COURT OF APPEALS OF VIRGINIA

Present: Judges Elde r, Humphreys and Alston Argued at Richmond, Virginia

KEVIN LAMONT ARMSTEAD OPINION BY v. Record No. 1132-08-2 JUDGE ROSSIE D. ALSTON, JR. DECEMBER 15, 2009 COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF CHARLES CITY COUNTY Thomas B. Hoover, Judge Mary K. Martin for appellant. Richard B. Smith, Special Assist ant Attorney Gene ral (William C. Mims, Attorney General, on brief), for appellee.

Kevin Lamont Armstead (appellant) appeal s his conviction for unlawful shooting at an occupied vehicle, in violation of Code § 18.2-154. Ap pellant contends that double jeopardy bars his conviction, because he was previously tried and convic ted of assault, arising ou t of the same events. Appellant argues that assault is a lesser-included offense of unlawful shooting at an occupied

vehicle. For the reasons stat ed, we disagree with appellan t and affirm his conviction. Background The material facts are not in dispute. Th e parties stipulate that on September 24, 2006, appellant and several of his friends drove their car onto property belongi ng to James Black. Appellant and his friends asked Black if they could fish on Bl ack’s property. Black denied them permission and asked appellant and his friends to l eave. As Black followed the car off the property in his own pickup truck, the car stopped. Appellant and one of th e car’s other occupants exited the car and started yelling at Black. In response, Black turned his tr uck around and drove away from appellant. As Black left, appellant pulled out a ha ndgun and fired at Black’ s truck. Black ducked- 2 - his head and accelerated. Severa l bullets passed through the ba ck windshield of the truck, approximately where Black’s head would have been had he not moved. Appellant fled the scene. Appellant was charged with attempted murder, illegal use of a firearm, and brandishing a firearm. At trial, appellant admitted that he fire d shots at Black, intending to scare him. He denied aiming at Black, and instead clai med he attempted to shoot at th e truck’s bumper. On July 20, 2007, a jury convicted appellant of brandishing a firearm and assault. On September 4, 2007, appellant was indicted for malicious shooting at an occupied vehicle, in violation of Code § 18.2-154. Appellant file d a motion to dismiss the charge, arguing that his double jeopardy protections were implicated because of the assault conviction relating to the same

facts and circumstances. The tria l court dismissed the charge of malicious shooting at an occupied vehicle, but allowed the Commonwea lth to amend the indictment an d proceed on the lesser charge of unlawful shooting at an occupied vehicle. On March 14, 2008, appellant entered a conditional guilty plea to the amended charge and

the trial court sent enced appellant to five years for unlaw ful shooting. This appeal followed. Analysis “The double jeopardy clauses of the United Stat es and Virginia Constitutions provide that no person shall be put twice in je opardy for the same offense.” Martin v. Commonwealth , 221 Va. 720, 722, 273 S.E.2d 778, 780 (1981). “These clauses apply when (1) the two offenses involved are identical, (2) the former offense is lesser-included in the subsequent offense, and (3) the subsequent offense is lesser- included in the former offense.” Id. Appellant does not contend that assault and unlawful shooting at an occupied vehicle are the same offense or that unlawful shooting is a lesser-included offense of assault. Appellant’s double jeopardy argument rests on the proposition that assa ult is a lesser- included offense of unlawful shooting at an occupied vehicle. Thus, consistent with th e requirements of the Double Jeopardy Clause,- 3 - appellant could not be prosecuted on the unlawfu l shooting charge when he was previously prosecuted for assault related to the same facts and circumstances.

Whether an offense is lesser-included fo r double jeopardy purposes depends on whether it requires proof of a fact that the greater offense does not. Blockburger v. United States , 284 U.S. 299, 304 (1932). Put another way, “[t]he same -elements test, sometimes referred to as the

‘ Blockburger ’ test, inquires whether each o ffense contains an element not contained in the other

. . . .” United States v. Dixon , 509 U.S. 688, 696 (1993); see also Commonwealth v. Hudgins , 269 Va. 602, 605, 611 S.E.2d 362, 364-65 (2005). “[I]n a pplying this test, the two offenses are to be examined in the abstract, rather than with reference to the facts of the particular case under

review.” Blythe v. Commonwealth , 222 Va. 722, 726, 284 S.E.2d 796, 798 (1981); see also

