                                             COURT OF APPEALS OF VIRGINIA


              Present: Chief Judge Decker, Judges Petty and Huff
              Argued at Richmond, Virginia
UNPUBLISHED




              GARY NATHANIEL BLOWE, JR.
                                                                            MEMORANDUM OPINION* BY
              v.     Record No. 1189-18-2                                      JUDGE GLEN A. HUFF
                                                                                 OCTOBER 8, 2019
              COMMONWEALTH OF VIRGINIA


                                  FROM THE CIRCUIT COURT OF FLUVANNA COUNTY
                                         Humes J. Franklin, Jr., Judge Designate

                               Matthew L. Engle (Donovan & Engle, PLLC, on briefs), for
                               appellant.

                               Craig W. Stallard, Assistant Attorney General (Mark R. Herring,
                               Attorney General, on brief), for appellee.


                     Gary Nathaniel Blowe, Jr. (“appellant”) appeals his convictions that arose out of his

              attempt to steal firearms and the gun battle that erupted when the occupants of the property

              returned while appellant and his accomplices were still there. After a jury trial, appellant was

              convicted of aggravated malicious wounding, conspiracy to commit grand larceny of a firearm,

              two counts of attempted malicious wounding, and three counts of use of a firearm in the

              commission of a felony. The trial court imposed the jury’s sentence of forty-two years’

              imprisonment.1




                     *
                         Pursuant to Code § 17.1-413, this opinion is not designated for publication.
                     1
                       A charge of possession of a firearm by a felon was tried by the trial court on the same
              evidence as was presented to the jury. The trial court separately sentenced appellant to five
              years’ imprisonment with all five years suspended on that charge. Appellant does not challenge
              that conviction in this appeal.
       Appellant raises four assignments of error. First, he contends that the Double Jeopardy

Clause prohibits one of his convictions for use of a firearm in the commission of a felony

because he was convicted for two counts based on only one underlying felony. Second, he

similarly contends the Double Jeopardy Clause bars one of his convictions for attempted

malicious wounding because both charges were for the attempted malicious wounding of the

same person arising from the same gun battle, constituting a single incident and supporting only

a single conviction. Third, he claims the evidence was insufficient to support his conviction for

aggravated malicious wounding because the Commonwealth failed to establish that the “foot

drop” suffered by the victim as a result of being shot was a “significant physical impairment.”

Finally, he contends that the trial court erred in overruling his Batson objection to the

prosecution’s use of a peremptory challenge to remove one of only two African-American jurors

from the jury.

       Appellant, however, has failed to preserve his double jeopardy claim regarding the use of

a firearm charge. He also has failed to preserve his Batson claim. For his other double jeopardy

claim, the victim was shot at during several separate and discrete parts of the gun battle which is

sufficient to constitute separate attempted malicious wounding offenses. Finally, for the

remaining assignment of error, the “foot drop” suffered by the victim, which impedes the

victim’s ability to walk and requires his wearing an orthotic boot, is a “significant physical

impairment,” and the evidence is sufficient to support appellant’s convictions. Therefore, this

Court affirms the trial court.

                                        I. BACKGROUND

       “This Court considers ‘the evidence presented at trial in the light most favorable to the

Commonwealth, the prevailing party below.’” Hawkins v. Commonwealth, 64 Va. App. 650,




                                                -2-
652 (2015) (quoting Bolden v. Commonwealth, 275 Va. 144, 148 (2008)). So viewed the

evidence is as follows:

       Appellant, Dante Givens, Thomas Jackson, and John Abbitt conspired to steal guns from

the apartment over a garage shop owned by Garnette Bourne. Givens waited nearby while the

other three entered the shop because Bourne knew him, and he did not want to be identified.

When they arrived, the shop was vacant. The three men went upstairs to the apartment with a

sledgehammer to break into the safe where the guns were stored. They discovered the safe was

already open and the guns were gone.

