COURT OF APPEALS OF VIRGINIA 

Present: Chief Judge Felton, Judges Clements and Beales 

Argued at Richmond, Virginia 

KELLY DINELLE PAYNE 

 OPINION BY 

v. Record No. 3159-06-2 CHIEF JUDGE WALTER S. FELTON, JR. 

 JUNE 3, 2008 

COMMONWEALTH OF VIRGINIA 

FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND 

Beverly W. Snukals, Judge 

 Dean C. Marcus (Bain Sheldon, PLC, on brief), for appellant. 

 Virginia B. Theisen, Senior Assistant Attorney General (Robert F. 

McDonnell, Attorney General, on brief), for appellee. 

 Following a jury trial, Kelly Dinelle Payne (“appellant”) was convicted of felony 

homicide, in violation of Code § 18.2-33; aggravated involuntary manslaughter, in violation of 

Code § 18.2-36.1(B); and two charges of felony hit-and-run, in violation of Code § 46.2-894. 

She was sentenced to twenty years imprisonment for each of the homicide convictions. 

Appellant’s felony hit-and-run convictions are not before us on appeal. She contends the 

punishments imposed for felony homicide and aggravated involuntary manslaughter of a single 

victim subjected her to double jeopardy in violation of the Fifth Amendment to the United States 

Constitution. Finding no error on the part of the trial court, we affirm appellant’s convictions. 

I. 

 On appeal of a conviction, “the evidence and all reasonable inferences flowing therefrom 

must be viewed in the light most favorable to [the Commonwealth,] the prevailing party in the 

trial court.” Commonwealth v. Hudson, 265 Va. 505, 514, 578 S.E.2d 781, 786 (2003). So 

viewed, the evidence established that when appellant arrived at work on a morning in March 
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2006, driving a white pickup truck, her breath smelled of alcohol. She drank alcohol throughout 

the day at work, and her behavior became so “flirtatious,” “irrational,” and “erratic” that her 

employer told her to leave work before the scheduled end of her workday. 

 Appellant drove the white pickup truck out of her employer’s parking lot, “shot across” 

the road, and a few minutes later “slammed” into a car driven by Ruth Ann Priest stopped at a 

red light. The collision was sufficiently violent to knock the rear bumper off of Priest’s car and 

to jerk Priest “forward pretty hard.” Priest called 911 to report the accident, describing 

appellant’s vehicle as a white pickup truck and giving the truck’s license plate number. 

Although she initially told her husband and a police officer that she was not hurt, Priest drove 

herself from the collision scene to a medical facility where she received treatment for injuries she 

received in the collision. 

 Following the collision with Priest’s car, appellant remained in her truck with a “dazed” 

expression on her face for a few minutes. As appellant and Priest remained in their vehicles in 

the middle lane of a three-lane road, another motorist, Michael Foster, driving in the far right 

lane, approached the collision scene. Foster testified that he “let [appellant] out” of the middle 

lane, because he “figured [Priest and appellant] [were] going to get off to the side of the road and 

exchange insurance information.” Instead of pulling over to the side of the road, appellant 

rapidly drove away from the collision scene without checking to see if Priest was injured or 

identifying herself to anyone. Appellant then drove onto the curb, swerved across all three lanes 

of traffic and into the far left lane. Foster witnessed appellant, within approximately “two 

blocks” of the Priest collision scene, make “a[n] abrupt right turn, trying to get up onto” the 

Chippenham Parkway entrance ramp. As she made this abrupt right turn, appellant drove over 

another curb and struck Ashokkumar Patel, a pedestrian, and continued onto the ramp without 

stopping. Patel died from blunt force injuries received as a result of being struck by appellant’s 
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truck. Later that night, police located appellant’s truck, and observed that it had a damaged 

headlight. Forensic evidence determined plastic headlight fragments found at the scene where 

Patel was struck to be consistent with materials from the broken headlight of appellant’s truck. 

 Appellant was indicted for felony homicide, aggravated involuntary manslaughter, and 

two counts of felony hit-and-run. The trial court denied appellant’s pre-trial motion to require 

the Commonwealth to prosecute her either for felony homicide or aggravated involuntary 

manslaughter, but not both. Appellant argued that to convict and punish her for both homicide 

charges would violate the double jeopardy prohibition under the United States and Virginia 

Constitutions.1

 The jury convicted appellant of both homicide offenses. She was sentenced to twenty 

years imprisonment for each of those convictions. The trial court denied her motion to vacate 

the conviction and sentence imposed for aggravated involuntary manslaughter. 

