Present: All the Justices 

ALPHONSO STEPHENS 

 OPINION BY JUSTICE LEROY R. HASSELL, SR. 

v. Record No. 010852 January 11, 2002 

COMMONWEALTH OF VIRGINIA 

FROM THE COURT OF APPEALS OF VIRGINIA 

I. 

 In this appeal, we consider whether a defendant was 

subjected to multiple punishments for the same offense in 

contravention of the Double Jeopardy Clauses in the Fifth 

Amendment to the Constitution of the United States and Article 

I, § 8 of the Constitution of Virginia. 

A. 

 Alphonso Stephens was tried by a jury in the County of 

Pittsylvania for two counts of shooting at an occupied vehicle 

in violation of Code § 18.2-154, and two counts of discharging 

a firearm while in a motor vehicle in violation of Code 

§ 18.2-286.1. The jury found the defendant guilty of these 

crimes and fixed his punishment at a total of four years and 

12 months imprisonment plus $2,000 in fines. 

 The defendant argued in the circuit court that his two 

convictions for shooting at an occupied vehicle and his two 

convictions for shooting from a vehicle constitute violations 

of his right not to be placed in jeopardy twice for the same 

offense. The circuit court disagreed with the defendant and 
entered a judgment confirming the verdicts. The defendant 

appealed that judgment to the Court of Appeals, which affirmed 

the judgment. Stephens v. Commonwealth, 35 Va. App. 141, 543 

S.E.2d 609 (2001). The defendant appeals the judgment of the 

Court of Appeals. 

B. 

 As required by established principles of appellate 

review, we will recite the evidence presented at trial in the 

light most favorable to the Commonwealth, the prevailing party 

in the circuit court, and we will accord the Commonwealth the 

benefit of all inferences fairly deducible from that evidence. 

Remington v. Commonwealth, 262 Va. 333, 338, 551 S.E.2d 620, 

624 (2001). During the evening of May 7, 1999, Calvin Fitz 

was driving a Ford automobile on State Route 360 in 

Pittsylvania County. Bernard Fitz, III, Calvin Fitz' cousin, 

was in the front passenger seat of the car. Rontrell Petty 

was in the back seat of the car. 

 As Calvin Fitz was driving his car, he saw a car with 

blinking lights approach him from the rear. Calvin Fitz 

"slowed down a little bit," and the other car, driven by the 

defendant, "pulled beside" Fitz' car. The defendant, who had 

problems in the past with Bernard Fitz, "yelled" and "waved 

his hands." Bernard Fitz told Calvin Fitz to "hit the gas and 

2
keep on going." Calvin Fitz "hit the gas," and the defendant 

pursued Fitz' vehicle. 

 During the ensuing chase, Calvin Fitz drove his car at 

speeds between 85 and 90 m.p.h. The defendant turned his car 

lights off and began to shoot his pistol in the direction of 

Calvin Fitz' car. Christopher Jones, a passenger in the 

defendant's car, testified that he saw the defendant shoot the 

pistol approximately twice at Calvin Fitz' car. 

 Calvin Fitz testified that he saw the defendant shoot the 

pistol twice. He stated: 

 "Q: Do you know whether or not any of these 

shots hit the car? 

 "A: Yes sir. 

 "Q: Was anyone in your car hit? 

 "A: No sir, but me. 

 "Q: Where were you hit? 

 "A: In my back twice. 

 "Q: Okay. Do you know about how fast you were 

going when you saw the gun shots? 

 "A: Well, I was probably going 'bout maybe 85-

90. I mean, the speeds varied at times 'cause we 

was going around curves, and I was going, I mean at 

one time I could have been going 80. At one time I 

could have been going 85. Another time I could have 

been going 90. I mean, it depends on like if I was 

in a curve or not. I mean, I really couldn't like, 

I could tell you, but I couldn't tell you. 

 "Q: Were you speeding?" 

3
 "A: Yes sir, I was speeding. I could tell you 

that much. 

 "Q: When the car, when the gun shots happened, 

did the car stay with you or did it fall back at any 

point? 

 "A: Every time he shot, every time I heard a 

shot and I looked back and I saw the shots the car 

would drop back a little bit. Then it would speed 

back up and then shoots again to drop back a little 

bit." 

II. 

 Code § 18.2-154 states in part: 

 "Any person who maliciously shoots at . . . any 

motor vehicle or other vehicles . . . 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. . . . 

 "If any such act is committed unlawfully, but 

not maliciously, the person so offending shall be 

guilty of a Class 6 felony and, in the event of the 

death of any such person, resulting from such 

unlawful act, the person so offending shall be 

deemed guilty of involuntary manslaughter." 

 Code § 18.2-286.1 states: 

 "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. Nothing in this section shall apply 

to a law-enforcement officer in the performance of 

his duties." 

 The defendant argues that his two separate convictions 

for shooting into an occupied vehicle and his two separate 

convictions for shooting from a vehicle violate his double 

jeopardy guarantees. The defendant asserts that his acts of 

4
firing a pistol repeatedly from his car constituted a single 

act and not a series of separate and distinct acts that would 

warrant separate indictments and separate punishments. The 

defendant "maintains that in the absence of a showing that the 

shots constituted separate and distinct acts performed at 

separate times," he cannot be convicted of two counts of 

violating Code § 18.2-154 and two counts of violating Code 

§ 18.2-286.1. We disagree with the defendant's contentions. 

