                                             COURT OF APPEALS OF VIRGINIA


              Present: Judges Frank, Humphreys and Huff
UNPUBLISHED


              Argued at Richmond, Virginia


              DONALD WILLIAM HALL, II
                                                                               MEMORANDUM OPINION * BY
              v.     Record No. 1731-11-2                                         JUDGE GLEN A. HUFF
                                                                                    OCTOBER 2, 2012
              COMMONWEALTH OF VIRGINIA


                                FROM THE CIRCUIT COURT OF CHESTERFIELD COUNTY
                                            Harold W. Burgess, Jr., Judge

                               Anthony N. Sylvester (Law Offices of Anthony N. Sylvester, on
                               brief), for appellant.

                               Kathleen B. Martin, Senior Assistant Attorney General (Kenneth T.
                               Cuccinelli, II, Attorney General, on brief), for appellee.


                     Donald William Hall, II (“appellant”) appeals his conviction of felony eluding, in

              violation of Code § 46.2-817(B). Following a bench trial in the Circuit Court of Chesterfield

              County (“trial court”), appellant was sentenced to five years in prison, with four years

              suspended. On appeal, appellant contends that the trial court erred in (1) finding the evidence

              sufficient to sustain the conviction; (2) finding that Code § 19.2-294 did not bar his prosecution

              for felony eluding due to his prior conviction of reckless driving arising from the same incident;

              and (3) finding that the Double Jeopardy Clause did not bar his punishment for felony eluding on

              the same basis. For the following reasons, we affirm the judgment of the trial court.

                                                      I. BACKGROUND

                     On appeal, “‘we consider the evidence and all reasonable inferences flowing from that

              evidence in the light most favorable to the Commonwealth, the prevailing party at trial.’”

                     *
                         Pursuant to Code § 17.1-413, this opinion is not designated for publication.
Williams v. Commonwealth, 49 Va. App. 439, 442, 642 S.E.2d 295, 296 (2007) (en banc)

(quoting Jackson v. Commonwealth, 267 Va. 666, 672, 594 S.E.2d 595, 598 (2004)). So viewed,

the evidence is as follows.

       At approximately 7:00 p.m. on October 3, 2010, J.E. Rocklein (“Rocklein”), an officer

with the Chesterfield County Police Department, was stopped at a traffic light in his police

cruiser when he observed a 1978 black Chevrolet Corvette pass through the intersection in front

of him. Earlier in the evening, Rocklein had received a radio transmission informing all officers

to “be on the look[-]out” for a Corvette fitting that description that had been reported stolen by

appellant’s wife. Rocklein recognized appellant as the driver because, in the previous week,

Rocklein had gone to appellant’s residence to assist with a probation visit and had noticed a 1978

black Corvette outside of the residence at that time. Based on this information, Rocklein

activated his emergency lights and siren and began to pursue the Corvette.

       As Rocklein pursued the Corvette, he saw it turn into a gas station at a normal rate of

speed, then continue into an adjacent parking lot. As the Corvette entered the parking lot, it

“fishtailed a little bit, accelerated,” and then abruptly turned back onto the road without stopping

or slowing down first. Rocklein observed several other vehicles “brake or stop suddenly” as the

Corvette re-entered the road. At that point, Rocklein deactivated his emergency lights and siren

for public safety purposes, but continued to follow the Corvette.

       Maintaining “a clear and unobstructed view” of the Corvette, Rocklein followed and

observed the Corvette run a red light at an intersection, causing several other vehicles to brake to

avoid a collision. The Corvette then continued a short distance up the road, “veer[ed] off the

roadway,” and “wrecked onto the side of the road, . . . hitting a fence and a utility pole.”

Rocklein approached the scene and “saw a gentleman standing next to the pole,” who “was later

identified as a passenger in the vehicle . . . .” Appellant, however, was not at the scene.

