Traish v. Com.

• Decision Date: 10 July 2001
• Docket Number: Record No. 2056-99-4.
• Citation: 36 Va. App. 114,549 S.E.2d 5
• Parties: Hisham TRAISH v. COMMONWEALTH of Virginia.
• Court: Virginia Court of Appeals

549 S.E.2d 5

36 Va. App. 114

Hisham TRAISH v. COMMONWEALTH of Virginia.

Record No. 2056-99-4.

Court of Appeals of Virginia, Richmond.

July 10, 2001.

Peter M. Baskin, (Pelton, Balland, Young, Demsky, Baskin & O'Malie, P.C., on brief), Arlington, for appellant.

Eugene Murphy, Assistant Attorney General, (Mark L. Earley, Attorney General, on brief), for appellee.

Present: BUMGARDNER, HUMPHREYS and CLEMENTS, JJ.

CLEMENTS, Judge.

Hisham Traish was tried by jury and convicted of grand larceny, assault and battery, and five counts of attempted petit larceny. On appeal, he contends the trial court erred (1) in denying his motion to have the charges involving different victims tried separately, (2) in denying his motion to strike the grand larceny and assault and battery charges because the evidence was insufficient to support his convictions, (3) in denying his motion to strike the attempt charges where Traish obtained money from the victims because there was a fatal variance between the indictment and the proof, and (4) in denying his motion to strike the attempt charges because the legal impossibility of completing the offenses precluded conviction on those charges. Finding no error, we affirm the convictions.

I. BACKGROUND

Under well-settled principles of appellate review, we examine the evidence and all reasonable inferences fairly deducible therefrom in the light most favorable to the Commonwealth, the prevailing party below. Burlile v. Commonwealth, 32 Va.App. 796, 798, 531 S.E.2d 26, 27 (2000).

The charges against Traish were as follows:

Date of Case # Offense Offense Victim 99-418 Attempted Petit Larceny 12/16/98 Ms. Flanagan 99-417 Grand Larceny 12/17/98 Ms. Lyon 99-424 Assault and Battery 12/17/98 Ms. Lyon 99-425 Assault and Battery 12/17/98 Ms. Lyon¹ 99-419 Attempted Petit Larceny 12/19/98 Ms. Evans 99-420 Attempted Petit Larceny 12/26/98 Ms. Austin² 99-421 Attempted Petit Larceny 1/05/99 Ms. Hammond 99-422 Attempted Petit Larceny 1/05/99 Ms. Condon 99-423 Attempted Petit Larceny 1/06/99 Ms. Pittman

Prior to trial, Traish moved the trial court to grant him separate trials on each of the charges involving different victims. He conceded the grand larceny and assault and battery charges could properly be tried together because they involved the same victim and were part of the same transaction. The trial court denied Traish's motion to sever the trial of the offenses, and all of the charges were tried together before the same jury.

At trial, the evidence established that, on December 16, 1998, Adelaide Flanagan, a woman in her eighties, returned home alone from the bank and parked her car in the parking lot of the retirement community in Arlington County where she lived. Traish, wearing a black leather jacket and driving an older, large, blue car, pulled in behind her, got out of his car, and accused her of hitting his car in a local grocery store parking lot. He said: "Why didn't you stop? I honked at you and a cab nearby honked too. You struck my car." Flanagan, who had not heard anyone honking, denied hitting Traish's car. He showed her a mark on the back of her car, a spot where the car had been scratched almost a year earlier. When she again denied hitting his car, Traish showed her a dent on his car where he claimed she hit it. The mark on Traish's car was "much lower" than the mark Traish pointed out on her car. Traish told her he had put in a lot of work getting his car ready to sell but could not sell it now that it was damaged. Flanagan looked at Traish's driver's license and told him she would report his claim to her insurance company once she got in the house. She did not write his name down at the time, but it was, she recalled, something like "Hashin Frasier."

At that point, Stacy Heil, an employee of the retirement community, came over to assist Flanagan. Traish told Heil that Flanagan had just backed into him in the grocery store parking lot next to the retirement community. Traish again pointed out the marks on the two cars where they had hit. There was, however, Heil noted, a difference of eight to ten inches in the heights of the two marks pointed out by Traish. She took down the name Traish gave her, "Hisham"; his phone number, which turned out to belong to someone else; the temporary license tag number on his car, which expired January 15, 1999; and a description of his car, a 1988 silvery blue Lincoln. She also gave Flanagan the phone number of the police. Feeling Traish's accusation "was not on the up and up," Heil asked Flanagan if she wanted to go inside, and Flanagan responded affirmatively.

