Gary Nathaniel Blowe, Jr. v. Commonwealth of Virginia ( 2019 )

COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Decker, Judges Petty and Huff
Argued at Richmond, Virginia
UNPUBLISHED
GARY NATHANIEL BLOWE, JR.
MEMORANDUM OPINION* BY
v. Record No. 1189-18-2 JUDGE GLEN A. HUFF
OCTOBER 8, 2019
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF FLUVANNA COUNTY
Humes J. Franklin, Jr., Judge Designate
Matthew L. Engle (Donovan & Engle, PLLC, on briefs), for
appellant.
Craig W. Stallard, Assistant Attorney General (Mark R. Herring,
Attorney General, on brief), for appellee.
Gary Nathaniel Blowe, Jr. (“appellant”) appeals his convictions that arose out of his
attempt to steal firearms and the gun battle that erupted when the occupants of the property
returned while appellant and his accomplices were still there. After a jury trial, appellant was
convicted of aggravated malicious wounding, conspiracy to commit grand larceny of a firearm,
two counts of attempted malicious wounding, and three counts of use of a firearm in the
commission of a felony. The trial court imposed the jury’s sentence of forty-two years’
imprisonment.1
*
Pursuant to Code § 17.1-413, this opinion is not designated for publication.
1
A charge of possession of a firearm by a felon was tried by the trial court on the same
evidence as was presented to the jury. The trial court separately sentenced appellant to five
years’ imprisonment with all five years suspended on that charge. Appellant does not challenge
that conviction in this appeal.
Appellant raises four assignments of error. First, he contends that the Double Jeopardy
Clause prohibits one of his convictions for use of a firearm in the commission of a felony
because he was convicted for two counts based on only one underlying felony. Second, he
similarly contends the Double Jeopardy Clause bars one of his convictions for attempted
malicious wounding because both charges were for the attempted malicious wounding of the
same person arising from the same gun battle, constituting a single incident and supporting only
a single conviction. Third, he claims the evidence was insufficient to support his conviction for
aggravated malicious wounding because the Commonwealth failed to establish that the “foot
drop” suffered by the victim as a result of being shot was a “significant physical impairment.”
Finally, he contends that the trial court erred in overruling his Batson objection to the
prosecution’s use of a peremptory challenge to remove one of only two African-American jurors
from the jury.
Appellant, however, has failed to preserve his double jeopardy claim regarding the use of
a firearm charge. He also has failed to preserve his Batson claim. For his other double jeopardy
claim, the victim was shot at during several separate and discrete parts of the gun battle which is
sufficient to constitute separate attempted malicious wounding offenses. Finally, for the
remaining assignment of error, the “foot drop” suffered by the victim, which impedes the
victim’s ability to walk and requires his wearing an orthotic boot, is a “significant physical
impairment,” and the evidence is sufficient to support appellant’s convictions. Therefore, this
Court affirms the trial court.
I. BACKGROUND
“This Court considers ‘the evidence presented at trial in the light most favorable to the
Commonwealth, the prevailing party below.’” Hawkins v. Commonwealth, 64 Va. App. 650,
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652 (2015) (quoting Bolden v. Commonwealth, 275 Va. 144, 148 (2008)). So viewed the
evidence is as follows:
Appellant, Dante Givens, Thomas Jackson, and John Abbitt conspired to steal guns from
the apartment over a garage shop owned by Garnette Bourne. Givens waited nearby while the
other three entered the shop because Bourne knew him, and he did not want to be identified.
When they arrived, the shop was vacant. The three men went upstairs to the apartment with a
sledgehammer to break into the safe where the guns were stored. They discovered the safe was
already open and the guns were gone.
Appellant then headed back downstairs through the shop. Bourne returned to the shop as
appellant was coming down the stairs. As soon as Bourne saw appellant, appellant began
shooting at Bourne. Bourne was shot in the side of his knee while trying to find cover.
