                                             COURT OF APPEALS OF VIRGINIA


              Present: Judges O’Brien, Russell and Retired Judge Bumgardner*
UNPUBLISHED


              Argued at Norfolk, Virginia


              SARAH ELIZABETH FLANDERS
                                                                          MEMORANDUM OPINION** BY
              v.     Record No. 0486-17-1                               JUDGE RUDOLPH BUMGARDNER, III
                                                                                 JULY 10, 2018
              COMMONWEALTH OF VIRGINIA


                             FROM THE CIRCUIT COURT OF THE CITY OF VIRGINIA BEACH
                                               James C. Lewis, Judge

                               Andrew M. Sacks (Stanley E. Sacks; Jill R. Schmidtke; Sacks &
                               Sacks, P.C., on briefs), for appellant.

                               Elizabeth Kiernan Fitzgerald, Assistant Attorney General (Mark R.
                               Herring, Attorney General, on brief), for appellee.


                     Sarah E. Flanders appeals her convictions for felony murder, Code § 18.2-33, and felony

              hit and run, Code § 46.2-894. She maintains that she was punished twice for the same offense

              because the murder and hit and run convictions involved the same conduct and there was no

              causal connection between those offenses. She also maintains the evidence did not prove that

              she was the criminal agent. Concluding the trial court did not err, we affirm the convictions.

                     On September 20, 2014, shortly after 5:15 a.m., a woman, later identified as the

              defendant, drove a red Dodge Durango onto a Dominion Power job site. She told a worker,

              “somebody needed to call 911. There was a guy laying back there behind the school bleeding




                     *
                       Judge Bumgardner participated in the hearing and decision of this case in his capacity
              as a senior judge of this Court prior to July 1, 2018 and thereafter by designation pursuant to
              Code § 17.1-400(D).
                     **
                          Pursuant to Code § 17.1-413, this opinion is not designated for publication.
from his head.” She told the site supervisor, Johnny Burdette, that it “looked like someone had

been run over” and “was bleeding to death.” She then drove away.

       Burdette drove to the school, which was adjacent to the job site. He found a man lying

half on and half off the curb of the parking lot. Burdette recognized the man as the person who

had walked through the job site about ten minutes earlier. The man was in obvious pain and lost

consciousness before rescue workers arrived. He later regained consciousness and identified

himself as Rick Pentz, and gave his birthdate. He died about four hours later at the hospital from

blunt force trauma.

       The police recovered Pentz’s cell phone at the scene. It revealed that he had called the

defendant earlier that morning. When interviewed, the defendant said that she and Pentz had

been friends for six years and had once lived together at her mother’s house across the street

from the school. The defendant admitted she had been driving the Durango but denied any

involvement in Pentz’s death. She remarked, “this was crazy and she thought that he was going

to make it,” after the officers had left her alone in the interview room.

       The police found Pentz’s blood on the front bumper of the Durango and yellow paint on

the inside of the front and rear driver’s side tires. That paint was consistent with the paint on the

curb where Pentz was found. The defendant’s DNA was on the steering wheel and gearshift.

The Dominion worker with whom the driver first spoke identified her as that driver. Two days

earlier the defendant and Pentz also had a road side altercation which the police had investigated.

       The defendant maintains she was convicted twice for the same conduct. She argues the

Commonwealth is “seeking to impose two homicide convictions and punishments for a single

death” because death was an element of both the felony murder and hit and run offenses.

Though she does not so state, her argument is, in fact, a claim that the convictions are a violation

of her Fifth Amendment right against double jeopardy.

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       “[W]e apply a de novo standard of review in determining whether cumulative

punishments imposed in a single trial violate the constitutional prohibition against double

jeopardy.” Payne v. Commonwealth, 52 Va. App. 120, 125, 661 S.E.2d 513, 515 (2008), aff’d,

277 Va. 531, 674 S.E.2d 835 (2009). “Where a legislature intends to impose multiple

punishments for the same course of conduct, the imposition of multiple punishments does not

violate the Constitution.” Id. The first step in the analysis, before applying the test set forth in

Blockburger v. United States, 284 U.S. 299, 304 (1932), is to consider “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)).

       Code § 18.2-33 comprises part of the codified felony murder doctrine. See, e.g., Griffin

v. Commonwealth, 33 Va. App. 413, 420, 533 S.E.2d 653, 656 (2000). Code § 46.2-894 is an

offense contained in the Motor Vehicle Title. The purpose of that statute is “to facilitate accident

investigation and to preserve public order.” Johnson v. Commonwealth, 14 Va. App. 769, 771,

418 S.E.2d 729, 731 (1992). Death is not required for a felony conviction. It is clear from the

plain language of these statutes that the legislature intended to create two distinct offenses.

