COURT OF APPEALS OF VIRGINIA
Present: Judges Barrow, * Coleman and Koontz
Argued at Salem, Virginia
JIMMY ELDRIDGE DOSS
v. Record No. 2003-93-3 MEMORANDUM OPINION** BY
JUDGE BERNARD G. BARROW
COMMONWEALTH OF VIRGINIA MAY 9, 1995
FROM THE CIRCUIT COURT OF HENRY COUNTY
David V. Williams, Judge
Wayne T. Baucino (Office of the Public Defender, on
briefs), for appellant.
G. Russell Stone, Jr., Assistant Attorney General
(James S. Gilmore, III, Attorney General, on brief),
for appellee.
In this criminal appeal, we hold that the record is
insufficient to conclude that the defendant was subjected to
double jeopardy when he was convicted of involuntary
manslaughter, Code § 18.2-36.1, following conviction for driving
under the influence of alcohol, Code § 18.2-266. Further, we
hold that the provisions of Code § 19.2-294 and the defendant's
conviction for driving under the influence did not bar his
subsequent conviction in a separate prosecution for involuntary
manslaughter.
Driving while intoxicated, the defendant lost control of his
*
Judge Bernard G. Barrow participated in the hearing and
decision of this case and prepared the opinion prior to his
death, and the other panel members joined in the opinion.
**
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
automobile, ran off of the road, and overturned. The accident
caused the death of his daughter, a passenger in the car. Arrest
warrants, issued that day, charged him with homicide and driving
under the influence. On November 18, 1992, in general district
court, the defendant pleaded guilty and was convicted of driving
under the influence in violation of Code § 18.2-266. On
January 18, 1993, he was indicted for involuntary manslaughter
under Code § 18.2-36.1. On July 9, 1993, he entered a
conditional guilty plea and was convicted of involuntary
manslaughter in circuit court.
A person violates Code § 18.2-36.1 if, "as a result of
driving under the influence in violation of subdivision (ii),
(iii), or (iv) of § 18.2-266," he or she "unintentionally causes
the death of another person." The defendant argues that in order
for the Commonwealth to establish a violation of Code
§ 18.2-36.1, it had to prove a violation of Code § 18.2-266, an
offense for which he had already been convicted by the general
district court. Thus, he contends, trying him for violation of
Code § 18.2-36.1 subjected him to double jeopardy. See
Blockburger v. United States, 284 U.S. 299, 304 (1932).
We reject this contention because we cannot determine on the
record before us that the defendant had been convicted previously
of violating subdivision (ii), (iii), or (iv) of Code § 18.2-266,
rather than subdivision (i). The record reflects only that he
was convicted in the general district court of "unlawfully
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operat[ing] a motor vehicle while intoxicated," a "violation of
Section 18.2-266, Code of Virginia." The record does not prove
that he was convicted of violating subdivision (ii), (iii), or
(iv) of Code § 18.2-266, as opposed to subdivision (i) of that
section.
When asserting a defense of double jeopardy, a defendant
must substantiate his allegation and "establish the identity of
the offenses" material to his plea. Low v. Commonwealth, 11 Va.
App. 48, 50, 396 S.E.2d 383, 384 (1990). Usually a defendant
accomplishes this "by production of the record or transcript of
the initial trial." Id. The record in this case does not
establish that the offense for which the defendant was convicted
in the general district court was the same offense which had to
be proved to convict him later of having violated Code
§ 18.2-36.1. Furthermore, the record contains no stipulation or
concession by the prosecution upon which we can rely. See Cooper
v. Commonwealth, 13 Va. App. 642, 644, 414 S.E.2d 435, 436
(1992). Therefore, the record on appeal fails to support the
defendant's claim that his conviction for driving under the
influence barred his conviction for involuntary manslaughter on
double jeopardy principles. Id.
However, the record is sufficient for us to address the
issue raised under Code § 19.2-294. "If 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
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under the other." Code § 19.2-294.
The applicability of Code § 19.2-294 depends on "the
identity of the act." Jones v. Commonwealth, 218 Va. 757, 760,
240 S.E.2d 658, 661, cert. denied, 439 U.S. 892 (1978). In this
case, the two convictions arose out of the "same act." See Lash
v. Commonwealth, 14 Va. App. 926, 930-31, 421 S.E.2d 851, 854
(1992) (en banc). At trial, the prosecution agreed that these
two charges arose from "an accident on October 30, 1992 which
resulted in the death of the defendant's four year old daughter."
Unlike Lash, this defendant's conduct -- driving while
intoxicated -- was not separable into different acts giving rise
to multiple offenses. Here, one act gave rise to both charges.
However, Code § 19.2-294 does not bar multiple convictions
arising out of the same act if they are prosecuted
simultaneously. Slater v. Commonwealth, 15 Va. App. 593, 595,
425 S.E.2d 816, 817 (1993). When charges are brought at the same
time, "the amenability of one to early conclusion while the other
requires further proceedings, does not alter the fact that the
proceedings are concurrent, not successive, prosecutions." Id.
In this case, the warrants were issued at the same time,
although the charges were heard at different times in different
courts. Because the charges were initiated simultaneously, the
proceedings are concurrent, not successive, and thus, both
convictions are permitted under Code § 19.2-294. Id. But see
Wade v. Commonwealth, 9 Va. App. 359, 388 S.E.2d 277 (1990)
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(holding Code § 19.2-294 barred conviction for attempted capital
murder after conviction for obstructing justice based on "same
act," although both charges brought simultaneously). 1
Accordingly, we affirm the conviction for involuntary
manslaughter under Code § 18.2-266.
Affirmed.
1
We find we are bound by Slater, which squarely addressed
the question of concurrent prosecutions. However, we note an
apparent conflict with Wade, which did not directly address the
question. Further, we note that the rationale of Slater is
borrowed from Freeman v. Commonwealth, 14 Va. App. 126, 129, 414
S.E.2d 871, 873 (1992), a double jeopardy case which relied on
the recently overruled Grady v. Corbin, 495 U.S. 508 (1990),
overruled by United States v. Dixon, 113 S. Ct. 2849 (1993).
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Jimmy Eldridge Doss v. Commonwealth
Combined Opinion