       Appellant then headed back downstairs through the shop. Bourne returned to the shop as

appellant was coming down the stairs. As soon as Bourne saw appellant, appellant began

shooting at Bourne. Bourne was shot in the side of his knee while trying to find cover.

Appellant continued to shoot at Bourne as Bourne was crawling on the floor to avoid the gun

fire. The other co-conspirators in the apartment then smashed a window and leapt out of the

apartment.

       Within a few moments, while shots were still being fired, Bourne’s brother, Scott

Bourne,2 and friend, Jack Gillespie, arrived. Scott entered the garage and took cover on the

floor. Gillespie got off his four-wheeler and went to the side of the building to confront an

individual who was shooting at him. After Gillespie returned fire with a few shots, the

individual fled, and Gillespie came back and entered the shop. Gillespie observed appellant

retreat behind a door into the stairway. While Gillespie took cover, he heard shots being fired

through the wall into the shop.

       Soon Gillespie heard someone shooting into the shop from outside. Bourne was struck in

the leg a second time. Gillespie turned to see who was shooting, and the shooter retreated when


       2
           To avoid confusion, the remainder of this opinion will refer to him as “Scott.”
                                                -3-
he saw Gillespie’s gun. After about a minute, more shots were fired from outside. Gillespie then

observed appellant in a sport utility vehicle driving away while shooting out the window at

Gillespie and the shop.

       Scott then retrieved a firearm and saw Abbitt outside the shop. The two exchanged

gunfire until Scott ran out of ammunition and Abbitt fled into the woods.

       After amendment of the original indictments, appellant was tried by a jury for:

aggravated malicious wounding of Bourne; conspiracy to commit grand larceny of a firearm; two

counts of attempted malicious wounding of Jack Gillespie; and three counts of use of a firearm in

the commission of a felony.3

       During jury selection, the Commonwealth used a peremptory challenge to strike one of

the only two remaining African-American prospective jurors. Off the record and before the jury

was sworn, appellant raised a Batson challenge to the Commonwealth’s use of the peremptory

challenge of the African-American prospective juror. After the jury was sworn, the parties

memorialized appellant’s objection on the record. Appellant argued only that the

Commonwealth had struck an African-American prospective juror when there were few in the

venire and only two left at that time. The Commonwealth responded that “when the Court asked

the question about truthfulness and law enforcement, she rolled her eyes and visibly made a

change in appearance in an almost sneering way.” Appellant made no further argument, and the

trial court noted it denied the motion.

       At appellant’s trial, Bourne testified that he still had problems with his foot. He testified

that his foot “just swings down. If I don’t keep a good high-top boot on and I go out and a




       3
         The predicate offense for one of the counts was a malicious wounding, the predicate
offenses of the other two counts were aggravated malicious wounding.
                                               -4-
pebble gets under my foot, I’ll twist my ankle. It will just flop over sideways.” He testified this

happens to him several times a day.

       Both Dr. James Calland, the trauma surgeon who saw Bourne on the day of shooting, and

Dr. Randall Bashore, Bourne’s regular physician, testified. Dr. Calland described Bourne’s

injury on the day of the shooting. Bourne had two gunshot wounds on his left leg below the

knee. He did not have any significant damage to the bones in his leg, but he had “foot drop”

from a damaged nerve. Dr. Bashore confirmed that Bourne’s foot drop had not improved in the

year since the shooting and was unlikely to ever heal.

       When an individual has foot drop, the muscles in the leg cannot pull up the front of the

foot, so the individual will constantly catch their toes when walking. Such an individual requires

an orthotic brace or boot to walk normally without tripping. Dr. Calland testified that Bourne

was fitted with a brace before he left the hospital. Dr. Bashore testified that Bourne continued to

need the orthotic, having just prescribed a new orthotic to replace a boot Bourne had worn for

several months.

