Full Opinion

COURT OF APPEALS OF VIRGINIA Record No. 1349-25-2 FAIZ SHALON BLACK v. COMMONWEALTH OF VIRGINIA Present: Judges Athey, White and Senior Judge Petty Argued via videoconference Opinion Issued November 10, 2026* FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND Claire G. Cardwell, Judge Gregory R. Sheldon (BainSheldon, PLC, on brief), for appellant. Dennis J. McLoughlin, Jr., Senior Assistant Attorney General (Jason S. Miyares,1 Attorney General, on brief), for appellee. MEMORANDUM OPINION BY JUDGE KIMBERLEY SLAYTON WHITE Following a jury trial, the trial court convicted Faiz Shalon Black of malicious wounding, carjacking, attempted robbery, six counts of robbery, and nine corresponding counts of use of a firearm in the commission of a felony. On appeal, Black contends that the trial court erred by finding the evidence sufficient to convict him of attempted robbery and the associated firearm charge.2 He also asserts that the trial court erred by denying his motion to set aside “certain firearm convictions where” they “violated the Double Jeopardy Clause of the United States Constitution by * This opinion is not designated for publication. See Code § 17.1-413(A). 1 Jay C. Jones succeeded Jason S. Miyares as Attorney General on January 17, 2026. 2 Black does not challenge the sufficiency of the evidence supporting his other 16 convictions. imposing multiple punishments for the same offense.”3 Finding no merit to Black’s arguments, we affirm the trial court’s judgment. BACKGROUND “Consistent with the standard of review when a criminal appellant challenges the sufficiency of the evidence, we recite the evidence below ‘in the “light most favorable” to the Commonwealth, the prevailing party in the trial court.’” Hammer v. Commonwealth, 74 Va. App. 225, 231 (2022) (quoting Commonwealth v. Cady, 300 Va. 325, 329 (2021)). This standard “requires us to ‘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 to be drawn therefrom.’” Cady, 300 Va. at 329 (quoting Commonwealth v. Perkins, 295 Va. 323, 324 (2018)). On March 30, 2024, Jose Salmeron was cleaning his car in a parking lot near his house when a man approached him and put his hand in Salmeron’s pocket, “reaching for [Salmeron’s] wallet,” but he “couldn’t get it out.” Salmeron grabbed the man’s hand and turned around to face his attacker. The assailant, whose face was covered, then struck Salmeron in the head with the butt of a gun. The assailant cocked his gun and then ran off, entering a nearby car, without having obtained any of Salmeron’s property. Salmeron bled “profusely” and needed six staples in his head to close the wound. On March 31, 2024, Javier Velez was outside his house talking on his phone when he felt someone touch his side. He turned and saw a masked man pointing a gun at him. The man demanded money and Velez surrendered his wallet, containing cash and identification cards. Someone opened a nearby car door and stated, “Shoot him.” The masked man returned to the car and it sped away. The events were captured on nearby cameras. 3 Black does not invoke the similar protection in the Virginia Constitution. -2- On the same day, Dany Albarado was removing items from his car when two masked men approached him. One of the men displayed a firearm. The men demanded Albarado’s car key and he gave it to them. One of the men reached into Albarado’s pocket and took his phone. The men left in Albarado’s car. On April 3, 2024, Fredy Hernandez Canas exited his car at his apartment complex and saw a man running and crouching with a gun in his hands. The man pointed the gun at Canas and demanded money. Afraid, Canas raised his hands. The man took Canas’s phone and backpack and reached into his pockets. The assailant then ran off, entered a white car, and left the area. On the same day, at the same apartment complex, Luis Martinez prepared to enter his apartment when a man with a gun ran towards him. Martinez raised his hands and the gunman took Martinez’s wallet and phone. He then fled in a white car waiting nearby. Again, on April 3, 2024, at the same apartment complex, Santos Rodriguez was exiting his car when he saw a man exit a nearby white sedan and pull a mask over his face. The man displayed a large gun, pointed it at Rodriguez, and demanded money. The man took cash from Rodriguez’s wallet and left in the white car. The next day, Jose Quintania was at the same apartment complex cleaning his car when an armed man approached him, held the gun against Quintania’s ribs, and demanded money. The man took cash from Quintania’s wallet and fled in a white sedan. Black was linked to the crimes by video and forensic evidence, including his fingerprints in a car that was captured in one of the videos. During their investigation, the police saw Black enter Albarado’s stolen car in a motel parking lot and drive off. Black had