                                                -2-
       Based on these events, appellant was charged with felony eluding, in violation of Code

§ 46.2-817(B), felony driving after having been adjudged a habitual offender, in violation of

Code § 46.2-357(B)(2), and misdemeanor reckless driving, in violation of Code § 46.2-852. On

November 4, 2010, appellant pleaded guilty to the reckless driving charge in the Chesterfield

County General District Court (“general district court”). The general district court convicted him

of reckless driving, dismissed the driving after having been adjudged a habitual offender charge

on double jeopardy grounds, 1 and certified the felony eluding charge to a grand jury of the trial

court. Following a bench trial on February 2, 2011, the trial court concluded that appellant’s

conduct while driving “was part and parcel of one act” and convicted him of felony eluding. 2

       On June 16, 2011, the trial court conducted a hearing on appellant’s post-trial motion to

reconsider and motion to dismiss. The basis for appellant’s motion to reconsider was to

challenge the sufficiency of the evidence to sustain his conviction on the ground that the

endangerment element of the felony eluding statute was not met. The basis for appellant’s

motion to dismiss was that Code § 19.2-294 and the Double Jeopardy Clause barred the

prosecution and punishment for felony eluding because felony eluding required proof of reckless

driving, of which he had already been convicted in general district court. The trial court denied

the motion to reconsider, stating:


       1
         The Commonwealth subsequently direct indicted appellant on the driving after having
been adjudged a habitual offender charge. Appellant underwent a trial on this charge in
conjunction with the felony eluding charge.
       2
         At the conclusion of all of the evidence, appellant made a motion to strike on the
grounds that (1) Rocklein’s identification of him as the driver was inadequate to support either
conviction; and (2) double jeopardy principles precluded his conviction of driving after having
been adjudged a habitual offender given that the language of the habitual offender statute
contained the same language as the reckless driving statute, thus rendering reckless driving a
lesser-included offense. The trial court denied appellant’s motion with regard to the sufficiency
of the evidence argument and granted the motion with regard to the double jeopardy argument.
Accordingly, the trial court acquitted appellant of the driving after having been adjudged a
habitual offender charge.
                                                -3-
               I[ ha]ve got evidence, not only that he went into the parking lot
               when the officer saw him and then he accelerated in the parking
               lot, fishtailed in the parking lot. Leaves the parking lot. Does[
               ]n[o]t stop before he enters the highway. Cars have to put on their
               brakes suddenly to stop to avoid him.

The trial court, however, took the motion to dismiss under advisement and instructed both parties

to brief the issues regarding the application of the constitutional and statutory double jeopardy

bars. The case was continued until August 2, 2011, at which time the trial court denied the

motion to dismiss and proceeded to sentencing. This appeal followed.

                                          II. ANALYSIS

                         A. Sufficiency of the Evidence: Felony Eluding

       On appeal, appellant first contends the trial court erred in finding the evidence sufficient

to support his conviction. Specifically, appellant argues the Commonwealth failed to prove that

his conduct endangered a person or the operation of a law enforcement vehicle, as required to

sustain a conviction under Code § 46.2-817(B). 3

       “When considering on appeal the sufficiency of the evidence presented below, we

‘presume the judgment of the trial court to be correct’ and reverse only if the trial court’s

decision is ‘plainly wrong or without evidence to support it.’” Wood v. Commonwealth, 57

Va. App. 286, 296, 701 S.E.2d 810, 815 (2010) (quoting Davis v. Commonwealth, 39 Va. App.

96, 99, 570 S.E.2d 875, 876-77 (2002)). Under this standard, “we are not permitted to reweigh

the evidence.” Nusbaum v. Berlin, 273 Va. 385, 408, 641 S.E.2d 494, 507 (2007) (citation


       3
          On appeal, appellant also challenges the sufficiency of the evidence to prove his
conduct was “willful and wanton.” In his motion to reconsider, however, appellant conceded
that the evidence was sufficient to convict him of misdemeanor eluding. “Under settled
principles, a criminal defendant cannot ‘approbate and reprobate by taking successive positions
in the course of litigation that are either inconsistent with each other or mutually contradictory.’”
Alford v. Commonwealth, 56 Va. App. 706, 709, 696 S.E.2d 266, 267 (2010) (quoting Rowe v.
Commonwealth, 277 Va. 495, 502, 675 S.E.2d 161, 164 (2009)). Because “willful and wanton”
conduct is required of both the misdemeanor and felony offenses of eluding, we thus decline to
address appellant’s argument with regard to this element of the offense.
                                                  -4-
omitted). Instead, we ask whether “any rational trier of fact could have found the essential

elements of the crime beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319

(1979).

