COURT OF APPEALS OF VIRGINIA

Present: Judges Fran k, Beales and Powell Argued at Richmond, Virginia

MICHAEL RASHE DAVIS OPINION BY v. Record No. 2581-09-2 JUDGE ROBERT P. FRANK JANUARY 11, 2011 COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COUR T OF LUNENBURG COUNTY Leslie M. Osborn, Judge 1 Rocco P. T. Columbus (Mokris & Dunning, P.L.C. , on brief), for appellant. Virginia B. Theisen, Senior Assi stant Attorney General (Kenneth T. Cuccinelli, II, Attorney Genera l, on brief), for appellee.

Michael R. Davis, appellant, was convicted in a jury trial of vehicular aggravated involuntary manslaughter, in viol ation of Code § 18.2-36.1(B). A ppellant contends the trial court erred in failing to dismiss the manslaughter indictment because th at conviction violates both the Double Jeopardy Clause of the United St ates Constitution and § 19.2-294 of the Code of Virginia. He also contends the evidence was not sufficient to prove causation and criminal negligence. Finding no error, we affirm the trial court.

BACKGROUND Under well established principles of appell ate review, we view the evidence and all

reasonable inferences deducible from that ev idence in the light most favorable to the

1 The Honorable Robert G. O’Hara, Jr. heard appellant’s motion to dismiss, which is a subject of this appeal, on July 21, 2009.

-1-Commonwealth, the party prevailing below. Banks v. Commonwealth , 41 Va. App. 539, 543, 586 S.E.2d 876, 877 (2003). So viewed, on the even ing of January 6, 2009, appellant attended a birthday party along with his cousins, Lawanda Rainey and Ronald White. Both White and appellant drank alcohol at the pa rty. White left the party on foot before appellant, and Rainey left in appellant’s car. As Davis drove on an unlit stretch of Mecklenburg Avenue, he was sending text messages on his cellular phone. Appellant testified his headlights illuminate d the road. Rainey saw something in the road and yelled to appellan t to “watch out.” Seconds later, appellant hit White, who was lying in the road. Rainey ne ver indicated appellant took any evasive action prior to striking White. Appellant lost cont rol of his car and crashed into a ditch.

Officers arrived at the scene. White was d eclared dead at the scene. Virginia State Trooper Joseph Landry observed that there were no skid marks leading to the decedent’s body. 2 He also observed damage to the front undercarriage of appellant’s car. Landry detected a slight odor of alcohol on appellant. Landry testified appellant appeared to be under the influence of alcohol. Landry put appellant into th e police car and advised him of his Miranda 3 rights. Appellant stated: I’m going to be honest with you. Me and my cousin was coming down the road. I was sitting th ere texting on my phone and I did not realize he was laying in the ro ad. And I ran over top of him. And after I ran over top of him, that’s when I realized I had ran over top of something. And that’s when I swerved and hit the bank and everything.

2 The trooper seemed to suggest that the road’s wet surface might explain the absence of skid marks.

3 Miranda v. Arizona , 384 U.S. 436 (1966).

- 2 -Appellant admitted to drinking alcohol, so La ndry administered field sobriety tests. Appellant did not perform satisfactor ily. At the sheriff’s office, a br eath test revealed appellant’s

blood alcohol level to be .15. On April 8, 2009, appellant was convicted in general district court of driving under the influence, in violation of Code § 18.2-266. Im mediately after his c onviction, appellant was served with an indictment, returned by th e grand jury on April 6, 2009, charging him with aggravated involuntary manslaughter, in violation of Code § 18.2-36.1(B). Appellant filed a motion to dismiss the indictment on July 8, 2009. On July 21, 2009, the trial court conducted a hearing on appellant’s motion. The trial court found no double jeopardy

violation under Blockburger v. United States , 284 U.S. 299 (1932), and no violation of Code § 19.2-294. A jury heard the aggravated involuntary manslaughter case on August 11, 2009. Melissa Kennedy, a forensic scientist who is a supervisor in the Breath Alcohol Department of Forensic Science, testified as an expert in toxicology. She stated that c oncentration and divided attention problems begin when the blood alcohol level reaches .05. 4 Kennedy explained that divided attention is the most important part of safe dr iving. At a .05 blood alcohol level, one begins to lose judgment and the ability to th ink coherently. She al so testified that visu al difficulties begin

at a blood alcohol level of about .10. Alcohol consumption impairs reaction time such that an impaired driver takes longer to recognize an emergency and to take evasive action. Kennedy stated that while appellant’s blood alcohol leve l was .15 at the time it was tested, it would have

been .19 to .21 at the time of the accident.

