                                              COURT OF APPEALS OF VIRGINIA


              Present: Judges Alston, Chafin and Senior Judge Haley
              Argued at Fredericksburg, Virginia
UNPUBLISHED




              DAVID MICHAEL SCHMIDT
                                                                             MEMORANDUM OPINION BY
              v.      Record No. 1104-16-4                                   JUDGE ROSSIE D. ALSTON, JR.
                                                                                  JANUARY 23, 2018
              COMMONWEALTH OF VIRGINIA


                               FROM THE CIRCUIT COURT OF PRINCE WILLIAM COUNTY
                                              Tracy C. Hudson, Judge

                                Crystal A. Meleen (John A. Keats; Keats & Meleen, PLC, on
                                brief), for appellant.

                                Katherine Quinlan Adelfio, Assistant Attorney General (Mark R.
                                Herring, Attorney General, on brief), for appellee.


                      David Michael Schmidt (“appellant”) appeals his convictions of felony child abuse and

              felony murder, after a jury found him guilty in the Circuit Court of Prince William County (“trial

              court”). On appeal, appellant asserts (1) that the trial court erred by admitting an autopsy report

              containing a portion created by a non-testifying witness, and (2) that his convictions cannot stand

              because they violate the Double Jeopardy Clause. For the reasons stated below, we disagree and

              affirm the trial court.

                                                           BACKGROUND

                      On August 5, 2013, Officer Jacob Davis (“Davis”) of the Haymarket Police Department

              was dispatched to a residence on a report of an unresponsive infant. Davis found the infant in an

              upstairs room where appellant was performing chest compressions. Appellant stated that R.S.

              suddenly stopped breathing while appellant was changing his diaper. The infant was R.S.,


                      
                          Pursuant to Code § 17.1-413, this opinion is not designated for publication.
appellant’s son. Davis observed that R.S. was a bluish-green color and that his eyes were open

in a blank stare. Davis noticed no other signs of visible trauma. Davis and another officer began

performing lifesaving efforts while waiting on an ambulance. R.S. was transported to the

emergency room, where physicians ordered multiple tests including a CT scan of R.S.’s head.

The scan revealed bleeding on the brain, otherwise known as a subdural hematoma. The ER

physician opined that the hematoma was subacute, meaning it had occurred “somewhere

between 24 hours and three weeks” prior.

       R.S. was transferred to the Pediatric Intensive Care Unit (“PICU”) at Fairfax INOVA

Hospital, where attending physicians examined his condition. Dr. William Dockery

(“Dr. Dockery”) performed the primary exam and noted an absence of any apparent external

injury or trauma. Dr. Dockery performed tests on R.S. and found no brain activity whatsoever –

R.S. did not respond to painful stimuli, he never opened his eyes, and he never moved any of his

extremities. Another CT scan of R.S.’s head showed subdural blood between the brain and skull,

as well as brain swelling. Technicians also performed a chest x-ray and Dr. Dockery observed

healed rib fractures on R.S.’s right side, which he classified as indicative of possible previous

trauma. When asked, both appellant and R.S.’s mother provided no explanations for the healed

fractures. A few days later, doctors removed R.S. from life support, and he died.

       Detectives began investigating the circumstances and learned that appellant was R.S.’s

primary caretaker on the date of the incident. Appellant reported nothing unusual about that

day – he had fed and changed R.S.’s diaper during the morning and had him do “tummy time.”1

Appellant stated that during the afternoon diaper change, R.S.’s legs stiffened, his arms began

flailing, and then R.S. became nonresponsive.



       1
        “Tummy time” occurs when a parent places a baby on its stomach to facilitate the
development of the baby’s neck and shoulder muscles.
                                            -2-
       After an investigation, local law enforcement charged appellant with felony child abuse

and felony murder based on the theory that R.S. sustained his injuries due to “shaken baby

syndrome.” The matter was set for a jury trial.

       Dr. Dockery testified that after considering R.S.’s symptoms, he concluded based on a

high degree of medical certainty that R.S. had suffered a “severe catastrophic trauma-type

injury.” Dr. Dockery opined that the trauma was so severe that unless appellant could provide

another explanation for the injury, it was probably caused by a violent shaking movement during

which R.S.’s head whipped back and forth so violently that the blood vessels between the brain

and skull sheared and caused blood leakage, resulting in the subdural hematoma.