Appellant continued to shoot at Bourne as Bourne was crawling on the floor to avoid the gun
fire. The other co-conspirators in the apartment then smashed a window and leapt out of the
apartment.
Within a few moments, while shots were still being fired, Bourne’s brother, Scott
Bourne,2 and friend, Jack Gillespie, arrived. Scott entered the garage and took cover on the
floor. Gillespie got off his four-wheeler and went to the side of the building to confront an
individual who was shooting at him. After Gillespie returned fire with a few shots, the
individual fled, and Gillespie came back and entered the shop. Gillespie observed appellant
retreat behind a door into the stairway. While Gillespie took cover, he heard shots being fired
through the wall into the shop.
Soon Gillespie heard someone shooting into the shop from outside. Bourne was struck in
the leg a second time. Gillespie turned to see who was shooting, and the shooter retreated when
2
To avoid confusion, the remainder of this opinion will refer to him as “Scott.”
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he saw Gillespie’s gun. After about a minute, more shots were fired from outside. Gillespie then
observed appellant in a sport utility vehicle driving away while shooting out the window at
Gillespie and the shop.
Scott then retrieved a firearm and saw Abbitt outside the shop. The two exchanged
gunfire until Scott ran out of ammunition and Abbitt fled into the woods.
After amendment of the original indictments, appellant was tried by a jury for:
aggravated malicious wounding of Bourne; conspiracy to commit grand larceny of a firearm; two
counts of attempted malicious wounding of Jack Gillespie; and three counts of use of a firearm in
the commission of a felony.3
During jury selection, the Commonwealth used a peremptory challenge to strike one of
the only two remaining African-American prospective jurors. Off the record and before the jury
was sworn, appellant raised a Batson challenge to the Commonwealth’s use of the peremptory
challenge of the African-American prospective juror. After the jury was sworn, the parties
memorialized appellant’s objection on the record. Appellant argued only that the
Commonwealth had struck an African-American prospective juror when there were few in the
venire and only two left at that time. The Commonwealth responded that “when the Court asked
the question about truthfulness and law enforcement, she rolled her eyes and visibly made a
change in appearance in an almost sneering way.” Appellant made no further argument, and the
trial court noted it denied the motion.
At appellant’s trial, Bourne testified that he still had problems with his foot. He testified
that his foot “just swings down. If I don’t keep a good high-top boot on and I go out and a
3
The predicate offense for one of the counts was a malicious wounding, the predicate
offenses of the other two counts were aggravated malicious wounding.
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pebble gets under my foot, I’ll twist my ankle. It will just flop over sideways.” He testified this
happens to him several times a day.
Both Dr. James Calland, the trauma surgeon who saw Bourne on the day of shooting, and
Dr. Randall Bashore, Bourne’s regular physician, testified. Dr. Calland described Bourne’s
injury on the day of the shooting. Bourne had two gunshot wounds on his left leg below the
knee. He did not have any significant damage to the bones in his leg, but he had “foot drop”
from a damaged nerve. Dr. Bashore confirmed that Bourne’s foot drop had not improved in the
year since the shooting and was unlikely to ever heal.
When an individual has foot drop, the muscles in the leg cannot pull up the front of the
foot, so the individual will constantly catch their toes when walking. Such an individual requires
an orthotic brace or boot to walk normally without tripping. Dr. Calland testified that Bourne
was fitted with a brace before he left the hospital. Dr. Bashore testified that Bourne continued to
need the orthotic, having just prescribed a new orthotic to replace a boot Bourne had worn for
several months.
Appellant presented no evidence, but at the close of the Commonwealth’s case, he moved
to strike the evidence. Relevant to this appeal, he argued three things. First, he argued that
Bourne’s injury was not a “significant physical impairment.” Second, he argued that one of the
“use of a firearm” charges should be stricken, saying:
There’s also two uses of a firearm charges to commit aggravated
malicious wounding; of course, my motion to strike on the
underlying felony would cover those anyway, but I think even if
the Court overruled my motion, there should only be one of those
use of a firearm to commit aggravated malicious wounding.
