Lash v. County of Henrico

421 S.E.2d 851, 14 Va. App. 926, 9 Va. Law Rep. 48, 1992 Va. App. LEXIS 204

• Court: Court of Appeals of Virginia
• Decided: July 28, 1992
• Docket: Record No. 1146-89-2
• Status: Published

Opinions

Koontz, C.J.,

with whom Benton, J., joins, dissenting.

The “act” which led to Lash’s convictions of reckless driving and eluding a police officer was driving his vehicle on March 9, 1989 in one distinct, “continuous, uninterrupted course of [operating his] motor vehicle” bounded closely in terms of place and time. See Padgett v. Commonwealth, 220 Va. 758, 761, 263 S.E.2d 388, 389-90 (1980). The majority concludes, however, that Lash committed “at least two separate and distinct acts” which constituted two statutory offenses and, thus, that Code § 19.2-294 is not a bar to the convictions for both offenses. In my view, to reach this conclusion the majority has focused on the elements of the offenses charged against Lash rather than on the “act” or conduct of Lash. Because, on the facts of this particular case, this approach defeats the plain meaning and intent of Code § 19.2-294, I respectfully dissent.

In the original panel decision in this case, reported Lash v. Commonwealth, 13 Va. App. 251, 410 S.E.2d 689 (1991), I reviewed the legislative history of Code §§ 19.2-294 and 19.2-294.1 and the principal prior cases that have interpreted and applied these Code sections. I will not repeat that review here. However, because the majority compares and distinguishes these Code sections and, specifically, holds that “Code § 19.2-294 does not contemplate ‘a continuous, uninterrupted course of operation of a motor vehicle’ ” as the basis for its conclusion that this Code section is not applicable to this case, I will emphasize here a portion of my prior discussion. In doing so, I contend that the proper analysis of a Code § 19.2-294 claim requires that a court focus on the “act” or conduct of the accused as established by the facts, rather than on the elements of the offenses charged against the accused.

The General Assembly enacted the original version of Code § 19.2-294 in response to the decision in Arrington v. Commonwealth, 87 Va. 96, 12 S.E. 224 (1890). There, the Supreme Court upheld the defendant’s conviction for the sale of ardent spirits without a license following her prior conviction for the sale of the identical ardent spirits on Sunday. The Court acknowledged that only one act — the sale of ardent spirits — was involved, but concluded that one act violated two separate statutes. After a subsequent amendment not pertinent to the present appeal, Code § 19.2- 294 now provides, in pertinent part: “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 under the other or others.”

Thereafter, in Hundley v. Commonwealth, 193 Va. 449, 69 S.E.2d 336 (1952), the Court held that the predecessor to Code § 19.2-294 was not a bar to convictions for driving while under the influence of intoxicants and reckless driving arising from one occurrence of driving. In Hundley, the defendant was driving while intoxicated and drove his vehicle at excessive speeds around curves and in such a manner as to endanger the police officer who was attempting to stop him. The Court found that this evidence disclosed two separate acts resulting in the commission of two separate offenses and, consequently, the statute was not applicable. Id. at 451, 69 S.E.2d at 337. In reaching this conclusion, the Court noted:

It is conceivable for a person under the influence of intoxicants to drive properly. Many people not under the influence of intoxicants drive recklessly. A test of the identity of acts or offenses is whether the same evidence is required to sustain them; if not, then the fact that several charges relate to and grow out of one transaction or occurrence does not make a single act or offense where two separate acts or offenses are defined by statute, as in the instant case.

Id. (emphasis added) (citations omitted).

Subsequent to the Hundley decision and apparently in response to it, the General Assembly enacted Code § 19.2-294.1, which provides, in pertinent part: “Whenever any person is charged with [driving under the influence of alcohol or drugs] and reckless driving growing out of the same act or acts and is convicted of one of these charges, the court shall dismiss the remaining charge.” To the extent the Hundley decision contains language which refers to “where two separate acts or offenses are defined by statute’'’ there is a blurring of “acts” with “offenses” because “acts” are not defined by the statute. See 195 Va. at 451, 69 S.E.2d at 337 (emphasis added). Code § 19.2-294.1, however, resolves any questions left unclear by Hundley. This Code section recognizes that driving under the influence and reckless driving are separate offenses and expands its bar past that of Code.§ 19.2-294 to include “act or acts” rather than only the “same act.”

In Estes v. Commonwealth, 212 Va. 23, 181 S.E.2d 622 (1971), the Court held that the predecessor to Code § 19.2-294 was not a bar to convictions for driving under the influence and driving on a suspended license arising from the same occurrence of driving. The Court found that the defendant’s driving constituted separate acts that supported his convictions of separate offenses because he could be convicted of driving under the influence without evidence of the suspension of his license and vice versa. Id. at 24-25, 181 S.E.2d at 624. Implicit in the Court’s analysis is a focus on the elements of the offenses charged rather than the act or conduct of the accused.