       Appellant presented no evidence, but at the close of the Commonwealth’s case, he moved

to strike the evidence. Relevant to this appeal, he argued three things. First, he argued that

Bourne’s injury was not a “significant physical impairment.” Second, he argued that one of the

“use of a firearm” charges should be stricken, saying:

               There’s also two uses of a firearm charges to commit aggravated
               malicious wounding; of course, my motion to strike on the
               underlying felony would cover those anyway, but I think even if
               the Court overruled my motion, there should only be one of those
               use of a firearm to commit aggravated malicious wounding.

Third, he argued one of the attempted malicious wounding charges should be stricken, stating:

               It appears to me that there’s two attempted malicious wounding
               charges on Mr. Gillespie, and even if the Court feels that the
               Commonwealth has met its burden as it pertains to those two cases,


                                                -5-
               I would ask that the Court consider finding those duplicitous; in
               other words, they’re charging the same thing twice.

       The trial court denied the motion to strike. The jury convicted appellant on all the

charges and recommended a total sentence of forty-two years’ imprisonment. The trial court

imposed the jury’s recommended sentence. This appeal followed.

                                 II. PROCEDURAL DEFAULTS

       Rule 5A:18 provides that “No ruling of the trial court . . . will be considered as a basis for

reversal unless an objection was stated with reasonable certainty at the time of the ruling, except

for good cause shown or . . . to attain the ends of justice.” “Rule 5A:18 applies to bar even

constitutional claims.” Ohree v. Commonwealth, 26 Va. App. 299, 308 (1998). In order to

preserve an issue for appeal, “an objection must be timely made and the grounds stated with

specificity.” McDuffie v. Commonwealth, 49 Va. App. 170, 177 (2006) (quoting Marlowe v.

Commonwealth, 2 Va. App. 619, 621 (1986)). “Not just any objection will do. It must be both

specific and timely—so that the trial judge would know the particular point being made in time to

do something about it.” Bass v. Commonwealth, 70 Va. App. 522, 538 (2019) (quoting Roadcap

v. Commonwealth, 50 Va. App. 732, 741 (2007)). “Making one specific argument on an issue

does not preserve a separate legal point on the same issue for review.” Edwards v.

Commonwealth, 41 Va. App. 752, 760 (2003) (en banc). “The purposes of Rule 5A:18 are to

allow the trial court the opportunity to ‘take appropriate action to correct the error’ and to

‘“avoid unnecessary appeals by affording the trial judge an opportunity to rule intelligently on

objections.”’” Bethea v. Commonwealth, 68 Va. App. 487, 498 (2018) (quoting Maxwell v.

Commonwealth, 287 Va. 258, 264-65, 267 (2014)).

                           A. Use of a Firearm Double Jeopardy Claim

       Appellant claims that his conviction for two counts of use of a firearm in the commission

of a felony violates the Double Jeopardy Clause because they are both predicated on the same
                                                 -6-
underlying felony, the aggravated malicious wounding of Bourne. He claims that, at most,

Bourne suffered one significant and permanent injury, and therefore there could only be one

aggravated malicious wounding. Although appellant moved to strike one of the two use of a

firearm counts, this Court concludes that he failed to preserve his double jeopardy claim.

       His argument to the trial court was as follows:

               There’s also two uses of a firearm charges to commit aggravated
               malicious wounding; of course, my motion to strike on the
               underlying felony would cover those anyway, but I think even if
               the Court overruled my motion, there should only be one of those
               use of a firearm to commit aggravated malicious wounding.

Appellant never explained why he thought there should be only a single charge. He did not

mention double jeopardy or explain that he believed there was only a single predicate offense.

