COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Dec ker, Judges Petty and Huff Argued at Richmond, Virginia

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 COUR T OF FLUVANNA COUNTY Humes J. Franklin, Jr., Judge Designate Matthew L. Engle (Donovan & E ngle, PLLC, on briefs), for appellant. Craig W. Stallard, A ssistant Attorney General (Mark R. Herrin g, Attorney General, on bri ef), for appellee.
Gary Nathaniel Blowe, Jr. (“appe llant”) 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 ac complices were still there. After a jury trial, appellant was convicted of aggravated malic ious wounding, conspiracy to commi t grand larceny of a firearm, two counts of attempted malici ous wounding, and three counts of use of a firearm in the commission of a felony. The trial c ourt imposed the jury’s sen tence of forty-two years’ imprisonment. 1

* Pursuant to Code § 17.1-413, this op inion is not designated fo r publication.

1 A charge of possession of a f irearm by a felon was tried by th e trial court on the same evidence as was presented to the jury. The trial court separat ely sentenced appellant to five years’ imprisonment with all five years suspended on that charg e. Appellant does not challenge that conviction in this appeal.UNPUBLISHED- 2 - Appellant raises four assignmen ts of error. First, he contends that the Double Jeopardy Clause prohibits one of his convic tions for use of a firearm inthe commission of a felony because he was convicted for two counts based on only one under lying felony. Second, he similarly contends the Double Jeopardy Clause bars one of his c onvictions 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 si ngle incident and supporting only a single conviction. Third, he claims the evidence was insuffi cient to support hi s conviction for aggravated malicious wounding because the Commonwealth failed t o establish that the “foot drop” suffered by the victim as a result of being shot was a “s ignificant physical impairment.” Finally, he contends that the trial court erred in overruling h is Batson objection to the prosecution’s use of a perempto ry challenge to remove one of on ly two African-American jurors from the jury. Appellant, however, has failed to p reserve his double jeopardy claim regarding the use of a firearm charge. He also has fa iled to preserve his Batson cl aim. For his other double jeopardy claim, the victim was shot at du ring several separate and discr ete parts of the gun battle which is sufficient to constitute separate attempted malicious wounding offenses. Finally, for the remaining assignment of error, t he “foot drop” suffered by the victim, which impedes the victim’s ability to walk and requi res his wearing an orthotic b oot, is a “significant physical impairment,” and the evidence is sufficient to support appellan t’s convictions. Therefore, this Court affirms the trial court.
I. BACKGROUND “This Court considers ‘the evide nce presented at trial in the l ight most favorable to the Commonwealth, the prevailing part y below.’” Hawkins v. Commonw ealth, 64 Va. App. 650,- 3 - 652 (2015) (quoting Bolden v. Commonwealth, 275 Va. 144, 148 (2 008)). So viewed the evidence is as follows: Appellant, Dante Givens, Thomas Jackson, and John Abbitt conspi red to steal guns from the apartment over a garage shop owned by Garnette Bourne. Giv ens waited nearby while the other three entered the shop because Bourne knew him, and he di d not want to be identified. When they arrived, the shop was vacant. The three men went ups tairs to the apartment with a sledgehammer to break into the saf e where the guns were stored. They discovered the safe was already open and the guns were gone. Appellant then headed back dow nstairs through the shop. Bourne returned to the shop as appellant was coming down the sta irs. As soon as Bourne saw ap pellant, appellant began shooting at Bourne. Bourne was s hot in the side of his knee wh ile trying to find cover. Appellant continued to shoot at Bo urne as Bourne was crawling o n the floor to avoid the gun fire. The other co-conspirators i n the apartment then smashed a window and leapt out of the apartment. Within a few moments, while shot s were still being fired, Bourn e’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 f ire with a few shots, the individual fled, and Gillespie ca me back and entered the shop. Gillespie observed appellant retreat behind a door into the st airway. While Gillespie took cover, he heard shots being fired through the wall into the shop. Soon Gillespie heard someone shooting into the shop from outsid e. Bourne was struck in the leg a second time. Gillespi e turned to see who was shootin g, and the shooter retreated when

