COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Fitzpatrick, Judges Elder and Agee
Argued at Salem, Virginia
SHARIFF AL'MALIK
MEMORANDUM OPINION * BY
v. Record No. 1170-01-3 CHIEF JUDGE JOHANNA L. FITZPATRICK
APRIL 2, 2002
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF BOTETOURT COUNTY
George E. Honts, III, Judge
Charles R. Allen, Jr., for appellant.
Linwood T. Wells, Jr., Assistant Attorney
General (Jerry W. Kilgore, Attorney General,
on brief), for appellee.
Shariff Al'Malik (appellant) was convicted of perjury, in
violation of Code § 18.2-434. 1 The sole issue raised is whether
the evidence was sufficient to establish that the alleged offense
occurred in Botetourt County, Virginia. Finding no error, we
affirm.
I. BACKGROUND
Under familiar principles of appellate review, we examine
the evidence in the light most favorable to the Commonwealth,
* Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
1
Code § 18.2-434 provides in pertinent part: "If any
person to whom an oath is lawfully administered on any occasion
willfully swear falsely on such occasion . . . he shall be
guilty of perjury, punishable as a Class 5 felony."
the prevailing party below, granting to that evidence all
reasonable inferences fairly deducible therefrom. See Juares v.
Commonwealth, 26 Va. App. 154, 156, 493 S.E.2d 677, 678 (1997).
So viewed, Officer T.S. Boone of the Botetourt County
Sheriff's Department arrested appellant for misdemeanor charges of
speeding, reckless driving and attempting to elude a police
officer. At the scene of the arrest, appellant identified himself
as Levi Johnson. Boone was unable to obtain any information about
appellant from DMV at that time. Boone then brought appellant
before a magistrate at the Botetourt County magistrate's office.
Before giving appellant the oath, the magistrate asked Boone to
unlock appellant's handcuffs so he could raise his right hand and
be sworn. The magistrate then asked appellant to identify
himself, and appellant again stated he was Levi Johnson. While
appellant was in jail, Officer Willie Wilson of the Botetourt
County Sheriff's Department recognized him from prior encounters.
Wilson did not know appellant's first name, but he knew it was not
Levi. Wilson requested and received information from the Roanoke
City jail which confirmed appellant's name to be Sam Johnson and
that he went by a Muslim name, Shariff Al'Malik. Wilson took the
information to Boone, and Boone confronted appellant. Appellant
admitted he was Sam Johnson and that his Muslim name was Shariff
Al'Malik. He also stated that Levi Johnson was his brother.
Appellant moved to strike the evidence as insufficient at the
end of the Commonwealth's case, but did not argue that the
Commonwealth failed to establish venue.
II. ANALYSIS
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Appellant contends that the alleged failure to prove the
offense occurred in Botetourt County is a question of subject
matter jurisdiction which can be raised at any time and, thus,
this issue is not barred by Rule 5A:18. Assuming without deciding
that appellant adequately preserved his sufficiency argument that
the evidence failed to establish that the perjury occurred in
Botetourt County, it is without merit. Properly viewed, the
evidence proved that when Boone brought appellant to the
magistrate's office in Botetourt County on August 5, 2000,
appellant was sworn and identified himself as Levi Johnson before
both the magistrate and Boone. Wilson processed appellant in the
Botetourt County jail on these charges and testified that he knew
that Levi Johnson was not appellant's correct name. After further
questioning by Boone, appellant admitted he had lied about his
name and he was, in fact, Sam Johnson and that he used the Muslim
name Shariff Al'Malik. The evidence clearly established that the
entire chain of events underlying appellant's perjury charge
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occurred in Botetourt County. Thus, the evidence was sufficient
to establish venue 2 as properly laid therein.
Accordingly, we affirm the judgment of the trial court.
Affirmed.
2
Code § 19.2-244 provides in pertinent part: "Except as
otherwise provided by law, the prosecution of a criminal case
shall be had in the county or city in which the offense was
committed."
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