Even assuming that the trial court had been alerted to a potential double jeopardy issue by

counsel’s saying “there should only be one” of the charges, appellant never explained he was

arguing that there was only one significant physical injury to support a single aggravated

malicious wounding predicate offence.4 Bourne had been shot twice, and appellant did not




       4
          Even in his initial brief to this Court, appellant merely asserted “there was a single
aggravated malicious wounding,” therefore “there can only be one use of a firearm conviction in
the commission of that offense.” He did not explain he was contending there was only a single
aggravated malicious wounding because there was only one “permanent and significant injury”
until his reply brief. Until the clarification, appellant appeared to be arguing that he could not be
convicted on two counts of use of a firearm in the commission of an aggravated malicious
wounding because he was only charged with and convicted of one count of aggravated malicious
wounding.
        Although such an argument has been soundly rejected by this Court, Davis v.
Commonwealth, 4 Va. App. 27, 30 (1987) (“There is no language in the statute which suggests
that the legislature intended that an accused must be charged and prosecuted for the underlying
felony.”), without his further explanation in the reply brief, that argument is all he appeared to
have made, either in this Court or at the trial court. Therefore, he has failed to preserve the
argument there was only one “permanent and significant injury.” Edwards, 41 Va. App. at 760
(“Making one specific argument on an issue does not preserve a separate legal point on the same
issue for review.”).
                                                   -7-
explain why the two shots, collectively resulting in the permanent foot drop condition, would not

support two aggravated malicious wounding offenses and thus two use of a firearm charges.

       Without timely clarification, the issue now raised could not have been effectively

addressed by the trial court. By failing to raise his argument with more specificity, appellant

deprived the Commonwealth and the trial court of the opportunity to address the issue. Cox v.

Commonwealth, 65 Va. App. 506, 515 (2015) (“[A] specific, contemporaneous objection gives

the opposing party the opportunity to meet the objection at that stage of the proceeding.”

(quoting Weidman v. Babcock, 241 Va. 40, 44 (1991))).

       Therefore, appellant did not sufficiently alert the trial court to the argument he makes on

appeal and this Court will not consider it.

                                       B. Batson Challenge

       Appellant argues the trial court erred by denying his Batson challenge. Under Batson v.

Kentucky, 476 U.S. 79 (1986), and its progeny, the prosecutor may not discriminate on the basis

of race in the use of peremptory challenges. To succeed on a Batson challenge in this context,

the defendant must make out a prima facie case that the prosecutor has improperly used race as

the reason for its strike of the prospective juror. Hopkins v. Commonwealth, 53 Va. App. 394,

398 (2009). “Once a prima facie case is made, the Commonwealth bears the burden of

producing a race-neutral explanation for striking the potential juror.” Id. “The defendant can

then argue the Commonwealth’s explanation is purely a pretext for unconstitutional

discrimination.” Id. The defendant retains, however, the burden of persuasion for establishing

the Commonwealth discriminated in the use of its strike throughout the whole test. Id. Where,

as here, the trial court requests the Commonwealth respond to the defendant’s claim, and the

Commonwealth does so, this Court assumes, without deciding, that the defendant established a

prima facie case.

                                               -8-
       Appellant claims that the trial court erred because it did not rule on the plausibility of the

Commonwealth’s race-neutral explanation. The Commonwealth explained to the trial court that

it struck the juror because she “rolled her eyes and visibly made a change in appearance in an

almost sneering way” when the trial court “asked the question about truthfulness and law

enforcement.” Appellant argues that the Commonwealth’s reason for striking the juror was not

plausible because the court did not ask such a question, although the defendant did ask

something similar. In essence, he argues that the trial court did not rule on whether the

Commonwealth’s reason was pretextual.

       Appellant, however, never presented this argument to the trial court. After the

Commonwealth provided its reason, appellant offered no argument to rebut the Commonwealth’s

race-neutral reason for exercising its strike. If appellant had argued before the trial court with

the same argument that he makes here, the trial court could have addressed who asked what and

whether the error was significant.

       Only the trial court had the ability to determine whether the Commonwealth’s

explanation of the prospective juror’s body language was pretextual. Moreover, the discrepancy

between the Commonwealth’s explanation at trial and the record of who asked what question

does not necessarily mean the Commonwealth’s explanation was pretextual. Bethea v.