2 To avoid confusion, the remainder of this opinion will refer t o him as “Scott.”- 4 - he saw Gillespie’s gun. After about a minute, more shots were fired from outside. Gillespie then observed appellant in a sport ut ility vehicle driving away whil e 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 trie d by a jury for: aggravated malicious wounding of B ourne; conspiracy to commit g rand larceny of a firearm; two counts of attempted malicious wounding of Jack Gillespie; and t hree counts of use of a firearm in the commission of a felony. 3 During jury selection, the Common wealth used a peremptory chall enge to strike one of the only two remaining African-A merican prospec tive jurors. Of f the record and before the jury was sworn, appellant raised a Bat son challenge to the Commonwea lth’s use of the peremptory challenge of the African-America n prospective juror. After the jury was sworn, the parties memorialized appellant’s objec tion on the record. Appellant ar gued only that the Commonwealth had struck an African -American prospective juror w hen there were few in the venire and only two left at that time. The Commonwealth respon ded that “when the Court asked the question about truthfulness a nd law enforcement, she rolled her eyes and visibly made a change in appearance in an alm ost sneering way.” Appellant mad e no further argument, and the trial court noted it denied the motion. At appellant’s trial, Bourne t estified that he still had proble ms with his foot. He testified that his foot “just swings down. If I don’t keep a good high-t op boot on and I go out and a

3 The predicate offense for one of the counts was a malicious wo unding, the predicate offenses of the other two counts were aggravated malicious woun ding.- 5 - pebble gets under my foot, I’ll twist my ankle. It will just f lop over sideways.” He testified this happens to him several times a day. Both Dr. James Calland, the t rauma surgeon who saw Bourne on th e day of shooting, and Dr. Randall Bashore, Bourne’s r egular physician, testified. Dr . Calland described Bourne’s injury on the day of the shooting. Bourne had two gunshot woun ds on his left leg below the knee. He did not have any signifi cant damage to the bones in h is leg, but he had “foot drop” from a damaged nerve. Dr. Bashor e confirmed that Bourne’s foot drop had not improved in the year since the shooting a nd was unlikely to ever heal. When an individual has foot drop, t he muscles in the leg cannot pull up the front of the foot, so the individual will consta ntly catch their toes when w alking. Such an individual requires an orthotic brace or boot to walk normally without tripping. D r. Calland testified that Bourne was fitted with a brace before he left the hospital. Dr. Basho re testified that Bourne continued to need the orthotic, having just pr escribed a new orthotic to rep lace a boot Bourne had worn for several months. Appellant presented no evidence, but at the close of the Common wealth’s case, he moved to strike the evidence. Relevan t to this appeal, he argued thr ee things. First, he argued that Bourne’s injury was not a “signif icant physical impairment.” S econd, 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 thos e anyway, but I think even if the Court overruled my mo tion, there should only be one of thos e use of a firearm to commit aggravated malicious wounding. Third, he argued one of the attempted malicious wounding charge s should be stricken, stating: It appears to me that there’s two attempted malicious wounding charges on Mr. Gillespie, and even i f the Court feels that the Commonwealth has met its burden a s it pertains to those two cas es,- 6 - I would ask that the Court c onsider finding t hose duplicitous; in other words, they’re charg ing the same thing twice. The trial court denied the mo tion to strike. The jury convicte d appellant on all the charges and recommended a total s entence of forty-two years’ im prisonment. The trial court imposed the jury’s recommended sentence. This appeal followed.
