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The Virginia Appellate Lawyer’s Court of Appeals of Virginia Blog

One more opinion from October . . . and it's a victory for the defendant perhaps (well, sort of).

The last published opinion issued in October by the Court of Appeals is Osman Osman v. Commonwealth of Virginia. Osman was convicted by a jury in Fairfax County Circuit 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. As you can probably guess, this case arises from a domestic situation. Osman's estranged wife obtained a protective order for her and the couple's child, identified as J.O., who was under three at the time of the offenses.

There really doesn't seem to be much dispute that Osman violated to protective order by showing up at a place where he new his wife and child would be and demanding that the wife come with him. A struggle ensued and attracted the attention of a passerby who was an off duty federal security officer. Osman pointed what appeared to be a handgun at the officer and threatened to shoot him. Osman maintained that the weapons was a "BB" gun. When another passerby told Osman that police had been summoned, he fled.

The vehicle Osman was driving, which had been stolen, was found abandoned. Evidence recovered from the vehicle included items that Osman admitted were his and included a child safety seat restraint bar with zip ties looped through it so that it could be used to secure someone by the wrists. The vehicle also contained diapers, men’s clothing, and assorted identity papers.

Osman was subsequently located in New York and extradited to Virginia. Osman made numerous motions for continuances, and as a result had not been brought to trial at the time the COVID-19 pandemic forced the closure of many courthouses and the curtailment of jury trials. he was eventually tried on July 28, 2021after the circuit court overruled Osman's statutory and constitutional speedy trial motions.

There is really nothing new in the aspects of Osman's appeal with respect to his arguments about admission of past bad acts (trial court's discretion), speedy trial (COVID and his own requests negate statutory claim, and constitutional claim lacked demonstrated prejudice), and sufficiency of the evidence. So what is the victory Osman did win? It relates to his attempted abduction of J.O. under Code § 18.2-47, which was charged as a felony. The Court of Appeals agrees with Osman that under that statute, a parent is only guilty of a misdemeanor if they attempt to abduct their own child. Nothing in the statute creates an exception for an abduction where the parent did not have custodial rights and/or was required to remain away from the child by a protective order. This will result in Osman's total sentence being reduced by between 10 years, so perhaps the victory was not that small after all, as he was sentenced to 20 years total. Cutting his sentence in half will still give his wife time to get divorced . . . and Osman, who was a legal immigrant will probably be subject to deportation upon his release, so not such a big victory either.

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