       In addition to an analysis of legislative intent, Blockburger permits both convictions. The

Blockburger test examines “whether each [offense charged] requires proof of a fact which the

other does not.” Blockburger, 284 U.S. at 304. “In applying this test, the two offenses must be

considered in the abstract, rather than in the context of the facts of the particular case being

reviewed.” West v. Director, Dep’t of Corr., 273 Va. 56, 63, 639 S.E.2d 190, 195 (2007).

       An examination of the elements of Code §§ 18.2-33 and 46.2-894 reveals that each

offense requires proof of a fact that the other does not. Felony murder requires proof that the

death occurred during the commission of a felony. Felony hit and run does not require death. It

                                                 -3-
does require proof that the defendant was the driver of a vehicle involved in an accident, that the

driver knew or should have known someone was injured in the accident, and that the driver

failed to stop and report the accident to the police. Felony murder does not require proof of any

of those elements. Each offense contains elements that the other offense does not. Accordingly,

the two statutes are not the same offense, and multiple punishments may be imposed for conduct

that violates both statutes.

        To prove a violation of Code § 18.2-33, the Commonwealth must prove that the

defendant killed the victim “‘while in the prosecution of some felonious act’ or ‘in furtherance

of the felony.’” Griffin, 33 Va. App. at 424, 533 S.E.2d at 658 (first quoting Code § 18.2-33

(emphasis added); and then quoting King v. Commonwealth, 6 Va. App. 351, 353, 368 S.E.2d

704, 705 (1988) (emphasis added)). The killing must be within the res gestae of the predicate

felony, or “so closely related to the felony in time, place, and causal connection as to make it a

part of the same criminal enterprise.” Commonwealth v. Montague, 260 Va. 697, 701, 536

S.E.2d 910, 913 (2000) (quoting Haskell v. Commonwealth, 218 Va. 1033, 1043-44, 243 S.E.2d

477, 483 (1978)). “It is not enough that the killing occur ‘during’ the felony or ‘while’ it is being

committed; something more is required than mere coincidence of time and place.” Griffin, 33

Va. App. at 424, 533 S.E.2d at 658.

        The trial court found the victim’s “death could hardly be categorized as a ‘mere

coincidence in time and place’ with [defendant’s] felony hit and run.” The evidence supports

that finding. The evidence showed that the defendant struck the victim with her Dodge Durango

and realized that Pentz was severely injured. She specifically said that it looked like the victim

“was bleeding to death.” Pentz’s death cannot be categorized as a “mere coincidence in time and

place.” His death was causally related to the defendant’s hitting and injuring him with her

vehicle before she left without rendering assistance or providing information to law enforcement

                                                -4-
authorities. The victim’s death was “so closely related to the felony in time, place, and causal

connection,” the death was within the res gestae.

       Defendant also argues that the evidence was insufficient to prove that she was the driver

who struck Pentz. We review the evidence in the light most favorable to the Commonwealth, the

prevailing party below, and reverse the judgment of the trial court only when its decision is

plainly wrong or without evidence to support it. See Farhoumand v. Commonwealth, 288 Va.

338, 351, 764 S.E.2d 95, 102 (2014).

       No one saw the defendant hit Pentz with her vehicle, and the conviction is based on

circumstantial evidence. See Commonwealth v. Hudson, 265 Va. 505, 512, 578 S.E.2d 781, 785

(2003). Such evidence is not “viewed in isolation,” because the “combined force of many

concurrent and related circumstances, each insufficient in itself, may lead a reasonable mind

irresistibly to a conclusion.” Brown v. Commonwealth, 54 Va. App. 107, 119, 676 S.E.2d 326,

332 (2009) (quoting Muhammad v. Commonwealth, 269 Va. 451, 479, 619 S.E.2d 16, 32

(2005)).

       The evidence established that about ten minutes after Pentz walked through the Dominion

Power job site, the defendant drove up in a red Dodge Durango and said that “it looked like

someone had been run over” and “was bleeding to death.” Pentz’s blood was found on the

Durango’s bumper, and yellow paint from the curb where he lay was on the tires. The defendant

admitted she had been driving the vehicle and was identified as the driver. Alone in the

interview room, the defendant said that she “thought that [Pentz] was going to make it.” The

defendant and Pentz had known each other for six years. They had been involved in an

altercation two days earlier, and Pentz’s cell phone showed that he had called the defendant the

morning of the accident. From these facts the fact finder could infer reasonably that the

defendant struck Pentz with the Durango.

                                               -5-
       The circumstantial evidence is sufficient to prove criminal agency, and the trial court did

not err in convicting the defendant of both felony second-degree murder and felony hit and run.

Accordingly, we affirm.

                                                                                         Affirmed.




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