4 According to Kennedy, “divided attention” is the driver’s ab ility to balance a number of skills required for safe drivi ng, i.e., controlling th e steering wheel, watching his speed, paying attention to the road and oncoming traffic, etc.

- 3 -At trial, appellant testified that when Rainey told him something was in the road, he “immediately” put his phone down and swerved to avoid the object. Appellant denied not looking at the road. He expl ained, “I was looking down and l ooking up at the same time. I wasn’t on my cell phone the whole entire time.” When asked if he could ha ve seen the object in

the road sooner had he had not been texti ng, but looking forward, appe llant replied in the negative, because it was dark. He further admitted that after seeing the object in the road, he had time to swerve around it. At trial, appellant denied hitting White. The jury convicted appellant of a ggravated involuntary manslaughter. This appeal followed.

ANALYSIS Appellant contends the trial court erred in failing to dism iss the aggravated involuntary manslaughter indictment because that conviction violates both the Double Jeopardy Clause of the United States Constitution and § 19.2-294 of the Code of Virginia. Specifically, he argues he was improperly convicted and punished twice fo r committing one offense. He also argues the Commonwealth did not prove that White’s death was caused by appellant driving under the influence of alcohol, nor did the Commonwealth prove the requisite criminal negligence. Double Jeopardy

Standard of Review In reviewing a double jeopardy claim, or a claim based on statutor y interpretation, this

Court shall conduct a de novo review. See Dalo v. Commonwealth , 37 Va. App. 156, 164-65, 554 S.E.2d 705, 709 (2001). Our inquiry is whether the convictions and punishments for driving while intoxicated and aggravated involuntary manslaught er, both of which arose from th e same incident, violate the

- 4 -double jeopardy provision of the Fifth Amendmen t of the United States Constitution. In pertinent part, this amendment stat es that “[n]o person shall . . . be subject for the same offence to be twice put in jeopa rdy of life or limb.” U.S. Const. amend. V. “This constitutional provision guarantees pr otection against (1) a second prosecution for the same offense after acquitta l; (2) a second prosecution for the same offense after conviction; and (3) multiple punishments for the same offense.” Payne v. Commonwealth , 257 Va. 216, 227, 509 S.E.2d 293, 300 (1999). 5 To determine whether two charges constitute th e same offense, we must consider the rule

enunciated in Blockburger , 284 U.S. at 304. 6 “[W]here 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 whet her each provision requires proof of a fact which the other does

not.” Id. A double jeopardy violation exists only if the offenses always require proof of the

same elements. See Illinois v. Vitale , 447 U.S. 410, 419-20 (1980) . “In applying the Blockburger test, we look at the offenses charged in the abstract, wit hout referring to the particular facts of the case under review.” Coleman v. Commonwealth , 261 Va. 196, 200, 539 S.E.2d 732, 734 (2001).

5 While the Attorney General seems to argue on brief that these were not successive proceedings, but “concurrent” prosecutions, no author ity is cited to suggest a third category other than simultaneous or successive. At oral ar gument, the Attorney General conceded that prosecutions are either simultaneous or successive . Appellant’s conviction for driving under the influence and prosecution for aggravated involu ntary manslaughter were not joined in a single evidentiary hearing in the general district court. For the purposes of this appeal, therefore, we assume without deciding that th ese were successive prosecutions.

6 While Dalo , 37 Va. App. 156, 554 S.E.2d 705, holds th at the legislature intended to authorize multiple punishments under C ode §§ 18.2-266 and 18.2-36.1 in simultaneous prosecutions, we need not address whether that same legislative intent applies to successive prosecutions. “A Blockburger analysis is preferred by courts generally as it maximizes judicial economy, providing an answer without resorting to a more detailed examination of legislative

