                     COURT OF APPEALS OF VIRGINIA


Present: Judges Barrow, * Coleman and Koontz
Argued at Salem, Virginia


JIMMY ELDRIDGE DOSS

v.         Record No. 2003-93-3          MEMORANDUM OPINION** BY
                                         JUDGE BERNARD G. BARROW
COMMONWEALTH OF VIRGINIA                       MAY 9, 1995


                FROM THE CIRCUIT COURT OF HENRY COUNTY
                       David V. Williams, Judge
          Wayne T. Baucino (Office of the Public Defender, on
          briefs), for appellant.

          G. Russell Stone, Jr., Assistant Attorney General
          (James S. Gilmore, III, Attorney General, on brief),
     for appellee.



     In this criminal appeal, we hold that the record is

insufficient to conclude that the defendant was subjected to

double jeopardy when he was convicted of involuntary

manslaughter, Code § 18.2-36.1, following conviction for driving

under the influence of alcohol, Code § 18.2-266.    Further, we

hold that the provisions of Code § 19.2-294 and the defendant's

conviction for driving under the influence did not bar his

subsequent conviction in a separate prosecution for involuntary

manslaughter.

     Driving while intoxicated, the defendant lost control of his

     *
      Judge Bernard G. Barrow participated in the hearing and
decision of this case and prepared the opinion prior to his
death, and the other panel members joined in the opinion.
     **
      Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
automobile, ran off of the road, and overturned.   The accident

caused the death of his daughter, a passenger in the car.    Arrest

warrants, issued that day, charged him with homicide and driving

under the influence.   On November 18, 1992, in general district

court, the defendant pleaded guilty and was convicted of driving

under the influence in violation of Code § 18.2-266.    On

January 18, 1993, he was indicted for involuntary manslaughter

under Code § 18.2-36.1.   On July 9, 1993, he entered a

conditional guilty plea and was convicted of involuntary

manslaughter in circuit court.
     A person violates Code § 18.2-36.1 if, "as a result of

driving under the influence in violation of subdivision (ii),

(iii), or (iv) of § 18.2-266," he or she "unintentionally causes

the death of another person."    The defendant argues that in order

for the Commonwealth to establish a violation of Code

§ 18.2-36.1, it had to prove a violation of Code § 18.2-266, an

offense for which he had already been convicted by the general

district court.   Thus, he contends, trying him for violation of

Code § 18.2-36.1 subjected him to double jeopardy.     See

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

     We reject this contention because we cannot determine on the

record before us that the defendant had been convicted previously

of violating subdivision (ii), (iii), or (iv) of Code § 18.2-266,

rather than subdivision (i).    The record reflects only that he

was convicted in the general district court of "unlawfully




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operat[ing] a motor vehicle while intoxicated," a "violation of

Section 18.2-266, Code of Virginia."     The record does not prove

that he was convicted of violating subdivision (ii), (iii), or

(iv) of Code § 18.2-266, as opposed to subdivision (i) of that

section.

     When asserting a defense of double jeopardy, a defendant

must substantiate his allegation and "establish the identity of

the offenses" material to his plea.      Low v. Commonwealth, 11 Va.

App. 48, 50, 396 S.E.2d 383, 384 (1990).     Usually a defendant

accomplishes this "by production of the record or transcript of

the initial trial."    Id.   The record in this case does not

establish that the offense for which the defendant was convicted

in the general district court was the same offense which had to

be proved to convict him later of having violated Code

§ 18.2-36.1.   Furthermore, the record contains no stipulation or

concession by the prosecution upon which we can rely.      See Cooper

v. Commonwealth, 13 Va. App. 642, 644, 414 S.E.2d 435, 436

(1992).    Therefore, the record on appeal fails to support the

defendant's claim that his conviction for driving under the

influence barred his conviction for involuntary manslaughter on

double jeopardy principles.     Id.

     However, the record is sufficient for us to address the

issue raised under Code § 19.2-294.      "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




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under the other."    Code § 19.2-294.

     The applicability of Code § 19.2-294 depends on "the

identity of the act."     Jones v. Commonwealth, 218 Va. 757, 760,

240 S.E.2d 658, 661, cert. denied, 439 U.S. 892 (1978).     In this

case, the two convictions arose out of the "same act."      See Lash

v. Commonwealth, 14 Va. App. 926, 930-31, 421 S.E.2d 851, 854

(1992) (en banc).    At trial, the prosecution agreed that these

two charges arose from "an accident on October 30, 1992 which

resulted in the death of the defendant's four year old daughter."

Unlike Lash, this defendant's conduct -- driving while
intoxicated -- was not separable into different acts giving rise

to multiple offenses.    Here, one act gave rise to both charges.

     However, Code § 19.2-294 does not bar multiple convictions

arising out of the same act if they are prosecuted

simultaneously.     Slater v. Commonwealth, 15 Va. App. 593, 595,

425 S.E.2d 816, 817 (1993).    When charges are brought at the same

time, "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.

     In this case, the warrants were issued at the same time,

although the charges were heard at different times in different

courts.   Because the charges were initiated simultaneously, the

proceedings are concurrent, not successive, and thus, both

convictions are permitted under Code § 19.2-294.     Id.   But see
Wade v. Commonwealth, 9 Va. App. 359, 388 S.E.2d 277 (1990)




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(holding Code § 19.2-294 barred conviction for attempted capital

murder after conviction for obstructing justice based on "same

act," although both charges brought simultaneously). 1

     Accordingly, we affirm the conviction for involuntary

manslaughter under Code § 18.2-266.

                                                         Affirmed.




     1
      We find we are bound by Slater, which squarely addressed
the question of concurrent prosecutions. However, we note an
apparent conflict with Wade, which did not directly address the
question. Further, we note that the rationale of Slater is
borrowed from Freeman v. Commonwealth, 14 Va. App. 126, 129, 414
S.E.2d 871, 873 (1992), a double jeopardy case which relied on
the recently overruled Grady v. Corbin, 495 U.S. 508 (1990),
overruled by United States v. Dixon, 113 S. Ct. 2849 (1993).




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