COURT OF APPEALS OF VIRGINIA 

Present: Judges Benton, Bumgardner and Frank 

Argued at Richmond, Virginia 

IRVIN E. COLEMAN 

 MEMORANDUM OPINION* BY 

v. Record No. 2871-97-2 JUDGE ROBERT P. FRANK 

 JULY 20, 1999 

COMMONWEALTH OF VIRGINIA 

 FROM THE CIRCUIT COURT OF THE CITY OF PETERSBURG 

James F. D’Alton, Jr., Judge 

 Steven D. Benjamin (Betty Layne DesPortes; 

Benjamin & DesPortes, P.C., on briefs), for 

appellant. 

 Steven A. Witmer, Assistant Attorney General 

(Mark L. Earley, Attorney General, on brief), 

for appellee. 

 

* Pursuant to Code § 17.1-413, recodifying Code 

§ 17-116.010, this opinion is not designated for publication.

 Irvin E. Coleman (appellant) appeals his conviction for 

attempted murder after a jury trial. The jury also found 

appellant guilty of robbery, malicious wounding and three counts 

of use of a firearm during the commission of a felony. The 

trial court ordered that the sentences for each offense run 

consecutively. On appeal, appellant asserts that his conviction 

for attempted murder is barred by the constitutional protection 

against double jeopardy contained in the Fifth Amendment to the 

United States Constitution. 
I. BACKGROUND 

 Reginald Vincent testified that he was driving home from 

his job at United Parcel Service (UPS) on the night of January 

12, 1997 when he saw appellant in his backyard. As Vincent 

slowly drove past, appellant waved to Vincent. Vincent stopped 

the car, and appellant asked him for a ride to Pegram Street. 

 When appellant got into Vincent’s car, he asked Vincent 

where he lived and if he lived alone. Vincent pointed to his 

house and told appellant that he had a roommate but the roommate 

was not at home. During the ride, appellant asked Vincent about 

his UPS uniform and asked Vincent if he made good money. 

 After dropping off appellant on Pegram Street, Vincent went 

home. Vincent heard a knock at the door, looked through the 

peephole and saw appellant. He opened the door and appellant 

asked him for a ride to Halifax Street. Vincent agreed to take 

appellant to Halifax Street, but told appellant that it would be 

a few minutes, he needed to go to the restroom. 

 Appellant came to the restroom door and pointed a gun at 

Vincent’s face. Appellant told Vincent to get on the floor, and 

appellant held the gun on Vincent while he searched for 

Vincent’s money. 

 Then, appellant told Vincent to stand up and push his pants 

down around his ankles. Appellant began backing away, and when 

he went around the corner, Vincent pulled his pants up and 

started into the hallway. As Vincent entered the hallway, 

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appellant began firing at him from a distance of eight to ten 

feet. Vincent took two steps toward appellant in an attempt to 

knock the gun away, but he was shot in the arm, the wrist, the 

hand, both thighs and the groin. After the shot to the groin, 

Vincent fell face first into the kitchen and the shooting 

stopped. Ten seconds passed, during which there was no movement 

or sound, and, then, appellant walked up to Vincent. Appellant 

stood over Vincent, straddled him, put the gun to Vincent’s neck 

and fired the gun, shooting Vincent in the back of the head. 

II. ANALYSIS 

 Appellant challenges his conviction for attempted murder on 

grounds that it violates the constitutional guarantee against 

double jeopardy found in the Fifth Amendment to the United 

States Constitution.1

 The Double Jeopardy Clause insures that an accused is not 

“subject for the same offense to be twice put in jeopardy of 

life or limb.” U.S. Const. amend. V. “This constitutional 

guarantee is applicable to the States through the Due Process 

Clause of the Fourteenth Amendment.” Illinois v. Vitale, 447 

 1

 Appellant’s Question Presented was: “Was the evidence 

sufficient to support convictions of malicious wounding and 

attempted murder arising from one transaction?” Since the 

thrust of appellant’s argument centered on a double jeopardy 

challenge and he included the “single transaction” language in 

his Question Presented, we find that he has not defaulted on 

this issue. 

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U.S. 410, 415 (1980) (citing Benton v. Maryland, 395 U.S. 784 

(1969)). 

 The United States Supreme Court has interpreted the Double 

Jeopardy Clause to include three protections for an accused: 

(1) protection against a second prosecution for the same offense 

after acquittal, (2) protection against a second prosecution for 

the same offense after conviction, and (3) protection against 

multiple punishments for the same offense. See North Carolina 

v. Pearce, 395 U.S. 711, 717 (1969). “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.” Brown v. Ohio, 432 

U.S. 161, 165 (1977) (citing Gore v. United States, 357 U.S. 386 

(1958); Bell v. United States, 349 U.S. 81 (1955); Ex parte 

Lange, 18 Wall. 163 (1874)). 