Coleman v. Commonwealth , 261 Va. 196, 200, 539 S.E.2d 732, 734 (2001). “It is the identity of the offense, and not the act , which is referred to in the c onstitutional guaranty against double jeopardy.” Martin , 221 Va. at 723, 273 S.E.2d at 780 (quoting Epps v. Commonwealth , 216 Va. 150, 153-54, 216 S.E.2d 64, 67 (1975) (emphasis added in Martin )). Applying Blockburger , if assault is to be considered a lesser-included offense of unlawful shooting at an occupied vehicle, every elemen t of assault must be an element of unlawful shooting. Appellant contends that assault is an attempt or offer to do bodily harm through an

unlawful show of force or violence. Harper v. Commonwealth , 196 Va. 723, 733, 85 S.E.2d 249, 255 (1955). However our Supreme Court recently de fined assault, in light of the merger of the crime and tort of common law assault. Thus, common law assault, whether a crime or tort, occurs when an assailant engages in an overt ac t intended to inflict bodily harm and has the present ability to inflict such harm or engages in an overt act intended to place the vic tim in fear or apprehension of bodily harm and creates such reason able fear or apprehension in the victim.- 4 - Carter v. Commonwealth , 269 Va. 44, 47-49, 606 S.E.2d 839, 841-42 (2005) (rejecting the

definition of assault stated in Harper because “the definition of assault was not critical to the issue before the Court”). U nder the definition set out in Carter , appellant must intend to inflict bodily harm or intend to place the victim in fear or apprehension of bodily harm. Id. ; see also

Gilbert v. Commonwealth , 45 Va. App. 67, 71, 608 S.E.2d 509, 511 (2005) (“a person cannot be

convicted of assault . . . ‘without an intention to do bodily harm—either an actual intention or an intention imputed by law’” (quoting Davis v. Commonwealth , 150 Va. 611, 617, 143 S.E. 641, 643 (1928))). Unlawful shooting at an occupied vehicl e is a statutory crim e, defined in Code § 18.2-154. That section reads, Any person who maliciously shoots at . . . any motor vehicle or other vehicles when occupied by one or more persons, whereby the life of any person . . . in such mo tor vehicle or other vehicle, may be put in peril, is guilty of a Cl ass 4 felony. . . . If any such act is committed unlawfully, but not maliciously, the person so offending is guilty of a Class 6 felony . . . . Code § 18.2-154. 1

1 Code § 18.2-154 provides, in its entirety: If any person maliciously shoot at, or maliciously throw any missile at or against, any train or cars on any railroad or other transportation company or any vessel or other watercraft, or any motor vehicle or other vehicles when occupi ed by one or more persons, whereby the life of any person on such train or car, or on such vessel, or other watercraft, or in such motor vehicle or other vehicle, may be put in peril, the person, or persons so offending sha ll be guilty of a Class 4 felony; and, in the event of the death of any such person, resulting from such malicious shooting or throwing, the person so offending shall be guilty of murder, the degree to be determined by the jury or the court tryi ng the case without a jury. If any such act be committed unl awfully, 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.- 5 - The parties do not dispute that when the accused commits an unlawful shooting, he engages in an overt act with the present ability to inflict harm and the likelihood of creating apprehension on the part of the occupants of the ve hicle. However, assault also requires proof of

intent to inflict bodily harm or to create fear or apprehension. Appellant contends that inherent in the offense of unlawful shooting at an occupi ed vehicle is the require ment that the accused

know or have reason to know the vehicle is occu pied. Because it is a well-settled principle of law that “a person intends the immediate, direct , and necessary consequences of his voluntary acts,” Bell v. Commonwealth , 11 Va. App. 530, 533, 399 S.E.2d 450, 452 (1991), appellant argues that the accused intends to inflict bodily harm or create fear or apprehension when he shoots at an occupied vehicle. Accordingly, appellant would ha ve this Court find that every offense of unlawful shooting at an occupied vehicle constitutes an assault. Appellant misconstrues the intent element required to pr ove unlawful shooting, and we decline to import such a strained meaning to the plain language of the statute. “When interpreting a statute, courts ‘are re quired to ascertain and give effect to the intention of the legislature, which is usually self-evident from th e statutory language.’” Johnson

v. Commonwealth , 53 Va. App. 608, 612, 674 S.E.2d 541, 543 (2009) (quoting Va. Polytechnic

Inst. & State Univ. v. Interactive Return Serv. , 271 Va. 304, 309, 626 S.E.2d 436, 438 (2006)). A statute “should be read to give reasonable effect to the words used and to promote the ability of the enactment to remedy the misc hief at which it is directed.” Mayhew v. Commonwealth , 20 Va. App. 484, 489, 458 S.E.2d 305, 307 (1995). The Court will not read a specific intent

