green Card in the center console with appellant's name, which was linked to an "outstanding warrant for a criminal case." Officer Buenaventura immediately passed this information along to Detectives Anderton and Hulse who then executed a search warrant on the SUV. The evidence presented at appellant's trial proved that this SUV was the same one into which appellant had tried to force Ms. Letyvska and J.O. on March 24, 2018.
Detective Anderton testified at appellant's trial that the back passenger seats of the SUV were folded down and two black zip ties were secured around the child safety seat restraint bar in the backseat area. She described the zip ties as being fashioned in a loop such that a person's wrist could fit through it and the zip tie could then be pulled tighter. Detective Anderton further testified that the gym-size duffel bag found behind the driver's seat contained diapers, men's clothing, and assorted papers, including a photocopy of appellant's Bulgarian passport and United States permanent resident card. Appellant admitted at trial that the items found in the SUV, including the duffel bag with clothing and diapers as well as the Green Card and other documents, belonged to him.
Through the ongoing police investigation, Sergeant Josh Moser, a detective from the fugitive task force, discovered evidence that appellant was staying in New York City. He and Detective Hulse traveled to New York where, with the assistance of United States Marshals, they arrested appellant on November 27, 2018. Appellant was extradited to Virginia in December 2018 and held without bond on charges of abduction, assault, and violating a protective order.
The JDR court scheduled a preliminary hearing on appellant's charges for January 14, 2019, which was continued until February 21, 2019, on the joint request of both parties. Appellant then made two additional requests for adjournment on February 21, 2019, and March 28, 2019. The JDR court finally held the preliminary hearing on May 3, 2019, at which it found probable cause to believe appellant had committed a felony and certified the case to the trial court.
The parties first appeared before the trial court on May 23, 2019, and the case was continued to May...
To continue reading
Request your trial