 Appellant argues that the sentences for his convictions of 

attempted murder and malicious wounding are multiple punishments 

for the same offense, and, therefore, invokes the third 

protection under Pearce. 

 The “same offense” analysis set forth in Blockburger v. 

United States, 284 U.S. 299 (1932), is the proper test for 

constitutional double jeopardy. In United States v. Dixon, 509 

U.S. 688, 704 (1992), the United States Supreme Court rejected 

and overruled the “same conduct” test adopted in Grady v. 

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Corbin, 495 U.S. 508 (1990). The Court held that, unlike the 

Blockburger test, the Grady test lacks “constitutional roots” 

and “is wholly inconsistent with earlier Supreme Court precedent 

and with the clear common-law understanding of double jeopardy.” 

Id.

 In Blockburger, the United States Supreme Court held the 

“test to be applied to determine whether there are two offenses 

or only one is whether each [statutory] provision requires proof 

of an additional fact which the other does not.” Blockburger, 

284 U.S. at 304 (citing Gavieres v. United States, 220 U.S. 338, 

342 (1911)). The application of the Blockburger test involves 

an abstract comparison of the two offenses independent of the 

specific facts of the particular case. See Blythe v. 

Commonwealth, 222 Va. 722, 726, 284 S.E.2d 796, 798 (1981) 

(citing Whalen v. United States, 445 U.S. 684, 694 n.8 (1979)). 

“It is the identity of the offense, and not the act, which is 

referred to in the constitutional guaranty against double 

jeopardy.” Epps v. Commonwealth, 216 Va. 150, 153-54, 216 

S.E.2d 64, 67 (1975) (citing Miles v. Commonwealth, 205 Va. 462, 

467, 138 S.E.2d 22, 27 (1964)). Therefore, under the 

Blockburger analysis, a defendant may not be convicted of both a 

greater and lesser included offense because the lesser-included 

offense “requires no proof beyond that which is required for 

conviction” of the greater offense. Brown, 432 U.S. at 168. 

The Blockburger test applies to simple statutory and common law 

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crimes. See United States v. Jeffers, 532 F.2d 1101, 1109 

(1976). 

 The elements of attempted murder are “a specific intent to 

kill the victim and an overt but ineffectual act committed in 

furtherance of this criminal purpose.” Nobles v. Commonwealth, 

218 Va. 548, 551, 238 S.E.2d 808, 810 (1977). The required 

elements to establish malicious wounding are a malicious 

shooting, stabbing, cutting or wounding or bodily injury by any 

other means with the intent to maim, disfigure, disable or kill. 

Code § 18.2-51. Therefore, in order to obtain a conviction for 

attempted murder the Commonwealth must establish that there was 

specific intent to kill and some overt but ineffectual act in 

furtherance of the intent to kill. No wounding or bodily injury 

is required to establish attempted murder. On the other hand, 

some type of injury, specifically a stabbing, shooting, cutting, 

or wounding, is required to prove malicious wounding. Under the 

Blockburger test, the two offenses have different elements and, 

therefore, we hold that appellant’s convictions of both 

attempted murder and malicious wounding are not violative of the 

constitutional protection against double jeopardy. 

 Appellant relies on Brown v. Commonwealth, 222 Va. 111, 

116, 279 S.E.2d 142, 145-46 (1981), for the proposition that 

malicious wounding is a lesser-included offense of attempted 

murder. Brown was charged with malicious wounding and attempted 

murder. See id. at 113, 279 S.E.2d at 143. The evidence, as 

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recited by the Court, was that Brown shot Dennis Keen once in 

the leg. See id. at 113, 279 S.E.2d at 144. Then, Brown’s 

friend, Wilson, ground Keen’s wounded leg into the dirt, shot 

and beat him. See id. The Court’s recitation of the facts did 

not indicate that Brown fired more than one shot at Keen.2 See

id. It was the Commonwealth’s Attorney, at trial, who argued 

that Brown fired more than one shot. See id.

