Frank Eddie Dingus v. Commonwealth

COURT OF APPEALS OF VIRGINIA
Present: Judges Baker, Coleman and Elder
Argued at Salem, Virginia
FRANK EDDIE DINGUS
OPINION BY
v. Record No. 1743-95-3 JUDGE LARRY G. ELDER
NOVEMBER 5, 1996
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF WISE COUNTY
William R. Shelton, Judge Designate
Daniel W. Fast for appellant.
Robert H. Anderson, III, Assistant Attorney
General (James S. Gilmore, III, Attorney
General, on brief), for appellee.
Frank Eddie Dingus (appellant) appeals his convictions for
(1) four counts of operating an illegal gambling establishment
having a gross revenue of $2,000 or more in a single day, in
violation of Code § 18.2-328; and (2) operating an illegal
gambling establishment, in violation of Code § 18.2-328.
Appellant contends that (1) his convictions on multiple counts of
operating an illegal gambling establishment violated his rights
against twice being placed in jeopardy for the same offense, and
(2) the trial court improperly admitted evidence of appellant's
prior felony convictions from Tennessee in the sentencing phase
of his bifurcated trial. We disagree with appellant and affirm
his convictions.
I.
FACTS
Appellant and his father conducted an illegal gambling
operation in Wise County beginning in November 1994. Virginia
ABC Board Special Agent Johnnie Burke testified that he attended
card games conducted by appellant, where bets were placed, on
five occasions between November 18, 1994 and December 18, 1994.
Burke testified that on four separate occasions--November 18,
December 2, December 3, and December 10, 1994, respectively--
gross receipts from each gambling enterprise exceeded $2,000. On
December 18, 1994, after Agent Burke was in appellant's
establishment for approximately ten minutes, law enforcement
officers entered the premises to execute a search warrant.
The Commonwealth indicted appellant for eight separate
offenses. Count 1 alleged that appellant conspired to operate an
illegal gambling establishment, in violation of Code § 18.2-328.
Count 2 alleged that appellant conducted an illegal gambling
enterprise in substantial continuous operation for more than
thirty days, in violation of Code § 18.2-328. Counts 3, 4, 5, 6,
and 7 each alleged that appellant operated an illegal gambling
activity where the gross revenue was $2,000 or more in a single
day, in violation of Code § 18.2-328. These counts related to
the dates of November 18, December 2, December 3, December 10,
and December 18, 1994, respectively. Count 8 alleged that
appellant unlawfully gambled, a misdemeanor violation of Code
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§ 18.2-326.
At a pretrial hearing on appellant's motion to quash,
appellant argued that the Commonwealth improperly charged him
with separate offenses in Counts 2-7, in violation of the
language of Code § 18.2-328 and double jeopardy principles. The
trial court denied appellant's motion. At appellant's bifurcated
trial, the Commonwealth agreed to nol prosse Count 2.
After hearing evidence, the jury convicted appellant on
Counts 3-6--operating an illegal gambling establishment having a
gross revenue of at least $2,000, for the dates November 18,
December 2, December 3, and December 10, 1994, respectively.
Because the evidence did not establish a gross revenue of at
least $2,000 for Count 7, appellant was convicted of simple
operation of an illegal gambling establishment. The jury also
convicted appellant on Count 1 (conspiracy) and Count 8
(misdemeanor gambling). Appellant did not appeal his convictions
on Counts 1 and 8.
During the trial's sentencing phase, the Commonwealth
presented evidence that in 1987, appellant had been convicted in
Tennessee on two counts of attempted felony kidnapping. The
conviction orders contained a certification from the deputy clerk
of the court but did not contain a judge's certification. The
trial court overruled appellant's objection that the sentencing
orders were improperly authenticated.
At the trial's punishment phase, the jury recommended (1) a
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fine of $1,000 for the conspiracy conviction; (2) a one year
period of incarceration and a fine of $500 for each of the four
charges relating to the operation of a gambling establishment
where the gross revenues exceeded $2,000 on a particular day; and
(3) a fine of $1,000 for the charge relating to simple operation
of a gambling establishment (Count 7). Appellant moved to set
aside the verdicts on double jeopardy grounds. The trial court
overruled the motion and sentenced appellant in accordance with
the jury's recommendations. Appellant now appeals to this Court.