           Code § 46.2-817(B) provides:

                  Any person who, having received a visible or audible signal from
                  any law-enforcement officer to bring his motor vehicle to a stop,
                  drives such motor vehicle in a willful and wanton disregard of such
                  signal so as to interfere with or endanger the operation of the
                  law-enforcement vehicle or endanger a person is guilty of a Class 6
                  felony.
           “To ‘endanger’ is to ‘expose to danger, harm, or loss.’” Coleman v. Commonwealth, 52

Va. App. 19, 24, 660 S.E.2d 687, 690 (2008) (quoting Webster’s New World Dictionary 448 (3d

coll. ed. 1988); The American Heritage Dictionary 452 (2d coll. ed. 1982)). “The object of the

endangerment can be the driver himself, the police officer, or anyone else on the road that could

be put at risk from the driver’s eluding.” Id. (citation omitted). “That the exposure to danger

does not result in any actual harm is a welcome fortuity, but not a legal defense.” Id. Rather,

“conduct that raises the specter of endangerment is the evil contemplated and proscribed by the

statute.” Tucker v. Commonwealth, 38 Va. App. 343, 347, 564 S.E.2d 144, 146 (2002)

(emphasis added); see Coleman, 52 Va. App. at 25, 660 S.E.2d at 690 (affirming the felony

eluding conviction despite that Coleman “did not actually run into another vehicle or a pedestrian

. . . or, for that matter, make a specific maneuver causing him or someone else to be ‘actually

imperiled’ by an imminent collision” (quoting Tucker, 38 Va. App. at 347, 564 S.E.2d at 146));

see also Gray v. Commonwealth, 50 Va. App. 513, 517, 651 S.E.2d 400, 402 (2007) (affirming

the felony eluding conviction where Gray “cut off other vehicles,” in addition to various other

movements made for the purpose of evading police officers, but “did not exceed the speed

limit”).



                                                 -5-
        The evidence in this case was sufficient to support appellant’s conviction. Appellant

failed to comply with Rocklein’s signal to stop, and instead continued driving into a gas station

and adjacent parking lot. Appellant then “fishtailed” in the lot, accelerated his vehicle, and

abruptly merged onto a main road without slowing down for approaching vehicles. Still in

pursuit, Rocklein observed the other vehicles “brake or stop suddenly” to avoid colliding with

appellant’s vehicle. Considering appellant’s conduct during the time that Rocklein had his

emergency lights and siren activated, the evidence was sufficient to prove that appellant

endangered the officer, himself, and the occupants of the other vehicles in proximity to him.

        The Commonwealth further asserts that our analysis should take into account appellant’s

driving after Rocklein deactivated his emergency equipment given that “nothing in the language

of Code § 46.2-817 requires that the officer’s signal to stop must be ongoing, or simultaneous

with the driver’s actual stop.” 4 Based on this assertion, the Commonwealth argues that

appellant’s failure to stop at a red light and subsequent collision into a utility pole further

supports his conviction of felony eluding. Appellant, however, contends the felony eluding

statute requires that the signal to stop remain ongoing; thus, appellant requests that we

distinguish his conduct that occurred while Rocklein’s emergency equipment was activated from

his conduct that occurred after the lights and siren had been deactivated. Notwithstanding this

argument, the evidence of appellant’s conduct during Rocklein’s initial pursuit (while lights and

siren were activated) is sufficient to sustain the conviction. See Luginbyhl v. Commonwealth,

48 Va. App. 58, 64, 628 S.E.2d 74, 77 (2006) (providing that “an appellate court decides cases

‘on the best and narrowest ground available’” (quoting Air Courier Conference v. Am. Postal




        4
          Indeed, counsel for appellant conceded on rebuttal that should this Court find the
officer’s emergency equipment need not remain activated, then appellant was lawfully convicted.
                                               -6-
Workers Union, 498 U.S. 517, 531 (1991) (Stevens, J., concurring))). Therefore, we hold the

evidence was sufficient to convict appellant of felony eluding.