 The jury returned a conviction for assault and battery 

under the attempted murder indictment and a conviction for 

unlawful wounding under the malicious wounding indictment. See

id. at 113, 279 S.E.2d at 143. Brown challenged his convictions 

on the basis that both offenses arose out of the single shooting 

by Brown. See id. at 112, 279 S.E.2d at 143. On appeal, the 

Attorney General argued that the attempted murder charge arose 

from Brown’s shooting of the victim and the malicious wounding 

charge arose from Brown’s status as a principal in the second 

degree to Wilson’s actions. See id. at 114-15, 279 S.E.2d at 

144-45. The Supreme Court rejected the Attorney General’s 

argument and stated that it was clear that at trial the 

Commonwealth relied on the same facts to convict Brown of both 

charges. See id.

 2

 Additionally, in its dictum, the Court presupposed that 

Brown only fired one shot. See id. at 116, 279 S.E.2d at 

145-46. 

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 The Supreme Court reversed the conviction of assault and 

battery and affirmed the conviction of unlawful wounding on the 

basis that both assault and battery and unlawful wounding are 

lesser-included offenses of malicious wounding. See id. at 116, 

279 S.E.2d at 145. The conviction of unlawful wounding “barred 

the defendant’s further conviction of all other offenses of a 

higher grade and of any lesser included offense encompassed by 

the malicious wounding indictment.” See id. 

Brown, therefore, is consistent with the constitutional 

protection against double jeopardy in that Brown’s conviction of 

the lesser-included offense of unlawful wounding precluded 

conviction of any greater or lesser-included offense of 

malicious wounding, including assault and battery. 

 Appellant’s reliance on Brown is based on the Court’s 

dictum following the lesser-included offense analysis. The 

Court stated, “It is our conclusion that the court should have 

instructed the jury that if it found the defendant guilty under 

either the indictment which charged attempted murder or that 

which charged malicious wounding, it should not consider further 

the other indictment.” Id. at 116, 279 S.E.2d at 145-46. 

 We do not believe the Court’s dictum is relevant to its 

holding that the conviction of one lesser-included offense 

precludes additional convictions of all other lesser and greater 

included offenses. Further, we believe that any implication 

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derived from the dictum was resolved by the Court six months 

later in Blythe, 222 Va. 722, 284 S.E.2d 796. 

 In Blythe, the defendant was charged with unlawful wounding 

and murder after he stabbed his mother’s boyfriend during a 

domestic dispute. See id. at 724, 284 S.E.2d at 797. 

A jury convicted the defendant of voluntary manslaughter and 

unlawful wounding. See id. The trial court ordered that the 

defendant serve the sentences for the two convictions 

consecutively. See id. Blythe argued that constitutional and 

statutory double jeopardy protections applied since he was 

convicted of and sentenced for both charges. See id. The Court 

rejected the statutory double jeopardy argument based on Code 

§ 19.2-294 because manslaughter is a common law, not statutory, 

offense. See id. at 724-25, 284 S.E.2d at 797. Blythe’s 

constitutional argument was grounded in the “singularity of his 

criminal act” and the “sameness of the evidence supporting his 

convictions.” Id. at 725, 284 S.E.2d at 797. Blythe argued 

that the unlawful wounding charge was a lesser-included offense 

of the murder charge and his conviction of voluntary 

manslaughter satisfied the “same evidence” test for determining 

the identity of offenses under a constitutional double jeopardy 

analysis. See id. The Court applied the Blockburger test to 

determine if it was the legislature’s intent to punish the 

offenses cumulatively, and held that the charges were separate 

offenses and one was not a lesser-included offense of the other. 

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See id. at 726, 284 S.E.2d at 798. The Court’s rationale was 

that the unlawful wounding charge required evidence of a 

shooting, stabbing, cutting or wounding, but the murder charge 

did not require such proof because murder may be accomplished by 

other means. See id.

 We believe that the holding in Blythe is dispositive of 

this case as attempted murder does not require evidence of a 

shooting, stabbing, cutting or wounding. 

 In his Question Presented and in his brief, appellant 

asserts that the charges for attempted murder and malicious 

wounding were part of the “same transaction,” and are barred on 

the basis of double jeopardy. As discussed above, the Grady

“same conduct” test for constitutional double jeopardy was 

overruled by the United States Supreme Court; therefore, we 

believe appellant is attempting to invoke the statutory 

protection afforded an accused under Code § 19.2-294. Code 

§ 19.2-294 in pertinent part states: 

If the same act be a violation of two or 

more statutes, or of two or more ordinances, 

or of one or more statutes and also one or 

more ordinances, conviction under one of 

such statutes or ordinances shall be a bar 

to a prosecution or proceeding under the 

other or others. Furthermore, if the same 

act be a violation of both a state and 

federal statute a prosecution under the 

federal statute shall be a bar to a 

prosecution under the state statute. 