rented a room at the motel from April 1 to April 4, 2024. The motel was close to the scenes of the various crimes. Security video from the motel showed Black and another man drive into the parking lot in -3- Albarado’s car and throw items towards the dumpster. The police later found a cell phone belonging to one of the victim’s in that area. The jury found Black guilty of the charged offenses. The trial court denied Black’s post-trial motion to set aside the jury’s verdict on double jeopardy grounds. Black appeals. ANALYSIS I. “When an appellate court reviews the sufficiency of the evidence underlying a criminal conviction, its role is a limited one.” Commonwealth v. Garrick, 303 Va. 176, 182 (2024). “The judgment of the trial court is presumed correct and will not be disturbed unless it is ‘plainly wrong or without evidence to support it.’” Pijor v. Commonwealth, 294 Va. 502, 512 (2017) (quoting Code § 8.01-680). “Thus, ‘it is not for this [C]ourt to say that the evidence does or does not establish [the defendant’s] guilt beyond a reasonable doubt because as an original proposition it might have reached a different conclusion.’” Commonwealth v. Barney, 302 Va. 84, 97 (2023) (alterations in original) (quoting Cobb v. Commonwealth, 152 Va. 941, 953 (1929)). “An attempt to commit a crime consists of: (1) an intent to perpetrate the crime, and (2) a direct act towards its commission.” Ashford v. Commonwealth, 47 Va. App. 676, 681 (2006). “Robbery is ‘the taking, with intent to steal, of the personal property of another, from his person or in his presence, against his will, by violence or intimidation.’” Pena Pinedo v. Commonwealth, 300 Va. 116, 122 (2021) (quoting Butts v. Commonwealth, 145 Va. 800, 811 (1926)). Black asserts that the evidence failed to prove he attempted to rob Salmeron and his convictions for that offense and the related firearm charge should be reversed. Specifically, he argues that “the taking was not attempted by force, threat or intimidation and any force occurred after the attempted taking.” He states that “there was no force used to attempt to reach into -4- Salmeron’s pocket” and “no intimidation or threat used.” Instead, he contends that the “taking in this case was attempted by stealth, not by force, threat, or intimidation.” To prove a robbery, “[t]he act of violence or intimidation employed must precede or be concomitant with the taking.” Price v. Commonwealth, 59 Va. App. 764, 767 (2012). “[When] the owner of personal property . . . interposes himself to prevent a thief from taking the property, and the force and violence used to overcome the opposition to the taking is concurrent or concomitant with the taking, the thief’s action constitutes robbery.” Commonwealth v. Anderson, 278 Va. 419, 424 (2009) (quoting Commonwealth v. Jones, 267 Va. 284, 289 (2004)). Intimidation is defined as “[u]nlawful coercion; extortion; duress; putting in fear.” Id. at 424 (quoting Sutton v. Commonwealth, 228 Va. 654, 663 (1985)). “To take, or attempt to take, by intimidation means willfully to take, or attempt to take, by putting in fear of bodily harm . . . .” Id. (quoting Sutton, 228 Va. at 663). “Intimidation . . . means putting a victim in fear of bodily harm by exercising such domination and control of h[im] as to overcome h[is] mind and overbear h[is] will.” Id. at 424-25 (quoting Sutton, 228 Va. at 663); see also Bivins v. Commonwealth, 19 Va. App. 750, 752-53 (1995). In Jones, Jones entered a shoe store, hid a pair of boots in his pants, and left the store. 267 Va. at 285. When the manager followed him outside, Jones drew a gun and pointed it at the manager. Id. On appeal, Jones argued that the violence or intimidation did not precede or occur at the same time as the taking. Id. at 287. The Supreme Court disagreed and found that although Jones originally intended to commit a larceny, “the store manager interposed himself to prevent Jones from taking the merchandise.” Id. at 289. The Court concluded that “Jones produced the firearm to overcome the manager’s opposition to the taking, and his crime became robbery, not merely larceny.” Id. -5- Similarly, here, Salmeron reacted to prevent Black from taking his property from his person; Black responded by producing the gun, striking Salmeron with it, and causing him a severe injury. Black clearly attempted to overcome Salmeron’s resistance and take his property by force and violence. The violence was concomitant with the attempted taking. That Black was unsuccessful does not obviate the fact that he attempted to take Salmeron’s property by force. Thus, the record fully supports the finding that Black was guilty of attempted robbery and use of a firearm in the commission of that offense. II. “The Double Jeopardy Clause of the Fifth Amendment, applicable to the States through the Fourteenth, provides that no person