- 5 -An analysis of whether the multiple convi ctions and punishments imposed upon appellant are proper requires a determination of legislative in tent. Thus, we must first examine the statutes under which appellant was convicted. Code § 18.2-266 (driving while intoxi cated) provides, in relevant part: It shall be unlawful for any person to drive or operate any motor vehicle . . . (i) while such pers on has a blood alcohol concentration of 0.08 percent or more . . . (ii) while such person is under the influence of alcohol, (iii) while su ch person is under the influence of any narcotic drug or any othe r self-administered intoxicant or drug of whatsoever nature, or any combination of such drugs, to a degree which impairs his ability to drive or operate any motor vehicle . . . (iv) while such pers on is under the combined influence of alcohol and any drug or drugs to a degree which impairs his ability to drive or operate any motor vehicle . . . . Code § 18.2-36.1 (aggravated involuntary ma nslaughter) provides, in relevant part:

A. Any person who, as a result of driving under the influence in violation of clause (ii), (iii), or (iv) of § 18.2-266 . . . causes the death of another person, sha ll be guilty of involuntary manslaughter. B. If, in addition, the conduct of the defendant was so gross, wanton and culpable as to show a reckless disregard for human life, he shall be guilty of a ggravated involuntary manslaughter, a felony punishable by a term of imprisonment of not less than one nor more than 20 years, one year of which shall be a mandatory minimum term of imprisonment. The driving while intoxicated and involuntary manslaughter statutes contain different elements. An element of driving while intoxi cated is having a blood al cohol concentration of 0.08 or more. Code § 18.2-266(i) requires no ev idence of erratic driving, performance on sobriety tests, or any other evidence that the defendant is “intoxicated.” See Code § 4.1-100 (defining “intoxicated” as “a condition in which a person has drunk enough alcoholic beverages to observably affect his manner, disposition, spe ech, muscular movement, general appearance or

intent.” Id. at 164, 554 S.E.2d at 709.

- 6 -behavior”). Blood alcohol concen tration is not an element of involuntary manslaughter. While aggravated involuntary manslaught er requires proof of driving under the influence, it also requires criminal negligence and death. Code § 18.2-266 does not require these elements. Viewed in the abstract, conviction under these two st atutes passes the Blockburger test.

- 7 -Because we find that each statute requires proof of additional facts not found in the other, therefore constituting two distinct offenses, ther e is no constitutional double jeopardy violation. 7 Code § 19.2-294

Standard of Review Appellant also contends the trial court erre d in denying his motion to dismiss because he

was twice tried and convicted for the same act. He argues his convictions violate the statutory bar against double prosecution. As previously noted, in considering a claim based on statutory interpretation, this Court

conducts a de novo review. See Dalo , 37 Va. App. at 164-65, 554 S.E.2d at 709. Code § 19.2-294 states, in relevant part:

If the same act be a violation of tw o 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. 8 “Although the language of [this st atute] does not state that it provides a defense of former jeopardy, ‘it amounts to such a defens e in purpose and desired effect.’” Londono v.

Commonwealth , 40 Va. App. 377, 393, 579 S.E.2d 641, 648 (2003) (quoting Epps v.

7 In a prosecution for a violation of Code § 18.2-36.1 or Code § 18.2-266(ii ), (iii), or (iv), Code § 18.2-269 creates a rebuttable presumption th at the accused was under the influence when the accused has a blood alcohol conc entration of 0.08 or higher. Ho wever, the applicability of the statute to the issue be fore us was never raised below or brie fed by the parties. A judge of this panel inquired whether Code § 18.2-269, in a Blockburger , 284 U.S. at 304, context, established that the blood alcohol concen tration presumption was an el ement common to Code §§ 18.2-266 and 18.2-36.1. The Attorney General responde d that under Code § 18.2-266(i), the blood alcohol concentration is an el ement of the offense, while Code § 18.2-269 only creates a method of proving intoxication. It is not an element of Code § 18.2-36.1. We agree with the Commonwealth.

8 Code § 19.2-294 is inapplicable to simultaneous prosecutions. See Johnson v. Commonwealth , 38 Va. App. 137, 145 n.2, 562 S.E.2d 341, 345 n.2 (2002). As we have previously stated, we assume without decidi ng that these were successive prosecutions.

- 8 -Commonwealth , 216 Va. 150, 155, 216 S.E.2d 64, 68 (1975)). This statute “speaks to ‘acts’ of the accused, not elements of the offense.” Wade v. Commonwealth , 9 Va. App. 359, 365, 388 S.E.2d 277, 280 (1990). So ‘“if two offenses involve “two separate and distinct acts,” conviction of one does not bar a prosecution for the other.’” Johnson v. Commonwealth , 38 Va. App. 137, 145, 562 S.E.2d 341, 345 (2002) (quoting Lash v. County of Henrico , 14 Va. App. 926, 930, 421 S.E.2d 851, 853 (1992) (en banc)).

