COURT OF APPEALS OF VIRGINIA
Present: Judges Annunziata, Bumgardner and Frank
Argued at Salem, Virginia
ALPHONSO STEPHENS
OPINION BY
v. Record No. 3033-99-3 JUDGE ROSEMARIE ANNUNZIATA
MARCH 20, 2001
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF PITTSYLVANIA COUNTY
Charles J. Strauss, Judge
Albert L. Shaw for appellant.
Richard B. Smith, Senior Assistant Attorney
General (Mark L. Earley, Attorney General, on
brief), for appellee.
Appellant, Alphonso Stephens, was convicted by a jury of
two counts of maliciously shooting at an occupied motor vehicle
whereby the life of a person in the vehicle may be put in peril,
in violation of Code § 18.2-154, and two counts of intentionally
discharging a firearm from a motor vehicle so as to create a
risk of injury or death to another person or so as to cause
another person to have a reasonable apprehension of injury or
death, in violation of Code § 18.2-286.1. 1 He contends on appeal
that the firing of multiple shots constituted a single act and,
1
The Commonwealth's motion for leave to move the circuit
court to enter a nunc pro tunc judgment order to correctly
reflect that Stephens was convicted of violating Code
§ 18.2-286.1, rather than Code § 18.2-286, which makes it a
misdemeanor to discharge a firearm across a road, is granted.
therefore, the conviction of two counts of each offense
constituted multiple punishment for the same crime, thereby
violating his right not to be twice placed in jeopardy for the
same offense under the United States and Virginia Constitutions.
On appeal, we view the evidence and all reasonable
inferences that may be drawn from that evidence in the light
most favorable to the Commonwealth, the party prevailing below.
Burlile v. Commonwealth, 32 Va. App. 796, 798, 531 S.E.2d 26, 27
(2000). On May 7, 1999, Stephens' vehicle was involved in a
high-speed chase of another vehicle, driven by Calvin Fitz and
occupied by two passengers. Chris Jones was a passenger in
Stephens' vehicle. Fitz and his two passengers each testified
that Stephens was driving his vehicle and that multiple shots
were fired at Fitz's car, from a revolver, coming from the
driver's side of Stephens' vehicle. Two of the bullets hit Fitz
in the back as he was driving eighty-five to ninety miles per
hour in an effort to escape from Stephens.
ANALYSIS
The Fifth Amendment to the United States Constitution
provides that no person "shall . . . for the same offense . . .
be twice put in jeopardy of life or limb." U.S. Const. amend.
V. Similarly, the Virginia Constitution provides that a person
"shall not . . . be put twice in jeopardy for the same offense."
Va. Const. art. I, § 8. The double jeopardy "protections
afforded under the Virginia Constitution are co-extensive with
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those in the United States Constitution." Bennefield v.
Commonwealth, 21 Va. App. 729, 739-40, 467 S.E.2d 306, 311
(1996). The double jeopardy provision guarantees protection
against: (1) a second prosecution for the same offense after
acquittal; (2) a second prosecution for the same offense after
conviction; and (3) multiple punishments for the same offense.
Illinois v. Vitale, 447 U.S. 410, 415 (1980). Only the third
guarantee is pertinent to our inquiry. Brown v. Ohio, 432 U.S.
161, 165 (1977) ("Where consecutive sentences are imposed at a
single criminal trial, the role of the constitutional guarantee
is limited to assuring that the court does not exceed its
legislative authorization by imposing multiple punishments for
the same offense."); Blythe v. Commonwealth, 222 Va. 722, 725,
284 S.E.2d 796, 797-98 (1981).
To determine whether the firing of the multiple shots
constitutes a single violation or multiple violations of the two
statutes in question, we must determine what punishment was
intended and authorized by the legislature. Whalen v. United
States, 445 U.S. 684, 688 (1980). The question presented raises
a matter of first impression in Virginia. However, the Virginia
Supreme Court and this Court have addressed analogous issues.
In Kelsoe v. Commonwealth, 226 Va. 197, 308 S.E.2d 104 (1983),
the Supreme Court found that simultaneously pointing a gun at
three people supported three convictions for brandishing a
firearm because the defendant had induced fear in each of the
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individuals. Id. at 199, 308 S.E.2d at 104. The focus was on
the harm to another caused by the defendant's act.
In Carter v. Commonwealth, 16 Va. App. 118, 428 S.E.2d 34
(1993), we held that a repetition of a crime against the same
victim within a short period of time did not insulate the
accused from multiple convictions and punishments. Id. at
127-30, 428 S.E.2d at 41-43. In Carter, the defendant was
convicted of three counts of raping the same victim within a
single criminal episode. In reaching that conclusion, we stated
that "'rape is not a continuous offense, but each act of
intercourse constitutes a distinct and separate offense.'" Id.
at 127, 428 S.E.2d at 42 (citation omitted). Focusing on the
harm to the victim, we noted that "'each rape was readily
divisible and intensely personal; each offense is an offense
against a person.'" Id. at 128, 428 S.E.2d at 42 (citation
omitted). Furthermore, we also noted that the defendant should
not be given "a 'free rape' merely because he chooses to repeat
his crime on the same victim within a short period of time."