If any person commits a violation of this section by maliciously or unlawfully shooting, with a firearm, at a conspicuously marked law-enforcement, fire or rescue sq uad vehicle, ambulance or any other emergency medical vehicle, the sentence imposed shall include a mandatory minimum term of imprisonment of one year.- 6 - requirement into a statute unless the provisi on’s unambiguous language requires proof of a specific intent. Stuart v. Commonwealth , 11 Va. App. 216, 218, 397 S.E.2d 533, 537 (1990). The plain language of Code § 18.2-154 simply doe s not require the intent to inflict bodily injury on the part of the accused. While this Court has not outlined th e elements of unlawful shooting at an occupied vehicle, we prev iously held that Code § 18.2-279, which governs shooting at an occupied dwelli ng and contains substantially si milar language, is not a specific

intent crime. Fleming v. Commonwealth , 13 Va. App. 349, 354, 412 S.E.2d 180, 183 (1991). That section reads, in relevant part: If any person maliciously discharg es a firearm within any building when occupied by one or more persons in such a manner as to endanger the life or lives of such person or persons, or maliciously shoots at, or maliciously throws any missile at or against any dwelling house or other building when occupied by one or more persons, whereby the life or lives of any such person or persons may be put in peril, the person so offending is guilty of a Class 4 felony. . . . If any such act be done unlawfully, but not maliciously, the person so offending is guilty of a Class 6 felony; . . . . Code § 18.2-279. In Fleming , the Court held that [a] violation of the statute may be established upon proof that a person unlawfully discharged a firear m at or in the direction of an occupied dwelling if the person knew or should have known that the dwelling was in the line of fire, even if the person did not specifically intend to shoot at or into the dwelling. 13 Va. App. at 354, 412 S.E.2d at 183. The Court noted that the legisl ature revised Code § 18.2-279 to include the terms “at or against,” where the statute prev iously criminalized shooting “into” an occupied dwelling. Id. The Court further noted th at “[t]he word ‘at’ has a common and easily understood meaning and is defined as ‘a function word used to indicate . . .

that toward which an action . . . is directed.’” Id. at 355, 412 S.E.2d at 184 (quoting Webster’s Third New International Dictionary 136 (3d ed. 1981)). Concluding that “the offense as defined- 7 - by the statute is not a specifi c intent crime,” the Commonwea lth need only “prove beyond a reasonable doubt that the [accused] intended to sh oot at or toward an occupied dwelling.” Id. at 354-55, 412 S.E.2d at 183-84. We find the Court’s analysis of the stat ute governing unlawful s hooting at a building convincing in its application to our approach in this matter. Wh en the General Assembly enacted Title 18.2, revising Title 18.1, it created separate o ffenses for unlawful shooting at an occupied vehicle and unlawful shooting at an occupied dwelling. However, the language of the two

statutes remains almost identical. Like shoo ting at an occupied dwelling, Code § 18.2-154 no longer proscribes as criminal s hooting “into” an occupied vehicl e. Thus, we find no reason to interpret Code § 18.2-154 differen tly than we have interpreted Code § 18.2-279. Accordingly, in order to prove the offense of unlawful shooting at an occupied vehicle, the Commonwealth must prove beyond a reasonable doubt that the accused in tended to shoot at or toward an occupied vehicle, but not that he had any specific intent to cause bodily in jury or fear or apprehension to the person therein. Appellant argues that this intent is inhere nt, because in every circumstance where the accused shoots at or toward an occupied vehicle, he is either intending to injure the vehicle’s occupant or intending to cause that occupant fear or apprehension. But appellant ignores the well-settled rule that “in applying [the same-elements] test, the tw o offenses are to be examined in the abstract, rather than w ith reference to the facts of th e particular case under review.” Blythe , 222 Va. at 726, 284 S.E.2d at 798. We find nothing to support the proposition that , in a prosecution for unlawful shooting at an occupied vehicle under Code § 18.2-154, the Co mmonwealth must prove that a defendant intended to inflict bodily harm or place the victim in fear or apprehension of bodily harm. This “intent requirement” is an essential element require d to prove assault. Ac cordingly, assault is not- 8 - a lesser-included offense in unlawful shooting at an occupied vehicle, for assault requires proof of a fact that unlawful shooting does not. Thus , appellant’s conviction for unlawful shooting was not barred by double jeopardy.

Conclusion For these reasons, we find that the offense of unlawful shooting at an occupied vehicle, in violation of Code § 18.2-154, does not require proof of appellant’s specific intent. Assault, on the other hand, requires proof that ap pellant intended to inflict bodily harm or place the victim in fear or apprehension of bodily harm. Accordingly, prosecution for both crimes does not constitute double jeopardy. Thus , the trial court did not err in allowing the Commonwealth to proceed on the charge of unlawful shooting after conviction for assau lt, relating to the same facts

and circumstances.

Affirmed.