COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Kelsey and McClanahan
Argued at Richmond, Virginia
SHANORDA DONIEL MORRIS, S/K/A
SHENORDA D. MORRIS
OPINION BY
v. Record No. 2205-03-2 JUDGE ELIZABETH A. McCLANAHAN
FEBRUARY 22, 2005
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF COLONIAL HEIGHTS
Herbert C. Gill, Jr., Judge
William B. Bray (Perry & Bray, on brief), for appellant.
Richard B. Smith, Senior Assistant Attorney General (Jerry W.
Kilgore, Attorney General, on brief), for appellee.
Shanorda Doniel Morris was convicted of robbery, use of a firearm in the commission of
a felony, and possession of a firearm by a convicted felon, in violation of, respectively, Code
§§ 18.2-58, -53.1, and -308.2. On appeal, Morris argues that the trial court erred in: (1) failing
to dismiss the indictments for robbery and possession of a firearm after a felony conviction, on
the grounds of double jeopardy, and (2) failing to dismiss the indictments for robbery, possession
of a firearm after a felony conviction, and use of a firearm, applying Code § 19.2-294. For the
following reasons, we affirm the decision of the trial court.
I. BACKGROUND
Morris entered a convenience store, produced a handgun and demanded money from the
store clerk. The clerk gave him approximately $80. As he was leaving the store, he directed the
clerk to provide him with a carton of cigarettes. After receiving the cigarettes, Morris left the
store.
Police obtained six arrest warrants for Morris. Three warrants were for the felonies of
robbery, use of a firearm during the commission of a felony, and intentionally carrying a firearm
after having been convicted of a felony, in violation of, respectively, Code §§ 18.2-58, -53.1, and
-308.2. The other three warrants were for the Class 1 misdemeanors of stealing and carrying
away property valued at less than $200, carrying a concealed handgun, and brandishing a
firearm, in violation of, respectively, Code §§ 18.2-96, -308 and -282. After Morris was arrested
and read his Miranda rights, he admitted to robbing the store clerk with a handgun.
The general district court certified the felonies to the grand jury. During the same
proceeding, the court addressed the misdemeanor charges, finding Morris guilty of concealing a
weapon and brandishing a firearm and dismissing the petit larceny charge. Morris subsequently
filed pleadings in the circuit court to dismiss the felony indictments on the grounds of double
jeopardy and Code § 19.2-294. After hearing argument, the court overruled the motions. Morris
then entered conditional guilty pleas to the three felony charges.
II. ANALYSIS
A. Code § 19.2-294
Morris argues that the trial court erred in failing to dismiss the indictments for robbery,
possession of a firearm after a felony conviction, and use of a firearm in the commission of a
robbery on the grounds that failure to do so was a violation of Code § 19.2-294. Code
§ 19.2-294 provides: “If the same act be a violation of two or more statutes . . . conviction under
one of such statutes or ordinances shall be a bar to a prosecution or proceeding under the other or
others.” Code § 19.2-294 is “intended to protect an accused from the ‘hazards of vexatious,
multiple prosecutions.’” Phillips v. Commonwealth, 257 Va. 548, 553, 514 S.E.2d 340, 343
(1999). “By its terms, the statute only bars ‘prosecutions or proceedings’ after there has been a
‘conviction.’” Hall v. Commonwealth, 14 Va. App. 892, 897, 421 S.E.2d 455, 459 (1992)
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(en banc). Thus, “the statute does not apply to simultaneous prosecutions, because only a prior
conviction for the violation of an act will bar a later prosecution for the same act.” Phillips, 257
Va. at 552, 514 S.E.2d at 342.
Morris concedes that Phillips held that misdemeanor convictions in district court do not
fall within the protection of Code § 19.2-294 where the prosecution includes a simultaneous
hearing on related felonies. However, he argues that applying the holding of that case disregards
the fact that the statute refers disjunctively to “prosecution” and “proceeding.” In Slater v.
