Lash v. County of Henrico , 14 Va. App. 926 ( 1992 )

UPON REHEARING EN BANC

Opinion

BARROW, J.

A rehearing en banc was granted in this appeal from a decision of the panel in which there was a dissent.¹ The appeal is from convictions of reckless driving and eluding a police officer arising out of a single series of events. The defendant contends that, while he is guilty of one of the offenses, conviction of the other is barred by Code § 19.2-294. We conclude that, because conviction for each offense was based on acts separate and distinct from those involved in the other offense, Code § 19.2-294 does not apply. Therefore, we affirm.

The charges against the defendant arose out of a traffic stop. A Henrico County police officer stopped the defendant and issued him a summons for driving on defective tires and for failing to have a front license plate. The officer told the defendant that his automobile was unsafe and that he would have to park it. The defendant responded by telling the officer that he could not tell him what to do, ran back to his vehicle, and drove away. When he left, he accelerated so quickly that his automobile left sixty to seventy feet of tire marks on the highway.

A high speed chase followed. The officer, using his siren and blue lights, followed the defendant at speeds of sixty to seventy miles per hour in a posted thirty-five mile per hour speed zone. Finally, the defendant drove through a red stop signal and into a supermarket parking lot where he' drove through the lot at speeds of thirty to forty miles per hour. Upon apprehending the defendant, the officer charged him with eluding a police officer and reckless driving.

The Commonwealth argues that the defendant is barred under Rule 5A:18 from asserting on appeal that the provisions of Code § 19.2-294 bar his conviction of both offenses. At trial, the defendant moved to strike the evidence of the two offenses or, “in the alternative, requested that the court merge the two offenses into one violation.” In this appeal, the defendant, while not referring to Code § 19.2-294 in his brief, argued that the trial court impermissibly convicted him of reckless driving and eluding a police officer based on the same act.

Rule 5A:18, a codification of the contemporaneous objection rule, prohibits a ruling of a trial court from being the basis of a reversal unless an objection is stated “together with the grounds therefor at the time of the ruling, except for good cause shown or to enable the Court of Appeals to obtain the ends of justice.” Rule 5A:18. The goal of this rule is “to avoid unnecessary appeals, reversals and mistrials by allowing the trial judge to intelligently consider an issue and, if necessary, to take corrective action.” Campbell v. Commonwealth, 12 Va. App. 476, 480, 405 S.E.2d 1, (1991) (en banc). Judicial economy is the product of Rule 5A:18.

The contemporaneous objection rule requires only that a party inform the trial court of the action it wishes the court to take or its objection to the action of the court and the “grounds therefor.” Code § 8.01-384; see also Rule 5A:18; Campbell v. Commonwealth, 12 Va. App. at 480, 405 S.E.2d at 2. This rule does not prohibit reliance on statutes or cases not presented to the trial court to support, on appeal, a position otherwise adequately presented at trial. R. Martineau, Modem Appellate Practice § 3.8 (1983). Nor does it prevent this court, on its own initiative, from relying on statutory or judicial authority that was not presented to the trial court or referred to in the briefs submitted by the parties. See id. at § 3.9.

At trial, the defendant requested the court to “merge the two offenses into one violation.” Merger, a common law principle, recognizes that certain offenses arising from the same occurrence may merge into a single offense. See Pinkerton v. United States, 328 U.S. 640, 643 (1946). For example, “simple assault is ordinarily held to merge into the offense of assault with a dangerous weapon.” Whalen v. United States, 445 U.S. 684, 686 (1980); Spickard v. City of Lynchburg, 174 Va. 502, 505, 6 S.E.2d 610, 611 (1940) (reckless driving does not merge with driving while intoxicated); Ramsey v. Commonwealth, 2 Va. App. 265, 272, 343 S.E.2d 465, 470 (1986) (Wharton’s Rule not a “merger” rule). Similarly, Code § 19.2-294 bars prosecution of one offense by virtue of a conviction of another offense based on the same act. Thus, Code § 19.2-294 performs a similar function statutorily that merger does at common law. Cf. Martin v. Commonwealth, 242 Va. 1, 8-9, 406 S.E. 2d 15, 18-19 (Code § 19.2-294 does not apply to common law offenses), cert. denied, 112 S. Ct. 388 (1991). Consequently, the contemporaneous objection rule does not prevent us from considering the application of Code § 19.2-294 in determining if the defendant’s conviction of reckless driving bars his conviction of eluding a police officer. Therefore, we will address the application of Code § 19.2-294 to this case.