 The federal constitutional provision concerning double 

jeopardy embodies three guarantees: "[i]t protects against a 

second prosecution for the same offense after acquittal[; i]t 

protects against a second prosecution for the same offense 

after conviction[; a]nd it protects against multiple 

punishments for the same offense." North Carolina v. Pearce, 

395 U.S. 711, 717 (1969) (footnotes omitted), overruled on

other grounds by Alabama v. Smith, 490 U.S. 794 (1989); accord

Illinois v. Vitale, 447 U.S. 410, 415 (1980); Whalen v. United 

States, 445 U.S. 684, 688 (1980); Brown v. Ohio, 432 U.S. 161, 

165 (1977); Blythe v. Commonwealth, 222 Va. 722, 725, 284 

S.E.2d 796, 797 (1981). Virginia's constitutional guarantee 

against double jeopardy affords a defendant the same 

guarantees as the federal Double Jeopardy Clause. Bennefield

v. Commonwealth, 21 Va. App. 729, 739-40, 467 S.E.2d 306, 311 

(1996); Peterson v. Commonwealth, 5 Va. App. 389, 394, 363 

5
S.E.2d 440, 443 (1987); see, e.g., Walton v. City of Roanoke, 

204 Va. 678, 682, 133 S.E.2d 315, 318 (1963). 

 The litigants agree that in this case the defendant's 

convictions occurred in a single trial and the only double 

jeopardy guarantee pertinent to this appeal is the guarantee 

against multiple punishments.* See Blythe, 222 Va. at 725, 284 

S.E.2d at 797-98. We have stated: 

 "In the single-trial setting, '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). And, 'the question whether punishments 

imposed by a court after a defendant's conviction 

upon criminal charges are unconstitutionally 

multiple cannot be resolved without determining what 

punishments the Legislative Branch has authorized.' 

Whalen v. United States, 445 U.S. 684, 688 (1980). 

Or, stated another way, 'the question of what 

punishments are constitutionally permissible is not 

different from the question of what punishments the 

Legislative Branch intended to be imposed.' Whalen, 

445 U.S. at 698 (Blackmun, J., concurring). See 

also Busic v. United States, 446 U.S. 398, 413 

(1980) (Blackmun, J., concurring)." 

Blythe, 222 Va. at 725-26, 284 S.E.2d at 798. Additionally, 

the Supreme Court has stated that "[w]ith respect to 

 *

 The defendant does not dispute the established principle 

that "two or more distinct and separate offenses may grow out 

of a single incident or occurrence, warranting the prosecution 

and punishment of an offender for each." Jones v. 

Commonwealth, 208 Va. 370, 375, 157 S.E.2d 907, 910 (1967). 

We also note that the test in Blockburger v. United States, 

284 U.S. 299 (1932) is not implicated in this appeal because 

the statutes at issue and the charged offenses require "proof 

of a fact which the other does not." Id. at 304. 

6
cumulative sentences imposed in a single trial, the Double 

Jeopardy Clause does no more than prevent the sentencing court 

from prescribing greater punishment than the legislature 

intended." Missouri v. Hunter, 459 U.S. 359, 366 (1983); 

accord Jones v. Thomas, 491 U.S. 376, 381 (1989). 

 Upon our review of the record, we conclude that the 

defendant did not receive multiple punishments for the same 

offense. Instead, the record demonstrates that each shot that 

the defendant discharged from his firearm was a separate, 

identifiable act. For example, as we have already stated, the 

victim testified that each time the defendant "shot" the 

pistol, the defendant's "car would drop back a little bit. 

Then [the car] would speed back up and then [the defendant] 

shoots again." And, the defendant essentially concedes in his 

brief that his double jeopardy guarantees would not be 

abridged if his acts of discharging the firearm constituted 

"separate and distinct acts performed at separate times." 

 The defendant also argues that our decision in Holly's 

Case, 113 Va. 769, 75 S.E. 88 (1912), supports his contention 

that his acts of firing a pistol constitute a single violation 

of Code §§ 18.2-154 and -286.1. We disagree. 

 In Holly's Case, we stated the following rule: "The 

theft of several articles at one and the same time constitutes 

 

7
an indivisible offense, and a conviction or acquittal of any 

one or more of them is a bar to a subsequent prosecution for 

the larceny of the others." Id. at 772, 75 S.E. at 89. This 

rule is not applicable here because it "applies only to a case 

involving multiple larceny prosecutions predicated upon the 

theft of multiple articles stolen contemporaneously." Jones

v. Commonwealth, 218 Va. 757, 761, 240 S.E.2d 658, 661, cert.

denied, 439 U.S. 892 (1978). 

III. 

 We conclude that the defendant's right not to be placed 

twice in jeopardy for the same offense was not violated in 

this case. Accordingly, we will affirm the judgment of the 

Court of Appeals. 

Affirmed. 

8