The test of whether there are separate acts sustaining several offenses is whether the same evidence is required to sustain them. In applying the “same evidence” test, the particular criminal transaction must be examined to determine whether the acts are the same in terms of time, situs, victim, and the nature of the act itself. Johnson , 38 Va. App. at 146, 562 S.E.2d at 345 (int ernal citations and quotation marks omitted). 9 Thus we must compare the acts upon wh ich the manslaughter conviction was based with the acts underlying the convictio n for driving under th e influence. If the two convictions cannot be sustained by the same evidence, ‘“then the fact that several charges relate to and gr ow out of one transaction or oc currence does not make a single act or offense where two separate acts or offenses are defi ned by statute.’” Londono , 40 Va. App. at 394, 579 S.E.2d at 649 (quoting Hundley v. Commonwealth , 193 Va. 449, 451, 69 S.E.2d 336, 337 (1952)).

In Londono , appellant was charged with both stat e and federal offenses. The charges stemmed from transporting drugs into Virginia , possessing those drugs with the intent to distribute, and for conspiring to do so. This C ourt found that the time and situs of appellant’s acts were different. The federal charges, possessi ng heroin with the intent to distribute and

9 Johnson , 38 Va. App. 137, 562 S.E.2d 341, demonstrated it is not necessary to establish that all four factors mu st be present. In Johnson , this Court stated, “assuming time, situs, and victim coincided, the nature of the specific ac t peculiar to each prosecution is distinct. Id. at 146,

- 9 -562 S.E.2d at 346.

- 10 -conspiring to possess heroin with intent to dist ribute, were based on his possession of those drugs

at the train station in Richmond. The state charges, in contrast, were based on his transporting the drugs into the Commonwealth, which occurred th e moment he crossed in to Virginia with the drugs. Id. at 394-95, 579 S.E.2d at 649-50.

In Jefferson v. Commonwealth , 43 Va. App. 361, 597 S.E.2d 290 (2004), the defendant was found to be carrying a weapon during a traffi c stop. He was charged and convicted of both carrying a concealed weapon and possession of a weapon by a convicted felon. This Court found that assuming time, situs, a nd victim were the same, the nature of the act was different in each prosecution. For the con cealed weapon conviction, the Comm onwealth had to prove that the defendant had a handgun on his person, hidden from common observation, without the legal authority to do so. Id. at 368-69, 597 S.E.2d at 294. But to prove his guilt for the second charge, the Commonwealth had to show that he had a pr ior felony conviction and that he knowingly and intentionally possessed or transported the gun. Id. In this case, appellant’s conduct supported convictions for both driving under the influence and aggravated i nvoluntary manslaughter. First, the time and situs of the acts were different for each offense. The moment appellant began to operate his vehicle while intoxicated, he was guilty of driving under the

influence. See Code § 18.2-266. It was not until he stru ck and killed White, some distance from where he began driving, that he committed manslaughter. Cf. Londono , 40 Va. App. at 395, 579 S.E.2d at 649-50 (holding the appellant was guilty of transporting illegal substances into the

Commonwealth the moment he crossed the border into Virginia, which took place well before they were discovered).

- 11 -Next, each act had a distinct victim. The victim of driving under the influence was the

Commonwealth. The victim of ma nslaughter was Ronald White. Finally, the nature of the act specific to each prosecution is distinct. Appellant’s act of driving with a blood alcohol con centration of at leas t .15 but not more than .20 predicated his conviction and sentencing for driving under the in fluence. In the conviction order for driving under the influence, it is clear that appellant was convicted under Code § 18.2-266(i), “while such person has a blood alcohol c oncentration of 0.08 or more.” Appellant was sentenced under Code § 18.2-270, which provides an additional mandatory minimum period of five days

incarceration if the defendant’s bl ood alcohol concentration was at least .15 but not more than .20. Thus, the act required for a conviction of driving while intoxicated is not appellant’s manner of driving, performance on sobriety te sts, etc., but rather only his blood alcohol concentration. In contrast, appella nt’s act of 1) driving under the influence of alcohol (where he “has drunk enough alcoholic beverages to observably affect his manner, disposition, speech, muscular movement, general appearance or beha vior,” Code § 4.1-100) a nd 2) killing someone as a result of his impaired driving was the evidence used to convict him of aggravated involuntary manslaughter. Alt hough driving was the conduct co mmon and necessary to each offense, 10 the time, situs, victim, and na ture of the act were distinct . Because of this, different

evidence could be needed to sustain each conviction. Therefore, appellant’s prosecution for a ggravated involuntary manslaughter does not violate Code § 19.2-294. Sufficiency