Standing alone, Estes supports the elements of the offenses analysis adopted by the majority in the present case. However, in Padgett, decided subsequent to Estes, the Court held that the language, “same act or acts,” contained in Code § 19.2-294.1 means “the same act or acts of driving” and contemplates “a continuous, uninterrupted course of operation of a motor vehicle.” Padgett, 220 Va. at 761, 263 S.E.2d at 389-90. In that case, the defendant was charged with reckless driving in Lynchburg and driving while intoxicated in Bedford following a high speed chase by the police which began in the former jurisdiction and ended in the latter. The Court held that the defendant’s conviction for the Lynchburg offense was a bar to his subsequent conviction for the Bedford offense. Significantly, the Court rejected the Commonwealth’s assertion that because the Lynchburg reckless driving charge required proof of venue different from the venue required to sustain the Bedford driving while intoxicated charge, the two charges did not grow out of the “same act.” Moreover, the Court acknowledged that under a constitutional double jeopardy claim, both convictions would stand because the Lynchburg charge could have been established without proof that the defendant was intoxicated and the Bedford charge could have been sustained without proof that the defendant drove recklessly. Cf. Blockburger v. United States, 284 U.S. 299 (1932); see also Grady v. Corbin, 495 U.S. 508 (1990).

Hundley and Estes illustrate the particular difficulty in applying Code § 19.2-294 to cases in which the “act” involved is the operation of a motor vehicle. Obviously, the act of driving a motor vehicle inherently involves the movement of the vehicle in terms of time and space and affords the possibility of multiple offenses occurring in that process. Thus, in the present case, the majority is able, as with an imaginary stop watch and high speed camera, to isolate portions of Lash’s act of driving into separate acts such as “[1] the manner in which he drove away from the officer, and [2] the manner in which he drove through the red traffic signal and [3] through the supermarket” to support a reckless driving charge and also Lash’s “[4] failure to stop in response to the police officer’s flashing light and siren” during that process to support the offense of eluding a police officer. The majority has focused on particular parts of Lash’s continuous and uninterrupted act of driving and determined that these support separate offenses. Factually, however, Lash’s conduct is not divisible into distinct separate acts of driving. The majority then essentially applies the traditional double jeopardy claim test of whether one offense requires proof of a fact which another offense does not require. Under that test, Lash could be convicted of reckless driving without proof that he eluded a police officer and he could be convicted of eluding a police officer without proof that he drove recklessly. However, this is not the test applicable to a Code § 19.2-294 claim. Our Supreme Court in Jones v. Commonwealth, 218 Va. 757, 240 S.E.2d 658, cert. denied, 439 U.S. 892 (1978), clearly distinguished the analysis applicable to constitutional double jeopardy claims from the analysis applicable to Code § 19.2-294 claims. There, both claims were asserted. The Court upheld the defendant’s convictions of robbery involving larceny of money and grand larceny of an automobile involving the same victim and arising from one incident at a motel. The Court stated: “[I]f the offenses are different and one is not lesser-included in the other, the constitutional guarantee [established in Blockburger] does not apply. If the acts are different, the statutory mandate [of Code § 19.2-294] does not apply.” Id. at 760-61, 240 S.E.2d at 661 (citations omitted). Accord Wade v. Commonwealth, 9 Va. App. 359, 365, 388 S.E.2d 277, 280 (1990)(holding that Code § 19.2-294 “speaks to ‘acts’ of the accused, not elements of the offense”).

The present appeal illustrates that the distinction between the constitutional claim analysis and the statutory claim analysis may be critical to the proper determination of a Code § 19.2-294 claim on the facts of a particular case. In my view, Jones and Padgett provide the guidance for the proper resolution of Lash’s statutory claim. Jones, decided after Estes, unequivocally requires an analysis of the act or conduct of the accused to determine the merits of a Code § 19.2-294 claim. Thus, Jones has, at least implicitly, overruled Estes, which used an element of the offense analysis in a Code § 19.2-294 claim. Padgett is consistent with Jones. Moreover, while Padgett involved a Code § 19.2-294.1 claim, I find no reason to distinguish its analysis of “the same act or acts” language of that Code section from the analysis of “the same act” language of Code § 19.2-294. Certainly nothing in the legislative history or the language of either statute suggests a distinction. For these reasons, I disagree with the majority’s determination that “Code § 19.2-294 does not contemplate ‘a continuous, uninterrupted course of operation of a motor vehicle.’ ” When the act or conduct of Lash is viewed with the Jones and Padgett focus, it amounts to a single, continuous and unaltered act of dangerous driving in defiance of Officer Count’s command to park the car. Despite the fact that Officer Counts pursued Lash with his siren and blue lights in operation, Lash’s conduct remained continuous and unaltered. Though Lash’s conduct amounts to both reckless driving and eluding a police officer, his conduct giving rise to both offenses flowed from the “same act” and, therefore, can support only one conviction in accordance with Code § 19.2-294.

I do not suggest that Code § 19.2-294 affords a blanket bar to multiple convictions where one occurrence of driving a motor vehicle is involved. The determination of whether the conduct of an accused amounts to “the same act” as contemplated by Code § 19.2-294 is a factual determination and will rest upon the facts of a particular case. In my view, the facts of the present case suggest only one “act” of driving.

Although the majority does not reach the issue of whether Code § 19.2-294 applies to multiple convictions obtained in a single trial, in my view, that is the dispositive issue in Lash’s case. For the reasons that I have expressed in the panel opinion, Lash, 13 Va. App. at 259-61, 410 S.E.2d at 694-95, I would hold that this Code section applies to multiple convictions obtained in a single trial as well as to multiple convictions obtained in consecutive trials.

Accordingly, I would reverse the decision below and remand the case with directions that the trial court impose sentence in only one of the two convictions and dismiss the other.