Flanagan's encounter with Traish lasted approximately thirty minutes. Flanagan never offered any money to Traish and he never asked for any. Flanagan called the police within a day or two of the incident to report it. At trial, both Flanagan and Heil identified Traish as the man they encountered that day, even though, according to Heil, his hairstyle had changed.

On December 17, 1998, Helen Lyon was driving by herself in Arlington County when she heard someone behind her honking. Traish, who was wearing a black leather jacket, pulled up beside her, rolled down his window, and told her she had hit his car. Lyon, who was returning home after shopping for groceries, pulled over to the side of the road and got out of her car. She knew she had not hit anybody. Traish also pulled over, got out of his car, and pointed to a spot on his car where he claimed Lyon hit it in the grocery store parking lot. She denied hitting his car, saying, "I could not have done that because my car could not have made that [mark]." She suggested they drive to her house where she would call the police and inform her husband.

Traish, however, insisted they handle it there and then and took out his driver's license and showed it to her. She could not identify the picture on it because it was "shiny," but "noticed the name was a long last name." Deciding the best thing to do was to also show him her driver's license, Lyon got back in her car, shut the door, located her license in her wallet, rolled the driver's side window down, and, while sitting in her car, held her wallet up so that Traish could look at her driver's license. At that point, Traish reached through the window, grabbed Lyon's wallet out of her hand, and ran back to his car with the wallet. He got in his car and shut the door. The wallet contained more than five dollars.

Lyon got out of her car and ran to Traish's car to try to retrieve her stolen wallet. In hopes of grabbing either the wallet or Traish's keys so he could not drive away, Lyon attempted to open Traish's car door. However, as Lyon was opening the door, Traish pushed the door into her leg, causing a large bruise, and then quickly pulled the door shut. Lyon opened the door again, but Traish pulled it shut again and drove off with her wallet.

Lyon then drove home and called the police. She described the man who assaulted her and stole her wallet as being thirty-one or thirty-two years old, five feet nine or ten inches tall, and having sandy colored hair and a very small mustache. During the investigation of the incident, Lyon selected Traish's picture from a photo lineup as the man she encountered that day, even though, according to Lyon, his hairstyle in the picture was not the same as when the encounter took place.

At the preliminary hearing, Lyon described the man who assaulted her and stole her wallet as being of "average build, maybe a little bit on the slender side," having hair that was combed straight back and that was not gray, and having a small, dark mustache. When asked if she saw the perpetrator in the courtroom, Lyon initially identified a man seated in the first row of the gallery as the person who assaulted her and stole her wallet. The man's leather jacket, Lyon explained, was like the one the perpetrator wore, even though his face and thinning dark hair did not resemble the perpetrator's. Upon standing up to better see over an obstruction that had previously blocked part of her view, Lyon saw Traish and, after examining his face, positively identified him as the man who assaulted her and stole her wallet. Even though Traish's "hair was styled differently," he was, according to Lyon, "exactly the same fellow" who committed the crimes.

At trial, Lyon positively identified Traish as the perpetrator. She testified that she had a good opportunity to look at the man during her encounter with him, which occurred around 11:30 a.m. The lighting was "fine," and he was within arm's reach of her during the encounter. Lyon testified that she had no doubt that Traish was the perpetrator.

On December 19, 1998, Mary Jane Evans, a woman in her sixties, having arrived early at the Metro 29 Diner in Arlington County, was sitting alone in her parked car around 9:00 a.m., waiting for her friend, when Traish, driving a large, 1960s-era, light blue sedan, pulled up and parked nearby. He approached Evans and accused her of having hit his car at a construction site near a local grocery store. Evans, knowing she had not hit anybody at that site or elsewhere, denied hitting him. He told her that, after she hit him, he and somebody else had honked at her. Evans had not heard any honking and again denied hitting him.

Traish then showed Evans a dent on his car that he claimed she caused. He told her he was restoring his car and could get a replacement part at the junkyard to repair the damage for twenty-five dollars. He asked her for the money. She questioned how the dent could have been produced without any accompanying scratches around it. "[I]t looked," she told him, "like somebody... hit it with a hammer." Traish laughed at that suggestion.

Feeling uneasy about the situation, Evans did not get out of her car. Evans said she would let her insurance company handle it. She gave him her insurance information and told him to contact her insurance company. Traish showed her his...