Commonwealth, ___ Va. ____, _____ (Aug. 28, 2019) (“[A] mere mistake, in and of itself, is not

a pretext. . . . ‘Batson and its progeny direct trial judges to assess the honesty—not the

accuracy—of a proffered race-neutral explanation.’ A Batson challenge based upon the ‘factual

accuracy’ of the race-neutral explanation ‘aims at the wrong target.’ The right target is the

‘credibility of the prosecutor’s explanation’ because that credibility determination ‘goes to the

heart of the equal protection analysis.’” (footnote omitted) (quoting Lamon v. Boatwright, 467

F.3d 1097, 1101 (7th Cir. 2006), and Miller-El v. Cockrell, 537 U.S. 322, 340 (2003))).

                                                -9-
       The trial court was in the best position to determine whether the flaws in the

Commonwealth’s reason were significant or the type of mistake that is understandable and easily

made when trying to remember all the details of voir dire. Id. at _____ (“[T]he judicial

‘evaluation of the prosecutor’s state of mind based on demeanor and credibility lies “peculiarly

within a trial judge’s province.”’” (quoting Hernandez v. New York, 500 U.S. 352, 365 (1991))).

By failing to argue the Commonwealth’s reasons were pretextual, appellant deprived the trial

court of the ability to address the sincerity of the Commonwealth’s race-neutral reason.

Therefore, under Rule 5A:18 appellant waived his Batson argument, and this Court will not

consider it. See Martinez v. Commonwealth, 42 Va. App. 9, 20-21 (2003) (holding that the

defendant waived a Batson challenge for failing to argue the Commonwealth’s explanation for

the strike was pretexual).

                                    C. Miscarriage of Justice

       Appellant argues this Court should utilize the ends of justice exception to Rule 5A:18.

“The ends of justice exception to Rule 5A:18 is narrow and is to be used sparingly.” Copeland v.

Commonwealth, 42 Va. App. 424, 442 (2004).

               To invoke the ends of justice exception to Rule 5A:18, the record
               must “affirmatively show[ ] that a miscarriage of justice has
               occurred, not . . . merely . . . that a miscarriage might have
               occurred.” To satisfy this burden, an appellant must show “more
               than that the Commonwealth failed to prove an element of the
               offense . . . . The appellant must demonstrate that he or she was
               convicted for conduct that was not a criminal offense[,] or the
               record must affirmatively prove that an element of the offense did
               not occur.”

Moore v. Commonwealth, 59 Va. App. 795, 814 (2012) (quoting Marshall v. Commonwealth, 26

Va. App. 627, 636-37 (1998)).

       Appellant argues he received a significantly longer sentence than his co-conspirators who

accepted a plea bargain and testified against him. He alleges that this difference amounts to a


                                              - 10 -
miscarriage of justice. However, he does not argue the evidence proves an element of the crime

did not occur. He also does not explain how the conduct for which he was convicted was not a

crime. Alleged unfairness in sentencing is not a reason to invoke the ends of justice exception to

Rule 5A:18. Appellant failed to preserve two of his assignments of error, and this Court will not

consider them.

                                         III. ANALYSIS

       Appellant has two remaining assignments of error. First, he claims one of his convictions

for the attempted malicious wounding of Jack Gillespie violates the Double Jeopardy Clause.

Second, he contends the evidence was insufficient to sustain his conviction for aggravated

malicious wounding, because the victim’s injury did not result in a “severe and permanent

physical impairment.”

                   A. Attempted Malicious Wounding Double Jeopardy Claim

                                       1. Standard of review

       “We review de novo claims that multiple punishments have been imposed for the same

offense in violation of the double jeopardy clause.” Lawlor v. Commonwealth, 285 Va. 187, 227

(2013). Nevertheless, “determination of whether acts constitute a single continuing offense or

separate offenses is a factual finding that we will not reverse unless it is plainly wrong or without

evidence to support it.” Jin v. Commonwealth, 67 Va. App. 294, 304-05 (2017).