       Dr. Constance DiAngelo (“Dr. DiAngelo”), the principal author of the autopsy report on

R.S., testified that the head injury played a direct role in R.S.’s death and stated that some blunt

force trauma had occurred and caused subdural bleeding. During the course of the autopsy

investigation, Dr. DiAngelo contacted Dr. Bennet Omalu (“Dr. Omalu”), an

internationally-renowned neuropathologist, and asked him to conduct an additional analysis on

samples taken from R.S.’s brain. Dr. Omalu prepared stain slides of samples taken from R.S.’s

brain, which were sent to his lab in Lodi, California. Dr. Omalu later provided his observations

to Dr. DiAngelo, which documented various data findings but contained no conclusions about

cause of death or the relative age of the brain injuries. Dr. DiAngelo included Dr. Omalu’s notes

in her final autopsy report.

       In addition to Dr. Dockery and Dr. DiAngelo, the parties each called additional expert

witnesses at trial, but Dr. Omalu was not among them – he did not testify nor was he subpoenaed

by either party. While the various experts disagreed on four specific medical findings, they

agreed on many others, including the existence of subdural bleeding. The experts markedly

disagreed that the brain injuries were caused by abusive head trauma or “shaken baby

                                                -3-
syndrome,” as well as when the injuries were sustained. None of the experts presented by the

Commonwealth or the appellant ever referenced Dr. Omalu’s report.

       At the conclusion of the jury trial, the jury convicted appellant of felony child abuse and

felony murder and recommended eleven years of incarceration, which the trial court imposed.

This appeal followed.

                                             ANALYSIS

                                      I. Confrontation Clause

       Appellant’s first assignment of error argues that the trial court erred in admitting the

autopsy report in violation of the Confrontation Clauses of the United States and Virginia

Constitutions. We disagree.

         A. Admission of the Autopsy Report Did Not Violate the Confrontation Clause

       Appellant’s first assignment of error asserts that the trial court violated his constitutional

rights under the Confrontation Clause by admitting the autopsy report, because a portion of it

was prepared by Dr. Omalu, a witness that did not testify at trial.

       Constitutional arguments present questions of law that this Court reviews de novo.

Magruder v. Commonwealth, 275 Va. 283, 289, 657 S.E.2d 113, 115 (2008); Shivaee v.

Commonwealth, 270 Va. 112, 119, 613 S.E.2d 570, 574 (2005). “When reviewing the

sufficiency of the evidence to support a conviction, [an appellate c]ourt will affirm the judgment

unless the judgment is plainly wrong or without evidence to support it.” Mayfield v.

Commonwealth, 59 Va. App. 839, 850, 722 S.E.2d 689, 695 (2012) (quoting Bolden v.

Commonwealth, 275 Va. 144, 148, 654 S.E.2d 584, 586 (2008)).

       The Sixth Amendment to the United States Constitution provides, in relevant part, “[i]n

all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the




                                                 -4-
witnesses against him.” U.S. Const. amend VI.2 Between 1980 and 2004, courts addressed

Confrontation Clause challenges under the test enunciated by the United States Supreme Court in

Ohio v. Roberts, 448 U.S. 56, 66 (1980), which allowed the admission of a non-testifying

witness’ statements if those statements could be considered “reliable” pursuant to a judicial

determination.

       In Crawford v. Washington, 541 U.S. 36, 51-52 (2004), the United States Supreme Court

abandoned the Roberts test and classified certain specific types of evidence as “testimonial.”

Under Crawford, when evidence is testimonial, it cannot be introduced at trial without a

testifying witness unless that witness is unavailable and the defendant previously had an

opportunity to cross-examine the witness on that evidence. Id. at 53-54. Testimonial evidence is

provided through “witnesses against the accused – in other words, those who bear testimony.

Testimony, in turn, is typically [a] solemn declaration or affirmation made for the purpose of

establishing or proving some fact.” Id. at 51 (internal quotations omitted) (alteration in original).