Third, he argued one of the attempted malicious wounding charges should be stricken, stating:
It appears to me that there’s two attempted malicious wounding
charges on Mr. Gillespie, and even if the Court feels that the
Commonwealth has met its burden as it pertains to those two cases,
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I would ask that the Court consider finding those duplicitous; in
other words, they’re charging the same thing twice.
The trial court denied the motion to strike. The jury convicted appellant on all the
charges and recommended a total sentence of forty-two years’ imprisonment. The trial court
imposed the jury’s recommended sentence. This appeal followed.
II. PROCEDURAL DEFAULTS
Rule 5A:18 provides that “No ruling of the trial court . . . will be considered as a basis for
reversal unless an objection was stated with reasonable certainty at the time of the ruling, except
for good cause shown or . . . to attain the ends of justice.” “Rule 5A:18 applies to bar even
constitutional claims.” Ohree v. Commonwealth, 26 Va. App. 299, 308 (1998). In order to
preserve an issue for appeal, “an objection must be timely made and the grounds stated with
specificity.” McDuffie v. Commonwealth, 49 Va. App. 170, 177 (2006) (quoting Marlowe v.
Commonwealth, 2 Va. App. 619, 621 (1986)). “Not just any objection will do. It must be both
specific and timely—so that the trial judge would know the particular point being made in time to
do something about it.” Bass v. Commonwealth, 70 Va. App. 522, 538 (2019) (quoting Roadcap
v. Commonwealth, 50 Va. App. 732, 741 (2007)). “Making one specific argument on an issue
does not preserve a separate legal point on the same issue for review.” Edwards v.
Commonwealth, 41 Va. App. 752, 760 (2003) (en banc). “The purposes of Rule 5A:18 are to
allow the trial court the opportunity to ‘take appropriate action to correct the error’ and to
‘“avoid unnecessary appeals by affording the trial judge an opportunity to rule intelligently on
objections.”’” Bethea v. Commonwealth, 68 Va. App. 487, 498 (2018) (quoting Maxwell v.
Commonwealth, 287 Va. 258, 264-65, 267 (2014)).
A. Use of a Firearm Double Jeopardy Claim
Appellant claims that his conviction for two counts of use of a firearm in the commission
of a felony violates the Double Jeopardy Clause because they are both predicated on the same
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underlying felony, the aggravated malicious wounding of Bourne. He claims that, at most,
Bourne suffered one significant and permanent injury, and therefore there could only be one
aggravated malicious wounding. Although appellant moved to strike one of the two use of a
firearm counts, this Court concludes that he failed to preserve his double jeopardy claim.
His argument to the trial court was as follows:
There’s also two uses of a firearm charges to commit aggravated
malicious wounding; of course, my motion to strike on the
underlying felony would cover those anyway, but I think even if
the Court overruled my motion, there should only be one of those
use of a firearm to commit aggravated malicious wounding.
Appellant never explained why he thought there should be only a single charge. He did not
mention double jeopardy or explain that he believed there was only a single predicate offense.
Even assuming that the trial court had been alerted to a potential double jeopardy issue by
counsel’s saying “there should only be one” of the charges, appellant never explained he was
arguing that there was only one significant physical injury to support a single aggravated
malicious wounding predicate offence.4 Bourne had been shot twice, and appellant did not
4
Even in his initial brief to this Court, appellant merely asserted “there was a single
aggravated malicious wounding,” therefore “there can only be one use of a firearm conviction in
the commission of that offense.” He did not explain he was contending there was only a single
aggravated malicious wounding because there was only one “permanent and significant injury”
until his reply brief. Until the clarification, appellant appeared to be arguing that he could not be
convicted on two counts of use of a firearm in the commission of an aggravated malicious
wounding because he was only charged with and convicted of one count of aggravated malicious
wounding.