10 It is established law that “driving an automobile may give rise to several acts and offenses.” Estes v. Commonwealth , 212 Va. 23, 24, 181 S.E.2d 622, 624 (1971).

- 12 -Standard of Review In examining a challenge to the sufficiency of the evidence, appellate courts will review the evidence in the light most favorable to the party prevailing at trial and consider any reasonable inferences from the proven facts. Zimmerman v. Commonwealth , 266 Va. 384, 386, 585 S.E.2d 538, 539 (2003). The judgment of the tria l court is presumed to be correct and will be reversed only if it is “plainly wrong or without evidence to support it.” Viney v.

Commonwealth , 269 Va. 296, 299, 609 S.E.2d 26, 28 (2005). Appellant contends the Co mmonwealth did not prove White’s death was caused by appellant’s driving under the infl uence. Appellant also argues th e evidence did not establish he acted with a reckless disregard for human life. A proximate cause is “an act or omission that, in natural and continuous sequence unbroken by a superseding cause, produces a par ticular event and without which that event

would not have occurred.” Brown v. Commonwealth , 278 Va. 523, 529, 685 S.E.2d 43, 46 (2009); see also Doherty v. Aleck , 273 Va. 421, 428, 641 S.E.2d 93, 97 (2007). “There can be more than one proximate cause [of an incident] and liability attaches to each person whose negligent act results in the victim’s injury or death.” Gallimore v. Commonwealth , 246 Va. 441, 447, 436 S.E.2d 421, 425 (1993). Causation is a factua l issue left to the jury to decide. Hall v.

Commonwealth , 32 Va. App. 616, 632, 529 S.E.2d 829, 837 (2000) (en banc). Appellant contends that hi s sending text messages, rather than his driving under the influence of alcohol, caused him to strike and kill White. However, this is belied by the record and by appellant’s own testimony. When appellant wa s asked if he might have seen the object in the road sooner had he not been texting, appe llant responded negatively, because it was dark. Appellant also stated that he was not looking at his cell phone the entire time, but rather he was

- 13 -looking at his phone and looking at the road. Appella nt testified that when Rainey alerted him to an object in the road, he immediately put down his phone and looked at th e road. He said he swerved, began weaving back and forth, and lost control of the car. Appellant’s own words contradict any contention that sendi ng text messages caused the accident. 11 While appellant’s act of sending text messa ges while driving under the influence was foolhardy and reckless, it was not an intervening cause of the accident. “To be an intervening cause . . . [an incident] must have been an event which [the defendant] coul d not have foreseen.”

See Gallimore , 246 Va. at 447, 436 S.E.2d at 425. Any r easonably prudent person would have

realized the inherent risk i nvolved with sending text messages while driving under the influence of alcohol. Appellant’s use of his cellular phone to send text messa ges did not break the chain of events initiated by his driving while intoxicate d. It merely aggravated his recklessness. Rainey, appellant’s passenger, did not tes tify that appellant took any evasive action to avoid hitting White. Her testimony was that once sh e warned appellant that there was something in the road, appellant hit White within a few seconds. The trier of fact is not required to ac cept a party’s evidence in its entirety, Barrett v.

Commonwealth , 231 Va. 102, 107, 341 S.E.2d 190, 193 (1986), but is free to believe and disbelieve in part or in whol e the testimony of any witness, Rollston v. Commonwealth , 11 Va. App. 535, 547, 399 S.E.2d 823, 830 (1991). The ju ry was entitled to reject appellant’s testimony that he swerved to mi ss White, and conclude that appe llant had time to take evasive action, but because of his intoxi cated state, failed to do so. The impact of alcohol on appellant’s beha vior is supported by the evidence. Melissa Kennedy, the toxicology expert, te stified that appellant’s blood alcohol concentration was high