                                            2. Analysis

       Appellant contends that one of his attempted malicious wounding convictions violates the

Double Jeopardy Clause because he only participated in one attempted malicious wounding of

Gillespie. Appellant contends that he is being punished twice for a single offense because

appellant only shot at Gillespie as appellant was driving away. Moreover, he argues that even if

a concert of action theory makes him responsible for his accomplices’ actions, the entire gun

                                               - 11 -
battle was a single course of conduct that can only support a single attempted malicious

wounding. The Commonwealth argues that appellant is responsible for his accomplices’ actions

under a concert of action theory. It further argues that the shots fired at Gillespie as he arrived

and the shots fired as appellant drove off constituted separate acts of attempted malicious

wounding supporting separate convictions.5 This Court agrees with the Commonwealth.

       “The Double Jeopardy Clause of the United States Constitution provides that no person

shall ‘be subject for the same offence to be twice put in jeopardy of life or limb.’” Johnson v.

Commonwealth, 292 Va. 738, 741 (2016) (quoting U.S. Const. amend. V.). “The Double

Jeopardy Clauses of the United States and Virginia Constitutions protect against multiple

punishments for the same offense.” Roach v. Commonwealth, 51 Va. App. 741, 748 (2008).

“Subjecting an accused to multiple punishments for the same offense violates both state and

federal constitutional protections against double jeopardy.” Id. Nevertheless, “[t]he Double

Jeopardy Clause is not abridged if an accused is subjected to punishment for two offenses that

are supported by separate and distinct acts.” Id.

       Thus, whether appellant was permissibly convicted of two attempted malicious wounding

offenses turns on whether the entire gun battle was one single continuous attempt to maliciously

wound Gillespie, or if there were separate and distinct acts within the battle that constitute

multiple attempts. “A continuing offense is a continuous, unlawful act or series of acts set on

foot by a single impulse and operated by an unintermittent force, however long a time it may

occupy.” Hodnett v. Commonwealth, 56 Va. App. 234, 237 (2010) (quoting Thomas v.



       5
         The Commonwealth also argues that each pull of the trigger represents a separate
attempted malicious wounding. Because this Court concludes that the shooting as Gillespie
arrived and the shooting as appellant drove off were separate acts supporting separate
convictions under the unique circumstances of this case, this Court need not resolve whether, in
every circumstance, each pull of the trigger is individually a separate act of attempted malicious
wounding.
                                                - 12 -
Commonwealth, 38 Va. App. 319, 324-25 (2002)). “In determining whether the conduct

underlying the convictions is based upon the ‘same act,’ the particular criminal transaction must

be examined to determine whether the acts are the same in terms of time, situs, victim, and the

nature of the act itself.” Jin, 67 Va. App. at 303-04 (quoting Hall v. Commonwealth, 14

Va. App. 892, 898 (1992)).

       For example, in Jin, this Court affirmed two attempted murder convictions. Id. at 307. In

Jin, the defendant attempted to run over his wife with his car and failed only because her brother

pulled her out of the way. After she had returned inside—but only a few minutes later—he

struck his wife with a hammer multiple times. She only survived because bystanders restrained

the defendant. Nothing indicated that the defendant gave up on trying to kill his wife between

the two attempts on her life. The defendant only took the time necessary to get a new tool before

attacking again. Nevertheless, this Court concluded “the hammer attack ‘involved a new

formation and execution of purpose’” which supported a second attempted murder conviction.

Id. (quoting Hodnett v. Commonwealth, 56 Va. App. 234, 238 (2010)).

       Similarly, in Hodnett, this Court held that when an inmate threw a cup filled with the

contents from a toilet on a guard, immediately refilled the cup, and threw it on the guard again,

the evidence supported two convictions for assault and battery on a law enforcement officer. 56

Va. App. at 237-38. This Court reasoned that the first assault was complete when the contents of

the cup struck the guard so that when the inmate refilled the cup he began a whole new act.




                                               - 13 -
       Here, one of appellant’s accomplices6 shot at Gillespie when Gillespie arrived.7 Gillespie

confronted that accomplice and that accomplice retreated, ending that attempt to maliciously

wound Gillespie. Like in Hodnett and in Jin, there was a definitive end to one attack on

Gillespie. Gillespie was able to move from outside the garage to obtain cover inside the garage.