                                         B. Code § 19.2-294

       Appellant also contends the trial court erred in finding that Code § 19.2-294 did not bar

his prosecution for felony eluding due to his prior conviction of reckless driving arising from the

same incident.

       “‘In reviewing a double jeopardy claim, or a claim based on statutory interpretation, this

Court shall conduct a de novo review.’” Tharrington v. Commonwealth, 58 Va. App. 704, 710,

715 S.E.2d 388, 390 (2011) (quoting Davis v. Commonwealth, 57 Va. App. 446, 455, 703 S.E.2d

259, 263 (2011)).

       Code § 19.2-294 provides, in relevant part:

                 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.
       “‘Like the Fifth Amendment bar of former jeopardy, Code § 19.2-294 prevents the

Commonwealth from subjecting an accused to the hazards of vexatious, multiple prosecutions.’”

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

v. Commonwealth, 257 Va. 548, 551-52, 514 S.E.2d 340, 342 (1999)). Contrary to the

constitutional double jeopardy bar, however, “the prohibition of Code § 19.2-294 ‘is dependent

upon the identity of the act,’ rather than the identity of the offense.” Id. at 393, 579 S.E.2d at

649 (quoting Lash v. Cnty. of Henrico, 14 Va. App. 926, 930, 421 S.E.2d 851, 853 (1992) (en

banc)). “In other words, Code § 19.2-294 ‘speaks to acts of the accused, not elements of the

offense.’” Id. (quoting Wade v. Commonwealth, 9 Va. App. 359, 365, 388 S.E.2d 277, 280

(1990)).


                                                 -7-
       Moreover, “[b]y its terms, the statute only bars ‘prosecutions or proceedings’ after there

has been a ‘conviction.’ A ‘prosecution or proceeding’ after a ‘conviction,’ by definition

requires multiple or successive proceedings or prosecutions.” Slater v. Commonwealth, 15

Va. App. 593, 595, 425 S.E.2d 816, 817 (1993) (quoting Hall v. Commonwealth, 14 Va. App.

892, 897, 421 S.E.2d 455, 459 (1992) (en banc)). “Many circumstances may determine the time

within which criminal charges are concluded. It is the time of institution which determines

whether multiple charges are simultaneous or successive.” Id. at 596, 425 S.E.2d at 817

(emphasis added). Thus, “[w]here charges are brought simultaneously, the amenability of one to

early conclusion while the other requires further proceedings, does not alter the fact that the

proceedings are concurrent, not successive, prosecutions.” Id. at 595, 425 S.E.2d at 817 (citing

Freeman v. Commonwealth, 14 Va. App. 126, 129, 414 S.E.2d 871, 873 (1992)).

       Under these principles, “where felony and misdemeanor charges . . . are heard

simultaneously in a single proceeding, they are part of a single prosecution, even though

jurisdictional limitations necessitate that they be concluded in different courts.” Phillips v.

Commonwealth, 27 Va. App. 674, 680-81, 500 S.E.2d 848, 851 (1998) (holding that, even

though Phillips’ felony and misdemeanor charges based on the same act of distributing narcotics

were instituted on different dates, they constituted a “single prosecution” in that one evidentiary

hearing was conducted for both charges), aff’d, 257 Va. 548, 514 S.E.2d 340 (1999); see Slater,

15 Va. App. at 596, 425 S.E.2d at 817 (holding that Slater’s felony driving after having been

declared a habitual offender charge, though “requir[ing] extended proceedings,” was

simultaneous to his misdemeanor driving while under the influence of alcohol charge because

both charges were “lodged simultaneously”); see also Freeman, 14 Va. App. at 128-29, 414

S.E.2d at 873 (holding that Freeman’s circuit court trial for burglary was not a “successive”

prosecution to his trial for petit larceny in juvenile and domestic relations district court arising


                                                 -8-
from the same act given that “[t]he burglary and larceny charges were instituted simultaneously

by the issuance of warrants which were brought together for hearing in the juvenile and domestic

relations district court”).