Thus, when considering a challenge to evidence allegedly admitted in contravention of the

Crawford definition, the Court must initially determine whether the evidence is “testimonial” or

not because evidence that is “nontestimonial” may potentially be admitted without a witness.

       Since it decided Crawford, the United States Supreme Court has authored two other

significant decisions that explore the definition of “testimonial.” In 2009, the United States

Supreme Court decided Melendez-Diaz v. Massachusetts, 557 U.S. 305 (2009). While Crawford

involved the admission of oral statements, Melendez-Diaz considered whether forensic

certificates of analysis, scientific documents produced after laboratory testing of substances, are

“testimonial.” Id. at 307. The certificates of analysis in Melendez-Diaz confirmed that a


       2
          Likewise, the Bill of Rights of the Virginia Constitution provides, in relevant part,
“[t]hat in criminal prosecutions a man hath a right . . . to be confronted with the accusers and
witnesses.”
                                                 -5-
substance recovered from the defendant was cocaine. Id. at 308. The Court concluded that the

certificates were “incontrovertibly a ‘solemn declaration or affirmation made for the purpose of

establishing or proving some fact,’” that being whether the defendant possessed a controlled

substance. Id. at 310 (quoting Crawford, 541 U.S. at 51).

       Two years later, the United States Supreme Court addressed whether a certificate of

analysis could be admissible if the testifying analyst “did not sign the certification or personally

perform or observe the performance of the test reported in the certification.” See Bullcoming v.

New Mexico, 564 U.S. 647, 657 (2011). The Court held that such “surrogate testimony” does

not comport with the requirements of the Confrontation Clause because the “testifying analyst

could not convey what the performing analyst knew or observed about the particular test the

certification concerned,” limiting the defendant’s ability to cross-examine on that evidence.

Robertson v. Commonwealth, 61 Va. App. 554, 564, 738 S.E.2d 531, 536 (2013) (en banc).

       Applications of the principles established in Melendez-Diaz and Bullcoming have

evolved in Virginia jurisprudence. In Aguilar v. Commonwealth, 280 Va. 322, 335, 699 S.E.2d

215, 222 (2010) (citing Melendez-Diaz, 557 U.S. at 311 n.1),3 the Supreme Court of Virginia

held that “the Sixth Amendment does not require that every person who had some role in

performing a forensic analysis, or whose work upon which the ultimate conclusions depend,

testify at trial.” Aguilar asserted that the trial court violated his Confrontation Clause right by

admitting certificates of analysis without requiring the testimony of two forensic analysts who



       3
          Appellant also quotes Melendez-Diaz in asserting that Dr. Omalu still should have been
called to testify because he generated his report “under circumstances which would lead an
objective witness reasonably to believe the statement would be available for use at a later trial.”
Melendez-Diaz, 557 U.S. at 310-11. Appellant specifically states “that anyone playing a role in
the autopsy would reasonably expect to testify.” This argument, however, ignores Aguilar’s
clear holding – that the Confrontation Clause does not demand that every individual who played
some role in an analysis be summoned to testify at trial. See Aguilar, 280 Va. at 335, 699 S.E.2d
at 222.
                                                -6-
had “played preliminary roles in the DNA analysis.” Id. at 326, 699 S.E.2d at 216. The Court

rejected his argument, reasoning that the only “declaration[s] or affirmation[s] contained” within

the certificates were those of the testifying witness. Id. at 333, 699 S.E.2d at 220 (alterations in

original). The testifying witness acted as a supervisor to the other two analysts, and as

supervisor she formed the conclusions contained within the certificates, and she testified at trial;

thus negating any potential constitutional violation. Id. at 335, 699 S.E.2d at 221.

