Hisham Traish v Commonwealth of Virginia

COURT OF APPEALS OF VIRGINIA
Present: 	Judges Bumgardner, Humphreys and Clements
Argued at Richmond, Virginia
HISHAM TRAISH
OPINION BY
v. 	Record No. 2056-99-4 	JUDGE JEAN HARRISON CLEMENTS
JULY 10, 2001
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF ARLINGTON COUNTY
Joanne F. Alper, Judge
Peter M. Baskin (Pelton, Balland, Young,
Demsky, Baskin & O'Malie, P.C., on brief),
for appellant.
Eugene Murphy, Assistant Attorney General
(Mark L. Earley, Attorney General, on brief),
for appellee.
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
1 Although dismissed at trial at the close of the
Commonwealth's evidence and not a subject of this appeal, this
charge is included for purposes of analyzing Traish's first
assignment of error.
2 This case also was dismissed by the trial court at the
close of the Commonwealth's evidence and is included for
purposes of analyzing Traish's first assignment of error.
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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
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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.
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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.
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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
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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.
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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
driver's license and asked Evans if she had a deductible.
Despite his continued attempts to convince her that she had hit
him, that she owed him twenty-five dollars for the damage, and
that, given her insurance deductible, the easiest thing would be
to simply pay him the money, she did not give him any money.
Evans described the man who approached her as being either
Middle Eastern or Italian, having dark hair, and wearing a black
leather jacket. 	At trial, Evans identified Traish as the man
who approached her and accused her of hitting his car, although
his hairstyle was different.
On December 26, 1998, Pearl Austin was driving alone in
Arlington County, heading home after shopping, when a man in a
large, blue Oldsmobile or Chrysler pulled up next to her,
- 8 -

pointed at her car, and said she had hit his car in the store
parking lot. 	Knowing she had not hit anybody in the parking lot
or elsewhere, Austin denied having hit the man's car. 	She got
out of her car, however, to see if there was any damage to her
car. 	The man pointed at two marks on her bumper that were not
new and told Austin that was where she hit him. 	Austin
explained that the marks had been there for some time and asked
him where his car was hit. 	He pointed to his rear bumper, but
she saw no marks on it. 	At that point, Austin became scared,
thinking it was a "shakedown." 	When the man started walking
toward her, Austin, wanting to get away from him, asked him how
much it would cost to repair the damage. 	He responded that it
would cost about a hundred dollars. 	She offered him twenty
dollars and asked him to leave her alone. 	He took the twenty
dollars and she left. 	The encounter lasted less than ten
minutes.
Austin described the man who approached her as wearing a
dark leather jacket, being either Middle Eastern or Italian, and
having a full head of dark, bushy hair. 	At trial, she did not
identify Traish as being that man but instead tentatively picked
out a man in the gallery wearing a dark jacket. 	At the close of
the Commonwealth's evidence, the trial court granted Traish's
motion to strike as to the charge involving Austin, based on her
failure to identify Traish as the perpetrator of the crime.
- 9 -

On January 5, 1999, Corinna Condon, who was nineteen years
old, was driving to work by herself in Arlington County at
4:30 p.m. when Traish, driving a dark blue Suzuki Samurai or
Jeep-type vehicle with a taped up back window, pulled alongside
her at a stoplight and motioned for her to lower her window.
When she did, he told her that she had just hit his vehicle.
Knowing she had not hit anyone, Condon denied hitting Traish,
but pulled over to the side of the road. 	Traish pulled up
behind her, got out of his vehicle, and walked up to her window.
He again told her that she had struck his vehicle, and she again
denied having done so. 	When Condon got out of her car, Traish
pointed to a cracked taillight and said that was where she hit
his vehicle. 	She continued to deny that she had hit him, and he
continued to insist that she had. 	He said it was going to cost
him sixty dollars to get it fixed but, noticing the university
sticker on her car, he would give her a break since she was a
student and only make her pay fifty dollars for the damage.
Condon again told Traish she had not hit him and added that
she was late for work and had to go. 	He told her she could meet
him at the Metro Diner, where he worked and where a cab driver
who saw her hit him would join them. 	He showed her his license
and told her his name was "David Trish" or "Shawn Traish."
Needing to get to work and not wanting to have to deal with
Traish anymore, Condon gave Traish twenty dollars. 	He saw she
had more money in her wallet and asked for thirty dollars, but
- 10 -