Although such an argument has been soundly rejected by this Court, Davis v.
Commonwealth, 4 Va. App. 27, 30 (1987) (“There is no language in the statute which suggests
that the legislature intended that an accused must be charged and prosecuted for the underlying
felony.”), without his further explanation in the reply brief, that argument is all he appeared to
have made, either in this Court or at the trial court. Therefore, he has failed to preserve the
argument there was only one “permanent and significant injury.” Edwards, 41 Va. App. at 760
(“Making one specific argument on an issue does not preserve a separate legal point on the same
issue for review.”).
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explain why the two shots, collectively resulting in the permanent foot drop condition, would not
support two aggravated malicious wounding offenses and thus two use of a firearm charges.
Without timely clarification, the issue now raised could not have been effectively
addressed by the trial court. By failing to raise his argument with more specificity, appellant
deprived the Commonwealth and the trial court of the opportunity to address the issue. Cox v.
Commonwealth, 65 Va. App. 506, 515 (2015) (“[A] specific, contemporaneous objection gives
the opposing party the opportunity to meet the objection at that stage of the proceeding.”
(quoting Weidman v. Babcock, 241 Va. 40, 44 (1991))).
Therefore, appellant did not sufficiently alert the trial court to the argument he makes on
appeal and this Court will not consider it.
B. Batson Challenge
Appellant argues the trial court erred by denying his Batson challenge. Under Batson v.
Kentucky, 476 U.S. 79 (1986), and its progeny, the prosecutor may not discriminate on the basis
of race in the use of peremptory challenges. To succeed on a Batson challenge in this context,
the defendant must make out a prima facie case that the prosecutor has improperly used race as
the reason for its strike of the prospective juror. Hopkins v. Commonwealth, 53 Va. App. 394,
398 (2009). “Once a prima facie case is made, the Commonwealth bears the burden of
producing a race-neutral explanation for striking the potential juror.” Id. “The defendant can
then argue the Commonwealth’s explanation is purely a pretext for unconstitutional
discrimination.” Id. The defendant retains, however, the burden of persuasion for establishing
the Commonwealth discriminated in the use of its strike throughout the whole test. Id. Where,
as here, the trial court requests the Commonwealth respond to the defendant’s claim, and the
Commonwealth does so, this Court assumes, without deciding, that the defendant established a
prima facie case.
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Appellant claims that the trial court erred because it did not rule on the plausibility of the
Commonwealth’s race-neutral explanation. The Commonwealth explained to the trial court that
it struck the juror because she “rolled her eyes and visibly made a change in appearance in an
almost sneering way” when the trial court “asked the question about truthfulness and law
enforcement.” Appellant argues that the Commonwealth’s reason for striking the juror was not
plausible because the court did not ask such a question, although the defendant did ask
something similar. In essence, he argues that the trial court did not rule on whether the
Commonwealth’s reason was pretextual.
Appellant, however, never presented this argument to the trial court. After the
Commonwealth provided its reason, appellant offered no argument to rebut the Commonwealth’s
race-neutral reason for exercising its strike. If appellant had argued before the trial court with
the same argument that he makes here, the trial court could have addressed who asked what and
whether the error was significant.
Only the trial court had the ability to determine whether the Commonwealth’s
explanation of the prospective juror’s body language was pretextual. Moreover, the discrepancy
between the Commonwealth’s explanation at trial and the record of who asked what question
does not necessarily mean the Commonwealth’s explanation was pretextual. Bethea v.