       This Court addressed a similar issue in Robertson v. Commonwealth. 61 Va. App. at

557-58, 738 S.E.2d at 532-33. In Robertson, the trial court admitted two exhibits listing the

prices and names of various items that the defendant had attempted to steal from a store. Id. The

store manager testified that she “watched the prices come up on the register” as they were

scanned in, and “observed [that] the prices were correct as [the cashier] handwrote them on the

piece of paper.” Id. at 557, 738 S.E.2d at 533. We held that the Confrontation Clause is not

offended when “an exhibit is jointly prepared, and at least one of the proponents intimately

involved in the preparation of the exhibit is subject to cross-examination.” Id. at 565, 738 S.E.2d

at 537. “[Even though] exhibits may constitute testimonial evidence, there is no violation of the

Confrontation Clause as long as the accused is confronted with ‘a live witness competent to

testify to the truth of the statements made in the [exhibit].’” Id. at 560, 738 S.E.2d at 534

(quoting Bullcoming, 564 U.S. at 651) (emphasis in original). Thus, no violation occurred in

Robertson because the defendant had ample opportunity to address “[a]ny deficiencies in [the

store manager’s] testimony on cross-examination regarding what she may or may not have

overlooked in observing and supervising” the exhibit’s preparation. Id. at 565, 738 S.E.2d at

537. We noted that this scenario “is certainly relevant to the weight the factfinder may choose to

assign to the evidence, but it does not implicate a violation of the Confrontation Clause.” Id.




                                                -7-
       We find that Aguilar and Robertson control here, and accordingly we conclude that no

constitutional violation occurred. The information contained in Dr. Omalu’s report is merely

observational data collected during his neuropathological examination of R.S.’s tissue and

organs. Nowhere in the report did Dr. Omalu opine about a probable cause of death, nor did he

render any estimation about the age of R.S.’s injuries.

       Just as in Aguilar, nothing within Dr. Omalu’s report can be considered a “solemn

declaration” or an “affirmation” of an element of an offense, as occurred in Melendez-Diaz, and

Robertson. Appellant was confronted at trial with the author of the autopsy report,

Dr. DiAngelo. Dr. DiAngelo conducted the autopsy on the infant child, observed Dr. Omalu

when he prepared samples, reviewed Dr. Omalu’s analysis, and later authored the autopsy report,

which contained her conclusions on cause of death and the approximate age of R.S.’s injuries.

At trial, she testified about those conclusions without reference to Dr. Omalu’s report, relying on

her own personal observations of R.S.’s brain and medical records. Furthermore, she was

available for appellant to cross-examine regarding the portion of the report submitted by

Dr. Omalu. In his brief, appellant also cited to case law from other states to bolster his argument

that the admission of the autopsy report was error. However, upon closer review, the cases do

not support appellant’s claim for various reasons.4




       4
          See New Mexico v. Jaramillo, 282 P.3d 682, 684 (N.M. 2011) (error due to a
defendant’s lack of opportunity to cross-examine the primary author of a report); Colorado v.
Merritt, 2014 COA 124, *46 (2014) (no error when witness other than the report’s author
testified because testimony was based on alternative observations); Pennsylvania v. Brown, 139
A.3d 208, 217 (Pa. Super. Ct. 2016) (no error when witness other than report’s author testified
because the witness’ conclusions were independent of the report); Lee v. Texas, 418 S.W.3d 892,
894 (Tex. Ct. App. 2013) (error when defendant did not have opportunity to impeach report’s
author, when the author had been indicted for felony perjury).
                                               -8-
       In sum, appellant’s arguments that the autopsy report’s admission violated his

Confrontation Clause right do not persuade us, even on de novo review. We hold that the trial

court did not err in admitting the report.

                   B. Appellant Waived Challenge to Constitutional Violation

       Next, we deem it prudent to address whether appellant waived his right to challenge the

alleged constitutional violation on appeal. This issue concerns a consideration of the

approbate-reprobate bar and invited error doctrine.5 The Supreme Court of Virginia has stated

that “a party may not approbate and reprobate by taking successive positions in the course of

litigation that are either inconsistent with each other or mutually contradictory. Nor may a party

invite error and then attempt to take advantage of the situation created by his own wrong.” Rowe

v. Commonwealth, 277 Va. 495, 502, 675 S.E.2d 161, 164 (2009). We have recognized that

courts often conflate the two concepts, and this Court has also struggled to find agreement on

their proper application. See Harvey v. Commonwealth, 67 Va. App. 336, 348-54, 796 S.E.2d

428, 434-39, reh’g en banc granted, 67 Va. App. 567, 797 S.E.2d 801 (2017); see also supra n.5.

