COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Fitzpatrick, Judges Elder and Agee Argued at Salem, Virginia
TONYA HILLMAN MEMORANDUM OPINION * BY v. Record No. 1211-01-3 JUDGE LARRY G. ELDER APRIL 2, 2002 COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF CAMPBELL COUNTY William W. Sweeney, Judge Designate
B. Leigh Drewry, Jr. (Richard P. Cunningham & Associates, P.C., on brief), for appellant.
Susan M. Harris, Assistant Attorney General (Randolph A. Beales, Attorney General, on brief), for appellee.
Tonya Hillman (appellant) appeals from her bench trial
convictions for two counts of cruelty to animals in violation of
Code § 3.1-796.122. On appeal, she contends her conviction for
these offenses in circuit court, after she had already been
convicted in district court for failure to provide care for
those same animals under Code § 3.1-796.68, violated both Code
§ 19.2-294 and the double jeopardy prohibitions of the United
States and Virginia Constitutions.
We hold appellant's convictions for cruelty to animals did
not violate Code § 19.2-294 because those convictions occurred
* Pursuant to Code § 17.1-413, this opinion is not designated for publication. as part of the same prosecution as her convictions for failure
to provide care for those animals. We also hold that her
convictions for cruelty to animals after she already had been
convicted for failure to provide care for those animals did not
violate double jeopardy prohibitions because the offenses are
not the same and the failure to care offense is not lesser
included in the cruelty offense. Thus, we affirm the challenged
convictions.
A.
CODE § 19.2-294
Code § 19.2-294 provides, in relevant part, that "[i]f 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." The
purpose of this code section is to "prevent[] the Commonwealth
from 'subjecting an accused to the hazards of vexatious,
multiple prosecutions.' By its terms, the statute does not
apply to simultaneous prosecutions, because only a prior
conviction for . . . an act will bar a later prosecution for the
same act." Phillips v. Commonwealth, 257 Va. 548, 551-52, 514
S.E.2d 340, 342 (1999) (quoting Hall v. Commonwealth, 14 Va.
App. 892, 899, 421 S.E.2d 455, 460 (1992) (en banc)).
For example, Code § 19.2-294 does not bar conviction for
felony and misdemeanor charges based on the same act as long as
those charges are prosecuted in a single, concurrent evidentiary
- 2 - hearing. Id. at 553, 514 S.E.2d at 343. The amenability of the
misdemeanor charges to an early conclusion in the district court
does not result in a successive prosecution of the felony
charges in the circuit court. Slater v. Commonwealth, 15 Va.
App. 593, 595, 425 S.E.2d 816, 817 (1993), cited with approval
in Phillips, 257 Va. at 553, 514 S.E.2d at 343. This is so
because
a "prosecution" is the process in which an accused is brought to justice from the time a formal accusation is made through trial and final judgment in a court of appropriate jurisdiction. [The concurrent prosecution of a misdemeanor and a felony is] simultaneous, not successive, because the [offenses] [are] joined in a single evidentiary hearing in the general district court. Thus, the later events in the circuit court on the felony charges [are] merely a continuation of the same prosecution.
Phillips, 257 Va. at 553, 514 S.E.2d at 343 (citation omitted).
We hold these same principles apply when the offenses are
misdemeanors and the defendant chooses to appeal some but not
all of his district court convictions to the circuit court. In
these circumstances, too, "the later events in the circuit court
. . . [are] merely a continuation of the same prosecution." Id.
To hold otherwise would allow defendants convicted in district
court of multiple offenses arising out of the same act to
dismissal of all but one of those convictions simply by
exercising their right to a trial de novo in the circuit court,
- 3 - which surely cannot have been the intent of the legislature in
enacting Code § 19.2-294.
B.
DOUBLE JEOPARDY
In the context of a single trial, "the double jeopardy
defense does not apply unless (a) the defendant is twice
punished for one criminal act, and (b) [either] the two
punishments are . . . for the same crime or one punishment is
for a crime which is a lesser included offense of the other,"
Coleman v. Commonwealth, 261 Va. 196, 200, 539 S.E.2d 732, 734
(2001), and (c) the legislature did not intend to authorize such
multiple punishments, Payne v. Commonwealth, 257 Va. 216, 227,
509 S.E.2d 293, 300 (1999). See Peterson v. Commonwealth, 5 Va.
App. 389, 394, 363 S.E.2d 440, 443 (1987) (holding that double
jeopardy clauses of United States and Virginia Constitutions
"basically afford[] a defendant" the same protections).
Appellant contends her circuit court convictions for two
counts of cruelty to animals under Code § 3.1-796.122 violate
double jeopardy prohibitions because the offense of failure to
provide care for animals under Code § 3.1-796.68, for which she
was convicted in the district court based on the same acts, is
an offense lesser included in the offense of cruelty to animals.
