                      COURT OF APPEALS OF VIRGINIA


Present: Chief Judge Fitzpatrick, Judges Humphreys and Kelsey
Argued by teleconference


DIABY MOHAMED
                                          MEMORANDUM OPINION * BY
v.   Record No. 3439-01-1        CHIEF JUDGE JOHANNA L. FITZPATRICK
                                                MAY 6, 2003
COMMONWEALTH OF VIRGINIA


           FROM THE CIRCUIT COURT OF THE CITY OF HAMPTON
                  William C. Andrews, III, Judge
          Stephen K. Smith for appellant.

          Jennifer R. Franklin, Assistant Attorney
          General (Jerry W. Kilgore, Attorney General,
          on brief), for appellee.


     Diaby Mohamed (appellant) 1 was convicted of uttering a forged

public document in violation of Code § 18.2-168.    He contends the

evidence was insufficient to prove he intended to utter a forged

public document and that he obstructed justice. 2   Finding no

error, we affirm.




     * Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
     1
       At various times in the record, appellant refers to
himself as Diaby Mohamed, Sylla Famara and Famara Sylla.
     2
       We note that the sentencing order indicates that appellant
was found guilty of obstruction of justice pursuant to Virginia
Code § 24-6. However, the warrant reflects this to be a
violation of the City of Hampton Code § 24-6. This matter is
remanded to the trial court for the sole purpose of correcting
that clerical error.
                            I.   BACKGROUND

     Under familiar principles of appellate review, we examine

the evidence in the light most favorable to the Commonwealth,

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, the evidence proved that on April 26, 2001,

appellant, using the name Diaby Mohamed, approached Department of

Motor Vehicles (DMV) employee Brenda Johnson and obtained title to

a vehicle.    He stated he did not have the necessary identification

and used a "second title because he had another record already set

up so [Johnson] used that title record to bring up his information

to title that vehicle."    Johnson found appellant's "T number" 3 on

the second title and "rolled it over to title the other vehicle."

     On April 27, 2001 appellant again approached Johnson.       He had

an application for a driver's license and stated his name was

Famara Sylla.    He presented Johnson with a New York identification

card, a New York international driver's license and the Virginia

DMV application for a driver's license.       The DMV application was

complete except for a signature.    Johnson asked appellant to sign

it, and he wrote "Famara Sylla" in Johnson's presence.      Johnson

asked him "for proof of his residence and proof of his social

security."    Appellant had neither.     When Johnson questioned the

difference in the names, appellant said Famara Sylla was his

Muslim name.    Johnson became suspicious and asked Officer Roberto

Cruz of the Hampton Police Department to handle the situation.         He

     3
         "T" numbers are used in lieu of social security numbers as

                                 - 2 -
approached appellant and requested identification.     Appellant then

produced a Virginia identification card in the name of Diaby

Mohamed.    When Cruz asked appellant to have a seat, appellant

attempted to run out of the DMV office.    Appellant and Cruz

fought, and Cruz sustained two broken ribs and a bruised spleen.

        Appellant moved to strike the evidence of uttering a forged

public record as insufficient at the end of the Commonwealth's

case.    In overruling the motion, the trial court stated:

                  [T]he argument is that he has two
             names. One of them is a Muslim name and
             what [appellant's counsel] said is an
             American name. . . .

                  Even if I got by that, I wonder if
             Americans or Muslims, as the case may be,
             have two different birth days. On the
             Famara Sylla he shows a birth date of April
             5, 1959. On the Diaby Mohamed it shows a
             birth date of January 7, 1950.

                  I don't think a person is entitled to
             have two different birth days so I would
             respectfully deny the motion.

(Emphasis added).