If the “same act” is a violation of two or more statutes, conviction under one of the statutes is “a bar to a prosecution or proceeding under the other.” Code § 19.2-294.² This prohibition is dependent upon “the identity of the act." Jones v. Commonwealth, 218 Va. 757, 760, 240 S.E.2d 658, 661 (larceny of an automobile in which to escape from robbery is not “same act” as robbery), cert. denied, 439 U.S. 892 (1978). If the statutory violations involve different acts, the prohibition is not applicable. Id. at 761, 240 S.E.2d at 661. The prohibition only “forbids multiple prosecution of offenses springing from the same criminal act.” Id. Thus, if two offenses involve “two separate and distinct acts,” conviction of one does not bar a prosecution for the other. Id:, Fitzgerald v. Commonwealth, 11 Va. App. 625, 628, 401 S.E.2d 208, 210-11, aff'd on reh’g en banc, 13 Va. App. 281, 411 S.E.2d 228 (1991).

Code § 19.2-294.1³ and Code § 19.2-294 are different. Code § 19.2-294.1 provides that if a person is charged with driving while intoxicated and reckless driving, both “growing out of the same act or acts,” a conviction of one of the charges requires dismissal of the remaining charge. This provision deals only with the offenses of driving while intoxicated and reckless driving; it applies to no other criminal offenses. Id. This statute is applicable where these two offenses grow “out of the same act or acts.” Id. “[T]he same act or acts” means the act “of driving” and contemplates “a continuous, uninterrupted course of operation of a motor vehicle.” Padgett v. Commonwealth, 220 Va. 758, 761, 263 S.E.2d 388, 389-90 (1980) (per curiam).

Code § 19.2-294, on the other hand, applies to violation of any two or more statutes, not just driving while intoxicated and reckless driving. It is applicable only if “the same act” is a violation of two or more statutes, not to offenses “growing out of the same act or acts.” Code § 19.2-294. Furthermore, Code § 19.2-294 does not contemplate “a continuous, uninterrupted course of operation of a motor vehicle.” Code § 19.2-294; see also Fitzgerald, 11 Va. App. at 629, 401 S.E.2d at 211.

Code § 19.2-294.1, enacted after Code § 19.2-294, does not mimic Code § 19.2-294. It effects a different purpose. Code § 19.2-294.1 prohibits conviction of both driving while intoxicated and reckless driving growing out of the “same act or acts,” i.e., a “continuous, uninterrupted course” of operating a motor vehicle; Code § 19.2-294 prohibits the prosecution of a criminal offense after one has been convicted of another offense arising from the “same act.”

In this case, at least two separate and distinct acts supported the two different offenses with which the defendant was charged and convicted. The manner in which the defendant drove away from the police officer and the manner in which he drove through the red traffic signal and through the supermarket parking lot were acts upon which the charge of reckless driving could have been based. The defendant’s failure to stop in response to the police officer’s flashing light and siren after he drove away and before he reached the supermarket intersection was a separate and distinct act upon which the offense of eluding a police officer was based. Therefore, because two or more separate and distinct acts constituted two or more offenses, Code § 19.2-294 is not a bar to the prosecution of either offense. Having so concluded, we need not address whether Code § 19.2-294 applies to multiple convictions in a single trial.

The convictions are, therefore, affirmed.

Affirmed.

Coleman, J., Duff, J., Moon, J., Willis, J., Elder, J., and Bray, J., concurred.

1 The decision of the panel is reported at 13 Va. App. 251, 410 S.E.2d 689 (1991).

2 Code § 19.2-294 reads in part: Offense against two or more statutes or ordinances. 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 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.

3 Code § 19.2-294.1. Dismissal of one of dual charges for driving while intoxicated and reckless driving upon conviction of other charge. - Whenever any person is charged with a violation of § 18.2-266 or any similar ordinances of any county, city, or town and reckless driving growing out of the same act or acts and is convicted of one of these charges, the court shall dismiss the remaining charge.