 This appeal followed. 

II. 

 On appeal, appellant contends the trial court erred in not vacating her conviction and 

sentence for aggravated involuntary manslaughter, arguing that to punish her twice for causing 

the death of a single victim violated the double jeopardy provision of the United States 

Constitution. On appeal, we apply a de novo standard of review in determining whether 

cumulative punishments imposed in a single trial violate the constitutional prohibition against 

double jeopardy. Dalo v. Commonwealth, 37 Va. App. 156, 164-65, 554 S.E.2d 705, 709 

(2001), aff’d, 264 Va. 431, 570 S.E.2d 840 (2002). De novo review is appropriate, because 

although determining legislative intent is a “factual inquiry,” Garrett v. United States, 471 U.S. 

 1

 “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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773, 779 (1985), our determination of whether the legislature intended to impose cumulative 

punishments “involves an examination of the offenses ‘in the abstract, rather than with reference 

to the facts of the particular case under review.’” Dalo, 37 Va. App. at 164-65, 554 S.E.2d at 

709 (quoting Blythe v. Commonwealth, 222 Va. 722, 726, 284 S.E.2d 796, 798 (1981)). 

 When multiple convictions in a single trial arise out of the same course of conduct, “‘the 

role of the constitutional guarantee is limited to assuring that the court does not exceed its 

legislative authorization by imposing multiple punishments for the same offense.’” Coleman v. 

Commonwealth, 261 Va. 196, 199-200, 539 S.E.2d 732, 734 (2001) (quoting Payne v. 

Commonwealth, 257 Va. 216, 227, 509 S.E.2d 293, 300 (1999)). Where a legislature intends to 

impose multiple punishments for the same course of conduct, the imposition of multiple 

punishments does not violate the Constitution. Missouri v. Hunter, 459 U.S. 359, 366-68 (1983); 

Albernaz v. United States, 450 U.S. 333, 344 (1981). If “‘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 whether each [offense charged] requires proof of an additional 

fact which the other does not.’” Coleman, 261 Va. at 200, 539 S.E.2d at 734 (quoting 

Blockburger v. United States, 284 U.S. 299, 304 (1932)) (alteration in original). 

 Applying the test established in Blockburger, we consider whether the trial court erred in 

its determination that the General Assembly intended to impose multiple punishments on an 

individual who violates, in a single course of conduct, Code §§ 18.2-33, felony homicide, and 

18.2-36.1(B), aggravated involuntary manslaughter, when that conduct results in the death of a 

single victim. 

 “The assumption underlying the [Blockburger] rule is that [the legislature] ordinarily 

does not intend to punish the same offense under two different statutes. Accordingly, where two 

statutory provisions proscribe the ‘same offense,’ they are construed not to authorize cumulative 
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punishments . . . .” Whalen v. United States, 445 U.S. 684, 691-92 (1980). On the other hand, 

where the statutes at issue punish separate offenses arising out of the same course of conduct, 

demonstrating a legislative intent to authorize cumulative punishments, imposition of separate 

punishments for each offense does not offend the double jeopardy prohibition against multiple 

punishments. Id. In applying the Blockburger rule, we consider “the offenses charged in the 

abstract, without referring to the particular facts of the case under review.” Coleman, 261 Va. at 

200, 539 S.E.2d at 734 (citing Blythe, 222 Va. at 726-27, 284 S.E.2d at 798-99). 

 A conviction under Code § 18.2-33, felony homicide, punishable as second-degree 

murder, requires proof that the accused unintentionally killed a person “while in the prosecution 

of some felonious act other than those specified in [Code] §§ 18.2-31 and 18.2-32.”2 A 

conviction under Code § 18.2-36.1(B), aggravated involuntary manslaughter, however, requires 

proof that the accused unintentionally caused the death of a person while “driving under the 

influence” of an intoxicant and that her conduct was “so gross, wanton, and culpable as to show 

a reckless disregard for human life.” Clearly, each offense requires proof of a fact which the 

other does not. The felony homicide statute, Code § 18.2-33, unlike the aggravated involuntary 

manslaughter statute, requires proof that the defendant was engaged in a felonious act at the time 

of the unintended killing. The aggravated involuntary manslaughter statute, Code 

§ 18.2-36.1(B), unlike the felony homicide statute, requires proof that the defendant caused a 

death because she drove, while intoxicated, in a manner so gross and culpable as to demonstrate 

a reckless disregard for human life. Accordingly, the statutory offenses of felony homicide and 

aggravated involuntary manslaughter are separate statutory offenses under Blockburger, and 

 2

 Code § 18.2-31 defines the offenses that constitute capital murder. Code § 18.2-32 

defines first-degree murder and includes the predicate offenses for first-degree felony murder. 
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authorize the imposition of cumulative punishments for a single course of conduct that violated 

each statute. 