        Appellant then testified in his case as follows:

             My real name is Diaby Mohamed . . . . I
             come here as Sylla Famara. . . . [S]omebody
             used my name Sylla Famara. . . . The police
             arrest me, I've been in prison for one year.
             I pay $8,000 and I go to the law library to
             take an application to change my new name
             Diaby Mohamed because somebody stole my
             driver's license Sylla Famara. . . . I got
             a social security on Sylla Famara. I change
             my name. This is my new name Diaby Mohamed
             because I got a robbery in New York City
             because I want to come stay here. I stayed
             in New York City one year in the prison for


identification numbers.

                                 - 3 -
            this case. I never drove, I never got a
            ticket and the police arrested me for one
            year in the prison that's why I changed my
            name.

     The trial court then attempted to sort out appellant's date

of birth.

            [APPELLANT'S TRIAL COUNSEL:] [C]an you tell
            the Judge why there are different birth
            dates on these identifications . . . ?

            [APPELLANT:]     No, no.

            [COUNSEL:] [T]here was one I believe
            January of 1950 and then another one of
            April the 5th of '55, can you explain to the
            Judge how those different birth dates?

            [APPELLANT:] No, I never put this birth
            date here because on the other ID I take
            this -

            COURT: You didn't put that birth date -
            what's the birth date on that Commonwealth's
            Number 4?

            [COUNSEL:]   It looks like April the 5th of
            '55.

            COURT:   Okay.   And whose name is that?

            [COUNSEL:]   This is Famara Sylla.

            COURT: Well, I've got a card here that's
            Commonwealth's Number 7 it says January 7th,
            1950, date, birth date of Diaby Mohamed.

            [APPELLANT]:     Yes.

            COURT:   Which one is your birth day?

            [APPELLANT]:     My birth day?

            COURT:   Do you know which one is your birth
            day?

            [APPELLANT]:     Yes.

            COURT:   Would you like to tell us.

                                    - 4 -
          [APPELLANT]:    My birth day?

          COURT:   Yes, sir.

          [APPELLANT]:    The day I was born?

          COURT:   Yes, the day you were born.

          [APPELLANT]:    4-15-55.

     The trial court found him guilty of both offenses:

          I don't have any evidence that this man has
          ever legally changed his name. You have one
          legal name. I find him guilty as charged.
          It's incredible that he will sit here and
          tell me that he never touched the officer.
          The officer has testified about what
          happened in some detail. . . . The officer
          suffered two fractured ribs and a bruised
          spleen, it's incredible. And then we have
          the fact that he tried to flee,
          consciousness of guilt.

     Appellant appeals from those convictions.

                    II.   Forged Public Document

     Appellant first contends that the evidence is insufficient to

prove he had the requisite intent to forge a public document

pursuant to Code § 18.2-168. 4   We disagree.

     "Forgery is a common law crime in Virginia.   It is defined

as 'the false making or materially altering with intent to

defraud, of any writing which, if genuine, might apparently be

of legal efficacy, or the foundation of legal liability.'"

Fitzgerald v. Commonwealth, 227 Va. 171, 173-74, 313 S.E.2d 394,




     4
       Code § 18.2-168 provides: "If any person forge a public
record, . . . or utter, or attempt to employ as true, such
forged record, . . . he shall be guilty of a Class 4 felony."


                                 - 5 -
395 (1984) (quoting Bullock v. Commonwealth, 205 Va. 558, 561,

138 S.E.2d 261, 263 (1964)).

           In 1874, in its only opinion on the subject,
           the Virginia Supreme Court defined a public
           record as a written memorial, intended to
           serve as evidence of something written, said
           or done, made by a public officer authorized
           to make it. Coleman v. Commonwealth, 66 Va.
           (25 Gratt.) 865, 881-82 (1874). Since that
           time, the General Assembly has broadened the
           definition. The Virginia Public Records Act
           provides as follows:

           "Public Records" means, but is not limited
           to, all written books, papers, letters,
           documents, photographs, tapes, microfiche,
           microfilm, photostats, sound recordings,
           maps, other documentary materials or
           information in any recording medium
           regardless of physical form or
           characteristics, including electronically
           recorded data, made or received in pursuance
           of law or in connection with the transaction
           of public business by any agency or employee
           of state government or its political
           subdivisions. Id.