Commonwealth, 15 Va. App. 593, 425 S.E.2d 816 (1993), we said that when charges are brought
at the same time and joined in a single evidentiary hearing in the district court, the proceedings
are concurrent rather than successive, even if the misdemeanor is concluded and the felony is
tried later. Id. at 595, 425 S.E.2d at 817. According to Phillips, this is because “the amenability
of the misdemeanor charges to an early conclusion in the general district court did not result in a
successive prosecution of the felony charges in the circuit court.” 257 Va. at 553, 514 S.E.2d at
343 (citing Slater, 15 Va. App. at 595, 425 S.E.2d at 817). In Phillips, the Virginia Supreme
Court went on to say, “[i]n a criminal case, a ‘prosecution’ is the process in which an accused is
brought to justice from the time a formal accusation is made through trial and final judgment in a
court of appropriate jurisdiction.” Id. (citing Sigmon v. Commonwealth, 200 Va. 258, 267, 105
S.E.2d 171, 178 (1958)). “The present prosecutions were simultaneous, not successive, because
they were joined in a single evidentiary hearing in the general district court. Thus, the later
events in the circuit court on the felony charges were merely a continuation of the same
prosecution.” Id. We have the same situation in the case at bar. The proceedings or
prosecutions were simultaneous. We must apply the holding of Phillips and, therefore, Morris
has no recourse under Code § 19.2-294. “We are bound by decisions of the Supreme Court of
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Virginia and are without authority to overrule [them].” Roane v. Roane, 12 Va. App. 989, 993,
407 S.E.2d 698, 700 (1991).
Morris also contends that his robbery charge should be dismissed because Code
§ 19.2-294 is remedial legislation and should be strictly construed against the Commonwealth
and in favor of the accused. On its face, however, Code § 19.2-294 is implicated only when both
convictions are for violations of a statute or a local ordinance or a combination of such. It does
not apply if one of the charges is a common law offense. Martin v. Commonwealth, 242 Va. 1,
8-9, 406 S.E.2d 15, 19, cert. denied, 502 U.S. 945 (1991). Morris’ robbery charge is a common
law offense and, therefore, Code § 19.2-294 is not applicable.
Additionally, as Morris points out, these arguments were raised by the dissent in Phillips.
They were also raised in the dissent in Hall, 14 Va. App. 892, 421 S.E.2d 455, and the panel
majority decision in Lash v. Henrico County, 13 Va. App. 251, 410 S.E.2d 689 (1991). The
Lash decision was reversed by our en banc decision in Hall. None of the majority decisions in
those cases adopted these arguments appellant again now raises.
B. Double Jeopardy
Morris argues that the trial court erred in failing to dismiss the indictment for robbery on
the ground that his constitutional protection against double jeopardy was violated. He claims
that he was placed in double jeopardy: (1) because petit larceny is a lesser-included offense of
robbery; (2) brandishing a firearm is a lesser-included offense of robbery; (3) possession of a
firearm by a felon is a lesser-included offense of brandishing a firearm; and, (4) possession of a
firearm by a felon is a lesser-included offense of carrying a concealed weapon.
“Double jeopardy principles ‘protect against prosecution for the same offense after either
an acquittal or a conviction of that offense and against multiple punishments for that same
offense.’” Hudgins v. Commonwealth, 40 Va. App. 1, 5, 577 S.E.2d 505, 506-07 (2003)
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(quoting Coleman v. Commonwealth, 261 Va. 196, 199, 539 S.E.2d 732, 733-34 (2001)). In the
context of a simultaneous prosecution, the double jeopardy defense does not apply unless the
defendant is twice punished for one criminal act, and, as Morris argues here, one punishment is
for a crime that is a lesser-included offense. Goodman v. Commonwealth, 37 Va. App. 374,
385-86, 558 S.E.2d 555, 561 (2002).
