Oeup Tho v. Commonwealth of Virginia

COURT OF APPEALS OF VIRGINIA
Present: Judges Willis, Bumgardner and Senior Judge Overton
Argued at Richmond, Virginia
OEUP THO
MEMORANDUM OPINION * BY
v. Record No. 2992-98-2 JUDGE JERE M. H. WILLIS, JR.
MAY 9, 2000
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF CHESTERFIELD COUNTY
T. J. Hauler, Judge
Robert P. Geary (Joseph McGrath, on brief),
for appellant.
Christopher G. Hill, Assistant Attorney
General (Mark L. Earley, Attorney General, on
brief), for appellee.
On appeal from his convictions of driving under the
influence, in violation of Code § 18.2-266, and involuntary
manslaughter, in violation of Code § 18.2-36.1(B), Oeup Tho
contends that the trial court violated his Fifth Amendment right
against double jeopardy. 1
On January 1, 1998, Tho's vehicle struck another vehicle,
killing the other vehicle's passenger. Arrest warrants were
* Pursuant to Code § 17.1-413, recodifying Code
§ 17-116.010, this opinion is not designated for publication.
1
The petition was granted solely on the constitutional
issue. Tho's petition for appeal that assigned error to the
trial court's alleged violation of Code § 19.2-294 was denied.
See Phillips v. Commonwealth, 27 Va. App. 674, 677-78, 500
S.E.2d 848, 850 (1998), aff'd, 257 Va. 548, 514 S.E.2d 340(1999).
issued charging him with driving under the influence of alcohol
and involuntary manslaughter. The DUI warrant was executed at
11:08 p.m. on January 1, 1998, and the involuntary manslaughter
warrant was executed at 2:51 a.m. on January 2, 1998.
In a district court hearing on June 2, 1998, Tho was
convicted of driving under the influence and the involuntary
manslaughter charge was certified to the circuit court. On July
20, 1998, the grand jury indicted Tho for involuntary
manslaughter. Tho moved for dismissal of the charge, asserting
former jeopardy. The trial court denied the motion, holding
that the prosecutions for DUI and involuntary manslaughter were
not successive and that the offenses had no common identity but
were separate and distinct. Tho then pled guilty, reserving the
right to appeal the trial court's ruling on the motion.
Code § 18.2-266 provides, in pertinent part:
It shall be unlawful for any person to
drive or operate any motor vehicle . . . (i)
while such person has a blood alcohol
concentration of 0.08 percent or more by
weight by volume or 0.08 grams or more per
210 liters of breath as indicated by a
chemical test . . . , (ii) while such person
is under the influence of alcohol, (iii)
while such person is under the influence of
any narcotic drug . . ., or (iv) while such
person is under the combined influence of
alcohol and any drug . . . .
Code § 18.2-36.1(A) provides:
Any person who, as a result of driving
under the influence in violation of
subdivision (ii), (iii), or (iv) of [Code]
§ 18.2-266, unintentionally causes the death
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of another person, shall be guilty of
involuntary manslaughter.
The warrant charging Tho with driving while under the
influence of alcohol alleged that he did:
drive or operate a motor vehicle under the
influence of alcoholic beverages or other
self-administered intoxicants and/or drugs
as described in Section 18.2-266(i), (ii),
(iii) and/or (iv) 1950 CODE OF VIRGINIA AS
AMENDED.
The indictment charging Tho with involuntary manslaughter,
with reference to Code § 18.2-36.1, alleged that he did:
kill and slay Joannah Marseille by
negligence so gross, wanton and culpable as
to show a reckless disregard of human life,
and as a result of driving under the
influence, in violation of subdivision (ii),
(iii), or (iv) of Section 18.2-266, did kill
and slay Joannah Marseille, against the
peace and dignity of the Commonwealth of
Virginia.
Tho contends that his convictions involve successive
prosecutions for the same offense. However, the prosecutions on
the two charges were not successive, but were concurrent,
involving a single evidentiary hearing resulting in conviction
of the misdemeanor and certification of the felony. See
Phillips v. Commonwealth, 257 Va. 548, 553, 514 S.E.2d 340, 343
(1999).
Noting that the Fifth Amendment protects against multiple
punishments for the same offense, see Cartwright v.
Commonwealth, 223 Va. 368, 288 S.E.2d 491 (1982), Tho contends
that his offense of driving while intoxicated was a necessary
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and included element of the involuntary manslaughter charge and
that his conviction for driving while under the influence
precluded re-proof of that offense as proof of the greater,
inclusive offense of involuntary manslaughter. He argues that
by including driving under the influence, with specific
reference to its statutory definition, as a required element of
proof, Code § 18.2-36.1(A) incorporates all the elements of the
driving under the influence charge and, thus, cannot be proved
without proving again the driving under the influence charge.
We do not reach this issue.
To gain the preclusive effect of a double jeopardy plea,
the proponent of that plea must establish the common identity of
the relevant charges. See Low v. Commonwealth, 11 Va. App. 48,
50, 396 S.E.2d 383, 384 (1990). The record in this case fails
to establish that identity.
Code § 18.2-36.1(A) refers only to subdivisions (ii),
(iii), and (iv) of Code § 18.2-266. The warrant charging Tho
with driving under the influence alleges violation of those
three subdivisions, but charged him as well with a violation of
subdivision (i). The evidence supported conviction under
subdivision (i). Tho's conviction on the DUI charge was stated
generally and was not limited to a conviction under subdivisions
(ii), (iii), or (iv). Thus, his conviction for driving under
the influence did not necessarily fall within the scope of the
reference contained in Code § 18.2-36.1(A).
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The judgment of the trial court is affirmed.
Affirmed.
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