she only gave him twenty dollars. 	The encounter lasted
approximately ten minutes. 	After continuing on to work, Condon
called the Metro Diner and was told that Traish no longer worked
there.
Condon later reported the incident to the police. 	Condon
told investigators that the man she encountered that day was
Middle Eastern, dark haired, and wearing a black leather jacket.
At trial, Condon said Traish was wearing a jean jacket at the
time of the encounter. 	In connection with the police's
investigation, Condon identified Traish's picture from a photo
lineup. 	She also identified Traish at trial as the man who
pulled up beside her and told her she had hit his vehicle. 	His
hair, she noted, was much shorter than when the incident
occurred.
Also on January 5, 1999, Phyllis Hammond, a woman in her
seventies, was returning home by herself from the grocery store
in Arlington County at 8:30 p.m. when she noticed a vehicle
following her very closely. 	She pulled over to the side of the
road and Traish, driving a dark colored Jeep-like vehicle with a
cross-hatching of tape on the rear window, pulled alongside her
car, rolled down his window, and told her she had backed into
his vehicle in the parking lot of the grocery store and broken
his taillight. 	Knowing she had not had an accident of any kind
in the parking lot, Hammond adamantly denied his claim. 	Both
drivers then got out of their vehicles, and Hammond saw that
- 11 -

Traish's taillight was cracked. 	She denied hitting his vehicle,
but asked him how much it would cost to replace a taillight. 	He
replied that he had recently had the other one fixed for one
hundred thirty-eight dollars. 	Still saying she had not hit him,
she offered him five dollars, which he refused.
When Hammond again denied hitting him, Traish said they
could call the police, and she agreed. 	He then suggested that
he go to a junkyard to find a used replacement and she agreed,
saying he could give her the bill. 	He replied that he was going
to New York the next day and suggested they look at her car to
see what damage was done. 	He pointed to a strip of rubber on
her rear bumper that had been damaged for years and said that
was where her car hit his. 	Hammond then asked to see his
driver's license and saw, when he gave it to her, that his name
was Hisham Traish. 	She wrote his name, address, phone number,
and social security number on a piece of cardboard.
Getting cold, afraid of being car-jacked and of getting
hurt, and wanting to get home to care for her ill sister,
Hammond then offered Traish ten dollars. 	Seeing, when she
opened her purse, that she had twenty-five dollars, Traish said
he wanted all twenty-five dollars. 	She gave him the twenty-five
dollars, and he hugged her, saying she reminded him of his
mother. 	Hammond described the man who pulled alongside her and
accused her of hitting his vehicle as being Middle Eastern and
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wearing a black leather jacket. 	At trial, she identified Traish
as that man.
On January 6, 1999, at about 8:15 p.m., Anita Pittman was
driving alone in Arlington County when she heard a car honking.
Knowing she "hadn't done anything," she thought nothing of it.
Shortly thereafter, however, Traish, driving a "boxy,"
Bronco-type vehicle with tape on it, pulled up beside her and
motioned for her to roll down her window. 	When she did, he
accused her of hitting his vehicle. 	Even though she knew she
had not hit him, she pulled into a parking lot and got out of
her car to look to see if there was any damage. 	She saw a mark
on her bumper that she had not seen before. 	The damage to his
vehicle was a cracked taillight, which made her suspicious
because it did not correspond to the mark on her car. 	He told
her his horn did not work, but a cab driver had honked at her.
He also said they could call the police but all they would do is
have them exchange insurance information. 	He suggested he could
buy a replacement part at a junkyard for sixty-five dollars.
She denied having been in an accident or having hit him.
Traish then told Pittman that she "did not have to be
afraid." 	Realizing at that point that she "had to get out of
there," Pittman told Traish she was not afraid but was cold and
needed to go home. 	They exchanged names and phone numbers and
looked at each other's driver's licenses. 	Pittman told him she
- 13 -