11 The Court directed the parties to address th is issue at oral argument, and they did so.

- 14 -enough that his concentration, attention, vision, judgment, and, most importantly, reaction time would all be negatively affected. “Drunken driving is not only unlawful in it self, but it tends to make the defendant’s dangerous conduct more dangerous.” Essex v. Commonwealth , 228 Va. 273, 283, 322 S.E.2d 216, 221 (1984). Appellant’s intoxica tion set in motion a chain of events that led to White’s

death. See Gallimore , 246 Va. at 447, 436 S.E.2d at 425. The r ecord clearly demonstrates that appellant’s intoxication caused him to operate his vehicle in an unsafe fashion. His failure to see White lying in the road or to take any evasive action was the cause of White’s death. The fact finder could properly infer that a ppellant’s texting did not cause appellant’s inattention to the object in the road. Therefore, we find there was sufficient evidence for the jury to conclude that appellant’s driving under the influence of al cohol caused the accident, as well as White’s resulting death. Appellant also alleges the Co mmonwealth failed to prove criminal negligence. This argument is without merit. “Conduct that is ‘gross, wanton and culpable’ demonstrating a ‘reckless disregard for human life’ is s ynonymous with ‘criminal negligence.’” Riley v.

Commonwealth , 277 Va. 467, 483, 675 S.E.2d 168, 177 (2009) (quoting Jones v.

Commonwealth , 272 Va. 692, 701, 636 S.E.2d 403, 408 (2006)).

A defendant’s “level of intoxi cation is ‘relevant to a determ ination of the degree of the defendant’s negligence: whether ordinary, gross, or wanton.’” Id. at 484, 675 S.E.2d at 177-78 (quoting Essex , 228 Va. at 283, 322 S.E.2d at 221-22). “It may serve to elevate the defendant’s conduct to the level of ‘negligence so gross, want on, and culpable as to show a reckless disregard

of human life.’” Id. at 484, 675 S.E.2d at 178 (quoting Essex , 228 Va. at 283, 322 S.E.2d at 222).

- 15 -In the instant case, we look to appellant’s high blood alcohol concentration, which was higher than the legal limit. This fact by itself demonstrates criminal negligence and justifies a finding that appellant’s conduct was gross, wanton, and culpable. See Stevens v.

Commonwealth , 272 Va. 481, 488, 634 S.E.2d 305, 310 (2006) (concluding that a high level of intoxication supported a finding of criminal negligence). In addition, the record contains numerous other facts to suppor t the jury’s finding. Appellant was driving under the influence and sending text message s on a dark, rainy night. He failed to take any evasive action to avoid hitting White. His beha vior demonstrated a disregard for human life. The jury correctly found evidence of criminal negligence.

CONCLUSION Driving under the influence and aggravated involuntary manslaughter are not the same offense. There was no violation of double jeopardy or Code § 19.2-294. The trial court properly denied appellant’s motion to dismiss the indictme nt. Further, the evidence was sufficient to prove that appellant drove under the influence a nd that this was a cause of the accident and decedent’s death. Finally, the record supports th e jury’s finding of criminal negligence. Therefore, we affirm.

Affirmed.

- 16 -Powell, J., concurring. I write separately in this opini on because I concur in the resu lt but respectfully disagree with the majority’s double jeopardy analysis as it pertains to the nature of the prosecution. In footnote 5 of its opinion, the majority assumes w ithout deciding that Davi s’s prosecutions were

successive rather than simultaneous. I would hold th at Davis’s prosecutions were simultaneous. “No person shall be . . . subject for the same of fence to be twice put in jeopardy of life or

limb . . . .” U.S. Const. amend. V. “The cons titutional prohibition of double jeopardy has been held to consist of three separate guarantees: (1) ‘It protects against a second prosecution for the same offense after acquittal. [(2) It] protects against a second prosecution for the same offense after conviction. [(3)] And it protects against multiple punishments for the same offense.’”

