Danyel Brown, s/k/a Danyel Olandiz Brown v. CW ( 1997 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Bray and Senior Judge Hodges
Argued at Norfolk, Virginia
DANYEL BROWN, s/k/a
DANYEL OLANDIZ BROWN
MEMORANDUM OPINION * BY
v. Record No. 3084-96-1 JUDGE RICHARD S. BRAY
NOVEMBER 18, 1997
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF NEWPORT NEWS
Randolph T. West, Judge
David B. Olson (Saunders, Cope, Olson &
Yoffy, on brief), for appellant.
Thomas D. Bagwell, Senior Assistant Attorney
General (Richard Cullen, Attorney General, on
brief), for appellee.
Danyel Brown (defendant) was convicted in the trial court
for two distinct robberies, two attendant abductions, one
attendant carjacking, and five uses of a firearm in the
commission of the several felonies. Defendant appeals only the
firearm convictions, arguing that the predicate offenses together
comprised two criminal episodes, each of which supported only a
single firearm offense, and that the additional firearm
convictions constituted "multiple punishment for the same
offense" in violation of the prohibition against double jeopardy.
Finding no error, we affirm the convictions.
The parties are fully conversant with the record, and this
memorandum opinion recites only those facts essential to a
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
disposition of the appeal.
No material facts are in dispute. On the evening of
December 2, 1995, cab driver Louis Narrow "picked up" defendant
and two other youths in the City of Newport News. En route to
their destination, one of the three placed a gun to Narrow's head
and directed him to stop the vehicle. The perpetrators then
robbed Narrow of approximately $139, ordered him from the car,
and fled with the vehicle. As a result, defendant was indicted
and convicted of robbery, abduction, carjacking, and three uses
of a firearm in the commission of the felonies in violation of
Code § 18.2-53.1.
On December 8, 1995, Robert Williams, Jr., also a cab
driver, picked up defendant and another youth and drove them to
the Denbigh Square Apartments in the City of Newport News. Upon
arrival, defendant pressed a "handgun" against Williams' right
temple and robbed him of approximately $20. Defendant then
demanded that Williams drive a short distance and stop once
again, when defendant took the vehicle keys and ran away. 1
Defendant was subsequently indicted and convicted of robbery,
abduction and the attendant two uses of a firearm.
Code § 18.2-53.1 provides, in pertinent part,
It shall be unlawful for any person to use
any . . . firearm . . . while committing
. . . robbery, carjacking, . . . or
abduction. Violation of this section shall
constitute a separate and distinct
1
Williams' cellular phone was also stolen during the
robbery.
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felony . . . . Such punishment shall be
separate and apart from . . . any punishment
received for the commission of the primary
felony.
Defendant argues that each of the two criminal events,
although comprised of several felonies, was continuous in nature,
involving only a single victim and a single "criminal intent."
He, therefore, reasons that punishment for successive and
distinct firearm offenses arising from each component felony
amounts to multiple punishments for the same offense. We find no
merit in defendant's argument.
In Flythe v. Commonwealth, the Supreme Court concluded that
"[Code § 18.2-53.1] addresses itself not to the act or the
incident, but to the offenses committed with a firearm . . . .
It is the identity of the offense and not of the act which is
dispositive." 221 Va. 832, 835, 275 S.E.2d 582, 584 (1981); see
also Morris v. Commonwealth, 228 Va. 206, 212, 321 S.E.2d 633,
636 (1984) (multiple felonies and corresponding firearm offenses
may result from a single act); Sullivan v. Commonwealth, 16 Va.
App. 844, 847-48, 433 S.E.2d 508, 510 (1993) (contemporaneous
robbery of two persons with one firearm constituted two robberies
and two dependent firearm offenses).
Accordingly, each of the several predicate felonies
committed by defendant while using a firearm constituted a
separate violation of Code § 18.2-53.1, and we affirm the
convictions.
Affirmed.
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