                                             COURT OF APPEALS OF VIRGINIA


              Present: Judges Kelsey, McCullough and Senior Judge Haley
UNPUBLISHED


              Argued at Salem, Virginia


              DAVID MICHAEL BOMBER
                                                                               MEMORANDUM OPINION * BY
              v.     Record No. 2451-11-3                                       JUDGE JAMES W. HALEY, JR.
                                                                                     MARCH 5, 2013
              COMMONWEALTH OF VIRGINIA


                                   FROM THE CIRCUIT COURT OF ROANOKE COUNTY
                                              Robert P. Doherty, Jr., Judge

                               Wayne D. Inge for appellant.

                               Victoria Johnson, Assistant Attorney General (Kenneth T.
                               Cuccinelli, II, Attorney General, on brief), for appellee.


                     In a single trial, a jury convicted David Michael Bomber of aggravated malicious wounding

              (Code § 18.2-51.2) and second-degree murder (Code § 18.2-32). The trial court imposed the jury’s

              recommended sentences on each conviction.

                     Bomber maintains the trial court erred in refusing to strike the second-degree murder

              indictment, or to merge the aggravated malicious wounding indictment into the second-degree

              murder indictment, and, further, erred in denying his motion to vacate the conviction for aggravated

              malicious wounding.

                     These assignments of error are premised upon Bomber’s contention that his conviction of

              and sentencing for both aggravated malicious wounding and second-degree murder in a single trial

              violate the Fifth Amendment prohibition against double jeopardy.

                     We affirm the trial court.


                     *
                         Pursuant to Code § 17.1-413, this opinion is not designated for publication.
        The relevant facts may be succinctly stated. On June 5, 2010, Bomber stabbed the victim.

On January 15, 2011, the victim died. Bomber does not challenge the sufficiency of the evidence

supporting either conviction, nor does he challenge the causal relation between the wounding and

the death.

        Bomber contends there was one criminal act of stabbing which resulted in multiple

punishments in violation of the Fifth Amendment protections against double jeopardy. The Fifth

Amendment guarantees that no person “shall . . . for the same offense . . . be twice put in jeopardy

of life or limb.” “The constitutional provision concerning double jeopardy embodies three

guarantees: ‘(1) “It protects against a second prosecution for the same offense after acquittal.

[(2)] It protects against a second prosecution for the same offense after conviction. [(3)] And it

protects against multiple punishments for the same offense.”’” Blythe v. Commonwealth, 222 Va.

722, 725, 284 S.E.2d 796, 797 (1981) (quoting Illinois v. Vitale, 447 U.S. 410, 415 (1980)).

Appellant’s argument encompasses the third protection, prohibiting multiple punishments for a

single offense in a single trial.

                In the single-trial setting, “the role of the constitutional guarantee
                is limited to assuring that the court does not exceed its legislative
                authorization by imposing multiple punishments for the same
                offense.” Brown v. Ohio, 432 U.S. 161, 165 (1977). And, “the
                question whether punishments imposed by a court after a
                defendant’s conviction upon criminal charges are
                unconstitutionally multiple cannot be resolved without determining
                what punishments the Legislative Branch has authorized.” Whalen
                v. United States, 445 U.S. 684, 688 (1980). . . .

                The question resolves itself, therefore, into one of legislative intent
                where the issue is whether “the Legislative Branch” has provided
                that two offenses may be punished cumulatively.

Id. at 725-26, 284 S.E.2d at 798. Appellate courts must “first consider whether ‘the legislative

intent is clear from the face of the statute or the legislative history . . . .’” Andrews v.

Commonwealth, 280 Va. 231, 284, 699 S.E.2d 237, 267 (2010) (quoting Garrett v. United States,

                                                  -2-
471 U.S. 773, 779 (1985)). In the absence of explicit or implicit statements of legislative intent,

reviewing courts must determine the legislative authorization by examining the relevant statutes.

               When “the same act or transaction constitutes a violation of two
               distinct statutory provisions, the test to be applied to determine
               whether there are two offenses or only one is whether each [offense
               charged] requires proof of an additional fact which the other does
               not.” Blockburger v. United States, 284 U.S. 299, 304 (1932).

Coleman v. Commonwealth, 261 Va. 196, 200, 539 S.E.2d 732, 734 (2001). “[I]n applying this

test, the two offenses are to be examined in the abstract, rather than with reference to the facts of

the particular case under review.” Blythe, 222 Va. at 726, 284 S.E.2d at 798.

       During oral argument before the panel, counsel for Bomber based his argument primarily

upon Andrews. We accordingly review that case.

       Andrews killed Romano A. Head and Robert I. Morrison on January 2, 2002, in an

apartment, at approximately the same time, during what is fairly characterized as the same act or

transaction. Prior to these murders, an individual named Clayton K. Breeden had been killed on

December 13, 2001. Andrews was indicted for the capital murder of all three. The indictments

for the murder of Head and Morrison charged a violation of subsection (7) of Code § 18.2-31,

“killing of more than one person as a part of the same act or transaction.” The indictments for

the murders of Head, Morrison, and Breeden charged a violation of subsection (8) of Code

§ 18.2-31, “killing of more than one person within a three-year period.” In a single trial, a jury

acquitted Andrews of the murder of Breeden, but convicted Andrews of the murders of Head and

Morrison under both subsections of Code § 18.2-31. Following the jury recommendation, the

trial court imposed four death sentences for the killing of Head and Morrison: two death

sentences under both subsections for both victims.