Illinois v. Vitale , 447 U.S. 410, 415 (1980) (quoting North Carolina v. Pearce , 395 U.S. 711, 717 (1969) (footnotes omitted)). The first and sec ond guarantees are only applicable to a second proceeding brought after an acquittal or convic tion, i.e., a successive prosecution. The third guarantee, however, is relevant in simultaneous pr osecutions. Thus, I believe that we must begin our analysis by determining whether the prosecuti ons were successive or simultaneous before we determine whether Davis was twice subjected to prosecution for the same offense following a conviction or whether he received multiple punishments for one offense. In Phillips v. Commonwealth , 257 Va. 548, 549-50, 514 S.E.2d 340, 341 (1999), the Supreme Court of Virginia considered “whe ther Code § 19.2-294 bar[red] a defendant’s conviction on two felony charges of selling mar ijuana on school property, after he had been convicted in the general district court on two misdemeanor charges of distribution of marijuana

- 17 -based on the same acts.” 12 There, two arrest warrants were issued for appellant charging him with the felony offenses of selling marijuana on school grounds. Id. at 550, 514 S.E.2d at 341. One week later, two more arrest warrants were issued against Phillips charging him with misdem eanor offenses of distributing less than a half-ounce of marijuan a . . . , in violation of Code § 18.2-248.1, based on the same acts as the felony charges. On October 29, 1996, Phillips appeared in the General District Court of Russell County on all four charges. At that hearing, Phillips was tried and c onvicted on the two misdemeanor charges and waived a prelimin ary hearing on the two felony charges. The grand jury later indicted Phillips on the two felony charges.

Id. In determining whether Phillips’s prosecu tions were successive or simultaneous, the Supreme Court of Virginia defined “prosecution” as “the process in which an accused is brought to justice from the time a formal accusation is ma de through trial and final judgment in a court of appropriate jurisdiction.” Id. at 553, 514 S.E.2d at 343; see Sigmon v. Commonwealth , 200 Va. 258, 267, 105 S.E.2d 171, 178 (1958) (defining “prosecuti on” as “the means adopted to bring a supposed criminal to justice and punishment by due course of law, and consists of a series of proceedings from the time formal accusation is made by swearing out a warrant, the finding of

an indictment or information in a crimin al court, the trial, and final judgment”). 13 The Supreme

Court held:

12 Although in Phillips the appellant only argued that his prosecutions were successive and thus constituted statutory double jeopardy und er Code § 19.2-294, the analysis defining what is a successive or simultaneous prosecution woul d logically be the same regardless of whether the double jeopardy challenge is a constitutional or st atutory one as something either is or is not a successive prosecution.

13 Numerous other jurisdictions have applie d similar definitions of “prosecution.” See Florida ex rel. Shevin v. Exxon Corp. , 526 F.2d 266, 271 (5th Cir. 1976) (citing the definition of “prosecution” used in Sigmon ); United States v. Gonware , 415 F.2d 82, 84 (9th Cir. 1969) (defining “prosecution” as “the following up or carrying on of an action or suit already commenced until the remedy be attained” and conc luding that a “[p]rosecution is not completed in a criminal case until the defendant begins to serve his sentence”); Lupton v. Chase Nat. Bank ,

- 18 -The procurement of arrest warra nts on different dates does not automatically trigger the successive prosecution bar of Code § 19.2-294. Since the bar is intended to protect an accused from the “hazards of vexatious, multiple prosecutions,” the bar does not preclude the prosecution of charges in a single, evidentiary hearing, even though the arrest warr ants were obtained on different dates. In such a situation, the accused is not subjected to a greater burden than when the charges are brought simultaneously and heard together. The accused conducts his defense based on the same trial sequence and faces the same potential for anxiety, expense, and punishment. Phillips , 257 Va. at 553, 514 S.E.2d at 343. The Court ruled that Phillips’s “prosecutions were simultaneous, not successive, because they were joined in a single evidentiary hearing in the general district court.” Id. The Court reached this conclusi on even though Phillips waived a preliminary hearing on the two felony charges. Id. “Thus, the later events in the circuit court on the felony charges were merely a conti nuation of the same prosecution.” Id. Over the course of time, th is Court and the Supreme Court of Virginia have decided various factual scenarios along the prosecution continuum as satisfying the definition of simultaneous prosecutions. See Bradshaw v. Commonwealth , 228 Va. 484, 491-92, 323 S.E.2d 567, 571-72 (1984) (felony charges initi ated at separate times but final judgments reached in the

