                   COURT OF APPEALS OF VIRGINIA


Present:  Chief Judge Fitzpatrick, Judge Annunziata and
          Senior Judge Duff
Argued at Alexandria, Virginia


ANTHONY DAVON SLADE
                                           MEMORANDUM OPINION * BY
v.   Record No. 2664-98-3                   JUDGE CHARLES H. DUFF
                                                JULY 18, 2000
COMMONWEALTH OF VIRGINIA


           FROM THE CIRCUIT COURT OF THE CITY OF DANVILLE
                       James F. Ingram, Judge

           S. Jane Chittom, Appellate Counsel (Elwood
           Earl Sanders, Jr.; Public Defender
           Commission, on briefs), for appellant.

           Linwood T. Wells, Jr., Assistant Attorney
           General (Mark L. Earley, Attorney General, on
           brief), for appellee.


     Anthony Davon Slade appeals his conviction for violating Code

§ 3.1-796.122(A)(i) 1 , cruelty to an animal.   On appeal, he

contends that, in accordance with Code § 19.2-294, this conviction

was barred by his earlier conviction for discharging a firearm

within the corporate limits of the City of Danville.     We agree,

reverse the conviction for cruelty to an animal, and dismiss the

indictment.



     * Pursuant to Code § 17.1-413, recodifying Code
§ 17-116.010, this opinion is not designated for publication.
     1
       The indictment incorrectly references subpart (A)(ii) of
the statute. That error has no bearing on this appeal.
                             BACKGROUND

     "On appeal, 'we review the evidence in the light most

favorable to the Commonwealth, granting to it all reasonable

inferences fairly deducible therefrom.'"   Archer v.

Commonwealth, 26 Va. App. 1, 11, 492 S.E.2d 826, 831 (1997)

(citation omitted).

     So viewed, the evidence proved that on March 13, 1998 in the

City of Danville, Slade fired several gunshots at a dog.   The dog

sustained several wounds.

     Slade was charged with violating Danville City Ordinance

§ 40-3.   That ordinance makes it unlawful to discharge a firearm

within the corporate limits of the city.   He was convicted of this

offense in general district court on April 10, 1998.

     On April 15, 1998, the grand jury returned an indictment

against Slade.   The indictment charged that Slade "did unlawfully

and cruelly ill-treat, maim, mutilate, or torture a dog belonging

to Isaac Davis, 845 Colquohoun Street, by shooting said dog, in

violation of Section 3.1-796.122(A)(ii), Code of Virginia, as

amended . . . ."   At trial on September 24, 1998, Slade moved to

dismiss the indictment, arguing that it violated Code § 19.2-294

because the indictment involved the same act and set of facts that

had been the basis of the discharging a firearm conviction.   The

circuit court denied the motion and convicted Slade of the cruelty

to an animal charge.



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                                 ANALYSIS

     Slade contends that his conviction for violating the cruelty

to an animal statute is barred by Code § 19.2-294.   He does not

argue that the cruelty to an animal conviction violates the

federal constitutional guarantee against double jeopardy.       See

Blockburger v. United States, 284 U.S. 299, 304 (1932). 2   A

determination whether a conviction violates Code § 19.2-294 does

not depend on an abstract viewing of the elements of the offenses

involved.   The statute reads:

                 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

     2
       The constitutional guarantee insures that an accused is not
"subject for the same offense to be twice put in jeopardy of life
or limb." U.S. Const. amend. V. Among other things, that
guarantee protects an accused against multiple punishments for the
same offense. See North Carolina v. Pearce, 395 U.S. 711, 717
(1969).
     The United States Supreme Court, in Blockburger, 284 U.S. at
304, held that the "test to be applied to determine whether there
are two offenses or only one is whether each [statutory] provision
requires proof of an additional fact which the other does not."
In making this determination, "[t]he elements of each offense must
be examined in the abstract, not with regard to the particular
facts involved in [the] case [before the court]." Fitzgerald v.
Commonwealth, 11 Va. App. 625, 627, 401 S.E.2d 208, 210, aff'd on
reh'g en banc, 13 Va. App. 281, 411 S.E.2d 228 (1991). In a
Blockburger analysis, "[i]t 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).
     In this case, there is no constitutional double jeopardy
violation. Viewed in the abstract, a conviction for violating the
discharging a firearm ordinance does not require proof that the
discharge resulted in harm to an animal. Conversely, viewed in
the abstract, a conviction for violating the cruelty to an animal
statute does not require proof that a firearm was discharged.

                                  - 3 -
          shall be a bar to a prosecution or
          proceeding under the other or others.
          Furthermore, if the same act be a violation
          of both a state and a federal statute a
          prosecution under the federal statute shall
          be a bar to a prosecution under the state
          statute.

               For purposes of this section, a
          prosecution under a federal statute shall be
          deemed to be commenced with the return of an
          indictment by a grand jury or the filing of
          an information by a United States attorney.

Code § 19.2-294.

     "Code § 19.2-294 speaks to 'acts' of the accused, not

elements of the offense."    Wade v. Commonwealth, 9 Va. App. 359,

365, 388 S.E.2d 277, 280 (1990); see also Jones v. Commonwealth,

218 Va. 757, 760, 240 S.E.2d 658, 661 (1978).   "[T]he test of

whether there are separate acts sustaining several offenses 'is

whether the same evidence is required to sustain them.'"     Estes

v. Commonwealth, 212 Va. 23, 24, 181 S.E.2d 622, 624 (1971)

(quoting Hundley v. Commonwealth, 193 Va. 449, 451, 69 S.E.2d

336, 337 (1952)); see also Treu v. Commonwealth, 12 Va. App.

996, 997, 406 S.E.2d 676, 677 (1991).

     "In determining whether the conduct underlying the

convictions is based upon the 'same act,' the particular

criminal transaction must be examined to determine whether the

acts are the same in terms of time, situs, victim, and the

nature of the act itself."    Hall v. Commonwealth, 14 Va. App.

892, 898, 421 S.E.2d 455, 459 (1992) (en banc).    "The defendant

is required to do no more than to show that the 'act' which

                                - 4 -
served as the basis for the [one] conviction was 'the same act'

which was used to convict her of [the other charge]."   Wade, 9

Va. App. at 363, 388 S.E.2d at 279.

     Here, the Commonwealth argues that it "was required to

prove the specific act of discharging a firearm in order to

sustain its first conviction against Slade, but it was not

required to prove the specific act of discharging a weapon in

order to sustain the second conviction."

     We disagree.   We would accept the Commonwealth's argument

were we addressing a constitutional double jeopardy claim.     Cf.

Padgett v. Commonwealth, 220 Va. 758, 760, 263 S.E.2d 388, 389

(1980).   However, in addressing a Code § 19.2-294 claim, we do

not view the offenses in the abstract.   Instead, we look to the

specific act or acts undertaken by this defendant in this case.

     So viewed, the Commonwealth could successfully prosecute

Slade for cruelty to an animal only by proving, as charged in

the indictment, that Slade shot the animal.   This same act of

shooting was the basis for the earlier discharging a firearm

conviction.   Accordingly, the conviction for cruelty to an

animal violates Code § 19.2-294 and cannot stand.   We reverse

that conviction and dismiss the indictment.

                                           Reversed and dismissed.




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