COURT OF APPEALS OF VIRGINIA

Present: Chief Judge Fitzpat rick, Judges Elder and Agee Argued at Salem, Virginia

SHARIFF AL'MALIK MEMORANDUM OPINION * BY v. Record No. 1170- 01-3 CHIEF JUDGE JOHA NNA L. FITZPATRICK APRIL 2, 2002 COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COUR T 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 (a ppellant) was convi cted of perjury, in violation of Code § 18.2-434. 1 The sole issue raised is whether the evidence was suffici ent to establish that the alleged offense occurred in Botetourt County, Virgini a. 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. Boo ne of the Bot etourt County Sheriff's Department a rrested appellant for misdemean or charges of speeding, reckless dri ving and attempting to elude a police officer. At the scene of the arrest, appella nt identified himself as Levi Johnson. Boon e was unable to obtain any information about appellant from DMV at that time. Boone the n brought appellant before a magistrate at the Botetourt County magistrate's office. Before giving appellant the oath, the ma gistrate asked Boone to unlock appellant's handcuffs so he could ra ise his right hand and be sworn. The magistrate then asked appellan t 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 Departm ent recognized h im from prior encounters. Wilson did not know appellant's fir st name, but he knew it was not Levi. Wilson re quested and receive d information from the Roanoke City jail which confir med appellant's name to be Sam Johnson and that he went by a Musl im name, Shariff Al'Malik. Wilson took the information to B oone, 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 st rike the evidence as insufficient at the end of the Commonweal th's case, but did not argue that the Commonwealth failed to establish venue.

II. ANALYSIS

- 2 -Appellant contends that the alleged fa ilure to prove the offense occurred in Bo tetourt County is a question of subject matter jurisdict ion which can be raised at any time and, thus, this issue is not barred by Rule 5A :18. Assuming without deciding that appellant adeq uately preserved his suf ficiency argument that the evidence failed to establish that the perjury occurred in Botetourt County, it is without merit. Proper ly viewed, the evidence proved that when Boon e brought appellant to the magistrate's office in Botetourt County on August 5, 2000, appellant was sworn an d identified himself as Levi Johnson before both the magistrate an d Boone. Wilson proces sed appellant in the Botetourt County jail on these charges a nd 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 us ed the Muslim name Shariff Al'Malik. The evidence clearly established that the entire chain of events underlying appell ant's perjury charge

- 3 -occurred in Botetourt County. Thus, the ev idence was sufficient to establish venue 2 as properly laid therein. Accordingly, we aff irm 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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