       In Harvey, this Court attempted to distinguish the concepts by writing:

               [t]he approbate-reprobate bar allows the opposing party and the
               courts to rely on the position first taken when one party
               affirmatively assumes inconsistent legal positions on their own
               behalf. Alternatively, the invited error doctrine allows an appellate
               court to consider errors of law as waived when a party “attempts to
               take advantage of the situation created by his own wrong.”


       5
          Virginia’s jurisprudence on this issue remains fluid – in October 2016, this Court split
6-5 in Dufresne v. Commonwealth, 66 Va. App. 644, 791 S.E.2d 335 (2016) (en banc), and our
Supreme Court has granted certiorari, 2017 Va. LEXIS 88 (Va. June 8, 2017). In Dufresne, this
Court disagreed on whether defense counsel invited error during a “combined closing argument
and second motion to strike the evidence” by “requesting” that the trial court reduce a charge to
grand larceny, and then at a later post-trial hearing, moving the trial court to further reduce it to
petit larceny because the defendant could not legally be convicted of grand larceny. Id. at 650,
791 S.E.2d at 338. The dissent strongly objected to the majority’s characterization of defense
counsel’s statement as a “specific and direct request to convict her of grand larceny.” Id. at 663,
791 S.E.2d at 344.
                                                 -9-
Id. at 349, 796 S.E.2d at 435 (quoting Cangiano v. LSH Bldg. Co., 271 Va. 171, 181, 623 S.E.2d

889, 895 (2006) (citations omitted)).

       Harvey considered whether the approbate-reprobate bar or invited error doctrine were

triggered by defense counsel after she objected to a trial continuance based on speedy trial

grounds but then “agreed” to the new trial date suggested by the Commonwealth and then

offered to her as an option by the trial court. Id. at 343, 796 S.E.2d at 432. The issue centered

on the interpretation of two orders entered by two different judges in the trial court, one in which

the trial judge who heard the matter explicitly noted defense counsel’s objection based upon

speedy trial consideration, and the other by a different judge which overruled the preservation of

that objection. Id. at 350-51, 796 S.E.2d at 435-36. The dissent argued that the case could have

been easily resolved under Baker v. Commonwealth, 25 Va. App. 19, 24, 486 S.E.2d 111, 113

(holding that “[p]roviding available dates and agreeing to a trial date that is outside the statutory

period are not actions constituting a waiver of the statutory speedy trial requirement”), aff’d on

reh’g en banc, 26 Va. App. 175, 493 S.E.2d 687 (1997), but that the recently-decided Dufresne v.

Commonwealth, 66 Va. App. 644, 791 S.E.2d 335 (2016), dictated the opposite result. Harvey,

67 Va. App. at 355, 796 S.E.2d at 438 (“intellectual honesty compels me to conclude that our

en banc holding in Dufresne implicitly overrule[d] our en banc judgment in Baker”)

(Humphreys, J., dissenting). However, the majority in Harvey held that the trial court erred in

ruling that the defendant waived his right to a speedy trial because defense counsel “consented”

to a new trial date. Id. at 352-53, 796 S.E.2d at 436-37. Specifically, this Court held that

defense counsel “did not affirmatively assume inconsistent legal positions” by doing such. Id. at

352, 796 S.E.2d at 436. Therefore, this Court determined that neither doctrine applied.

       Here, however, the approbate-reprobate bar does apply, because appellant has assumed

contradictory positions on the same evidence during the course of the case. Because we already

                                                - 10 -
determined that the admission of the autopsy report did not violate the Confrontation Clause,6 the

remaining balance of appellant’s argument is that the report should have been excluded from the

jury’s consideration because “subjects of great dispute were included” within it and appellant

was deprived of an opportunity to cross-examine Dr. Omalu. Critically though, both the

Commonwealth’s and appellant’s experts testified on the same subject matter included in

Dr. Omalu’s notes – the brain injuries incurred by R.S. The experts’ testimony centered on

disputed medical issues of “acute and subdural hemorrhages,” “[t]hick fibrocystic subdural

membrane,” “[a]trophic corpus callosum,” and “retinal findings.” The trial court appropriately

found that the causes of the injuries and the time of their infliction were factual determinations in

the form of a typical “battle of the experts” that the jury should resolve. See Atkins v.

