COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Felton, Judges Clements and Beales
Argued at Richmond, Virginia
TIMMY ELIJAH ROACH, S/K/A
TIMOTHY ELIJAH ROACH
OPINION BY
v. Record No. 2566-06-2 CHIEF JUDGE WALTER S. FELTON, JR.
MAY 6, 2008
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF ORANGE COUNTY
Paul M. Peatross, Jr., Judge
Andrew L. Wilder for appellant.
Richard B. Smith, Special Assistant Attorney General (Robert F.
McDonnell, Attorney General, on brief), for appellee.
Following a jury trial, Timmy Elijah Roach (appellant) was found guilty of felony
obstruction of justice, in violation of Code § 18.2-460(C). He contends his prosecution for that
offense violated Code § 19.2-294’s prohibition against successive prosecutions and that his
conviction and punishment for that offense constituted double jeopardy, in violation of the Fifth
Amendment to the United States Constitution and Article I, Section 8, of the Virginia
Constitution. He also contends the evidence was insufficient to convict him of violating Code
§ 18.2-460(C). For the following reasons we affirm in part, vacate in part, and remand for
proceedings consistent with this opinion.
I. BACKGROUND
On appeal of a conviction, we “‘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.’” Craddock v.
Commonwealth, 40 Va. App. 539, 542-43, 580 S.E.2d 454, 456 (2003) (quoting Holsapple v.
Commonwealth, 39 Va. App. 522, 528, 574 S.E.2d 756, 758-59 (2003) (en banc)). So viewed, the
evidence established that in the early morning hours of October 9, 2005, police arrived at a trailer
park in Orange County to quell a “brawl.” There, Deputy Brandon Tidwell, wearing his uniform
and displaying his badge of authority, arrested appellant for being drunk in public and on several
outstanding arrest warrants. After he was arrested, appellant was placed in the rear seat of
Deputy Tidwell’s marked police vehicle. He “yell[ed] and curs[ed]” at the deputy and other law
enforcement officers present at the scene, and kicked out the rear window of Deputy Tidwell’s
vehicle. As a result of that damage, another law enforcement officer transported appellant to the
Central Virginia Regional Jail for processing. There, Deputy Tidwell advised appellant of the
charges for which he had been arrested, and began to prepare paperwork related to his arrest.
Appellant became “irate” and, over the course of the next twenty to thirty minutes, verbally
threatened to kill Deputy Tidwell and his family, describing in graphic detail how he would harm
them. A magistrate and a state trooper working at the regional jail heard appellant threaten
Deputy Tidwell.
At the regional jail, a magistrate issued a misdemeanor warrant charging appellant with
misdemeanor obstruction of justice for his conduct at the trailer park, and a felony warrant
charging him with felony obstruction of justice for his threats of bodily harm to Deputy Tidwell
at the regional jail. Appellant’s misdemeanor and felony warrants each stated that his conduct
was in violation of Code “§ 18.2-460.”
In a single proceeding in which evidence was presented on both charges, the general
district court (“district court”) convicted appellant of misdemeanor obstruction of justice and
certified the felony obstruction of justice charge to the grand jury. The grand jury returned an
indictment charging appellant with felony obstruction of justice, “in violation of Section
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18.2-460(C) of the Code of Virginia.” Appellant did not appeal his misdemeanor obstruction of
justice conviction.
Prior to his trial in the circuit court, appellant argued that prosecuting him for felony
obstruction of justice in the circuit court would “raise a double jeopardy issue with regard to [the
misdemeanor obstruction of justice] conviction that he [had] already suffered in the district
court.” The circuit court granted appellant’s motion for a bill of particulars. In its bill of
particulars, the Commonwealth stated that appellant’s misdemeanor conviction arose from his
conduct at the trailer park, while his felony obstruction of justice charge arose from his threats of
bodily harm to Deputy Tidwell at the regional jail. Appellant did not question the
Commonwealth’s assertions in the bill of particulars before trial, nor did he offer any evidence at
trial to contradict those assertions.