Commonwealth, ___ Va. ____, _____ (Aug. 28, 2019) (“[A] mere mistake, in and of itself, is not
a pretext. . . . ‘Batson and its progeny direct trial judges to assess the honesty—not the
accuracy—of a proffered race-neutral explanation.’ A Batson challenge based upon the ‘factual
accuracy’ of the race-neutral explanation ‘aims at the wrong target.’ The right target is the
‘credibility of the prosecutor’s explanation’ because that credibility determination ‘goes to the
heart of the equal protection analysis.’” (footnote omitted) (quoting Lamon v. Boatwright, 467
F.3d 1097, 1101 (7th Cir. 2006), and Miller-El v. Cockrell, 537 U.S. 322, 340 (2003))).
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The trial court was in the best position to determine whether the flaws in the
Commonwealth’s reason were significant or the type of mistake that is understandable and easily
made when trying to remember all the details of voir dire. Id. at _____ (“[T]he judicial
‘evaluation of the prosecutor’s state of mind based on demeanor and credibility lies “peculiarly
within a trial judge’s province.”’” (quoting Hernandez v. New York, 500 U.S. 352, 365 (1991))).
By failing to argue the Commonwealth’s reasons were pretextual, appellant deprived the trial
court of the ability to address the sincerity of the Commonwealth’s race-neutral reason.
Therefore, under Rule 5A:18 appellant waived his Batson argument, and this Court will not
consider it. See Martinez v. Commonwealth, 42 Va. App. 9, 20-21 (2003) (holding that the
defendant waived a Batson challenge for failing to argue the Commonwealth’s explanation for
the strike was pretexual).
C. Miscarriage of Justice
Appellant argues this Court should utilize the ends of justice exception to Rule 5A:18.
“The ends of justice exception to Rule 5A:18 is narrow and is to be used sparingly.” Copeland v.
Commonwealth, 42 Va. App. 424, 442 (2004).
To invoke the ends of justice exception to Rule 5A:18, the record
must “affirmatively show[ ] that a miscarriage of justice has
occurred, not . . . merely . . . that a miscarriage might have
occurred.” To satisfy this burden, an appellant must show “more
than that the Commonwealth failed to prove an element of the
offense . . . . The appellant must demonstrate that he or she was
convicted for conduct that was not a criminal offense[,] or the
record must affirmatively prove that an element of the offense did
not occur.”
Moore v. Commonwealth, 59 Va. App. 795, 814 (2012) (quoting Marshall v. Commonwealth, 26
Va. App. 627, 636-37 (1998)).
Appellant argues he received a significantly longer sentence than his co-conspirators who
accepted a plea bargain and testified against him. He alleges that this difference amounts to a
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miscarriage of justice. However, he does not argue the evidence proves an element of the crime
did not occur. He also does not explain how the conduct for which he was convicted was not a
crime. Alleged unfairness in sentencing is not a reason to invoke the ends of justice exception to
Rule 5A:18. Appellant failed to preserve two of his assignments of error, and this Court will not
consider them.
III. ANALYSIS
Appellant has two remaining assignments of error. First, he claims one of his convictions
for the attempted malicious wounding of Jack Gillespie violates the Double Jeopardy Clause.
Second, he contends the evidence was insufficient to sustain his conviction for aggravated
malicious wounding, because the victim’s injury did not result in a “severe and permanent
physical impairment.”
A. Attempted Malicious Wounding Double Jeopardy Claim
1. Standard of review
“We review de novo claims that multiple punishments have been imposed for the same
offense in violation of the double jeopardy clause.” Lawlor v. Commonwealth, 285 Va. 187, 227
(2013). Nevertheless, “determination of whether acts constitute a single continuing offense or
separate offenses is a factual finding that we will not reverse unless it is plainly wrong or without
evidence to support it.” Jin v. Commonwealth, 67 Va. App. 294, 304-05 (2017).
