                     COURT OF APPEALS OF VIRGINIA


Present: Judges Baker, Coleman and Elder
Argued at Salem, Virginia


FRANK EDDIE DINGUS
                                                OPINION BY
v.        Record No. 1743-95-3             JUDGE LARRY G. ELDER
                                             NOVEMBER 5, 1996
COMMONWEALTH OF VIRGINIA


              FROM THE CIRCUIT COURT OF WISE COUNTY
               William R. Shelton, Judge Designate
          Daniel W. Fast for appellant.

          Robert H. Anderson, III, Assistant Attorney
          General (James S. Gilmore, III, Attorney
          General, on brief), for appellee.



     Frank Eddie Dingus (appellant) appeals his convictions for

(1) four counts of operating an illegal gambling establishment

having a gross revenue of $2,000 or more in a single day, in

violation of Code § 18.2-328; and (2) operating an illegal

gambling establishment, in violation of Code § 18.2-328.

Appellant contends that (1) his convictions on multiple counts of

operating an illegal gambling establishment violated his rights

against twice being placed in jeopardy for the same offense, and

(2) the trial court improperly admitted evidence of appellant's

prior felony convictions from Tennessee in the sentencing phase

of his bifurcated trial.    We disagree with appellant and affirm

his convictions.
                                I.

                               FACTS

     Appellant and his father conducted an illegal gambling

operation in Wise County beginning in November 1994.   Virginia

ABC Board Special Agent Johnnie Burke testified that he attended

card games conducted by appellant, where bets were placed, on

five occasions between November 18, 1994 and December 18, 1994.

Burke testified that on four separate occasions--November 18,

December 2, December 3, and December 10, 1994, respectively--

gross receipts from each gambling enterprise exceeded $2,000.     On

December 18, 1994, after Agent Burke was in appellant's

establishment for approximately ten minutes, law enforcement

officers entered the premises to execute a search warrant.
     The Commonwealth indicted appellant for eight separate

offenses.   Count 1 alleged that appellant conspired to operate an

illegal gambling establishment, in violation of Code § 18.2-328.

Count 2 alleged that appellant conducted an illegal gambling

enterprise in substantial continuous operation for more than

thirty days, in violation of Code § 18.2-328.   Counts 3, 4, 5, 6,

and 7 each alleged that appellant operated an illegal gambling

activity where the gross revenue was $2,000 or more in a single

day, in violation of Code § 18.2-328.   These counts related to

the dates of November 18, December 2, December 3, December 10,

and December 18, 1994, respectively.    Count 8 alleged that

appellant unlawfully gambled, a misdemeanor violation of Code




                                -2-
§ 18.2-326.

     At a pretrial hearing on appellant's motion to quash,

appellant argued that the Commonwealth improperly charged him

with separate offenses in Counts 2-7, in violation of the

language of Code § 18.2-328 and double jeopardy principles.     The

trial court denied appellant's motion.   At appellant's bifurcated

trial, the Commonwealth agreed to nol prosse Count 2.

     After hearing evidence, the jury convicted appellant on

Counts 3-6--operating an illegal gambling establishment having a

gross revenue of at least $2,000, for the dates November 18,

December 2, December 3, and December 10, 1994, respectively.

Because the evidence did not establish a gross revenue of at

least $2,000 for Count 7, appellant was convicted of simple

operation of an illegal gambling establishment.   The jury also

convicted appellant on Count 1 (conspiracy) and Count 8

(misdemeanor gambling).   Appellant did not appeal his convictions

on Counts 1 and 8.
     During the trial's sentencing phase, the Commonwealth

presented evidence that in 1987, appellant had been convicted in

Tennessee on two counts of attempted felony kidnapping.   The

conviction orders contained a certification from the deputy clerk

of the court but did not contain a judge's certification.    The

trial court overruled appellant's objection that the sentencing

orders were improperly authenticated.

     At the trial's punishment phase, the jury recommended (1) a



                                -3-
fine of $1,000 for the conspiracy conviction; (2) a one year

period of incarceration and a fine of $500 for each of the four

charges relating to the operation of a gambling establishment

where the gross revenues exceeded $2,000 on a particular day; and

(3) a fine of $1,000 for the charge relating to simple operation

of a gambling establishment (Count 7).   Appellant moved to set

aside the verdicts on double jeopardy grounds.   The trial court

overruled the motion and sentenced appellant in accordance with

the jury's recommendations.   Appellant now appeals to this Court.
                                II.

                     DOUBLE JEOPARDY ARGUMENT

     The constitutional prohibition of double jeopardy consists

of three separate guarantees:   (1) it protects against a second

prosecution for the same offense after acquittal; (2) it protects

against a second prosecution for the same offense after

conviction; and (3) it protects against multiple punishments for

the same offense.   Illinois v. Vitale, 447 U.S. 410, 415 (1980);
Tyler v. Commonwealth, 21 Va. App. 702, 706, 467 S.E.2d 294, 296

(1996).   In this case, we concern ourselves with the third

guarantee, as appellant argues that he received multiple

punishments for one continuing illegal gambling transaction.