Code § 19.2-294 is limited to violations of two or more 

statutory offenses. See Blythe, 222 Va. at 725, 284 S.E.2d at 

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797. Appellant was charged with a violation of a statutory 

offense, malicious wounding, and a common law offense, attempted 

murder. Therefore, we hold that Code § 19.2-294 is inapplicable 

to appellant’s case. 

 For these reasons, we hold that appellant’s convictions for 

malicious wounding and attempted murder are not barred by the 

constitutional protections against double jeopardy. We also 

find that the statutory protection found in Code § 19.2-294 is 

inapplicable because attempted murder is a common law crime. 

We, therefore, affirm the convictions. 

 Affirmed.

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Benton, J., dissenting. 

 In Brown v. Commonwealth, 222 Va. 111, 279 S.E.2d 142 

(1981), the defendant was separately indicted for “the attempted 

murder of Dennis Ellis Keen, . . . the malicious wounding of 

Dennis Ellis Keen,” and other offenses. Those charges flowed 

from an incident in which the defendant fired “two shots . . . 

at Keen” during an altercation. See id. at 113, 279 S.E.2d at 

143. Following convictions on lesser-included offenses under 

both the attempted murder indictment and the malicious wounding 

indictment, the Supreme Court reversed one of the convictions. 

The Court ruled as follows: 

It is our conclusion that the [trial judge] 

should have instructed the jury that if it 

found the defendant guilty under either the 

indictment which charged attempted murder or 

that which charged malicious wounding, it 

should not consider further the other 

indictment. Therefore, we will affirm the 

defendant’s conviction of unlawful wounding 

[, which was the lesser-included conviction 

under the malicious wounding indictment,] 

and reverse his conviction of assault and 

battery [, which was the lesser-included 

conviction under the attempted murder 

indictment]. The indictment charging 

defendant with the attempted murder of 

Dennis Ellis Keen will be dismissed, and 

Brown’s conviction of assault and battery 

thereunder will be vacated, and the jail 

sentence and fine imposed on him will be set 

aside. 

Id. at 116, 279 S.E.2d at 145-46. 

 The evidence in this case proved Irvin E. Coleman shot 

Reginald Vincent seven times after robbing him of his property. 

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Among other charges, Coleman was indicted for malicious wounding 

and attempted murder. Over Coleman’s objection, the trial judge 

entered the jury’s verdict on both convictions. 

 The malicious wounding statute provides as follows: 

If any person maliciously shoot, stab, cut, 

or wound any person or by any means cause 

him bodily injury, with the intent to maim, 

disfigure, disable, or kill, he shall . . . 

be guilty of a Class 3 Felony. 

Code § 18.2-51. “To sustain a conviction of attempted murder, 

the evidence must establish both a specific intent to kill the 

victim and an overt but ineffectual act committed in furtherance 

of this criminal purpose.” Nobles v. Commonwealth, 218 Va. 548, 

551, 238 S.E.2d 808, 810 (1977). Thus, every wounding 

accomplished in the same transaction with the intent to kill 

constitutes an offense containing the same elements as attempted 

murder. See Brown, 222 Va. at 116, 238 S.E.2d at 145-46. See

also Buchanan v. Commonwealth, 238 Va. 389, 414-15, 384 S.E.2d 

757, 772-73 (1989). 

 “[T]he Double Jeopardy Clause prohibits successive 

prosecutions as well as cumulative punishment.” Brown v. Ohio, 

432 U.S. 161, 166 (1977) (footnote omitted). In Virginia, the 

elements of malicious wounding and attempted murder clearly 

establish that those crimes constitute the same offense for 

purposes of the Double Jeopardy Clause. “For it is clearly not

the case that ‘each [statute] requires proof of a fact which the 

other does not.’” Brown, 432 U.S. at 168 (citation omitted). 

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Indeed, the Supreme Court of Virginia’s decision in Brown

establishes that proposition. See 222 Va. at 116, 279 S.E.2d at 

145-46. 

As is invariably true of a greater and 

lesser included offense, the lesser offense 

. . . requires no proof beyond that which is 

required for a conviction of the 

greater . . . . The greater offense is 

therefore by definition the "same" for 

purposes of double jeopardy as any lesser 

offense included in it. 

Brown, 432 U.S. at 168. 

 For these reasons, I would hold that the trial judge should 

have imposed the fourteen-year sentence and $5,000 fine on the 

malicious wounding conviction and set aside the ten-year 

sentence for attempted murder. 

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