Do Multiple Shots Constitutes a Single Violation In Virginia ?
To determine whether the firing of the multiple shots constitutes a single violation or multiple violations of the two statutes in question, the Court must determine what punishment was intended and authorized by the legislature. Whalen v. United States, 445 U.S. 684, 688, 63 L. Ed. 2d 715, 100 S. Ct. 1432 (1980).
The question presented raises a matter of first impression in Virginia.
However, the Virginia Supreme Court and this Court have addressed analogous issues.
In Kelsoe v. Commonwealth, 226 Va. 197, 308 S.E.2d 104 (1983), the Supreme Court found that simultaneously pointing a gun at three people supported three convictions for brandishing a firearm because the defendant had induced fear in each of the individuals. Id. at 199, 308 S.E.2d at 104.
The focus was on the harm to another caused by the defendant's act.
The legislature intended to make each act of firing a weapon, in the manner proscribed and with the effect delineated under Code 18.2-154 and 18.2-286.1, a violation of criminal law.
As we noted in Shears v. Commonwealth, 23 Va. App. 394, 477 S.E.2d 309 (1996):
"When considering multiple punishments for a single transaction, the controlling factor is legislative intent." The legislature "may determine the appropriate 'unit of prosecution' and set the penalty for separate violations." Therefore although multiple offenses may be the "same," an accused may be subjected to legislatively "authorized cumulative punishments." It is judicial punishment in excess of legislative intent which offends the double jeopardy clause. Shears, 23 Va. App. at 400-01, 477 S.E.2d at 312. (holding that where drugs were found both on defendant's person and at his residence, defendant was properly convicted of two counts of possession of cocaine).