would call him and left without giving him any money. 	The
encounter lasted approximately fifteen minutes.
Pittman described the man she encountered that night as
being Middle Eastern, having dark hair, and wearing a dark
leather jacket. 	At trial, Pittman identified Traish, despite
his different hair cut, as the man who stopped her and accused
her of hitting his vehicle.
Detective Stewart Chase of the Arlington County Police
Department testified that, in investigating a series of reports
of fake accidents involving the same offender and the same
method of operation, he received information of seventeen
similar incidents in Arlington County, and a dozen more in
surrounding jurisdictions, that occurred over a two-month period
beginning in December 1998 and ending with Traish's arrest in
January 1999. 	According to Chase,
the "MO," which is the manner in which an
offender commits a crime, was very
consistent. 	The physical descriptors of the
offender were very similar. 	The verbiage
that the person used while interacting with
the victim was nearly identical in every
case. 	The descriptions of the vehicles that
the driver was operating were nearly always
very consistent, although that changed
because a couple of different vehicles were
used over the course of those cases.
Chase added that
what the offender did in all of these cases
was nearly identical. 	He said the same
things. 	He did the same thing. 	Many of
them happened [in] very close proximity to
the same geographic area . . . .
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* 	* 	* 	* 	* 	* 	*
Particularly early on, it seemed as though
all the victims were older women, all
victims in the case were women. . . . 	The
vast majority of the cases involved people,
I guess, anywhere from the sixties to the
early eighties.
Traish, who put on no testimonial evidence at trial, stood
before the jury to allow the jurors to view his physical
appearance.
II. 	JOINDER OF OFFENSES
Traish contends the trial court erred in denying his motion
to have the cases involving different victims tried separately.
Except for the grand larceny and assault and battery offenses,
the charges should have been tried separately, he argues,
because, although similar in method, they involved different
victims, occurred at different times, were not part of the same
transaction, and were not part of a plan. 	Moreover, Traish
contends, he was prejudiced by the joinder of the different
offenses at trial because the Commonwealth was able to take
advantage of the jury's having heard the joint evidence to
implicitly link, and thereby bolster, the obviously weak
identity evidence in some cases with the much stronger identity
evidence in other cases. 	Traish, whose primary defense at trial
was misidentification, suggests that, had different juries heard
the cases involving the different victims separately, he would
- 15 -

have been acquitted in at least two of the cases where the
perpetrator's identity was reasonably in doubt.
The Commonwealth contends that the trial court correctly
found that all of the charges for which Traish was indicted
involved offenses that were connected or part of a common scheme
or plan. 	Thus, the Commonwealth concludes, the cases were
properly tried together under Rules 3A:10(c) and 3A:6(b). 	We
agree with the Commonwealth.
Rule 3A:10(c) permits the trial of multiple offenses
committed by one defendant "if justice does not require separate
trials and . . . the offenses meet the requirements of Rule
3A:6(b)." 	Rule 3A:6(b) permits the joinder of offenses "if the
offenses are based on the same act or transaction, or on two or
more acts or transactions that are connected or constitute parts
of a common scheme or plan." 	"Whether different offenses should
be tried separately is a matter that rests within the sound
discretion of a trial court. 	Thus, a trial court's ruling on
the matter will not be reversed absent a showing that the court
abused its discretion." 	Ferrell v. Commonwealth, 11 Va. App.
380, 386, 399 S.E.2d 614, 617 (1990).
The question before us, then, is whether the record
discloses that the trial court abused its discretion in refusing
to sever the offenses for trial. 	See id. 	We discern nothing in
the record to indicate that the trial court abused its
discretion.
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The evidence and the reasonable inferences to be drawn
therefrom clearly support a finding that the offenses for which
Traish was indicted constituted parts of a common scheme to
systematically bilk women drivers and were closely connected in
the distinctive means of their commission. 	In all of the
charged offenses, Traish approached women who were driving
alone. 	Generally, the women were elderly, although one was a
teenager. 	He honked his horn at them and attempted to get them
to pull over. 	When they pulled over or reached their
destination, Traish told the women, always using the same
general language, that they had collided with him and damaged
his vehicle. 	He pointed to the alleged damage on his vehicle
and pointed out marks on the victims' cars in an attempt to
convince them they had struck his vehicle. 	To reduce their
suspicions, Traish commonly offered to show his operator's
license to the women as a sign of his sincerity. 	He then
discussed the cost of fixing the damage and, in all but one case
where his efforts were cut short by the approach of someone
offering to help the victim and another where he simply ran off
with the victim's wallet, asked the victims for money for the
repairs. 	In each instance, Traish wore a black leather jacket.
Over the course of the twenty-two-day crime spree, which ended
with Traish's arrest, Traish drove two vehicles: an older,
large, blue sedan and a Jeep-like vehicle. 	Furthermore, the
offenses all occurred in the same general geographic location.
- 17 -