Id. at 128-29, 428 S.E.2d at 42 ("Appellant 'should . . . not be
rewarded where, instead of taking advantage of an opportunity to
walk away from the victim, he voluntarily resumed his sexually
assaultive behavior.'" (citation omitted)). It follows that
where a completed offense has occurred, a separate charge may be
brought for a repetition of the same conduct.
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Furthermore, we believe the legislature intended to make
each act of firing a weapon, in the manner proscribed and with
the effect delineated under Code §§ 18.2-154 and 18.2-286.1, a
violation of criminal law. As we noted in Shears v.
Commonwealth, 23 Va. App. 394, 477 S.E.2d 309 (1996):
"When considering multiple punishments for a
single transaction, the controlling factor
is legislative intent." The legislature
"may determine the appropriate 'unit of
prosecution' and set the penalty for
separate violations." Therefore although
multiple offenses may be the "same," an
accused may be subjected to legislatively
"authorized cumulative punishments." It is
judicial punishment in excess of legislative
intent which offends the double jeopardy
clause.
Id. at 400-01, 477 S.E.2d at 312 (citations omitted) (holding
that where drugs were found both on defendant's person and at
his residence, defendant was properly convicted of two counts of
possession of cocaine).
Code § 18.2-154 provides:
Any person who maliciously shoots
at . . . any motor vehicle . . . when
occupied by one or more persons, whereby the
life of any person . . . in such motor
vehicle . . . may be put in peril, shall be
guilty of a Class 4 felony.
Code § 18.2-286.1 provides:
Any person who, while in or on a motor
vehicle, intentionally discharges a firearm
so as to create the risk of injury or death
to another person or thereby cause another
person to have a reasonable apprehension of
injury or death shall be guilty of a Class 5
felony.
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The clear focus of each of these provisions and the
gravamen of the offenses are the risk of endangerment or death
to another as a result of certain conduct by the accused. Such
endangerment of another is the "evil" proscribed by the
legislature. See Kelsoe, 226 Va. at 199, 308 S.E.2d at 104;
Jordan v. Commonwealth, 2 Va. App. 590, 595, 347 S.E.2d 152, 155
(1986).
Based on the language of the statutes and the reasons
outlined in Kelsoe and Carter, we conclude that each time the
proscribed conduct described in the statutes occurred in this
case, with the result delineated by the statute, a violation of
each of the two statutory provisions occurred. 2 The two statutes
2
Other jurisdictions that have addressed the issue
presented here have found that the firing of multiple shots
constitutes separate and distinct acts and, therefore, separate
offenses. See State v. Miranda, 10 P.3d 1213, 1217 (Ariz. Ct.
App. 2000) (holding defendant was properly convicted of three
separate offenses where he fired three successive shots at a
mother and her son); Gray v. United States, 585 A.2d 164, 165
(D.C. 1991) (holding that where defendant fired three separate
shots into a dwelling, each shot constituted a separate offense);
People v. Harris, 695 N.E.2d 447, 457 (Ill. 1998) (finding that
where defendant fired two consecutive shots into a vehicle, each
shot constituted a "discrete physical act" supporting two
convictions); State v. Morrow, 888 S.W.2d 387, 392-93 (Mo. Ct.
App. 1994) (in finding defendant was properly convicted of two
separate counts where he fired two successive shots into a
dwelling, the court stated, "The conduct proscribed is complete
on one shot. A subsequent shot, whether moments or a substantial
amount of time later, creates the same danger which the statute
was intended to prevent."); State v. Rambert, 459 S.E.2d 510, 513
(N.C. 1995) (in finding that where the defendant fired three
consecutive shots into a vehicle, he had been properly convicted
of three separate counts, the court stated, "[D]efendant's
actions were three distinct and, therefore, separate events.
Each shot, fired from a pistol . . . required that defendant
employ his thought processes each time he fired the weapon.").
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at issue do not proscribe a continuous course of conduct;
rather, each offense is "complete upon the firing of one shot,"
State v. Morrow, 888 S.W.2d 387, 393 (Mo. Ct. App. 1994), when
the life of another is endangered.
The evidence establishes that Stephens fired a gun from his
motor vehicle, at another motor vehicle, at least twice. 3 Each
act of firing the weapon constituted a separate, distinct act,
notwithstanding how closely the second shot followed the first.
Each shot required a conscious decision by Stephens to pull the
trigger. See Blockburger v. United States, 284 U.S. 299, 302
(1932) (in finding that each of two successive drug sales to the
same individual constituted a distinct offense, the Court
stated, "'[W]hen the impulse is single . . . one indictment
lies, no matter how long the action may continue. If successive
impulses are separately given, even though all unite in swelling
a common stream of action, separate indictments lie.'" (citation
omitted)). Each time Stephens fired his weapon an individual
was put in jeopardy of injury or death. In fact, the driver of
the vehicle was injured twice as a result of Stephens' conduct.
Therefore, we find Stephens' double jeopardy rights have not
been violated and affirm his convictions.
3
Stephens contends the evidence was inconclusive concerning
the number of times he discharged his gun at the other vehicle.
We disagree. The evidence on appeal is viewed in the light most
favorable to the Commonwealth. Burlile, 32 Va. App. at 798, 531
S.E.2d at 27. The testimony established that two or more shots
were fired.
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Affirmed.
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