He was then shot at in the garage.8 Appellant then retreated through the apartment, apparently

out the same window his accomplices had earlier used, and went to his getaway vehicle. As he

was driving away, he shot back at Gillespie. This was a new attack, separated in time and

location, with a distinct break in the action, from the first attack on Gillespie.



       6
         Appellant objects that the Commonwealth’s story of who shot at Gillespie has changed
repeatedly before this Court. Nevertheless, the identity of who shot at Gillespie is irrelevant.
Appellant’s guilt is the same whether he shot at Gillespie when Gillespie arrived or if one of his
accomplices did. See Spradlin v. Commonwealth, 195 Va. 523, 528 (1954) (“If there is concert
of action with the resulting crime one of its incidental probable consequences, then whether such
crime was originally contemplated or not, all who participate in any way in bringing it about are
equally answerable and bound by the acts of every other person connected with the
consummation of such resulting crime.”).
       7
          The jury was instructed on concert of action, allowing appellant to be held responsible
for the actions of his accomplices. At oral argument, appellant argued that a concert of action
theory cannot apply to support appellant’s conviction. He argued that no case law permits an
individual to be convicted as both the actor and under a concert of action theory. Appellant is
correct that the Double Jeopardy Clause would forbid convicting someone both as the actor and
under a concert of action theory for the same act. Here, however, there are separate acts.
Appellant was directly responsible as the actor for an attempted malicious wounding of Gillespie
because appellant shot at Gillespie while appellant was driving away. Appellant was responsible
for a separate attempted malicious wounding of Gillespie under a concert of action theory
because one of his accomplices shot at Gillespie when Gillespie first arrived.
       8
          Although the Commonwealth does not assert it, these shots at Gillespie also might
constitute a third separate attempt to maliciously would Gillespie. Gillespie testified appellant
“was shooting back through the walls back into the shop where I was at.” The shots through the
wall in the garage were separated from the first attack by the first shooter’s retreat and Gillspie’s
movement to the garage. They were similarly separated from appellant’s final shots at Gillespie
as appellant was driving away. After shooting at Gillespie through the apartment walls,
appellant went to the second floor, exited through the window, and got into his getaway vehicle.
As appellant was driving away, he fired back towards the garage at Gillespie. In the light most
favorable to the Commonwealth, this is sufficient to find the acts were “separate and distinct”
and able to support multiple attempted malicious wounding convictions.
                                               - 14 -
       Appellant argues that because intent is an element of attempted malicious wounding, a

single continuous intent to wound Gillespie throughout the battle prevents conviction for two

counts of attempted malicious wounding. In Jin, however, there was no indication the defendant

gave up on his intent to murder his wife. Rather, after the thwarted first attack failed, he almost

immediately set out to attack again. Similarly, although appellant and his accomplices may have

had a singular intent to maliciously wound Gillespie, they attacked Gillespie, retreated, and then

attacked again. This was a new “execution of purpose.” Appellant should “not be rewarded

where, instead of taking advantage of an opportunity to walk away from the victim, he

voluntarily resumed his . . . assaultive behavior.” Jin, 67 Va. App. at 307 (quoting Carter v.

Commonwealth, 16 Va. App. 118, 129 (1993)). Thus, the evidence supports the trial court’s

conclusion that there were two attacks on Gillespie. This Court affirms.

           B. Sufficient Evidence of a Significant and Permanent Physical Impairment

       In his remaining assignment of error, appellant claims that the evidence was insufficient

to support his conviction for aggravated malicious wounding. This Court concludes, however,

that the victim’s “foot drop” is a “permanent and significant physical impairment.” Thus, the

evidence is sufficient to support his conviction.

                                       1. Standard of review

       “When the sufficiency of the evidence is challenged on appeal, ‘“we presume the

judgment of the trial court to be correct” and reverse only if the trial court’s decision is “plainly

wrong or without evidence to support it.”’” Stevens v. Commonwealth, 46 Va. App. 234, 248

(2005) (quoting Kelly v. Commonwealth, 41 Va. App. 250, 257 (2003) (en banc)), aff’d, 272 Va.