2. Analysis
Appellant contends that one of his attempted malicious wounding convictions violates the
Double Jeopardy Clause because he only participated in one attempted malicious wounding of
Gillespie. Appellant contends that he is being punished twice for a single offense because
appellant only shot at Gillespie as appellant was driving away. Moreover, he argues that even if
a concert of action theory makes him responsible for his accomplices’ actions, the entire gun
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battle was a single course of conduct that can only support a single attempted malicious
wounding. The Commonwealth argues that appellant is responsible for his accomplices’ actions
under a concert of action theory. It further argues that the shots fired at Gillespie as he arrived
and the shots fired as appellant drove off constituted separate acts of attempted malicious
wounding supporting separate convictions.5 This Court agrees with the Commonwealth.
“The Double Jeopardy Clause of the United States Constitution provides that no person
shall ‘be subject for the same offence to be twice put in jeopardy of life or limb.’” Johnson v.
Commonwealth, 292 Va. 738, 741 (2016) (quoting U.S. Const. amend. V.). “The Double
Jeopardy Clauses of the United States and Virginia Constitutions protect against multiple
punishments for the same offense.” Roach v. Commonwealth, 51 Va. App. 741, 748 (2008).
“Subjecting an accused to multiple punishments for the same offense violates both state and
federal constitutional protections against double jeopardy.” Id. Nevertheless, “[t]he Double
Jeopardy Clause is not abridged if an accused is subjected to punishment for two offenses that
are supported by separate and distinct acts.” Id.
Thus, whether appellant was permissibly convicted of two attempted malicious wounding
offenses turns on whether the entire gun battle was one single continuous attempt to maliciously
wound Gillespie, or if there were separate and distinct acts within the battle that constitute
multiple attempts. “A continuing offense is a continuous, unlawful act or series of acts set on
foot by a single impulse and operated by an unintermittent force, however long a time it may
occupy.” Hodnett v. Commonwealth, 56 Va. App. 234, 237 (2010) (quoting Thomas v.
5
The Commonwealth also argues that each pull of the trigger represents a separate
attempted malicious wounding. Because this Court concludes that the shooting as Gillespie
arrived and the shooting as appellant drove off were separate acts supporting separate
convictions under the unique circumstances of this case, this Court need not resolve whether, in
every circumstance, each pull of the trigger is individually a separate act of attempted malicious
wounding.
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Commonwealth, 38 Va. App. 319, 324-25 (2002)). “In determining whether the conduct
underlying the convictions is based upon the ‘same act,’ the particular criminal transaction must
be examined to determine whether the acts are the same in terms of time, situs, victim, and the
nature of the act itself.” Jin, 67 Va. App. at 303-04 (quoting Hall v. Commonwealth, 14
Va. App. 892, 898 (1992)).
For example, in Jin, this Court affirmed two attempted murder convictions. Id. at 307. In
Jin, the defendant attempted to run over his wife with his car and failed only because her brother
pulled her out of the way. After she had returned inside—but only a few minutes later—he
struck his wife with a hammer multiple times. She only survived because bystanders restrained
the defendant. Nothing indicated that the defendant gave up on trying to kill his wife between
the two attempts on her life. The defendant only took the time necessary to get a new tool before
attacking again. Nevertheless, this Court concluded “the hammer attack ‘involved a new
formation and execution of purpose’” which supported a second attempted murder conviction.
Id. (quoting Hodnett v. Commonwealth, 56 Va. App. 234, 238 (2010)).
Similarly, in Hodnett, this Court held that when an inmate threw a cup filled with the
contents from a toilet on a guard, immediately refilled the cup, and threw it on the guard again,
the evidence supported two convictions for assault and battery on a law enforcement officer. 56
Va. App. at 237-38. This Court reasoned that the first assault was complete when the contents of
the cup struck the guard so that when the inmate refilled the cup he began a whole new act.
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Here, one of appellant’s accomplices6 shot at Gillespie when Gillespie arrived.7 Gillespie
confronted that accomplice and that accomplice retreated, ending that attempt to maliciously
wound Gillespie. Like in Hodnett and in Jin, there was a definitive end to one attack on
Gillespie. Gillespie was able to move from outside the garage to obtain cover inside the garage.