Appellant’s first double jeopardy claim is without merit. Although he was convicted of
robbery, the petit larceny charge was dismissed by the district court. Thus, Morris did not
receive “multiple punishments” for a “single offense,” which is the only double jeopardy
protection in a simultaneous prosecution case such as this one. Id.
Second, brandishing a firearm, Code § 18.2-282, is a not a lesser-included offense of
robbery, Code § 18.2-58. To be convicted of brandishing a firearm, the defendant must point or
brandish a firearm. Kelsoe v. Commonwealth, 226 Va. 197, 198, 308 S.E.2d 104, 104 (1983).
“Robbery involves taking, with the intent to steal, of the personal property of another, from his
person or in his presence, against his will, by violence or intimidation.” Phoung v.
Commonwealth, 15 Va. App. 457, 462, 424 S.E.2d 712, 715 (1992) (citing Jones v.
Commonwealth, 13 Va. App. 566, 572, 414 S.E.2d 193, 196 (1992)). Given that robbery does
not require the use of a firearm, and brandishing does not require the taking of property, but
requires pointing or brandishing a firearm, it is clear that robbery can be committed without
brandishing and brandishing can be committed without the taking of property.
Third, Morris further contends that the indictment for possession of a firearm by a felon,
Code § 18.2-308.2, is barred as a lesser-included offense of brandishing a firearm, Code
§ 18.2-282, and of carrying a concealed weapon, Code § 18.2-308. According to Code
§ 18.2-308.2, it is unlawful for “any person who has been convicted of a felony . . . to knowingly
and intentionally possess or transport any firearm or stun weapon, taser . . . or . . . carry about his
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person, hidden from common observation, any weapon described in subsection A of § 18.2-308.”
As stated above, the elements of brandishing a firearm under Code § 18.2-282 are (1) pointing or
brandishing a firearm and (2) doing so in a manner to induce fear in the victim. Kelsoe, 226 Va.
at 198, 308 S.E.2d at 104. Code § 18.2-308.2 requires the element that the defendant is a prior
felon, and Code § 18.2-282 requires the elements of brandishing the firearm and creating fear in
the mind of the victim. Both code sections require proof of an element that the other does not;
therefore, possession of a firearm by a felon is not a lesser-included offense of brandishing a
firearm.
Finally, Morris contends possession of a firearm by a felon is a lesser-included offense of
carrying a concealed weapon. A conviction for carrying a concealed weapon, Code
§ 18.2-308(A), requires that one of the weapons set forth in the section has been carried about
the defendant’s person, “hidden from common observation.” Code § 18.2-308.2 requires proof
that defendant has committed a felony, which is not required under § 18.2-308(A). Code
§ 18.2-308(A) requires that the weapon is carried on the defendant’s person, which is not
required by § 18.2-308.2. Again, each code section requires proof of an element that the other
does not.
Because Morris was not twice punished for one criminal act nor punished for a crime that
is a lesser-included offense of another, his convictions do not violate the protections against
double jeopardy. We, therefore, affirm.
Affirmed.
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Benton, J., concurring.
As I have indicated on several occasions, the decision of the Supreme Court of Virginia
in Coleman v. Commonwealth, 261 Va. 196, 200-01, 539 S.E.2d 732, 734 (2001), appears to be
at variance with the United States Supreme Court’s Blockburger analysis in Whalen v. United
States, 445 U.S. 684, 693-94 (1980). See Logan v. Commonwealth, 43 Va. App. 504, 508, 600
S.E.2d 133, 135 (2004) (Benton, J., concurring); Ragsdale v. Commonwealth, 38 Va. App. 421,
430-32, 565 S.E.2d 331, 336-37 (2002) (Benton, J., concurring). Because I am bound by
Coleman, I concur in the majority opinion’s holding that brandishing a firearm is not a
lesser-included offense of the armed robbery for which Morris was indicted and convicted.
I concur in the holdings that the other offenses are not lesser-included offenses, and I
concur in the remainder of the opinion. Therefore, I would also affirm the convictions.
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