Reid v. Commonwealth, 16 Va. App. 468, 470, 431 S.E.2d 63, 64

(1993).   "Intent is a state of mind that may be proved by an

accused's acts or by his statements and that may be shown by

circumstantial evidence."   Wilson v. Commonwealth, 249 Va. 95,

101, 452 S.E.2d 669, 673-74 (1995) (citations omitted).

           The specific intent to commit [a crime] may
           be inferred from the conduct of the accused
           if such intent flows naturally from the
           conduct proven. Where the conduct of the
           accused under the circumstances involved
           points with reasonable certainty to a
           specific intent to commit [the crime], the
           intent element is established.

Id. at 101, 452 S.E.2d at 674.

                                 - 6 -
     "[W]hile a person may adopt any name he may choose so long

as it was done for an honest purpose, under the broad definition

of forgery the crime is committed by signing an assumed name, or

a fictitious name, for a dishonest purpose and with intent to

defraud."   Moore v. Commonwealth, 207 Va. 838, 841, 153 S.E.2d

231, 234 (1967).

     "[T]he trial court evaluates the credibility of witnesses,

resolves the conflicts in their testimony, and weighs the

evidence as a whole.     Its finding is entitled to the same weight

on appeal as that accorded a factual finding by a jury and will

not be disturbed unless it is plainly wrong."     Stockton v.

Commonwealth, 227 Va. 124, 140, 314 S.E.2d 371, 381 (1984).

     The evidence adduced at trial was sufficient to establish

that appellant uttered a forged public document.   An application

for an operator's license and an application for a vehicle title

are squarely within the accepted definition of "public records."

Appellant's attempt to obtain each in a different name was

evidence of a forgery of one or both of the names.   Appellant made

contradictory and inconsistent statements concerning his name and

provided documentation that was plainly false.    As the trial court

noted, appellant presented no evidence of a legal name change and

listed at least two different dates of birth.    Further, he said he

had a social security number in the name of Sylla Famara but not

Diaby Mohamed and then said he had a social security number in the

name of Diaby Mohamed.    Lastly, the trial court could properly


                                 - 7 -
consider appellant's flight from Cruz as "tending to show a

consciousness of guilt."   See Ricks v. Commonwealth, 39 Va. App.

330, 335, 573 S.E.2d 266, 268 (2002).    Ample evidence supports

the finding that his testimony was incredible.

                    III.   Obstruction of Justice

     Appellant next contends that the evidence was insufficient to

prove he obstructed justice.

     Hampton City Code § 24-6 states:

            If any person, by threats, or force,
            knowingly attempts to intimidate or impede a
            judge, magistrate, justice, juror, attorney
            for the Commonwealth, witness or any
            law-enforcement officer, lawfully engaged in
            his duties as such, or to obstruct or impede
            the administration of justice in any court,
            he shall be deemed to be guilty of a Class 1
            misdemeanor.

     Both Johnson and Cruz testified that when appellant attempted

to flee, he attacked and injured Cruz who suffered severe

injuries.   Appellant stated that he "never touched the officer."

The court believed Cruz and Johnson and found appellant's

testimony "incredible."    "The credibility of the witnesses and

the weight accorded the evidence are matters solely for the fact

finder who has the opportunity to see and hear that evidence as

it is presented."    Hughes v. Commonwealth, 39 Va. App. 448, 462,

573 S.E.2d 324, 330 (2002) (quoting Sandoval v. Commonwealth, 20

Va. App. 133, 138, 455 S.E.2d 730, 732 (1995)).

     Thus, the evidence was sufficient to prove that appellant

intended to utter a forged public document and obstructed justice.

Accordingly, we affirm the judgment of the trial court.


                                - 8 -
        Affirmed.




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