                                              COURT OF APPEALS OF VIRGINIA


              Present: Chief Judge Decker, Judge Alston and Senior Judge Frank
              Argued at Norfolk, Virginia
UNPUBLISHED




              XYHEIR KEYONTA TATE
                                                                              MEMORANDUM OPINION* BY
              v.      Record No. 0549-18-1                                     JUDGE ROBERT P. FRANK
                                                                                   APRIL 16, 2019
              COMMONWEALTH OF VIRGINIA


                                  FROM THE CIRCUIT COURT OF THE CITY OF HAMPTON
                                               Wilford Taylor, Jr., Judge

                                Joshua A. Goff (Goff Voltin, PLLC, on brief), for appellant.

                                Kelsey M. Bulger, Assistant Attorney General (Mark R. Herring,
                                Attorney General, on brief), for appellee.


                      Xyheir Keyonta Tate, appellant, was convicted, in a jury trial, of two counts of maliciously

              shooting at or into an occupied dwelling, in violation of Code § 18.2-279.1 On appeal, he contends

              that the trial court erred in finding him guilty of two offenses since there was only a single offense.

              For the reasons stated, we affirm the judgment of the trial court.

                                                         BACKGROUND

                      Concerning the specific issue before the court, the facts are uncontroverted.

                      Richard Clinton (Clinton) and Todd Wentz (Wentz) discovered that their work truck had

              been damaged while parked at the motel where they were staying. Wentz went to their motel room

              to contact their work supervisor, and Clinton remained in the parking lot. Appellant approached

              Clinton, stuck a gun in his face, and demanded “all of his stuff.” When Clinton refused to comply,


                      *
                          Pursuant to Code § 17.1-413, this opinion is not designated for publication.
                      1
                       Appellant was convicted of a number of other felonies and a misdemeanor, none of
              which is the subject of this appeal.
appellant struck Clinton in the face with a pistol, breaking his nose. Clinton scuffled with appellant,

managed to get away, and yelled to Wentz to open the motel door. There were two other assailants

with appellant. The assailants shot at Clinton and in the direction of the motel room before Wentz

opened the door. Wentz opened the motel room door, and Clinton entered while shots continued to

be fired in his direction. After Clinton entered the motel room, the shots continued. Three shots

entered the motel room, and one bullet hole was found outside the room. Wentz was inside the

room during the entire shooting.

        Detective Steven Rodey, with the Hampton Police Department, was called to the scene. He

recovered shell casings and observed “several bullet holes” in rooms 112 and 114, both of which

were occupied.2

        At the close of the Commonwealth’s evidence, appellant moved to strike one count of

shooting into an occupied building. Appellant acknowledged that he had fired a weapon at the

motel room occupied by Clinton and Wentz, but he argued that the Commonwealth could not secure

multiple convictions based on the number of people occupying the building because the shooting

only “happened one time.” He further argued that “the gunshots went into two separate rooms, but

they were all part of the same structure.” The trial court denied the motion to strike, noting that the

evidence showed bullet holes inside and outside two motel rooms and there were two separate

shootings. At the conclusion of the defense case, appellant renewed his motion to strike on the

same grounds. Again, the trial court denied the motion.

        The jury was instructed on the applicable law. Instruction 13 stated that the Commonwealth

must prove beyond a reasonable doubt “that the defendant shot at a building occupied by Richard

Clinton.” Instruction 14 stated that the Commonwealth must prove beyond a reasonable doubt “that




        2
            The record does not indicate which of the two rooms Clinton and Wentz occupied.
                                                 -2-
the defendant shot at a building occupied by Todd Wentz.” Appellant did not object to either

instruction. The jury returned guilty verdicts for both counts of shooting into an occupied building.

       This appeal follows.

                                            ANALYSIS

       Code § 18.2-279 states in part:

               If any person . . . maliciously shoots at, or maliciously throws any
               missile at or against any dwelling house or other building when
               occupied by one or more persons, whereby the life or lives of any
               such person or persons may be put in peril, the person is guilty of a
               Class 4 felony.

       Appellant does not challenge that he committed one violation of Code § 18.2-279. He

argues only that the evidence did not support two violations of the statute because “there was

conceptually only a single offense.” He maintains that although the gunshots entered two

separate rooms, both rooms were part of the same structure. He further asserts that the number

of people occupying the rooms does not determine the number of charges.

       Essentially, appellant’s argument on appeal concerns the unit of prosecution under Code

§ 18.2-279, although he never uses that term.3 Appellant cites case law as to sufficiency of the

evidence, but he cites no other law supporting his position, particularly as to the unit of

prosecution. Contending he committed only one offense because he fired into a single structure,

even though conceding the bullets entered two separate, occupied hotel rooms, appellant

compares his case with one shooting into a courtroom with numerous people in the courthouse.

He claims the shooter cannot be charged with one count for each person in the courthouse.

Appellant misses the point. Here, he fired multiple shots into two separate hotel rooms and

endangered the lives of the occupants.