     Appellant bases his argument on the language of Code

§ 18.2-328 (entitled "Conducting illegal gambling operation;

penalties"), the Code section on which Counts 3 through 7 were

predicated.   Code § 18.2-328, in pertinent part, states:




                                -4-
               The operator of an illegal gambling
          enterprise, activity or operation shall be
          guilty of a Class 6 felony. However, any
          such operator who engages in an illegal
          gambling operation which (i) has been or
          remains in substantially continuous operation
          for a period in excess of thirty days or (ii)
          has gross revenue of $2,000 or more in any
          single day shall be fined not more than
          $20,000 and imprisoned not less than one year
          nor more than ten years.


Appellant contends that the statute's first sentence addresses

the proscribed behavior--namely, the act of operating an illegal

gambling enterprise, activity, or operation.   A defendant

convicted of this offense is guilty of a Class 6 felony. 1

Appellant next asserts that the statute's second sentence

provides two sets of circumstances under which an offender is

subject to enhanced punishment.   Under appellant's theory, his

five separate convictions under Code § 18.2-328 amounted to

unconstitutional multiple punishments for the same offense, which

was the one continuing act of operating an illegal gambling

enterprise, activity, or operation.   While certain aspects of

appellant's argument are correct, his ultimate conclusion on this

issue of first impression lacks merit.

     We agree with appellant that Code § 18.2-328 proscribes one

crime and sets forth that crime's elements in the first sentence.

 To convict a defendant under Code § 18.2-328, the Commonwealth

need prove only that the defendant operated an illegal gambling
     1
      A Class 6 felony carries a term of imprisonment ranging
from zero to five years and/or a maximum $2,500 fine. Code
§ 18.2-10(f).



                               -5-
enterprise, activity, or operation.    We also agree with appellant

that under two sets of circumstances, a defendant may receive an

enhanced penalty for operating an illegal gambling enterprise,

activity, or operation:    (1) where the enterprise operates for

over thirty days, or (2) where the enterprise grosses at least

$2,000 in a single day.

     None of this means, however, that the Commonwealth cannot

charge a defendant with multiple violations of this Code section,

using the first sentence as the predicate for the multiple

charges.   Under appellant's analysis, a defendant who operated an

illegal gambling enterprise for 365 consecutive days, earning

daily revenues of over $2,000, would be guilty of no more

criminal conduct than a defendant who operated an illegal

gambling enterprise for one night, earning $2,000.   This

conclusion is untenable.   We believe that the General Assembly

intended to allow the Commonwealth to elect to charge a defendant

with multiple counts of violating Code § 18.2-328, where the

evidence proves that the statute was violated at distinct and

separate times.   For example, if a person operated an illegal

gambling activity on Friday night, was arrested for this offense,

and then returned to operate an illegal gambling activity on

Saturday night, this person could be indicted for two distinct

violations of Code § 18.2-328.   If the person's activities

grossed him or her more than $2,000 on each night, that person

would also be subject to two enhanced sentences.



                                 -6-
     Our analysis is supported by the similar statutory scheme in

Code § 18.2-248, which punishes drug offenses.   Code

§ 18.2-248(A) states that "it shall be unlawful for any person to

manufacture, sell, give, distribute, or possess with intent to

manufacture, sell, give or distribute a controlled substance or

an imitation controlled substance."    Like the first sentence of

Code § 18.2-328, section (A) sets forth the proscribed crime and

provides the crime's elements.   Code § 18.2-248(C) then provides

the punishment, stating that any person violating this statute

with respect to a Schedule I or II drug shall "be imprisoned for

not less than five nor more than forty years and fined not more

than $500,000."   Code § 18.2-248(F) provides for alternate

punishment, stating that any person violating this statute with

respect to a Schedule III, IV, or V drug "shall be guilty of a

Class 1 misdemeanor."   Just as in Code § 18.2-328, Code
§ 18.2-248(A) punishes a criminal act, and sections (C) and (F)

provide various degrees of punishment.   And just as a defendant

may be charged with multiple violations of Code § 18.2-328, a

defendant may be charged with multiple violations of Code

§ 18.2-248, when the drug transactions occur at separate times.

