Nathaniel Dennis v. Commonwealth of Virginia ( 1999 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Willis, Lemons and Frank
Argued at Norfolk, Virginia
NATHANIEL DENNIS
MEMORANDUM OPINION * BY
v. Record No. 1285-98-1 JUDGE JERE M. H. WILLIS, JR.
OCTOBER 19, 1999
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF NEWPORT NEWS
Randolph T. West, Judge
Oldric J. LaBell, Jr., for appellant.
Leah A. Darron, Assistant Attorney General
(Mark L. Earley, Attorney General, on brief),
for appellee.
On appeal from his convictions of aggravated malicious
wounding, in violation of Code § 18.2-51.2, and attempted
murder, in violation of Code §§ 18.2-26 and 18.2-32, Nathaniel
Dennis contends that his constitutional right against double
jeopardy was violated by multiple punishments for the same
conduct. Because this issue was not presented to the trial
court, we will not consider it on appeal. See Rule 5A:18. We
affirm the judgment of the trial court.
"On appeal, we review the evidence in the light most
favorable to the Commonwealth, granting to it all reasonable
* Pursuant to Code § 17.1-413, recodifying Code
§ 17-116.010, this opinion is not designated for publication.
inferences fairly deducible therefrom." Martin v. Commonwealth,
4 Va. App. 438, 443, 358 S.E.2d 415, 418 (1987).
Late in the evening on October 9, 1997, Lynwood Harrison
was working alone in his office at the Daily Press newspaper in
Newport News. Soon after midnight, Dennis approached Harrison
while brandishing a length of pipe. Dennis struck Harrison
about the head three or four times and threatened him with a
gun, saying, "If you resist any more, I will kill you."
Dennis then ordered Harrison to another location in the
plant. He forced Harrison to lie on the floor and began beating
him on the arms and legs with the pipe. He then warned Harrison
to "[s]tay here and you just might live through this." Dennis
left the room, but returned a few minutes later and asked
Harrison the location of a set of truck keys.
Dennis left the room and returned once more. He lifted
Harrison and placed him against a counter. Soon thereafter,
Harrison heard a door open and someone asked, "Is anyone here?"
The door then closed. Dennis then shot Harrison in the face
three times and left. The entire incident lasted approximately
fifteen minutes.
At the conclusion of the Commonwealth's evidence, Dennis
moved to strike the evidence on two grounds: (1) that the
evidence was insufficient to prove the permanent disability or
injury required for a conviction of aggravated maiming, and (2)
"I move to strike both charges or either, you know, either it's
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an aggravated injury or, you know, it's an aggravated maiming."
The trial court denied this motion, and Dennis presented
evidence.
At the conclusion of all the evidence, Dennis renewed his
motion to strike, saying:
Now, I want to just again renew my motion to
strike, Judge, on the Commonwealth not
bearing its burden on the aggravated
malicious wounding. I think I need to renew
that before the jury hears the arguments and
I would ask the Court to strike that part of
the indictment that deals with the
aggravated part of the malicious wounding.
The trial court denied this motion. By presenting evidence,
Dennis waived his initial motion to strike. "'It is well
settled . . . that when a defendant elects to present evidence
on his behalf, he waives the right to stand on his motion to
strike the evidence made at the conclusion of the Commonwealth's
case.'" Bagheri v. Commonwealth, 12 Va. App. 1071, 1074, 408
S.E.2d 259, 261-62 (1991) (citation omitted). Our consideration
on appeal is limited to the scope of Dennis' renewed motion to
strike.
Dennis contends on appeal that his convictions violate his
constitutional right against double jeopardy. His renewed
motion to strike cannot be read to embrace that issue or to
address it to the trial court. At no other point in the trial
proceeding did he address to the trial court a claim of a double
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jeopardy violation. Therefore, this issue is barred from our
consideration on appeal. See Rule 5A:18.
We find no basis to invoke the good cause exception to the
operation of Rule 5A:18. Whether multiple convictions and
punishments may be imposed in a single prosecution arising out
of a single incident is determined by the test set forth in
Blockburger v. United States, 284 U.S. 299 (1932).
To support a conviction for attempted murder, "the evidence
must establish . . . a specific intent to kill the
victim . . . ." Wynn v. Commonwealth, 5 Va. App. 283, 292, 362
S.E.2d 193, 198 (1987). Malicious wounding requires proof of no
such element. Malicious wounding requires evidence of an actual
physical injury. See Code § 18.2-51.2. Attempted murder
requires only "an ineffectual act done towards [the commission
of murder]." Bell v. Commonwealth, 11 Va. App. 530, 533, 399
S.E.2d 450, 452 (1991). Proof of attempted murder does not
require proof of an actual injury. Each crime contains an
element not contained by the other. Thus, under the Blockburger
test, neither aggravated malicious wounding nor attempted murder
is a lesser-included offense of the other.
The brutal beating and severe injuries inflicted on
Harrison by Dennis with the length of pipe support Dennis'
conviction for malicious maiming. The shots fired by Dennis
into Harrison's face, a discrete event, support Dennis'
conviction for attempted murder.
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The judgment of the trial court is affirmed.
Affirmed.
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