Thus, the offenses met the requirements of Rule 3A:6(b) for
a single trial. 	Moreover, justice did not require separate
trials for the offenses because, if the offenses were, as Traish
requested, tried separately, evidence of the other offenses
would have been admissible to prove the perpetrator's identity.
At trial, the identity of the perpetrator was the primary
issue in dispute. 	Even though evidence of other offenses is
generally inadmissible in a criminal prosecution, evidence of
other criminal conduct is admissible to prove "the perpetrator's
identity when 'some aspects of the [other criminal conduct] are
so distinctive or idiosyncratic that the fact finder reasonably
could infer that the same person committed both crimes.'"
Shifflett v. Commonwealth, 29 Va. App. 521, 529, 513 S.E.2d 440,
444 (1999) (quoting Guill v. Commonwealth, 255 Va. 134, 138-39,
495 S.E.2d 489, 491 (1998)). 	Such evidence must be excluded,
however, if the prejudicial effect of the evidence outweighs its
probative value, a determination within the sound discretion of
the trial court. 	Id. 	Furthermore, such evidence is admissible
regardless of whether the other criminal conduct occurred before
or after the commission of the offense for which the defendant
is being tried. 	See Collins v. Commonwealth, 226 Va. 223, 230,
307 S.E.2d, 884, 888 (1983).
In light of the distinctive method of operation that, as
noted above, was employed in each of the instant crimes, we
conclude that a fact finder reasonably could infer that the same
- 18 -

person committed all of the charged offenses. 	Furthermore,
given Traish's claim that he was not the person who committed
the offenses, the probative value of the evidence of the other
offenses is obvious, and we cannot say that a trial court abuses
its discretion by finding that the probative value outweighed
the prejudicial effect of such evidence.
Hence, the offenses also met the requirements of Rule
3A:10(c) for a single trial. 	We hold, therefore, that the trial
court did not abuse its discretion in denying Traish's motion
for separate trials.
III. 	SUFFICIENCY OF THE EVIDENCE
Traish also contends the Commonwealth's evidence was
insufficient as a matter of law to prove beyond a reasonable
doubt that he was the person who committed the offenses of grand
larceny and assault and battery against Helen Lyon. 	Lyon's
photo-array and in-court identifications of Traish were, Traish
argues, rendered unreliable by her failure to initially identify
Traish as the perpetrator at the preliminary hearing, by her
testimony at the preliminary hearing that the perpetrator was of
"average build, maybe a little bit on the slender side," and by
her testimony at trial that there was a "long last name" on the
driver's license shown to her by the perpetrator.
When the sufficiency of the evidence is challenged on
appeal, we must consider the evidence "in the light most
favorable to the Commonwealth, granting to it all reasonable
- 19 -

inferences fairly deducible therefrom." 	Bright v. Commonwealth,
4 Va. App. 248, 250, 356 S.E.2d 443, 444 (1987). 	"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."
Sandoval v. Commonwealth, 20 Va. App. 133, 138, 455 S.E.2d 730,
732 (1995). 	We will not reverse a conviction unless "it appears
from the evidence that it is plainly wrong or without evidence
to support it." 	Sutphin v. Commonwealth, 1 Va. App. 241, 243,
337 S.E.2d 897, 898 (1985).
Here, the sufficiency of the evidence depends on the
reliability of Lyon's identification of Traish as the
perpetrator. 	See Smallwood v. Commonwealth, 14 Va. App. 527,
530, 418 S.E.2d 567, 568 (1992). 	Factors determining the
reliability of an identification include "'the opportunity of
the witness to view the criminal at the time of the crime, the
witness' degree of attention, the accuracy of the witness' prior
description of the criminal, the level of certainty demonstrated
by the witness at the confrontation, and the length of time
between the crime and the confrontation.'" 	Townes v.
Commonwealth, 234 Va. 307, 331, 362 S.E.2d 650, 663-64 (1987)
(quoting Neil v. Biggers, 409 U.S. 188, 199-200 (1972)).
We find that, in considering the totality of the
circumstances set forth in the record before us, no substantial
likelihood of misidentification existed in this instance. 	See
- 20 -

