Danyel Brown, s/k/a Danyel Olandiz Brown v. CW

• Court: Court of Appeals of Virginia
• Decided: November 18, 1997
• Docket: 3084961
• Status: Unpublished

Opinion

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.

- 2 - 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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