Commonwealth, 272 Va. 144, 154, 631 S.E.2d 93, 98 (2006) (“[i]t was therefore the jury’s task

to resolve the conflicts in the expert testimony and to decide which expert or experts were

worthy of belief”).

       The problem infecting appellant’s argument is that the parties’ respective expert

witnesses, though disagreeing in their interpretations, all testified on cumulative factual material.

This issue is similar to the principle we discussed in Isaac v. Commonwealth, 58 Va. App. 255,

708 S.E.2d 435 (2011). In Isaac, we stated that “when a litigant ‘unsuccessfully objects to

evidence that he considers improper and then introduces on his own behalf evidence of the same

character, he waives his earlier objection to the admission of that evidence.’” Id. at 260, 708

S.E.2d at 437 (quoting Combs v. Norfolk & W. Ry., 256 Va. 490, 499, 507 S.E.2d 355, 360

(1998)). This standard applies “when the defendant presents in his case in chief the same or


       6
           Dr. Omalu was not a necessary witness, therefore the Commonwealth was under no
obligation to subpoena him for trial. Appellant’s trial counsel would have known prior to the
trial that no subpoena had issued and certainly could have issued a subpoena to Dr. Omalu on his
own behalf. However, the record does not reflect that appellant ever took such an action.
Accordingly, appellant’s argument concerning Dr. Omalu’s unavailability is further undermined.
                                               - 11 -
similar evidence he previously objected to in order to explain it away or to offer a more

favorable interpretation.” Id. at 262, 708 S.E.2d at 438. Accordingly, we held that “when a

defendant’s own evidence is substantially the same as his opponent’s, he can complain on appeal

about neither.” Id. at 263, 708 S.E.2d at 439.

       The same scenario presents itself here. Appellant objected to the introduction of

evidence that discussed medical information and data that he later sought to re-interpret in his

own favor through his experts. Accordingly, we find that appellant has assumed contradictory

legal positions, and his argument is barred by the approbate-reprobate doctrine.

                                        II. Double Jeopardy

       In appellant’s second assignment of error, he asserts that his convictions of both felony

child abuse and felony murder violate the Double Jeopardy Clauses of the United States and

Virginia Constitutions. This Court reviews double jeopardy claims de novo. See Johnson v.

Commonwealth, 58 Va. App. 303, 322, 709 S.E.2d 175, 185 (2011).

       The Fifth Amendment provides, in relevant part, that “[n]o person shall . . . be subject for

the same offense to be twice put in jeopardy of life or limb.” U.S. Const. amend. V.7 The

seminal case utilized by courts in determining whether two offenses implicate the Double

Jeopardy Clause is Blockburger v. United States, 284 U.S. 299, 304 (1932). The Blockburger

test requires a court to determine “whether there are two offenses or only one, [and] whether

each provision requires proof of a fact which the other does not.” Id.

       Before conducting a Blockburger analysis, courts must acknowledge that “whether a

punishment offends double jeopardy turns on a determination of ‘what punishments the

Legislative Branch has authorized.’” Holley v. Commonwealth, 64 Va. App. 156, 163, 765



       7
         The Bill of Rights of the Virginia Constitution provides, in relevant part, “[t]hat in
criminal prosecutions a man . . . shall not . . . be put twice in jeopardy for the same offense.”
                                                  - 12 -
S.E.2d 873, 876 (2014) (quoting Whalen v. United States, 445 U.S. 684, 688 (1980)). The Court

first considers “whether ‘the legislative intent is clear from the face of the statute or the

legislative history.’” Andrews v. Commonwealth, 280 Va. 231, 284, 699 S.E.2d 237, 267 (2010)

(quoting Garrett v. United States, 471 U.S. 773, 779 (1985)). This inquiry curtails the possibility

that courts will succumb to the conclusion “that any differentiation in the language defining the

elements of an offense would authorize multiple punishments for otherwise undifferentiated

conduct.” Id. at 284, 699 S.E.2d at 268.

       First, we turn to the language of the statutes at issue here.

       The felony child abuse statute provides, in relevant part:

               Any parent, guardian, or other person responsible for the care of a
               child under the age of 18 who by willful act or willful omission or
               refusal to provide any necessary care for the child’s health causes
               or permits serious injury to the life or health of such child is guilty
               of a Class 4 felony.