See, e.g., Able v. Commonwealth, 16 Va. App. 542, 431 S.E.2d 337

(1993)(defendant convicted of two separate counts of cocaine

distribution in violation of Code § 18.2-248, after undercover

officer purchased cocaine from defendant on May 10 and May 14,

1991); Mason v. Commonwealth, 16 Va. App. 260, 430 S.E.2d 543




                                 -7-
(1993)(defendant convicted of two separate counts of cocaine

distribution in violation of Code § 18.2-248, after he sold drugs

on June 6 and June 8, 1991). 2   Similarly, as the Commonwealth

points out, a defendant may be convicted of multiple violations

of Code § 18.2-256, the narcotics conspiracy statute, even where

there was only one agreement to distribute several illegal drugs

over a two year period.   Wooten v. Commonwealth, 235 Va. 89, 368

S.E.2d 693 (1988).
     "Concededly, because [Code § 18.2-328] is penal in nature,

it must be strictly construed, and any ambiguity or reasonable

doubt as to its meaning must be resolved in [appellant's] favor."

 Mason, 16 Va. App. at 262, 430 S.E.2d at 543.    "This does not

mean, however, that [appellant] is entitled to a favorable result

based upon an unreasonably restrictive interpretation of the

     2
      In Mason, the defendant received an enhanced punishment,
pursuant to Code § 18.2-248(C) on his second offense, which had
been committed two days after the first offense. Appellant
contended that he was not subject to enhanced punishment because
he had not been convicted previously of a drug offense before he
was tried for the second offense. We rejected this argument and
said:

          To construe the statute as Mason suggests
          would enable an offender to engage in a spree
          of drug sales over an extended period of time
          prior to his apprehension and to receive the
          status of a first offender as to each
          violation. Such an interpretation would be
          contrary to the clear legislative intent and
          unreasonably restrictive.

Mason, 16 Va. App. at 263, 430 S.E.2d at 544 (citation omitted).

     We believe that the same logic holds in this case.



                                 -8-
statute."   Id. at 262, 430 S.E.2d at 544 (quotation and citation

omitted).   The trial court, therefore, did not err in denying

appellant's motion to set aside the challenged convictions as

violative of the double jeopardy prohibition.




                                -9-
                              III.

            INTRODUCTION OF OUT-OF-STATE CONVICTIONS

     Following appellant's convictions during the bifurcated

trial's guilt phase, the trial court commenced a "separate

proceeding limited to the ascertainment of punishment" in

accordance with Code § 19.2-295.1.   "Code § 19.2-295.1 provides,

in pertinent part, that 'the Commonwealth shall present' to the

jury during the sentencing phase of a bifurcated trial 'the

defendant's prior criminal convictions by certified, attested or

exemplified copies of the record of conviction.'"    Gilliam v.

Commonwealth, 21 Va. App. 519, 521, 465 S.E.2d 592, 593 (1995).

     During the sentencing phase in this case, the Commonwealth

introduced two certified conviction orders from the Criminal

Court of Sullivan County, Tennessee.    Each order stated that

appellant had been convicted of "attempt to commit felony of

kidnapping" on September 30, 1987.   Each order also stated that

the Clerk of the Court "certif[ies] that the above and foregoing

one page contains a full, true and correct copy of the judgment

of Court rendered in the above case, on the day stated, as the

same appears of record in my office."   The signature of the

criminal court's deputy clerk appeared in the signature block

beneath this statement on each order.

     We hold that the trial court properly admitted these copies

of appellant's conviction records pursuant to Code § 19.2-295.1.

Under prior decisions of this Court, the two orders were



                              -10-
properly "certified" within the meaning of Code § 19.2-295.1.

For example, in Carroll v. Commonwealth, 10 Va. App. 686, 396

S.E.2d 137 (1990), we held that the Commonwealth did not prove

that a prior habitual offender order was properly "certified" or

"authenticated" where the order did not establish in what

capacity a certain "Peggy B. Elmore" signed the order.   Here,

this problem did not present itself; the orders were signed on

behalf of the Clerk of the Criminal Court of Sullivan County by a

"Kathleen Holt," Deputy Clerk.    See Durrette v. County of

Spotsylvania, 22 Va. App. 122, 468 S.E.2d 128 (1996)(discussing

attestation requirements); Anderson v. Commonwealth, 13 Va. App.

506, 413 S.E.2d 75 (1992)(discussing authentication

requirements); Owens v. Commonwealth, 10 Va. App. 309, 391 S.E.2d

605 (1990)(holding that a conviction order was properly certified

and attested where it was stamped "A COPY, TESTE:    WILLIAM T.

RYAN, CLERK" and undersigned by the deputy clerk).    We find

unpersuasive appellant's argument that the trial court should

have applied the more stringent certification requirements of

Code § 8.01-389(A1), a statutory section contained in the "Civil

Remedies and Procedures" title of the Code when a specific

statute, Code § 19.2-295.1, merely requires that the order be
                                      3
"certified, attested or exemplified."
     3
      At the time of trial, Code § 8.01-389(A1) required that
records of other states must be certified by the judge in
addition to the clerk to be admissible. Since that time, the
statute has been amended to eliminate the requirement that the
judge certify the order.