II. PROCEDURAL DEFAULTS Rule 5A:18 provides that “No rul ing of the trial court . . . wi ll be considered as a basis for reversal unless an objection was s tated with reasonable certain ty at the time of the ruling, except for good cause shown or . . . to attai n the ends of justice.” “Rule 5A:18 applies to bar even constitutional claims.” O hree 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 objec tion will do. It must be both specific and timely —so that the trial judge woul d 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. 73 2, 741 (2007)). “Making one spe cific argument on an issue does not preserve a separate lega l 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 opport unity to ‘take appropriate acti on to correct t he error’ and to ‘“avoid unnecessary appeals by affording the trial judge an opp ortunity to rule intelligently on objections.”’” Bethea v. Commonwealth, 68 Va. App. 487, 498 (2 018) (quoting Maxwell v. Commonwealth, 287 Va. 258, 264-65, 267 (2014)). A. Use of a Firearm Do uble Jeopardy Claim Appellant claims that his convi ction for two counts of use of afirearm in the commission of a felony violates the Double Jeopardy Clause because they ar e both predicated on the same- 7 - underlying felony, the aggravated m alicious wounding of Bourne. He claims that, at most, Bourne suffered one significant a nd permanent injury, and there fore there could only be one aggravated malicious woundi ng. Although appellant moved to str ike one of the two use of a firearm counts, this Court conc ludes 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 thos e anyway, but I think even if the Court overruled my mo tion, there should only be one of thos e use of a firearm to commit aggravated malicious wounding. Appellant never explained w hy he thought there should be only asingle charge. He did not mention double jeopardy or explai n that he believed there was o nly a single predicate offense. Even assuming that the trial cour t had been alerted to a potent ial double jeopardy issue by counsel’s saying “there should onl y be one” of the charges, app ellant never explained he was arguing that there was only one s ignificant 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 thi s Court, appellant merely asse rted “there was a single aggravated malicious wounding,” t herefore “there can only be on e use of a firearm conviction in the commission of that offense. ” He did not explain he was con tending there was only a single aggravated malicious wounding beca use there was only one “permanent and significant injury” until his reply brief. Until the clarification, appellant appe ared to be arguing that he could not be convicted on two counts of use of a firearm in the commission o f an aggravated malicious wounding because he was only charged with and convicted of one count of aggravated malicious wounding. Although such an argument has be en soundly rejected by this Cou rt, Davis v. Commonwealth, 4 Va. App. 27, 30 (1987) ( “There is no language i n the statute which suggests that the legislature intended tha t an accused must be charged a nd prosecuted for the underlying felony.”), without his further ex planation in the reply brief, that argument is all he appeared to have made, either in this Court or at the trial court. Therefo re, he has failed to preserve the argument there was only one “perm anent 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.”).- 8 - explain why the two shots, col lectively resulting in the perman ent foot drop condition, would not support two aggravated malici ous wounding offenses and thus two use of a firearm charges. Without timely clarification, the issue now raised could not ha ve been effectively addressed by the trial court. B y failing to raise his argumentwith 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, conte mporaneous objection gives the opposing party the opportunity to meet the objection at tha t stage of the proceeding.” (quoting Weidman v. Babcock, 241 Va. 40, 44 (1991))). Therefore, appellant did not suffi ciently 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 c ourt erred by denying his Batson ch allenge. Under Batson v. Kentucky, 476 U.S. 79 (1986), and its progeny, the prosecutor m ay not discriminate on the basis of race in the use of peremptory challenges. To succeed on a B atson 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 Commonw ealth bears the burden of producing a race-neutral explana tion for striking the potential juror.” Id. “The defendant can then argue the Commonwealth’s e xplanation is purely a pretext f or unconstitutional discrimination.” Id. The defenda nt retains, however, the burd en of persuasion for establishing the Commonwealth discriminated in the use of its strike through out the whole test. Id. Where, as here, the trial court request s the Commonwealth respond to t he defendant’s claim, and the Commonwealth does so, this Court assumes, without deciding, tha t the defendant established a prima facie case.- 9 - Appellant claims that the tri al court erred be cause it did not rule on the plaus ibility of the Commonwealth’s race-neutral expl anation. The Commonwealth expl ained to the trial court that it struck the juror because she “ rolled her eyes and visibly ma de 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 di d not ask such a question, althou gh the defendant did ask something similar. In essence, he argues that the trial court did not rule on whether the Commonwealth’s reaso n was pretextual. Appellant, however, never presente d 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 exercis ing its strike. If appellant ha d argued before the trial court with the same argument that he make s here, the trial court could hav e addressed who asked what and whether the error was significant. Only the trial court had the abil ity to determine whether the C ommonwealth’s explanation of the pr ospective juror’s body l anguage was pretex tual. Moreover, the discrepancy between the Commonwealth’s explan ation at trial and the record of who asked what question does not necessarily mean the Com monwealth’s explanation was pr etextual. Bethea v. Commonwealth, ___ Va. ____, _____ (A ug. 28, 2019) (“[A] mere mi stake, in and of itself, is not a pretext. . . . ‘Batson and its progeny direct trial judges t o assess the honesty —not the accuracy—of a proffered race-neutr al explanation.’ A Batson ch allenge based upon the ‘factual accuracy’ of the race-neutral expl anation ‘aims at the wrong ta rget.’ The right target is the ‘credibility of the prosecutor’s explanation’ because that cred ibility determination ‘goes to the heart of the equal protection ana lysis.’” (footnote omitted) (q uoting Lamon v. Boatwright, 467 F.3d 1097, 1101 (7th Cir. 2006), and Mill er-El v. Cockrell, 537 U.S. 322, 340 (2003))).- 10 - The trial court was in the best position to determine whether t he flaws in the Commonwealth’s reason were signi ficant or the type of mistake that is understandable and easily made when trying to reme mber 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 provin ce.”’” (quoting Hernandez v. New Y ork, 500 U.S. 352, 365 (1991))). By failing to argue the Commonwea lth’s reasons were pretextual, appellant deprived the trial court of the ability to address the sincerity of the Commonweal th’s race-neut ral reason. Therefore, under Rule 5A:18 appell ant waived his Batson argumen t, and this Court will not consider it. See Martinez v. Commonwealth, 42 Va. App. 9, 20-2 1 (2003) (holding that the defendant waived a Batson challe nge for failing to argue the Co mmonwealth’s explanation for the strike was pretexual). C. Miscarriage of Justice Appellant argues this Court s hould utilize the ends of justice exception to Rule 5A:18. “The ends of justice exception to Rule 5A:18 is narrow and is t o be used sparingly.” Copeland v. Commonwealth, 42 Va. App. 424, 442 (2004). To invoke the ends of justice excep tion to Rule 5A:18, the reco rd must “affirmatively show[ ] that a miscarriage of justice has occurred, not . . . merely . . . that a miscarriage might have occurred.” To satisfy this bur den, an appellant must show “mor e than that the Commonwealth fai led 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 Mar shall v. Commonwealth, 26 Va. App. 627, 636-37 (1998)). Appellant argues he received a s ignificantly longer sentence th an his co-conspirators who accepted a plea bargain and testified against him. He alleges that this difference amounts to a- 11 - miscarriage of justice. Howeve r, he does not argue the evidenc e proves an element of the crime did not occur. He also does notexplain how the conduct for wh ich he was convicted was not a crime. Alleged unfairness in sentencing is not a reason to inv oke the ends of justice exception to Rule 5A:18. Appellant failed to pr eserve two of his assignment s of error, and this Court will not consider them.
III. ANALYSIS Appellant has two remaining assi gnments of error. First, he cl aims one of his convictions for the attempted malicious wounding of Jack Gillespie violates the Double Jeopardy Clause. Second, he contends the evidence wa s insufficient to sustain hi s conviction for aggravated malicious wounding, because the vi ctim’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 i mposed for the same offense in violation of the double jeopardy clause.” Lawlor v. Commonwealth, 285 Va. 187, 227 (2013). Nevertheless, “determina tion of whether acts constitut e a single continuing offense or separate offenses is a factual finding that we will not reverse unless it is plai nly wrong or without evidence to support it.” Ji n v. Commonwealth, 67 Va. App. 294, 304-05 (2017). 2. Analysis Appellant contends that one of hi s attempted malicious wounding convictions violates the Double Jeopardy Clause because he only participated in one atte mpted malicious wounding of Gillespie. Appellant contends that he is being punished twice for a single offense because appellant only shot at Gillespie as appella nt was driving away. Moreover, he argues that even if a concert of action theory makes him responsible for his accomp lices’ actions, the entire gun- 12 - battle was a single course of conduct that can only support a s ingle attempted malicious wounding. The Commonwealth argues that appellant is responsibl e for his accomplices’ actions under a concert of action theor y. It further argues that the s hots fired at Gillespie as he arrived and the shots fired as appellantdrove off constituted separate acts of attempted malicious wounding supporting separate convictions. 5 This Court agrees with the Commonwealth. “The Double Jeopardy Clause of t he United States Constitution p rovides that no person shall ‘be subject for the same offence to be twi ce put in jeopa rdy of life or limb.’” Johnson v. Commonwealth, 292 Va. 738, 741 (2016) ( quoting U.S. Const. amen d. V.). “The Double Jeopardy Clauses of the United States and Virginia Constitution s protect against multiple punishments for the same offense.” Roach v. Commonwealth, 51 V a. App. 741, 748 (2008). “Subjecting an accused to multiple punishments for the same off ense violates both state and federal constitutional protections against double jeopardy.” I d. Nevertheless, “[t]he Double Jeopardy Clause is not abridged if an accused is subjected to p unishment for two offenses that are supported by separate a nd distinct acts.” Id. Thus, whether appellant was perm issibly convicted of two attemp ted malicious wounding offenses turns on whether the e ntire gun battle was one single continuous attempt to maliciously wound Gillespie, or if there were separate and distinct acts wi thin the battle that constitute multiple attempts. “A continuing offense is a continuous, unla wful act or series of acts set on foot by a single impulse and operated by an unintermittent forc e, however long a time it may occupy.” Hodnett v. Commonwealth, 56 Va. App. 234, 237 (2010) (quoting Thomas v.