481 (2006). This Court “determine[s] whether the evidence, viewed in the light most favorable

to the prevailing party, and the reasonable inferences fairly deducible from that evidence support

each and every element of the charged offense.” Cottee v. Commonwealth, 31 Va. App. 546,

                                                - 15 -
554-55 (2000). This Court “must discard the evidence of the accused in conflict with that of the

Commonwealth, and regard as true all the credible evidence favorable to the Commonwealth and

all fair inferences that may be drawn therefrom.” Id. at 555 (quoting Watkins v. Commonwealth,

26 Va. App. 335, 349 (1998)).

                                            2. Analysis

       Appellant contends that the evidence is insufficient to sustain his conviction for

aggravated malicious wounding because the victim’s injury did not result in a “permanent and

significant physical impairment.” He argues that the victim only suffered two gunshots and the

resulting “foot drop.” The victim’s doctors did not testify that the “foot drop” the victim

suffered was a “significant injury.” He argues that, although the victim must use a foot brace for

walking properly, his injury is not significant within the meaning of the Code. Appellant

concedes that the victim’s injury is permanent.

       To sustain a conviction for aggravated malicious wounding, the Commonwealth must

establish that the victim suffered a “permanent and significant physical impairment.” Code

§ 18.2-51.2. A physical impairment is “any physical condition, anatomic loss, or cosmetic

disfigurement which is caused by bodily injury.” Newton v. Commonwealth, 21 Va. App. 86, 90

(1995) (borrowing language from former Code § 51.5-3).

       This Court has considered several cases addressing the question of what constitutes a

significant physical impairment. For example, in Newton this Court affirmed the trial court’s

conclusion that the victim’s cosmetic disfigurement, significant facial scaring from wounds that

required ten to twenty stitches, was a significant physical impairment. Id. at 90-91. In Martinez

v. Commonwealth, 42 Va. App. 9, 24-25 (2003), this Court concluded the victim suffered a

“permanent and significant physical impairment” when the victim was shot in the shoulder. At

the trial, two years later, the victim did not have full use of her arm and hand. “[S]he did not

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have a ‘real good grip’ because her index finger and thumb ‘don’t work right.’” Id. at 25. She

had trouble buttoning her clothes, handling money, or doing anything tedious with her hand. Id.

This Court held that the evidence supported a conclusion she suffered a “permanent and

significant physical impairment.” Id.

       Here, the victim’s injury caused a “significant physical impairment.” Like in Martinez,

the victim’s injury limits his ability to perform activity that he must undertake every day. The

two gunshots to the victim’s leg damaged a nerve that has caused “foot drop.” He cannot raise

his foot normally when walking. He must wear an orthotic boot while walking to prevent his

toes from “always catching onto everything” causing him to trip. Moreover, if the cosmetic

disfigurement in Newton is a “significant physical impairment,” an injury that does more than

disfigure but actually impedes daily living—requiring an orthotic boot to walk without catching

his toes and tripping—is likewise significant. The evidence supports the trial court’s decision

rejecting appellant’s motion to strike, and this Court affirms.

                                        IV. CONCLUSION

       Appellant failed to present one of his Double Jeopardy Clause arguments and his Batson

argument to the trial court. Therefore, they are waived under Rule 5A:18, and this Court will not

consider them. Appellant’s remaining Double Jeopardy Clause argument fails because there

were at least two separate and distinct attacks on Gillespie, supporting two attempted malicious

wounding convictions. For his only remaining assignment of error, the evidence supports

appellant’s conviction for aggravated malicious wounding. The victim cannot walk normally

and must utilize an orthotic boot. The limitation on the victim’s daily activity inherent in his

“foot drop” is a “significant physical impairment.” For the foregoing reasons, this Court affirms.

                                                                                          Affirmed.




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