He was then shot at in the garage.8 Appellant then retreated through the apartment, apparently
out the same window his accomplices had earlier used, and went to his getaway vehicle. As he
was driving away, he shot back at Gillespie. This was a new attack, separated in time and
location, with a distinct break in the action, from the first attack on Gillespie.
6
Appellant objects that the Commonwealth’s story of who shot at Gillespie has changed
repeatedly before this Court. Nevertheless, the identity of who shot at Gillespie is irrelevant.
Appellant’s guilt is the same whether he shot at Gillespie when Gillespie arrived or if one of his
accomplices did. See Spradlin v. Commonwealth, 195 Va. 523, 528 (1954) (“If there is concert
of action with the resulting crime one of its incidental probable consequences, then whether such
crime was originally contemplated or not, all who participate in any way in bringing it about are
equally answerable and bound by the acts of every other person connected with the
consummation of such resulting crime.”).
7
The jury was instructed on concert of action, allowing appellant to be held responsible
for the actions of his accomplices. At oral argument, appellant argued that a concert of action
theory cannot apply to support appellant’s conviction. He argued that no case law permits an
individual to be convicted as both the actor and under a concert of action theory. Appellant is
correct that the Double Jeopardy Clause would forbid convicting someone both as the actor and
under a concert of action theory for the same act. Here, however, there are separate acts.
Appellant was directly responsible as the actor for an attempted malicious wounding of Gillespie
because appellant shot at Gillespie while appellant was driving away. Appellant was responsible
for a separate attempted malicious wounding of Gillespie under a concert of action theory
because one of his accomplices shot at Gillespie when Gillespie first arrived.
8
Although the Commonwealth does not assert it, these shots at Gillespie also might
constitute a third separate attempt to maliciously would Gillespie. Gillespie testified appellant
“was shooting back through the walls back into the shop where I was at.” The shots through the
wall in the garage were separated from the first attack by the first shooter’s retreat and Gillspie’s
movement to the garage. They were similarly separated from appellant’s final shots at Gillespie
as appellant was driving away. After shooting at Gillespie through the apartment walls,
appellant went to the second floor, exited through the window, and got into his getaway vehicle.
As appellant was driving away, he fired back towards the garage at Gillespie. In the light most
favorable to the Commonwealth, this is sufficient to find the acts were “separate and distinct”
and able to support multiple attempted malicious wounding convictions.
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Appellant argues that because intent is an element of attempted malicious wounding, a
single continuous intent to wound Gillespie throughout the battle prevents conviction for two
counts of attempted malicious wounding. In Jin, however, there was no indication the defendant
gave up on his intent to murder his wife. Rather, after the thwarted first attack failed, he almost
immediately set out to attack again. Similarly, although appellant and his accomplices may have
had a singular intent to maliciously wound Gillespie, they attacked Gillespie, retreated, and then
attacked again. This was a new “execution of purpose.” Appellant should “not be rewarded
where, instead of taking advantage of an opportunity to walk away from the victim, he
voluntarily resumed his . . . assaultive behavior.” Jin, 67 Va. App. at 307 (quoting Carter v.
Commonwealth, 16 Va. App. 118, 129 (1993)). Thus, the evidence supports the trial court’s
conclusion that there were two attacks on Gillespie. This Court affirms.
B. Sufficient Evidence of a Significant and Permanent Physical Impairment
In his remaining assignment of error, appellant claims that the evidence was insufficient
to support his conviction for aggravated malicious wounding. This Court concludes, however,
that the victim’s “foot drop” is a “permanent and significant physical impairment.” Thus, the
evidence is sufficient to support his conviction.
1. Standard of review
“When the sufficiency of the evidence is challenged on appeal, ‘“we presume the
judgment of the trial court to be correct” and reverse only if the trial court’s decision is “plainly
wrong or without evidence to support it.”’” Stevens v. Commonwealth, 46 Va. App. 234, 248
(2005) (quoting Kelly v. Commonwealth, 41 Va. App. 250, 257 (2003) (en banc)), aff’d, 272 Va.