Appellant also asked the circuit court to either dismiss the felony obstruction of justice
indictment or reduce it to a misdemeanor. He contended the indictment for felony obstruction of
justice should be dismissed because “the misdemeanor warrant . . . [did] not specify which
subsection of Virginia Code Section 18.2-460 was violated[,]” and it did not “state with
specificity who the victimized magistrate, law-enforcement officer, or other person was, or even
what the specific conduct was which constituted the violation . . . .” He argued that, because of
this lack of specificity, “principles of double jeopardy” and Code § 19.2-294’s prohibition of
successive prosecutions precluded the Commonwealth “from prosecuting any further allegation
of obstruction of justice committed by [appellant] on or about October 9, 2005 in violation of
Virginia Code Section 18.2-460.” Other than his general reference to the provisions of Code
§ 19.2-294, appellant cited no authority in support of his argument.
Appellant also contended that if the felony obstruction indictment were not dismissed, it
should be reduced to misdemeanor obstruction of justice. He argued the indictment’s reference
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to subsection (C) of Code § 18.2-460 was ambiguous and that “there [was] no way to determine
that an alleged [felony] violation [was] unmistakably within subsection (C) and not within
subsection (A) or (B)” of Code § 18.2-460. The circuit court denied appellant’s motion to amend
the indictment to charge misdemeanor obstruction of justice. At trial it instructed the jury, at
appellant’s request, that misdemeanor obstruction of justice, defined in Code § 18.2-460(B), was
a lesser-included offense of Code § 18.2-460(C).
This appeal followed.
II. ANALYSIS
A. Code § 19.2-294
Appellant contends that his prosecution for felony obstruction of justice in the circuit
court was barred by Code § 19.2-294, which provides, in relevant part, that “[i]f the same act be
a violation of two or more statutes, . . . conviction under one of such statutes . . . shall be a bar to
a prosecution or proceeding under the other or others.”
Appellant’s argument is without merit. Code § 19.2-294 is applicable only where the
same act is prosecuted successively under two or more statutes. Slater v. Commonwealth, 15
Va. App. 593, 595, 425 S.E.2d 816, 817 (1993). Here, the bill of particulars provided by the
Commonwealth clearly stated that appellant’s misdemeanor and felony obstruction of justice
charges arose from two separate acts, committed by appellant at different times, and in different
geographical locations. 1 Appellant did not contest the Commonwealth’s assertions in the bill of
particulars, and the circuit court found that appellant’s misdemeanor and felony obstruction of
justice charges arose from “separate acts.”
1
Appellant’s misdemeanor obstruction of justice charge resulted from his act of kicking
out the rear window of Deputy Tidwell’s police vehicle at the trailer park. Appellant’s felony
obstruction of justice charge resulted from the threats of bodily harm he made to Deputy Tidwell
at the regional jail later that morning.
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Because the felony obstruction of justice prosecution was not based on the same act that
was the basis of appellant’s misdemeanor obstruction of justice conviction in the district court,
the circuit court did not err in finding that Code § 19.2-294 did not bar his prosecution for felony
obstruction of justice in the circuit court. 2
B. Double Jeopardy
Appellant also contends that his conviction and punishment for felony obstruction of
justice in violation of Code § 18.2-460(C) was barred by his misdemeanor obstruction of justice
conviction in the district court under constitutional principles of double jeopardy. We conclude
that his argument is without merit.
The Double Jeopardy Clauses of the United States and Virginia Constitutions protect
against multiple punishments for the same offense. Commonwealth v. Hudgins, 269 Va. 602,
604-05, 611 S.E.2d 362, 364 (2005). Subjecting an accused to multiple punishments for the
same offense violates both state and federal constitutional protections against double jeopardy.
Schwartz v. Commonwealth, 45 Va. App. 407, 440, 611 S.E.2d 631, 647 (2005). 3
The Double Jeopardy Clause is not abridged if an accused is subjected to punishment for
two offenses that are supported by separate and distinct acts. Stephens v. Commonwealth, 263
Va. 58, 62-63, 557 S.E.2d 227, 230 (2002); Brown v. Commonwealth, 37 Va. App. 507, 517,
559 S.E.2d 415, 420 (2002); Henry v. Commonwealth, 21 Va. App. 141, 146, 462 S.E.2d 578,
581 (1995).
2
Because we conclude that the circuit court did not err in finding Code § 19.2-294
inapplicable to bar the felony obstruction of justice prosecution, we need not address appellant’s
“successive prosecution” argument under that statute.
3
“Virginia’s constitutional guarantee against double jeopardy affords a defendant the
same guarantees as the federal Double Jeopardy Clause.” Stephens v. Commonwealth, 263 Va.
58, 62, 557 S.E.2d 227, 230 (2002).