Neil, 409 U.S. at 198-99. 	Lyon had the opportunity to view the
perpetrator at close range, outdoors, in the daylight, for a
considerable time. 	Lyon's attention was not distracted by any
threats or displays of a weapon by the perpetrator. 	Likewise,
her vision was not impaired. 	Shortly after the incident, Lyon
gave the police a description of the perpetrator, including his
approximate height and age and the style and extent of his
facial hair, features which were not disputed by the defense.
She also said he was wearing a black leather jacket.
Lyon then selected Traish's picture from a photo array
during the police's investigation of the incident. 	At the
preliminary hearing, Lyon initially identified another man as
the perpetrator based on his attire, but corrected her
identification when, after standing up, she saw Traish in the
courtroom. 	She identified Traish, unlike the first man, on the
basis of his facial appearance. 	At trial, she identified Traish
and testified she had "no doubt" he was the man who assaulted
her and stole her wallet. 	The reliability of Lyon's
identification of Traish was further supported by Traish's
proven connection to the other offenses that were committed as
part of the same scheme or plan as the subject crimes involving
Lyon.
As for Traish's claim that Lyon's description of the
perpetrator as being of "average build, maybe a little bit on
the slender side" tainted her identification of Traish, our
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review of the record convinces us that this contention is
without merit. 	No evidence in the record suggests that Lyon's
description of the perpetrator's build was not credible.
Indeed, the only other evidence in the record regarding Traish's
build is the testimony by Mary Jane Evans that the man who
accused her of hitting his car had a "medium build." 	Evans
identified Traish in court as that man. 	"Average build, maybe a
little bit on the slender side," and "medium build" are entirely
consistent descriptions. 	Moreover, the jury, who had the
opportunity to observe Traish's build when he stood before them
and removed his jacket, was entitled to compare Lyon's
description with Traish's physical appearance and weigh Lyon's
credibility accordingly. 	See Sandoval, 20 Va. App. at 138, 455
S.E.2d at 732. 	The jury found Lyon's testimony credible.
So, too, was it the jury's province to weigh and resolve
possible conflicts in and judge the credibility of Lyon's
testimony regarding the driver's license shown to her by the
perpetrator. 	See id. 	Looking at the totality of the
circumstances and given the strength of the evidence supporting
the reliability of Lyon's identification, we cannot say as a
matter of law that Lyon's testimony that the "last name" on the
license was "long" rendered Lyon's identification of Traish
unreliable. 	Because the license was "shiny," Lyon could not
identify the picture on it and establish that it was even
Traish's license. 	Nor could she recall the name on it. 	Indeed,
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it is not clear from the record whether by "last name" Lyon
meant the operator's surname or the name literally appearing
last in the list of individual names on the license, which, as
there was no evidence regarding the order of names on the
license, could have been the operator's first or middle name.
We conclude, therefore, that the jury could find beyond a
reasonable doubt, on the basis of the evidence presented, that
Traish was the man who committed the crimes of grand larceny and
assault and battery against Lyon. 	The jury's determination was
supported by ample credible evidence and was not plainly wrong.
Accordingly, the trial court did not err in denying Traish's
motion to strike the evidence on the grand larceny and assault
and battery charges.
IV. 	FATAL VARIANCE
Traish further contends that, even though he was indicted
and convicted of attempted petit larceny, the offense of
completed larceny was proven in the cases involving Corinna
Condon and Phyllis Hammond, both of whom gave Traish money.
Consequently, his argument continues, he could later be
prosecuted again on the same evidence for completed larceny.
Thus, he concludes, the variance between the allegation of the
indictments and proof of the crimes was fatal and he cannot,
therefore, be convicted of the offenses charged in those
indictments.
Traish's fatal variance complaint is without merit.
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It is true that a variance between the
allegations of an indictment and proof of
the crime may be "fatal," and "[t]he offense
as charged must be proved." 	A variance is
fatal, however, only when the proof is
different from and irrelevant to the crime
defined in the indictment and is, therefore,
insufficient to prove the commission of the