5 The Commonwealth also argues th at each pull of the trigger rep resents a separate attempted malicious wounding. Beca use this Court concludes tha t the shooting as Gillespie arrived and the shooting as appell ant drove off were separate a cts supporting separate convictions under the unique cir cumstances of this case, this C ourt need not resolve whether, in every circumstance, each pull of the trigger is individually a separate act of attempted malicious wounding.- 13 - Commonwealth, 38 Va. App. 319, 324-25 ( 2002)). “In determining whether the conduct underlying the convictions is base d upon the ‘same act,’ the pa rticular criminal transaction must be examined to determine whether the acts are th e 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 a ffirmed two attempted murder c onvictions. 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 o nly a few minutes later—he struck his wife with a hammer multiple times. She only survive d because bystanders restrained the defendant. Nothing indicate d that the defendant gave up ontrying to kill his wife between the two attempts on her life. T he defendant only took the time necessary to get a new tool before attacking again. Nevertheless, t his Court concluded “the hamme r attack ‘involved a new formation and execution of purpos e’” which supported a second a ttempted murder conviction. Id. (quoting Hodnett v. Co mmonwealth, 56 Va. App. 234, 238 (201 0)). Similarly, in Hodnett, this Court held that when an inmate thre w 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 convict ions for assault and battery on a law enforcement officer. 56 Va. App. at 237-38. This Court reas oned that the first assault was complete when the contents of the cup struck the guard so that when the inmate refilled the c up he began a whole new act.- 14 - Here, one of appellant’s accomplices 6 shot at Gillespie when Gillespie arrived. 7 Gillespie confronted that accomplice and that accomplice retreated, endin g that attempt to maliciously wound Gillespie. Like in Hodnett and in Jin, there was a defin itive 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 thr ough the apartment, apparently out the same window his accompli ces had earlier used, and went to his getaway vehicle. As he was driving away, he shot back at Gillespie. This was a new at tack, separated in time and location, with a distinct break i n the action, from the first a ttack on Gillespie.

6 Appellant objects that the Commonwealth’s story of who shot atGillespie has changed repeatedly before this Court. N evertheless, the identity of wh o 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, 52 8 (1954) (“If there is concert of action with the resulting cri me one of its incidental probab le consequences, then whether such crime was originally contemp lated or not, all who participate i n 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 con cert of action, allowing appella nt to be held responsible for the actions of his accompli ces. At oral argument, appellan t argued that a concert of action theory cannot apply to support appellant’s conviction. He argu ed that no case law permits an individual to be convicted as both the actor and under a concer t of action theory. Appellant is correct that the Double Jeopar dy 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 attempte d 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 shotat Gillespie when Gillespie first arrived.