        In this case, the arrest warrants for reckless driving and felony eluding were issued on the

same date, and both charges were set for hearing in the general district court on November 4,

2010. Following the hearing, the judge accepted appellant’s plea of guilty to reckless driving

and certified the felony eluding charge to a grand jury of the trial court. Thus, similar to

Freeman, Slater, and Phillips, the misdemeanor and felony charges in the present case were

brought in a “single proceeding” which, due to the jurisdictional constraints upon the general

district court, required resolution both in that court and in the trial court. Phillips, 27 Va. App. at

680, 500 S.E.2d at 851. For this reason, the trial on the felony eluding charge constituted a

simultaneous, not successive, prosecution because it was “merely a continuation of the same

prosecution [initiated in the general district court].” Phillips, 257 Va. at 553, 514 S.E.2d at 343.

Accordingly, we hold the trial court did not err in finding that Code § 19.2-294 did not bar

appellant’s prosecution for felony eluding.

                                        C. Double Jeopardy

        Lastly, appellant contends the trial court erred in finding that double jeopardy did not bar

his punishment for felony eluding due to his prior conviction of reckless driving arising from the

same incident. 5

        As noted above, we review double jeopardy issues de novo. Tharrington, 58 Va. App. at

710, 715 S.E.2d at 390 (citation omitted). “‘The double jeopardy clauses of the United States


        5
          We note, however, that “if an accused is prosecuted for multiple offenses based upon
distinct and separate acts, the offenses would be neither identical nor lesser-included for double
jeopardy purposes.” Martin v. Commonwealth, 221 Va. 720, 723, 273 S.E.2d 778, 780 (1981).
Here, the trial court found that appellant’s conduct while driving was “part and parcel of one
act.”
                                                -9-
and the Virginia Constitutions provide that no person shall be put twice in jeopardy for the same

offense.’” Id. at 709, 715 S.E.2d at 390 (quoting Martin, 221 Va. at 722, 273 S.E.2d at 780).

“‘This constitutional provision guarantees protection against (1) a second prosecution for the

same offense after acquittal; (2) a second prosecution for the same offense after conviction; and

(3) multiple punishments for the same offense.’” Id. (quoting Payne v. Commonwealth, 257 Va.

216, 227, 509 S.E.2d 293, 300 (1999)). Having already determined that the trial on the felony

eluding charge did not constitute a successive prosecution, we limit our inquiry to whether

appellant received multiple punishments for the same offense. E.g., Dalo v. Commonwealth, 37

Va. App. 156, 162 n.2, 554 S.E.2d 705, 708 n.2 (2001).

       “To determine whether two charges constitute the same offense, we must consider the

rule enunciated in Blockburger [v. United States], 284 U.S. [299,] 304 [(1932)].” Davis, 57

Va. App. at 455, 703 S.E.2d at 263. “‘[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 whether each provision requires proof of a fact which the other does

not.’” Id. at 455-56, 703 S.E.2d at 263 (alteration in original) (quoting Blockburger, 284 U.S. at

304). “It is the identity of the offense, and not the act, which is referred to in the constitutional

guaranty against double jeopardy.” Epps v. Commonwealth, 216 Va. 150, 153-54, 216 S.E.2d

64, 67 (1975) (citation omitted). Thus, “‘[i]n applying the Blockburger test, we look at the

offenses charged in the abstract, without referring to the particular facts of the case under

review.’” Davis, 57 Va. App. at 456, 703 S.E.2d at 264 (quoting Coleman v. Commonwealth,

261 Va. 196, 200, 539 S.E.2d 732, 734 (2001)).

       We note at the outset that, even assuming the two offenses were the same under

Blockburger, this in itself would not preclude multiple punishments. “‘[T]he question whether

punishments imposed by a court after a defendant’s conviction upon criminal charges are


                                                 - 10 -
unconstitutionally multiple cannot be resolved without determining what punishments the

[l]egislative [b]ranch has authorized.’” Andrews v. Commonwealth, 280 Va. 231, 279, 699

S.E.2d 237, 264-65 (2010) (first alteration in original) (quoting Albernaz v. United States, 450

U.S. 333, 344 (1981)). In making this determination, we consider “whether ‘[t]he General

Assembly has clearly indicated its intent to impose multiple punishments’ for the defendant’s

conduct.” Id. at 279, 699 S.E.2d at 265 (alteration in original) (quoting Turner v.