crime charged.
Hawks v. Commonwealth, 228 Va. 244, 247, 321 S.E.2d 650, 651-52
(1984) (alteration in original) (citations omitted).
Here, even though Condon and Hammond both gave Traish
money, the evidence did not prove the offense of completed
larceny. 	"Larceny is the wrongful taking of the goods of
another without the owner's consent and with the intention to
permanently deprive the owner of possession of the goods."
Bright, 4 Va. App. at 251, 356 S.E.2d at 444. 	Larceny by false
pretenses requires proof that, inter alia, the false pretenses
used by the perpetrator to perpetuate a fraud "induced the owner
to part with his property." 	Bourgeois v. Commonwealth, 217 Va.
268, 272, 227 S.E.2d 714, 717 (1976). 	Thus, proof of a
completed larceny in the present cases would have required a
showing that Traish wrongfully took money from Condon and
Hammond without their consent or by inducing them by false
pretenses to give him their money.
The evidence, however, proved that the women voluntarily
gave Traish the money. 	Neither Condon nor Hammond believed
Traish's false claims that they had hit his vehicle and owed him
money to pay for the damage. 	Condon gave Traish money merely to
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get rid of him because she was late for work and had to leave.
Hammond gave him money because she was getting cold, was afraid
of being car-jacked, and wanted to get home to care for her ill
sister. 	Thus, there was no taking of property by false
pretenses or without the owner's consent.
Hence, the proof at trial would not have sustained
convictions for completed larcenies, but did conform to the
attempted petit larceny indictments. 	Accordingly, the trial
court did not err in ruling there was no fatal variance in the
subject indictments.
V. 	THE DEFENSE OF LEGAL IMPOSSIBILITY
Finally, Traish contends that, based on the evidence
presented in the cases, the larcenies attempted were legally
impossible because the victims were not deceived by his false
claims that they had hit his vehicle. 	Because the victims did
not believe him, even if the offenses had been fully carried out
exactly as intended, there would have been, Traish argues, no
nonconsensual transfer of property or inducement of the victims
by false pretenses to give Traish money. 	Thus, under the
doctrine of legal impossibility, he could not, he argues,
properly be convicted on the attempted petit larceny charges.
Traish's argument is without merit. 	"Legal impossibility
occurs when a defendant's actions, even if fully carried out
exactly as he intends, would not constitute a crime." 	Parham v.
Commonwealth, 2 Va. App. 633, 636, 347 S.E.2d 172, 173 (1986).
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"'An attempt is composed of two elements: the intention to
commit the crime, and the doing of some direct act towards its
consummation which is more than mere preparation but falls short
of execution of the ultimate purpose.'" 	Hopson v. Commonwealth,
15 Va. App. 749, 752, 427 S.E.2d 221, 223 (1993) (quoting
Sizemore v. Commonwealth, 218 Va. 980, 983, 243 S.E.2d 212, 213
(1978)). 	"'[I]n order to constitute an attempt[,] the act
attempted must not be impossible, but this rule has reference to
inherent impossibility, and not to cases where the impossibility
has been brought about by outside interference, or grows out of
extraneous facts not within the knowledge and control of the
accused.'" 	Parham, 2 Va. App. at 636, 347 S.E.2d at 174
(quoting Collins v. Radford, 134 Va. 518, 536, 113 S.E. 735, 741
(1922)).
Here, the evidence established that, regardless of whether
the victims believed Traish's misrepresentations or not, it was
Traish's intent to obtain money from the victims by means of
false pretenses. 	In each case, he committed direct acts toward
the consummation of that crime by approaching the victims and
telling them they had hit and damaged his vehicle. 	While none
of the victims gave Traish money believing they had hit his car,
meaning the larcenies were not completed, Traish's actions, if
fully carried out exactly as he intended, would have constituted
the crime of larceny by false pretenses. 	Traish completed every
act necessary for the commission of the substantive crime. 	The
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only reason the commission of the larcenies was not completed
was the victims' lack of gullibility, a fact that was unknown to
Traish and beyond his control.
Hence, the instant crimes of attempted petit larceny were
not legally impossible. 	Thus, the trial court did not err in
denying Traish's motion to strike the evidence as to the attempt
cases on the ground of legal impossibility.
For these reasons, Traish's convictions are affirmed.
Affirmed.
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