8 Although the Commonwealth does not a ssert it, these shots at G illespie also might constitute a third separate attempt to maliciously would Gilles pie. Gillespie testified appellant “was shooting back through the w alls back into the shop where I was at.” The shots through the wall in the garage were separat ed from the first attack by the first shooter’s retreat and Gillspie’s movement to the garage. They were similarly separated from app ellant’s final shots at Gillespie as appellant was driving away. After shooting at Gillespie thr ough 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 f ired back towards the garage at Gillespie. In the light most favorable to the Commonwealth, thi s is sufficient to find the a cts were “separate and distinct” and able to support multiple attempted malicious wounding convi ctions.- 15 - Appellant argues that because int ent is an element of attempted malicious wounding, a single continuous intent to w ound Gillespie thro ughout the batt le 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 th warted first attack failed, he almost immediately set out to attack a gain. Similarly, although appel lant and his accomplices may have had a singular intent to maliciously wound Gillespie, they atta cked Gillespie, retreated, and then attacked again. This was a new “execution of purpose.” Appell ant should “not be rewarded where, instead of taking adva ntage of an opportunity to walk aw ay 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 Si gnificant and Permanent Physical Impairment In his remaining assignment of erro r, appellant claims that the evidence was insufficient to support his conviction for aggravated malicious wounding. T his Court concludes, however, that the victim’s “foot drop” is a “permanent and significant p hysical impairment.” Thus, the evidence is sufficient t o support his conviction. 1. Standard of review “When the sufficiency of the e vidence is challenged on appeal, ‘“we presume the judgment of the trial court to be correct” and re verse only if the trial court’s decision is “plainly wrong or without evidence to suppor t it.”’” Stevens v. Commonw ealth, 46 Va. App. 234, 248 (2005) (quoting Kelly v. Co mmonwealth, 41 Va. App. 250, 257 (20 03) ( en banc )), aff’d, 272 Va. 481 (2006). This Court “determine[s] whether the evidence, vie wed in the light most favorable to the prevailing party, and the r easonable inferences fairly d educible from that evidence support each and every element of the cha rged offense.” Cottee v. Comm onwealth, 31 Va. App. 546,- 16 - 554-55 (2000). This Court “must di scard the evidence of the ac cused in conflict with that of the Commonwealth, and regard as true a ll the credible evidence favo rable 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 evid ence is insufficient to sustainhis conviction for aggravated malicious wounding beca use the victim’s injury did n ot result in a “permanent and significant physical impairment. ” He argues that the victim on ly suffered two gunshots and the resulting “foot drop.” The victim ’s doctors did not testify th at the “foot drop” the victim suffered was a “significant in jury.” He argues that, although the victim must use a foot brace for walking properly, his injury is not significant within the mean ing of the Code. Appellant concedes that the victim’s injury is permanent. To sustain a conviction for aggr avated malicious wounding, the Commonwealth must establish that the victim suffe red 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 caus ed by bodily injury.” Newton v. Com monwealth, 21 Va. App. 86, 90 (1995) (borrowing language from former Code § 51.5-3). This Court has considered sever al cases addressi ng the questionof what constitutes a significant physical impairment . For example, in Newton this C ourt affirmed the trial court’s conclusion that the victim’s cos metic disfigurement, significan t facial scaring from wounds that required ten to twenty stitches, w as a significant physical imp airment. Id. at 90-91. In Martinez v. Commonwealth, 42 Va. App. 9, 24-25 ( 2003), this Court conclu ded the victim suffered a “permanent and significant physi cal impairment” when the victim was shot in the shoulder. At the trial, two years later, t he victim did not have full use of her arm and hand. “[S]he did not- 17 - have a ‘real good grip’ because her index finger and thumb ‘don ’t work right.’” Id. at 25. She had trouble buttoning her c lothes, handling money, or doing any thing tedious with her hand. Id. This Court held that the eviden ce supported a conclusion she su ffered 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 le g damaged a nerve that has cause d “foot drop.” He cannot raise his foot normally when walking. H e must wear an orthotic boot while walking to prevent his toes from “always catching onto e verything” causing him to trip . Moreover, if the cosmetic disfigurement in Newton is a “s ignificant physical impairment,” an injury that does more than disfigure but actually impedes daily living—requiring an orthot ic boot to walk without catching his toes and tripping—is likewise significant. The evidence su pports the trial court’s decision rejecting appellant’s motion to s trike, and this Court affirms.
IV. CONCLUSION Appellant failed to present one of his Double Jeopardy Clause a rguments and his Batson argument to the trial court. T herefore, they are waived under Rule 5A:18, and this Court will not consider them. Appellant’s rem aining Double Jeopardy Clause ar gument fails because there were at least two separate and distinct attacks on Gillespie, s upporting two attempted malicious wounding convictions. For his onl y remaining assignment of err or, the evidence supports appellant’s conviction for aggr avated malicious wounding. The victim cannot walk normally and must utilize an orthotic boot. The limitation on the victi m’s daily activity inherent in his “foot drop” is a “significant physi cal impairment.” For the fo regoing reasons, this Court affirms. Affirmed.