                  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

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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,



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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

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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.

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