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Appellant argues that because neither the charging document nor the conviction order for
the misdemeanor obstruction offense specified the conduct for which he was prosecuted in the
district court, the Commonwealth was barred “from prosecuting any further allegation of
obstruction of justice committed by [him] on or about [the same date] in violation of Virginia
Code Section 18.2-460 under principles of double jeopardy[.]” However, “[t]he ‘burden is on
[appellant]’ to ‘substantiate’ his allegation [of double jeopardy] and ‘establish the identity of the
offenses’ material to his plea.” Cooper v. Commonwealth, 13 Va. App. 642, 644, 414 S.E.2d
435, 435 (1992) (quoting Low v. Commonwealth, 11 Va. App. 48, 50, 396 S.E.2d 383, 384
(1990)). “Customarily, a defendant carries this burden ‘by production of the record or transcript
of the initial trial.’” Id.
Here, appellant failed to meet his burden of establishing the identity of the offenses
material to his plea of double jeopardy. No transcript was made of appellant’s trial in the district
court. The bill of particulars filed by the Commonwealth in the circuit court stated, without
contradiction by appellant, that his prosecution in the district court for misdemeanor obstruction
of justice and his prosecution in the circuit court for felony obstruction of justice arose out of two
separate incidents occurring, albeit on the same date, in different geographical locations and at
different times, constituting two separate and distinct criminal acts. Accordingly, we find the
circuit court did not err in its finding that appellant’s misdemeanor and felony offenses involved
“separate acts.”
From the record before us, we conclude the circuit court did not err in denying
appellant’s motion to dismiss his felony obstruction of justice conviction based on a violation of
the double jeopardy prohibition.
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C. Sufficiency of the Evidence
Appellant also contends the evidence presented at trial was insufficient to convict him of
felony obstruction of justice and that the circuit court erred in denying his motion to reduce the
felony obstruction of justice charge to misdemeanor obstruction of justice. The Commonwealth
concedes that Washington v. Commonwealth, 273 Va. 619, 628, 643 S.E.2d 485, 490 (2007),
decided after appellant’s conviction, requires us to reverse appellant’s conviction of felony
obstruction of justice under Code § 18.2-460(C) on the evidence presented at trial. We agree.
In Washington, the Supreme Court held that, in order to obtain a felony obstruction of
justice conviction under Code § 18.2-460(C), the Commonwealth must allege and prove that at
the time the accused made a threatening statement to a law enforcement officer, the officer must
be “engaged in the discharge of any duty ‘relating to a violation of or conspiracy to violate’ one
of the felony offenses listed in that subsection.” Id. None of the statutorily enumerated felony
offenses were at issue here.
Appellant, citing Washington, argues that this Court is required not only to vacate his
felony obstruction of justice conviction, but also contends that we must dismiss that indictment.
Following its decision in Washington, the Supreme Court in Bishop v. Commonwealth, 275 Va.
9, 654 S.E.2d 906 (2008), under similar circumstances as presented in this appeal, vacated a
defendant’s conviction for a violation of Code § 18.2-460(C) and remanded “the case to the
circuit court for a new sentencing proceeding on the lesser included offense as set forth in Code
§ 18.2-460(B).” Id. at 16, 654 S.E.2d at 909.
Guided by the principle articulated in Bishop, and concluding that the evidence presented
at trial was sufficient to prove beyond a reasonable doubt that appellant violated Code
§ 18.2-460(B), we vacate appellant’s conviction for felony obstruction of justice, Code
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§ 18.2-460(C), and remand to the circuit court for a new sentencing proceeding on the
lesser-included offense set forth in Code § 18.2-460(B).
III. CONCLUSION
From the record before us, we conclude the circuit court did not err in finding that the
prosecution of appellant for felony obstruction of justice, based on a separate act from that for
which he was convicted of misdemeanor obstruction of justice in the district court, did not
violate Code § 19.2-294’s prohibition against successive prosecutions or the constitutional
prohibition of double jeopardy.
However, we vacate appellant’s conviction for felony obstruction of justice, in violation
of Code § 18.2-460(C). From our review of the record, we conclude the evidence presented at
trial proved beyond a reasonable doubt that appellant committed the lesser-included offense of
misdemeanor obstruction of justice, under Code § 18.2-460(B). Accordingly, we remand for a
new sentencing proceeding on that lesser-included offense.
Affirmed, in part,
vacated, in part,
and remanded.
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