                                                -3-
        Andrews maintained that two of the death sentences violated the Double Jeopardy Clause

because both convictions were necessarily based upon the concurrent murders of Head and

Morrison. Thus, he argued, he had been subjected to multiple punishments for the same offense.

        The Commonwealth defended based upon a Blockburger analysis. However, the

Supreme Court noted that a condition precedent to application of that analysis is a determination

that the legislature, in enacting a statute or statutes, did, or did not, intend that each violation be a

separate offense. Andrews, 280 Va. at 284, 699 S.E.2d at 267. If that legislative intent cannot

be ascertained, Blockburger becomes the default analytical tool. Reviewing the legislative

history, the Supreme Court found that in enacting subsection (8) of Code § 18.2-31 “the General

Assembly could not have intended to create a separate offense of capital murder under which a

defendant could be punished for the same conduct for which he also could be punished under

Code § 18.2-31(7).” Id. at 287, 699 S.E.2d at 269. Thus, the Andrews Court concluded

Blockburger analysis was not appropriate. The Supreme Court held that while an individual

could be indicted and convicted under both subsections, the imposition of two death sentences

under both “violated the double jeopardy prohibition against multiple punishments for the same

offense.” Id. at 288, 699 S.E.2d at 269-70. Accordingly, upon remand, the Commonwealth was

required to elect which conviction it chose to pursue in a new penalty determination proceeding.

        On brief in the instant case, Bomber writes that there “is no explicit or implicit legislative

authorization for imposing multiple punishments for the same conduct in either . . . Code

§ 18.2-51.2 or . . . Code § 18.2-32.” Appellant’s Br. at 5, 8. We agree there is no explicit

legislative authorization. Likewise, however, there is no explicit or implicit legislative

prohibition on imposing multiple punishments in, or applicable to, either statute. They are

separate statutes, not subsections of the same statute as in Andrews, and they authorize different

degrees of punishment. We cannot ascertain the legislative intent as to the double jeopardy issue

                                                  -4-
before us by a plain reading of the statutes or by the legislative history. Therefore, we must

apply the Blockburger test and compare the elements of proof for each offense.

       Viewing the offenses in the abstract, second-degree murder and aggravated malicious

wounding have distinct elements of proof. Both offenses require proof of malice. However, the

two offenses have no other elements in common. Aggravated malicious wounding must be by

stabbing, cutting, shooting, or other wound or injury. Code § 18.2-51.2. A prosecution for

second-degree murder does not require proof of means. The murder may be accomplished

through any of the same methods as a malicious wounding, or others, such as poisoning,

strangulation, and starvation. Blythe, 222 Va. at 726, 284 S.E.2d at 798. Aggravated malicious

wounding requires proof of the “intent to maim, disfigure, disable or kill.” Code § 18.2-51.2

(emphasis added). Second-degree murder does not require proof of any specific intent. Tizon v.

Commonwealth, 60 Va. App. 1, 11, 723 S.E.2d 260, 265 (2012). Finally, aggravated malicious

wounding requires proof of “permanent and significant physical impairment,” Code § 18.2-51.2,

and second-degree murder requires proof of death. These elements for each offense are thus

distinct. Indeed, on brief, Bomber writes: “Obviously a person cannot be charged with some

degree of homicide until his victim dies.” Appellant’s Br. at 9.

       Bomber’s contention that the only difference for the prosecution of one crime over the

other being the passage of time, is a fact specific argument which is not relevant in a

Blockburger analysis. The two offenses require elements of proof that the other does not. Much

like in Blythe (multiple punishments intended with voluntary manslaughter and unlawful

wounding in the commission of a felony), the aggravated malicious wounding statute prohibits

certain methods of violence resulting in severe and permanent injury. The murder statute

punishes the taking of life without regard to the method. Aggravated malicious wounding

requires proof of a specific intent, whereas second-degree murder requires no specific intent.

                                                -5-
With different elements of proof, aggravated malicious wounding is not a lesser-included offense

of second-degree murder. Similarly, the Coleman Court determined malicious wounding was

not a lesser-included offense of attempted murder and the legislature intended multiple

punishments. Where there are distinct elements of proof, the facts of the particular case have no

bearing on the abstract analysis of the statutes.

       The offenses, having separate and distinct elements, allow for prosecution under both

statutes. Thus, we conclude the legislature authorized separate punishments for these acts.

Accordingly, we affirm Bomber’s convictions for both aggravated malicious wounding and

second-degree murder. 1

                                                                                          Affirmed.




       1
         During oral argument counsel for Bomber candidly and admirably acknowledged that a
Blockburger analysis would defeat his double jeopardy argument and for that reason primarily
based his argument upon Andrews.
                                             -6-