                                 -11-
Based on the foregoing, we affirm appellant's convictions.

                                                   Affirmed.




                         -12-
Coleman, J., concurring in part, dissenting in part.



        I concur in Part II of the majority decision.   However, in

my opinion, the trial court erred during the sentencing phase of

the bifurcated trial by admitting two documents which purported

to be conviction orders from the Criminal Court of Sullivan

County, Tennessee.      These orders had not been properly

authenticated as required by Code § 8.01-389(A1), as it read at

the time of trial.      Therefore, I dissent from the holding in Part

III of the majority's opinion and would remand the case for

resentencing by another jury in accordance with the provisions of

Code § 19.2-295.1. 4

        A written order or record of a judicial proceeding from

another court that is offered to prove the content of the

document is hearsay and is inadmissible evidence unless

authorized by statute or by a recognized exception to the hearsay

rule.       See Owens v. Commonwealth, 10 Va. App. 309, 311, 391

S.E.2d 605, 607 (1990)("'[t]he underlying rationale which

justifies admitting facts contained in official records as an

exception to the hearsay rule is that the concern for reliability

is largely obviated because the nature and source of the evidence

enhance the prospect of its trustworthiness.'" (quoting Ingram

        4
      In 1996 Code § 8.01-389(A1) was amended. Under the revised
statute, the Tennessee orders with only a single certification
would be admissible. Thus, although the orders would now be
admissible on remand, they were inadmissible at the time of
trial, in my opinion.



                                   -13-
v. Commonwealth, 1 Va. App. 335, 338, 338 S.E.2d 657, 658-89

(1986))).   Code § 8.01-389 provides that a properly authenticated

and certified record of a court or judicial proceeding "shall be

received as prima facie evidence" of the record.    Thus, this

statute codifies as part of the official records exception to the

hearsay rule judicial "records" which are properly authenticated,

Owens, 10 Va. App. at 311, 391 S.E.2d at 607; and, it also

provides how records from courts of the Commonwealth and foreign

jurisdictions are to be authenticated and certified; and it

further codifies the legislature's recognition of the

constitutional requirement that Virginia courts shall give full

faith and credit to the judgments of the courts of a sister

state.   Moreover, Code § 8.01-389(A1) provides that an official

record of a court of another state shall be "authenticated by the

clerk of the court where preserved to be a true record, and
similarly certified by a judge of that court."     (Emphasis added).

Where, as here, the required certification by a judge of the

Criminal Court of Sullivan County, Tennessee was missing, the

order was not properly authenticated as required by Code

§ 8.01-389(A1) and it should not have been admitted into

evidence.   See Carroll v. Commonwealth, 10 Va. App. 686, 396

S.E.2d 137 (1990).

     The majority concludes that the more stringent double

authentication or exemplification requirements of Code

§ 8.01-389(A1), as it read at the time of appellant's trial, did




                               -14-
not control in this case because Code § 19.2-295.1, which is a

specific statute, requires only that the order be "certified,

attested or exemplified."    (Emphasis added).   The majority

concludes that Code § 19.2-295.1 permits the admission of an

order from any jurisdiction that has been certified or attested

without the required double certification necessary to exemplify

a foreign judgment order.    The majority reasons that Code

§ 19.2-295.1, which contains no requirement for double

certification, is the statute that specifically deals with the

admission of judgment orders in sentencing proceedings,

therefore, it controls over Code § 8.01-389(A1), the general

statute controlling the certification, attestation, and

exemplification of orders.
     This is not a situation, however, in which two statutes deal

with the same subject matter and, therefore, the principles of

statutory construction require that the specific statute controls

over the general statute.    Code § 19.2-295.1 does not address and

does not govern how judicial records are to be certified,
authenticated, or exemplified--authentication being the necessary

requirement to establish trustworthiness of a document in order

to qualify it under the official records hearsay exception.

Instead, Code § 19.2-295.1 merely specifies that a defendant's

prior criminal convictions are admissible in the bifurcated

sentencing procedure and shall be proven by certified, attested

or exemplified copies of the record of conviction; this statute




                                -15-
does not undertake to define how records are to be "certified,

attested or exemplified."    Code § 8.01-389 is the only statute

that controls how judicial records are to be "certified, attested

or exemplified" in order to be admissible.   In order for a

judicial record to be "certified, attested or exemplified" so as

to be admissible the proponent of the evidence must comply with

the requirements of Code § 8.01-389, which the Commonwealth

failed to do in this case.
     Accordingly, I would hold that error occurred during the

sentencing phase of the trial, which error was not harmless, and

I would remand this case to the trial court for resentencing by a

jury empaneled in accordance with Code § 19.2-295.1.




                                -16-