We assume without deciding the convictions were based on the
same acts, but we hold the failure to care offense is not lesser
- 4 - included in the cruelty to animals offense, and we affirm the
challenged cruelty convictions.
"A lesser included offense is an offense which is composed
entirely of elements that are also elements of the greater
offense." Kauffmann v. Commonwealth, 8 Va. App. 400, 409, 382
S.E.2d 279, 283 (1989). "The determination of what offenses are
necessarily included lesser offenses . . . is based on the
fundamental nature of the offenses involved, not on the
particular facts of a specific case . . . ." Taylor v.
Commonwealth, 11 Va. App. 649, 652, 400 S.E.2d 794, 795 (1991).
Code § 3.1-796.68, the claimed lesser-included offense,
provides that an owner of a companion animal must furnish that
animal with adequate food, adequate water, adequate shelter that
is properly cleaned, adequate space in the primary enclosure,
adequate exercise, adequate care, treatment and transportation,
and "[v]eterinary care when needed or to prevent suffering or
disease transmission." Code § 3.1-796.68(A). Failure to comply
with the requirements of that code section is a Class 4
misdemeanor. Code § 3.1-796.68(C). Code § 3.1-796.122, the
claimed greater offense, provides, inter alia, that "[a]ny
person who . . . (ii) deprives any animal of necessary food,
drink, shelter or emergency veterinary treatment . . . shall be
guilty of a Class 1 misdemeanor."
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COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Fitzpatrick, Judges Elder and Agee Argued at Salem, Virginia
TONYA HILLMAN MEMORANDUM OPINION * BY v. Record No. 1211-01-3 JUDGE LARRY G. ELDER APRIL 2, 2002 COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF CAMPBELL COUNTY William W. Sweeney, Judge Designate
B. Leigh Drewry, Jr. (Richard P. Cunningham & Associates, P.C., on brief), for appellant.
Susan M. Harris, Assistant Attorney General (Randolph A. Beales, Attorney General, on brief), for appellee.
Tonya Hillman (appellant) appeals from her bench trial
convictions for two counts of cruelty to animals in violation of
Code § 3.1-796.122. On appeal, she contends her conviction for
these offenses in circuit court, after she had already been
convicted in district court for failure to provide care for
those same animals under Code § 3.1-796.68, violated both Code
§ 19.2-294 and the double jeopardy prohibitions of the United
States and Virginia Constitutions.
We hold appellant's convictions for cruelty to animals did
not violate Code § 19.2-294 because those convictions occurred
* Pursuant to Code § 17.1-413, this opinion is not designated for publication. as part of the same prosecution as her convictions for failure
to provide care for those animals. We also hold that her
convictions for cruelty to animals after she already had been
convicted for failure to provide care for those animals did not
violate double jeopardy prohibitions because the offenses are
not the same and the failure to care offense is not lesser
included in the cruelty offense. Thus, we affirm the challenged
convictions.
A.
CODE § 19.2-294
Code § 19.2-294 provides, in relevant part, that "[i]f 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." The
purpose of this code section is to "prevent[] the Commonwealth
from 'subjecting an accused to the hazards of vexatious,
multiple prosecutions.' By its terms, the statute does not
apply to simultaneous prosecutions, because only a prior
conviction for . . . an act will bar a later prosecution for the
same act." Phillips v. Commonwealth, 257 Va. 548, 551-52, 514
S.E.2d 340, 342 (1999) (quoting Hall v. Commonwealth, 14 Va.
App. 892, 899, 421 S.E.2d 455, 460 (1992) (en banc)).
For example, Code § 19.2-294 does not bar conviction for
felony and misdemeanor charges based on the same act as long as
those charges are prosecuted in a single, concurrent evidentiary
- 2 - hearing. Id. at 553, 514 S.E.2d at 343. The amenability of the
misdemeanor charges to an early conclusion in the district court
does not result in a successive prosecution of the felony
charges in the circuit court. Slater v. Commonwealth, 15 Va.
App. 593, 595, 425 S.E.2d 816, 817 (1993), cited with approval
in Phillips, 257 Va. at 553, 514 S.E.2d at 343. This is so
because
a "prosecution" is the process in which an accused is brought to justice from the time a formal accusation is made through trial and final judgment in a court of appropriate jurisdiction. [The concurrent prosecution of a misdemeanor and a felony is] simultaneous, not successive, because the [offenses] [are] joined in a single evidentiary hearing in the general district court. Thus, the later events in the circuit court on the felony charges [are] merely a continuation of the same prosecution.
