COURT OF APPEALS OF VIRGINIA 

Present: Chief Judge Huff, Judge Humphreys and Senior Judge Bumgardner 

Argued at Roanoke, Virginia 

RONALD WAYNE BRAY 

 MEMORANDUM OPINION*

 BY 

v. Record No. 1128-14-3 JUDGE RUDOLPH BUMGARDNER, III 

 NOVEMBER 17, 2015 

COMMONWEALTH OF VIRGINIA 

 FROM THE CIRCUIT COURT OF PITTSYLVANIA COUNTY 

Stacey W. Moreau, Judge 

 Glenn L. Berger (Berger & Thornhill, on brief), for appellant. 

 Benjamin H. Katz, Assistant Attorney General (Mark R. Herring, 

Attorney General, on brief), for appellee. 

 Ronald Wayne Bray appeals his convictions of four counts each of selling alcoholic 

beverages without a license, Code § 4.1-302, possessing a dangerous weapon while selling 

alcoholic beverages, Code § 4.1-318, and possessing or transporting alcoholic beverages on 

which taxes were not paid, Code § 4.1-313(A).1

 The twelve convictions arose out of four 

separate sales. He contends imposing separate sentences for each of the twelve offenses 

constituted double jeopardy and violated Code § 19.2-294. We conclude it did not and affirm. 

 On February 7, February 22, April 19, and June 17, 2013, the defendant sold alcoholic 

beverages to undercover agents of the Department of Alcoholic Beverage Control. He had no 

license to sell alcohol and had paid no taxes on the alcohol. A firearm was visible during each 

 *

 Pursuant to Code § 17.1-413, this opinion is not designated for publication. 

1

 The defendant entered conditional guilty pleas to the alcohol-related offenses, as well as 

to a charge of maintaining a common nuisance. He does not challenge his conviction of 

maintaining a common nuisance. 

UNPUBLISHED 
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sale. The trial court convicted the defendant of violating Code § 4.1-302, Code § 4.1-313(A), 

and Code § 4.1-318 on each offense date. 

 The defendant asserts the trial court violated Code § 19.2-294 by sentencing him 

separately for each of the offenses. Code § 19.2-294 provides: 

If the same act be a violation of two or more statutes, or of two or 

more ordinances, or of one or more statutes and also one or more 

ordinances, conviction under one of such statutes or ordinances 

shall be a bar to a prosecution or proceeding under the other or 

others. 

However, Phillips v. Commonwealth, 257 Va. 548, 552, 514 S.E.2d 340, 342 (1999), held: 

“[T]he 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.” All of these prosecutions 

were simultaneous, not successive. Accordingly, the argument fails. 

The defendant maintains his separate punishment for the twelve offenses was double 

jeopardy. “The Double Jeopardy Clause . . . provides that no person shall ‘be subject for the 

same offence to be twice put in jeopardy of life or limb.’ U.S. Const. amend. V. This protection 

applies both to successive punishments and to successive prosecutions for the same criminal 

offense.” United States v. Dixon, 509 U.S. 688, 695-96 (1993). “[W]here the two offenses for 

which the defendant is punished or tried cannot survive the ‘same-elements’ test, the double 

jeopardy bar applies.” Id. at 696. 

 Offenses are not “the same” when, viewed in the abstract, each requires proof of an 

element that the other does not. Coleman v. Commonwealth, 261 Va. 196, 200, 539 S.E.2d 732, 

734 (2002). See also Payne v. Commonwealth, 277 Va. 531, 540, 674 S.E.2d 835, 839 (2009). 

 Code § 4.1-318 provides: “No person shall unlawfully manufacture, transport or sell any 

alcoholic beverages, and at the time . . . have in his possession, actual or constructive, at or 

within 100 yards . . . any dangerous weapon as described in § 18.2-308.” Code § 4.1-313(A) 
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provides: “No person, other than a common carrier, shall have . . . [or] possess . . . alcoholic 

beverages upon which the tax imposed by the laws of the United States has not been paid.” 

Code § 4.1-302 makes it unlawful for “any person who is not licensed [to] sell[] any alcoholic 

beverages except as permitted by this title . . . .” 

 These statutes define three distinct offenses because each contains an element the others 

do not. Code § 4.1-318 requires proof that the defendant possessed a dangerous weapon; the 

other two offenses do not. Code § 4.1-313(A) requires proof that the defendant did not pay the 

required taxes; the other two offenses do not. Code § 4.1-302 requires proof that the defendant 

sold alcohol without a license; the other two offenses do not. 

 Although prosecution of these three offenses involved some common evidence, when 

viewed in the abstract, no one offense contained all the elements of the other two offenses. The 

trial court did not err in convicting the defendant for each of the four sets of three offenses and 

for sentencing separately on each of the separate convictions. Accordingly, we affirm. 

 Affirmed.