Commonwealth, 221 Va. 513, 530, 273 S.E.2d 36, 47 (1980)). “In some cases, the legislative

intent to impose multiple punishments is unambiguous because the statute in question makes that

intent clear.” Id.

        In keeping with these principles, we have held that where a statute provides, “‘[a]

violation of this section constitutes a separate and distinct offense,’” such language “expresses

the legislative intent to authorize the imposition of multiple punishments in conjunction with

other . . . statutes . . . .” Tharrington, 58 Va. App. at 710, 715 S.E.2d at 391 (alteration in

original) (quoting Code § 18.2-108.01(C)). Virginia’s eluding statute contains the following

language:

                Violation of this section shall constitute a separate and distinct
                offense. If the acts or activities violating this section also violate
                another provision of law, a prosecution under this section shall not
                prohibit or bar any prosecution or proceeding under such other
                provision or the imposition of any penalties provided for thereby.

Code § 46.2-817(E).

        Applying these principles to this case, the language of Code § 46.2-817 evidences the

legislature’s intent to authorize a separate punishment for felony eluding. Thus, regardless of

whether reckless driving and felony eluding constitute the same offense, we hold that the

legislature intended the two charges to be separately punishable. Accordingly, our determination

dispenses with the need for application of Blockburger to the statutes in question.


                                                 - 11 -
       Despite our determination, we recognize that “‘[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 intent.’” Davis, 57 Va. App. at 456 n.6, 703 S.E.2d at

264 n.6 (quoting Dalo, 37 Va. App. at 164, 554 S.E.2d at 709). Accordingly, we proceed under

Blockburger to determine whether Code §§ 46.2-817 and 46.2-852 are different offenses.

       Code § 46.2-852, Virginia’s reckless driving statute, states: “Irrespective of the

maximum speeds permitted by law, any person who drives a vehicle on any highway recklessly

or at a speed or in a manner so as to endanger the life, limb, or property of any person shall be

guilty of reckless driving.”

       As previously noted, the felony eluding statute provides:

               Any person who, having received a visible or audible signal from
               any law-enforcement officer to bring his motor vehicle to a stop,
               drives such motor vehicle in a willful and wanton disregard of such
               signal so as to interfere with or endanger the operation of the
               law-enforcement vehicle or endanger a person is guilty of a Class 6
               felony.

Code § 46.2-817(B).

       Considering the statutes together, Code §§ 46.2-852 and 46.2-817(B) both contain

different elements. The reckless driving statute requires that the accused be driving on a

highway, whereas the felony eluding statute does not necessitate that the accused drive on a

particular roadway. The reckless driving statute also provides that a violation may occur if the

accused endangers any property of a person. The felony eluding statute, however, provides that

a violation occurs only where the accused endangers the operation of a law enforcement vehicle,

but not the law enforcement vehicle itself. The felony eluding statute further requires that the

accused receive a visible or audible signal from a police officer to stop his vehicle. Moreover,

the felony eluding statute, unlike the reckless driving statute, proscribes the driving of the

accused only after he has disregarded an officer’s signal to stop. Thus, felony eluding and
                                                - 12 -
reckless driving constitute separate offenses in that different facts are required to prove each. 6

Accordingly, we hold the trial court did not err in finding that no double jeopardy violation

occurred.

                                        III. CONCLUSION

       Based on the foregoing, we hold that the trial court did not err in finding the evidence

sufficient to convict appellant of felony eluding, nor did it err in finding that appellant’s

conviction was not prohibited by the constitutional or statutory double jeopardy bars.

Accordingly, we affirm the judgment of the trial court.

                                                                                            Affirmed.




       6
         See Shaw v. Commonwealth, 9 Va. App. 331, 334, 387 S.E.2d 792, 794 (1990)
(holding, based on a 1984 amendment to the eluding statute, that misdemeanor eluding and
reckless driving are separate offenses).
                                            - 13 -