Phillips, 257 Va. at 553, 514 S.E.2d at 343 (citation omitted).
We hold these same principles apply when the offenses are
misdemeanors and the defendant chooses to appeal some but not
all of his district court convictions to the circuit court. In
these circumstances, too, "the later events in the circuit court
. . . [are] merely a continuation of the same prosecution." Id.
To hold otherwise would allow defendants convicted in district
court of multiple offenses arising out of the same act to
dismissal of all but one of those convictions simply by
exercising their right to a trial de novo in the circuit court,
- 3 - which surely cannot have been the intent of the legislature in
enacting Code § 19.2-294.
B.
DOUBLE JEOPARDY
In the context of a single trial, "the double jeopardy
defense does not apply unless (a) the defendant is twice
punished for one criminal act, and (b) [either] the two
punishments are . . . for the same crime or one punishment is
for a crime which is a lesser included offense of the other,"
Coleman v. Commonwealth, 261 Va. 196, 200, 539 S.E.2d 732, 734
(2001), and (c) the legislature did not intend to authorize such
multiple punishments, Payne v. Commonwealth, 257 Va. 216, 227,
509 S.E.2d 293, 300 (1999). See Peterson v. Commonwealth, 5 Va.
App. 389, 394, 363 S.E.2d 440, 443 (1987) (holding that double
jeopardy clauses of United States and Virginia Constitutions
"basically afford[] a defendant" the same protections).
Appellant contends her circuit court convictions for two
counts of cruelty to animals under Code § 3.1-796.122 violate
double jeopardy prohibitions because the offense of failure to
provide care for animals under Code § 3.1-796.68, for which she
was convicted in the district court based on the same acts, is
an offense lesser included in the offense of cruelty to animals.
We assume without deciding the convictions were based on the
same acts, but we hold the failure to care offense is not lesser
- 4 - included in the cruelty to animals offense, and we affirm the
challenged cruelty convictions.
"A lesser included offense is an offense which is composed
entirely of elements that are also elements of the greater
offense." Kauffmann v. Commonwealth, 8 Va. App. 400, 409, 382
S.E.2d 279, 283 (1989). "The determination of what offenses are
necessarily included lesser offenses . . . is based on the
fundamental nature of the offenses involved, not on the
particular facts of a specific case . . . ." Taylor v.
Commonwealth, 11 Va. App. 649, 652, 400 S.E.2d 794, 795 (1991).
Code § 3.1-796.68, the claimed lesser-included offense,
provides that an owner of a companion animal must furnish that
animal with adequate food, adequate water, adequate shelter that
is properly cleaned, adequate space in the primary enclosure,
adequate exercise, adequate care, treatment and transportation,
and "[v]eterinary care when needed or to prevent suffering or
disease transmission." Code § 3.1-796.68(A). Failure to comply
with the requirements of that code section is a Class 4
misdemeanor. Code § 3.1-796.68(C). Code § 3.1-796.122, the
claimed greater offense, provides, inter alia, that "[a]ny
person who . . . (ii) deprives any animal of necessary food,
drink, shelter or emergency veterinary treatment . . . shall be
guilty of a Class 1 misdemeanor."
One may violate Code § 3.1-796.68, the claimed
lesser-included offense, by failing to provide "[v]eterinary
- 5 - care when needed or to prevent suffering or disease
transmission." Code § 3.1-796.68(A)(7). However, in reference
to veterinary care, one violates Code § 3.1-796.122, the claimed
greater offense, only by failing to provide "emergency
veterinary treatment." Code § 3.1-796.122(A)(ii) (emphasis
added). Violation of the claimed lesser offense by failing to
provide "necessary" veterinary treatment or veterinary treatment
to prevent "disease transmission," such as by inoculating an
animal against rabies, does not necessarily constitute a
violation of the claimed greater offense, which proscribes only
a failure to provide "emergency veterinary treatment." Coleman,
261 Va. at 200, 539 S.E.2d at 734 (holding implicitly that
proper procedure for comparing elements of offenses in
conducting Blockburger lesser-included offense analysis--
determining whether each offense "requires proof of an [element]
which the other does not"--is to consider all ways in which an
element phrased in the disjunctive may be proved (quoting
Blockburger v. United States, 284 U.S. 299, 304, 52 S. Ct. 180,
76 L. Ed. 2d 306 (1932))). Because the claimed lesser offense
is not "composed entirely of elements that are also elements of
the [claimed] greater offense," Kauffmann, 8 Va. App. at 409,
382 S.E.2d at 283, appellant's conviction for both offenses did
not violate double jeopardy prohibitions.
For these reasons, we affirm appellant's convictions.
Affirmed.
- 6 -