Code § 18.2-371.1(A) (emphasis added).

       The felony murder statute provides:

               The killing of one accidentally, contrary to the intention of the
               parties, while in the prosecution of some felonious act other than
               those specified in §§ 18.2-31 and 18.2-32, is murder of the second
               degree and is punishable by confinement in a state correctional
               facility for not less than five years nor more than forty years.

Code § 18.2-33 (emphasis added).

       It is clear from the language of the two statutes that they apply to distinct forms of

actions. To be sure, felony child abuse criminalizes certain specific conduct by individuals who

are responsible for minors. In contrast, the General Assembly intended for the felony murder

statute to apply in a wide variety of situations, and prosecutors have implemented it accordingly.

See, e.g., Heacock v. Commonwealth, 228 Va. 397, 323 S.E.2d 90 (1984) (distribution of

cocaine); Berkeley v. Commonwealth, 19 Va. App. 279, 451 S.E.2d 41 (1994) (abduction);

                                                 - 13 -
Davis v. Commonwealth, 12 Va. App. 408, 404 S.E.2d 377 (1991) (reckless driving); Spain v.

Commonwealth, 7 Va. App. 385, 373 S.E.2d 728 (1988) (burglary and robbery).

       While we could end our analysis there, we elect to consider whether the offenses comport

with the Blockburger test because in this appeal, appellant specifically raised a challenge to his

convictions under Blockburger, and the Court thinks it prudent to address his arguments in full.

We hold that appellant’s convictions do not violate the Double Jeopardy Clause.

       In Cotton v. Commonwealth, 35 Va. App. 511, 516, 546 S.E.2d 241, 244 (2001), we

considered whether felony child abuse is a lesser-included offense of felony murder, but the

Court did not expressly apply a Blockburger analysis. The defendant in Cotton challenged his

convictions under both statutes based on the merger doctrine, but this Court recognized that the

merger doctrine had never before been applied in Virginia jurisprudence, and we declined to

adopt it. Id. at 517, 546 S.E.2d at 244 (“[t]his doctrine of merger was not widely accepted . . .

[and] [t]he doctrine has never been applied in Virginia”). We held that because “[f]elony child

abuse requires proof that the assailant is a person responsible for the care of a child” and “[t]hat

requirement of a special relationship is not an element of murder . . . felony child abuse is not a

lesser-included offense of murder.” Id. The Commonwealth asserts that Cotton is directly on

point. However, there exists a subtle yet significant distinction between whether an offense is

lesser-included of another offense, and when two offenses violate the Double Jeopardy Clause –

the former does not require that each offense contain an element that the other does not, while

the latter does require such. Therefore, we are compelled to analyze these two offenses under

Blockburger.

       Applying the Blockburger test and examining the language of each statute to ascertain

“whether each provision requires proof of a fact which the other does not,” it becomes clear that

appellant’s convictions do not offend the Double Jeopardy Clause. Appellant conflates the two

                                                - 14 -
concepts by stating that “[t]he felony that the Commonwealth alleged was the child abuse.”

However, it is clear that committing a felonious act is not an element within the offense of felony

child abuse. To obtain a conviction under the felony murder statute, the Commonwealth must

prove that appellant committed some felonious act as an independent element. To convict under

the felony child abuse statute, the Commonwealth must prove that appellant was in a special

relationship with the victim, an element not found in the felony murder statute. See also Payne

v. Commonwealth, 277 Va. 531, 538-41, 674 S.E.2d 835, 838-40 (2009) (holding that

convictions for felony murder and aggravated involuntary manslaughter do not violate the

Double Jeopardy Clause). These convictions withstand scrutiny under Blockburger because each

contains an element that the other does not, and thus, appellant’s double jeopardy argument fails.

                                           CONCLUSION

        Having considered appellant’s assignments of error, we conclude that the admission of

Dr. Omalu’s report did not violate appellant’s Confrontation Clause rights and that appellant’s

convictions do not violate the Double Jeopardy Clause. Accordingly, we affirm the judgment of

the learned trial court.

                                                                                         Affirmed.




                                              - 15 -
