Summary
upholding multiple brandishing convictions for defendant who pointed a gun at three men simultaneously, and holding "when the defendant frightened the three men by pointing his weapon, he committed three separate crimes"
Summary of this case from Johnson v. CommonwealthOpinion
44538 Record No. 821094.
October 15, 1983
Present: All the Justices.
Pointing a weapon at, and inducing fear in, three people constitutes three violations of Code Sec. 18.2-282; multiple punishments stemming from same transaction authorized by legislature not barred by double jeopardy prohibition.
(1) Criminal Law — Statutory Construction — Pointing or Brandishing Firearm, Etc. (Code Sec. 18.2-282) — Section Prohibits Pointing a Firearm at Another in Such a Manner as Reasonably to Induce Fear.
(2) Criminal Procedure — Statutory Construction — Pointing or Brandishing Firearm, Etc. (Code Sec. 18.2-282) — Legislative Intent Determines Whether Multiple Punishments May Be Imposed for a Single Transaction.
(3) Criminal Procedure — Statutory Construction — Pointing or Brandishing Firearm, Etc. (Code Sec. 18.2-282) — The General Assembly Enacted Code Sec. 18.2-282 to Proscribe Crimes Against the Person.
(4) Criminal Procedure — Statutory Construction — Pointing or Brandishing Firearm, Etc. (Code Sec. 18.2-282) — Frightening Three People by Pointing Gun at Them Constitutes Three Violations of Statute.
(5) Criminal Procedure — Multiple Punishments — Constitutional Law — Double Jeopardy — Imposition of Multiple Punishments Not Barred by Double Jeopardy Prohibition.
Defendant pointed a pistol at three men. The men, standing together a few feet from defendant, facing him, were frightened and backed away from defendant. The Trial Court convicted defendant of three violations of Code Sec. 18.2-282 by pointing or brandishing a firearm, and sentenced him to three prison terms. Defendant appeals. The issue is whether his conduct constitutes one or three violations of the statute.
1. Violation of Code Sec. 18.2-282 requires (a) pointing or brandishing a firearm, and (b) doing so in such a manner as reasonably to induce fear in the mind of a victim.
2. Legislative intent determines whether multiple punishments may be imposed for a single transaction.
3. The General Assembly enacted Code Sec. 18.2-282 to proscribe crimes against the person.
4. The gravamen of Code Sec. 18.2-282 is inducement of fear in another. Frightening three people by pointing a weapon at them constitutes three separate violations of the statute.
5. Authorized multiple punishments are not barred by the constitutional prohibition of double jeopardy.
Appeal from a judgment of the Circuit Court of the City of Richmond. Hon. Thomas N. Nance, judge presiding.
Affirmed.
Barry W. Norwood for appellant.
Vicki A. Leonhard, Assistant Attorney General (Gerald L. Baliles, Attorney General, on brief), for appellee.
In a bench trial, Robert Lee Kelsoe was convicted of three separate charges of brandishing and pointing a firearm in violation of Code Sec. 18.2-282, and sentenced to 60 days in jail on each. The sole issue on appeal is whether the defendant's conduct constituted one or three violations of the statute.
Kelsoe had an argument with three men. After they walked away from him, the defendant withdrew a pistol from his coat and pointed it at them. The men were standing together a few feet from Kelsoe, facing him. They were frightened and backed away from the defendant. Thereupon, Kelsoe replaced the pistol in his coat.
The defendant contends his act constituted but one offense, and the imposition of three punishments violates the constitutional prohibitions against double jeopardy. U.S.C.onst. amend. V; Va. Const. art. I, Sec. 8. We do not agree.
Code Sec. 18.2-282, in pertinent part, provides that "[i]t shall be unlawful for any person to point, or brandish any firearm . . . whether capable of being fired or not, in such manner as to reasonably induce fear in the mind of another." There are two elements of the offense: (1) pointing or brandishing a firearm, and (2) doing so in such a manner as to reasonably induce fear in the mind of a victim. The agreed facts establish that Kelsoe "pointed the pistol toward" the three men and that each was "afraid and backed away from the defendant."
[2-4] When considering multiple punishments for a single transaction, the controlling factor is legislative intent. Missouri v. Hunter, 459 U.S. 359 (1983); Cartwright v. Commonwealth, 223 Va. 368, 288 S.E.2d 491 (1982). In Code Sec. 18.2-282, the General Assembly clearly proscribed an offense against the person. The gravamen of the offense is the inducement of fear in another. We conclude, therefore, that when the defendant frightened the three men by pointing his weapon, he committed three separate crimes. Since the trial court was authorized to impose multiple punishments, the defendant's sentences were not barred by the double jeopardy clause. Cartwright, 223 Va. at 372, 288 S.E.2d at 493-94.
Accordingly, the judgment of the trial court will be affirmed.
Affirmed.