481 (2006). This Court “determine[s] whether the evidence, viewed in the light most favorable
to the prevailing party, and the reasonable inferences fairly deducible from that evidence support
each and every element of the charged offense.” Cottee v. Commonwealth, 31 Va. App. 546,
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554-55 (2000). This Court “must discard the evidence of the accused in conflict with that of the
Commonwealth, and regard as true all the credible evidence favorable to the Commonwealth and
all fair inferences that may be drawn therefrom.” Id. at 555 (quoting Watkins v. Commonwealth,
26 Va. App. 335, 349 (1998)).
2. Analysis
Appellant contends that the evidence is insufficient to sustain his conviction for
aggravated malicious wounding because the victim’s injury did not result in a “permanent and
significant physical impairment.” He argues that the victim only suffered two gunshots and the
resulting “foot drop.” The victim’s doctors did not testify that the “foot drop” the victim
suffered was a “significant injury.” He argues that, although the victim must use a foot brace for
walking properly, his injury is not significant within the meaning of the Code. Appellant
concedes that the victim’s injury is permanent.
To sustain a conviction for aggravated malicious wounding, the Commonwealth must
establish that the victim suffered a “permanent and significant physical impairment.” Code
§ 18.2-51.2. A physical impairment is “any physical condition, anatomic loss, or cosmetic
disfigurement which is caused by bodily injury.” Newton v. Commonwealth, 21 Va. App. 86, 90
(1995) (borrowing language from former Code § 51.5-3).
This Court has considered several cases addressing the question of what constitutes a
significant physical impairment. For example, in Newton this Court affirmed the trial court’s
conclusion that the victim’s cosmetic disfigurement, significant facial scaring from wounds that
required ten to twenty stitches, was a significant physical impairment. Id. at 90-91. In Martinez
v. Commonwealth, 42 Va. App. 9, 24-25 (2003), this Court concluded the victim suffered a
“permanent and significant physical impairment” when the victim was shot in the shoulder. At
the trial, two years later, the victim did not have full use of her arm and hand. “[S]he did not
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have a ‘real good grip’ because her index finger and thumb ‘don’t work right.’” Id. at 25. She
had trouble buttoning her clothes, handling money, or doing anything tedious with her hand. Id.
This Court held that the evidence supported a conclusion she suffered a “permanent and
significant physical impairment.” Id.
Here, the victim’s injury caused a “significant physical impairment.” Like in Martinez,
the victim’s injury limits his ability to perform activity that he must undertake every day. The
two gunshots to the victim’s leg damaged a nerve that has caused “foot drop.” He cannot raise
his foot normally when walking. He must wear an orthotic boot while walking to prevent his
toes from “always catching onto everything” causing him to trip. Moreover, if the cosmetic
disfigurement in Newton is a “significant physical impairment,” an injury that does more than
disfigure but actually impedes daily living—requiring an orthotic boot to walk without catching
his toes and tripping—is likewise significant. The evidence supports the trial court’s decision
rejecting appellant’s motion to strike, and this Court affirms.
IV. CONCLUSION
Appellant failed to present one of his Double Jeopardy Clause arguments and his Batson
argument to the trial court. Therefore, they are waived under Rule 5A:18, and this Court will not
consider them. Appellant’s remaining Double Jeopardy Clause argument fails because there
were at least two separate and distinct attacks on Gillespie, supporting two attempted malicious
wounding convictions. For his only remaining assignment of error, the evidence supports
appellant’s conviction for aggravated malicious wounding. The victim cannot walk normally
and must utilize an orthotic boot. The limitation on the victim’s daily activity inherent in his
“foot drop” is a “significant physical impairment.” For the foregoing reasons, this Court affirms.
Affirmed.
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