       3
         While the Commonwealth indicates in its brief that appellant “appears to suggest a
violation of the Double Jeopardy Clause” we see no indication that appellant made that
argument, nor did appellant cite any authorities suggesting such an argument.
                                               -3-
       “Statutory interpretation presents a pure question of law and is accordingly subject to de

novo review by this Court.” Washington v. Commonwealth, 272 Va. 449, 455 (2006). We begin

here by considering the legislature’s intent in enacting Code § 18.2-279 to “determine[] the

permissible unit of prosecution.” Severance v. Commonwealth, 295 Va. 564, 571 (2018). “It is

well settled that two or more distinct and separate offenses may grow out of a single incident or

occurrence, warranting the prosecution and punishment of an offender for each.” Jones v.

Commonwealth, 208 Va. 370, 375 (1967).

       The language of Code § 18.2-279 is clear. The purpose of the statute is to protect from

harm one or more occupants of a dwelling or building that is fired upon. Thus, the gravamen of

the offense is the distinct act of shooting at an occupied building in a manner that may put the

occupant or occupants in peril.4 See Bryant v. Commonwealth, 295 Va. 302, 309 (2018).

       “Where possible, a statute should be construed with a view toward harmonizing it with

other statutes. Because the Code of Virginia is one body of law, other Code sections using the

same phraseology may be consulted in determining the meaning of a statute.” Branch v.

Commonwealth, 14 Va. App. 836, 839 (1992).

       A companion statute, Code § 18.2-154, states in part:

               Any person who maliciously shoots at, or maliciously throws any
               missile at or against, any train or cars on any railroad or other
               transportation company or any vessel or other watercraft, or any
               motor vehicle or other vehicles when occupied by one or more
               persons, whereby the life of any person on such train, car, vessel,
               or other watercraft, or in such motor vehicle or other vehicle, may
               be put in peril, is guilty of a Class 4 felony.



       4
         We have previously held that Code § 18.2-279 is not a specific intent crime. See
Fleming v. Commonwealth, 13 Va. App. 349, 354 (1991). Thus, the evidence must establish
only that the defendant intended to shoot at a building, and not that he specifically intended to
cause bodily injury or place the victim in fear of harm. See id.; see also Armstead v.
Commonwealth, 55 Va. App. 354, 361-63 (2009) (applying Fleming rationale to Code
§ 18.2-154).
                                                -4-
        The only difference between the two statutes is the target of the shooting. Thus, we look

to cases interpreting Code § 18.2-154. In Stephens v. Commonwealth, 263 Va. 58 (2002), the

Supreme Court addressed the unit of prosecution under Code § 18.2-154. While involved in a

high speed chase with another car, the defendant shot at the other car at least twice and hit its

driver twice in the back. Id. at 60. The defendant contended that his acts of repeatedly firing a

pistol from his car constituted a single act. The Court held that each of the shots was “a separate,

identifiable act.” Id. at 63.

        In Kelsoe v. Commonwealth, 226 Va. 197 (1983), the defendant simultaneously pointed a

pistol toward three men. Upholding his three convictions for brandishing a firearm, the Supreme

Court stated that “the General Assembly clearly proscribed an offense against the person” and

that “[t]he gravamen of the offense is the inducement of fear in another.” Id. at 199.

Accordingly, when the defendant frightened each of the three men by pointing his pistol at them,

he committed three separate offenses of brandishing.5 See id.

        Similarly, in appellant’s case, each act of shooting is the unit of prosecution. Appellant

fired multiple shots at two motel rooms. Clinton and Wentz, the occupants of one of the rooms,

were both put in peril by appellant’s actions. Equally, the occupant or occupants of the other

room also were put in peril. Consistent with the legislative intent evinced in the statute,

appellant committed two separate violations of Code § 18.2-279. See Stephens v.

Commonwealth, 35 Va. App. 141, 146 (2001) (holding that “where a completed offense has

occurred, a separate charge may be brought for a repetition of the same conduct”), aff’d, 263 Va.

58 (2002); see also Johnson v. Commonwealth, 292 Va. 738, 744 (2016) (holding that “the unit

of prosecution for failure to appear corresponds to the number of individual felony offenses for



        5
         While Stephens and Kelso involved a due process analysis, the holdings are relevant to
the issue before us.
                                            -5-
which a defendant is obligated to appear,” even if all of the underlying criminal charges were to

have been heard at one hearing for which the defendant failed to appear (quoting Johnson v.

Commonwealth, Record No. 1138-14-2, at *9 (Va. Ct. App. July 7, 2015))).

       In Proctor v. Commonwealth, 40 Va. App. 233 (2003), we rejected the defendant’s

argument that he could not be convicted of both first-degree murder and shooting into an

occupied building where he fired a shotgun in his living room in the presence of another person

and his wife, whom he killed. Id. at 247-48. We held that adopting the defendant’s

interpretation of Code § 18.2-279 “would allow him to evade its punitive consequences for

endangering the other occupants of the house by the contemporaneous murder of one of them”

and that “[s]uch a reading would be a narrow and strained construction that would defeat the

obvious intent of the legislature.” Id.

       In accordance with the rationale of these cases, we hold that the unit of prosecution under

Code § 18.2-279 is each separate act of shooting. The evidence established that appellant fired

multiple shots into two separate rooms at the motel where Clinton and Wentz were staying. We

therefore affirm the judgment of the trial court that appellant committed two offenses of shooting

at an occupied building.

                                                                                        Affirmed.




                                               -6-