shall ‘be subject for the same offense to be twice put in jeopardy of life or limb.’” Turner v. Commonwealth, 49 Va. App. 381, 385 (2007) (quoting Brown v. Ohio, 432 U.S. 161, 164 (1977)). “This provision embodies three guarantees: ‘[i]t protects against a second prosecution for the same offense after acquittal[; i]t protects against a second prosecution for the same offense after conviction[; a]nd it protects against multiple punishments for the same offense.’” Id. (quoting Painter v. Commonwealth, 47 Va. App. 225, 232 (2005)). “Whether there has been a double jeopardy violation presents a question of law requiring a de novo review.” Hall v. Commonwealth, 69 Va. App. 437, 444 (2018) (quoting Fullwood v. Commonwealth, 279 Va. 531, 539 (2010)). Black argues that “his sentences for both attempted robbery with a firearm and robbery with a firearm and use of a firearm in the commission” of the offenses violated his double jeopardy protections “by imposing multiple punishments for the same offense.” “[T]he 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.” Gregg v. Commonwealth, 67 Va. App. 375, 382 (2017) (quoting Blythe v. Commonwealth, 222 Va. 722, 725 (1981)). “When both of a defendant’s convictions occur in a single trial, the question of -6- whether multiple punishments are unconstitutional ‘cannot be resolved without determining what punishments the Legislative Branch has authorized.’” Id. (quoting Blythe, 222 Va. at 725). “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. (quoting Blythe, 222 Va. at 726). In Blockburger v. United States, 284 U.S. 299 (1932), “the Supreme Court stated that, ‘where 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 provision requires proof of a fact which the other does not.’” Payne v. Commonwealth, 257 Va. 216, 228 (1999) (quoting Blockburger, 284 U.S. at 304). “[B]efore applying the Blockburger test, [however,] we first consider whether ‘the legislative intent is clear from the face of the statute or the legislative history,’ and if so, then ‘the Blockburger rule is not controlling.’” Andrews v. Commonwealth, 280 Va. 231, 284 (2010) (quoting Garrett v. United States, 471 U.S. 773, 779 (1985)). Code § 18.2-53.1 specifically provides that it “shall be unlawful for any person to use or attempt to use any pistol, shotgun, rifle, or other firearm or display such weapon in a threatening manner while committing or attempting to commit . . . robbery . . . .” Further, a violation of this section shall constitute “a separate and distinct felony and any person found guilty thereof shall be sentenced to a mandatory minimum term of imprisonment of three years for a first conviction, and to a mandatory minimum term of five years for a second or subsequent conviction under the provisions of this section.” Code § 18.2-53.1. Finally, the statute provides that “[s]uch punishment shall be separate and apart from, and shall be made to run consecutively with, any punishment received for the commission of the primary felony.” Id. Thus, the legislative intent is explicitly clear in this instance—a Code § 18.2-53.1 violation is a distinct and separate offense punishable in addition to the punishment imposed for the underlying felony. Indeed, the Supreme Court has -7- specifically held that “the common-law crime of robbery and the crime defined in § 18.2-53.1 are separate and distinct offenses for double jeopardy purposes.” Jones v. Commonwealth, 218 Va. 18, 23-24 (1977); see also Peterson v. Bass, 2 Va. App. 314, 320 (1986) (holding that “the General Assembly clearly intended to authorize separate and cumulative punishments for capital murder and the underlying felonies of robbery and rape when such convictions were obtained in a single trial”). Accordingly, we need not conduct a Blockburger analysis. Further, contrary to Black’s assertion, the 2021 statutory change to Code § 18.2-58, does not impact this analysis. Before the 2021 amendments, Code § 18.2-58 punished all robbery “by confinement in a state correctional facility for life or any term not less than five years.” The 2021 amendments punish robbery differently depending on the method used by the perpetrator. See 2021 Va. Acts Spec. Sess. I ch. 534. Now, committing robbery by using or displaying a firearm is a Class 3 felony, punishable by 5 to 20 years of incarceration. See Code §§ 18.2-10 and 18.2-58(b)(2). Nothing in the statute prohibits additional incarceration for a separate but related offense, as in this case. Because a Code 18.2-53.1 violation is a separate offense, as explained above, the three-year sentence imposed is not an additional penalty for the robbery and attempted robbery convictions. Accordingly, the trial court did not err in finding that Black did not sustain a double jeopardy violation. CONCLUSION For the foregoing reasons, we affirm the trial court’s judgment. Affirmed. -8-