89 F. Supp. 393, 397 (D. Neb. 1950) (considering three definitions of “prosecution” ((1) “The instituting and carrying forward of a judicial proceeding to obtain some right or to redress and punish some wrong[;]” 2) “commencing, conducting and carrying a suit to a conclusion in a court of justice[;]” and 3) “the following up or carrying on of an action or suit already commenced until the remedy be attained; the act of conducting or waging a proceeding in court; the institution and carrying on of a suit in a court of law or equity, to obtain some right, or redress some . . . wrong”) before determining that a “prosecution” terminates when an award is final); State v. Cardwell , 609 P.2d 1230, 1232-33 (Mont. 1980) ( quoting the definition of “prosecution” used in Sigmon ); State v. Harvey , 187 S.E.2d 706, 717 (N.C. 1972) (defining “prosecution” as “the series of proceedings had in the bringing of an accused person to justice, from the time when the formal accusation is made , by the filing of an affidavit or a bill of indictment or information in the criminal court, until the proceedings are terminated”); State v. Wiese , 201 N.W.2d 734, 737 (Iowa 1972) (citing the definition of “prosecution” used in Sigmon ); State v. Williams , 189 So. 112, 114 (La. 1939) (defining a “prosecution” as “the series of proceedings had in the bringing of an accused pe rson to justice, from the time when the formal accusation is made, by the filing of an affidavit or a bill of indictment or information in the

- 19 -same proceeding); Phillips , 257 Va. at 553, 514 S.E.2d at 343 (misdemeanor and felony charges initiated at separate times with the misdemeanor resolved in general district court and the preliminary hearing waived on th e felony); Freeman v. Commonwealth , 14 Va. App. 126, 128-29, 414 S.E.2d 871, 873 (1992) (misdemeanor and fe lony charges initiated at the same time, but out of necessity, the misdemeanor was conclu ded before the felony was concluded in circuit court). Davis’s case presents yet another set of facts, i.e., mi sdemeanor charges brought at one time and felony charges brought separately but pr ior to final judgment in the misdemeanor

case. 14 Based on the broad definition of “prosecution” employed in Phillips and other cases, i.e., “‘prosecution’ is the process in which an accuse d is brought to justice from the time a formal accusation is made through trial and final judgment in a court of appropria te jurisdiction[,]” 257 Va. at 553, 514 S.E.2d at 343, I believe that Davi s’s prosecutions were simultaneous as his prosecution for aggravated involuntary manslaught er commenced with his indictment by a grand jury before his prosecution for driving while in toxicated concluded with the final judgment in general district court. Just as the “simultaneous initiation of criminal charges is not the exclusive factor in determining whether those charge s have been resolved in a simultaneous prosecution[,]” id. at 552, 514 S.E.2d at 342-43, the prosecu tion of the offenses in a single evidentiary hearing is an “overriding” but not exclusive factor. Therefore, I would find that where the two prosecutions overlap at any ti me before one reaches final judgment, the prosecutions are simultaneous and not successive. Because Davis’s prosecutions were simulta neous, our holding in Dalo v. Commonwealth , 37 Va. App. 156, 554 S.E.2d 705 (2001), controls. In Dalo , the appellant was similarly charged

criminal court, until the pro ceedings are terminated”). 14 Here, a grand jury indicted Davis for a ggravated involuntary ma nslaughter on April 6, 2009. Thereafter, he was convicted for driving while intoxi cated on April 8, 2009.

- 20 -with driving while intoxicated and involuntary manslaughter in a simultaneous prosecution. Id. at 160-61, 554 S.E.2d at 707. This Court he ld that Blockburger v. United States , 284 U.S. 299

- 21 -- 22 - (1932), is not controlling where the legislative intent is clear. Id. at 163-64, 554 S.E.2d at

708-09. This Court concluded that the Gene ral Assembly intended to allow multiple punishments for involuntary manslaughter and driving while intoxicated. Id. at 166-69, 554

S.E.2d at 709-11. In this case, Davis correctly conceded that “the case law is clear that when § 18.2-266 and § 18.2-36.1 are tried simultaneously at any point in the proceedings, there is no Fifth

Amendment violation.” Theref ore, I would hold that Davis’ s argument that his multiple convictions for aggravated involuntary mansla ughter and driving while intoxicated constitute constitutional double jeopardy is without merit. Given that I would hold that the prosecutions are simultaneous, I would conclude that Code § 19.2-294 has no applicability because, by its terms, it only applies when the char ges are tried successively. Phillips , 257 Va. at 552, 514 S.E.2d at 342 (stating that “[b] y its terms, 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”). I join the majority in analyzing the sufficiency of the evidence.