 Appellant contends that even though felony homicide and aggravated involuntary 

manslaughter are separate offenses under the Blockburger test, her punishment under both 

statutes nonetheless violated the constitutional prohibition against double jeopardy because only 

one homicide occurred. She argues that her convictions under each statute “focus[ed]” on the 

death of Patel and that punishing her twice for causing Patel’s death subjected her to multiple 

punishments prohibited under the Double Jeopardy Clauses of the United States and Virginia 

Constitutions. We disagree. 

 Appellant argues “there is no prior example in Virginia of a defendant being sentenced to 

a greater number of homicide charges than there were victims,” citing Clagett v. Commonwealth, 

252 Va. 79, 472 S.E.2d 263 (1996) (holding that imposing five death sentences for four 

homicides in a single trial violated the double jeopardy multiple punishment prohibition, as an 

“accused cannot be subjected to more than one conviction and punishment for each discrete 

criminal act”). Subsequent to its decision in Clagett, the Supreme Court expressly considered 

“whether there can be more than one [conviction and] death sentence imposed when there is only 

one victim.” Payne, 257 Va. at 227, 509 S.E.2d at 300. In Payne, the Court held that an 

accused’s convictions of more than one offense of capital murder of the same victim, and the 

imposition of a death sentence for each conviction, did not violate the double jeopardy 

prohibition against multiple punishments. It concluded that each of the two offenses for which 

the accused stood convicted, capital murder during the commission of rape and capital murder 

during the commission of robbery of the same victim, was a separate offense under the 

Blockburger test. Payne, 257 Va. at 228-29, 509 S.E.2d at 300-01. It further concluded that the 

imposition of punishment for each offense did not violate the double jeopardy prohibition. Id. 
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In Winston v. Commonwealth, 268 Va. 564, 614-15, 604 S.E.2d 21, 49-50 (2004), the Supreme 

Court reiterated its holding in Payne that an accused’s conviction of more than one offense of 

capital murder of the same victim, and the imposition of a death sentence for each conviction, 

did not violate the double jeopardy prohibition. 

 Here, the jury determined that appellant committed two separate criminal offenses when 

she fatally struck Patel. It found that appellant was engaged in a felony hit-and-run when she 

fatally struck Patel approximately “two blocks” from the Priest collision scene. The jury also 

found that appellant was driving while intoxicated and in a manner “so gross, wanton, and 

culpable as to show a reckless disregard for human life” when she struck and killed Patel. Code 

§ 18.2-36.1(B). 

 While the separate criminal offenses each resulted in the death of a single victim, the 

convictions and punishments imposed did not violate the constitutional prohibition against 

double jeopardy. See Payne, 257 Va. at 227-29, 509 S.E.2d at 300-01. 

III. 

 Appellant finally contends that, nothwithstanding binding precedent established by the 

United States Supreme Court in Blockburger and Hunter, and by the Virginia Supreme Court in 

Payne and Winston, convicting and sentencing her for two separate offenses for causing the 

death of the same victim is unconstitutional. Appellant on brief cites no authority for this 

argument, and we are aware of none. Accordingly, we find her contention to be without merit. 

See Rule 5A:20. 

IV. 

 We conclude the trial court did not err in finding that appellant’s two convictions and 

punishments for causing the death of a single victim resulting from the violation of two separate 

and distinct statutory provisions, each of which authorized a separate statutory punishment, do 
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not violate the constitutional guarantee of the protection against multiple punishments provision 

of the Double Jeopardy Clause of the United States or Virginia Constitutions. Accordingly, we 

hold that the trial court did not err in refusing to vacate appellant’s conviction and sentence 

imposed for the aggravated involuntary manslaughter of Patel. 

 For these reasons, we affirm appellant’s convictions. 

 Affirmed.