II.
DOUBLE JEOPARDY ARGUMENT
The constitutional prohibition of double jeopardy consists
of three separate guarantees: (1) it protects against a second
prosecution for the same offense after acquittal; (2) it protects
against a second prosecution for the same offense after
conviction; and (3) it protects against multiple punishments for
the same offense. Illinois v. Vitale, 447 U.S. 410, 415 (1980);
Tyler v. Commonwealth, 21 Va. App. 702, 706, 467 S.E.2d 294, 296
(1996). In this case, we concern ourselves with the third
guarantee, as appellant argues that he received multiple
punishments for one continuing illegal gambling transaction.
Appellant bases his argument on the language of Code
§ 18.2-328 (entitled "Conducting illegal gambling operation;
penalties"), the Code section on which Counts 3 through 7 were
predicated. Code § 18.2-328, in pertinent part, states:
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The operator of an illegal gambling
enterprise, activity or operation shall be
guilty of a Class 6 felony. However, any
such operator who engages in an illegal
gambling operation which (i) has been or
remains in substantially continuous operation
for a period in excess of thirty days or (ii)
has gross revenue of $2,000 or more in any
single day shall be fined not more than
$20,000 and imprisoned not less than one year
nor more than ten years.
Appellant contends that the statute's first sentence addresses
the proscribed behavior--namely, the act of operating an illegal
gambling enterprise, activity, or operation. A defendant
convicted of this offense is guilty of a Class 6 felony. 1
Appellant next asserts that the statute's second sentence
provides two sets of circumstances under which an offender is
subject to enhanced punishment. Under appellant's theory, his
five separate convictions under Code § 18.2-328 amounted to
unconstitutional multiple punishments for the same offense, which
was the one continuing act of operating an illegal gambling
enterprise, activity, or operation. While certain aspects of
appellant's argument are correct, his ultimate conclusion on this
issue of first impression lacks merit.
We agree with appellant that Code § 18.2-328 proscribes one
crime and sets forth that crime's elements in the first sentence.
To convict a defendant under Code § 18.2-328, the Commonwealth
need prove only that the defendant operated an illegal gambling
1
A Class 6 felony carries a term of imprisonment ranging
from zero to five years and/or a maximum $2,500 fine. Code
§ 18.2-10(f).
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enterprise, activity, or operation. We also agree with appellant
that under two sets of circumstances, a defendant may receive an
enhanced penalty for operating an illegal gambling enterprise,
activity, or operation: (1) where the enterprise operates for
over thirty days, or (2) where the enterprise grosses at least
$2,000 in a single day.
None of this means, however, that the Commonwealth cannot
charge a defendant with multiple violations of this Code section,
using the first sentence as the predicate for the multiple
charges. Under appellant's analysis, a defendant who operated an
illegal gambling enterprise for 365 consecutive days, earning
daily revenues of over $2,000, would be guilty of no more
criminal conduct than a defendant who operated an illegal
gambling enterprise for one night, earning $2,000. This
conclusion is untenable. We believe that the General Assembly
intended to allow the Commonwealth to elect to charge a defendant
with multiple counts of violating Code § 18.2-328, where the
evidence proves that the statute was violated at distinct and
separate times. For example, if a person operated an illegal
gambling activity on Friday night, was arrested for this offense,
and then returned to operate an illegal gambling activity on
Saturday night, this person could be indicted for two distinct
violations of Code § 18.2-328. If the person's activities
grossed him or her more than $2,000 on each night, that person
would also be subject to two enhanced sentences.
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Our analysis is supported by the similar statutory scheme in
Code § 18.2-248, which punishes drug offenses. Code
§ 18.2-248(A) states that "it shall be unlawful for any person to
manufacture, sell, give, distribute, or possess with intent to
manufacture, sell, give or distribute a controlled substance or
an imitation controlled substance." Like the first sentence of
Code § 18.2-328, section (A) sets forth the proscribed crime and
provides the crime's elements. Code § 18.2-248(C) then provides
the punishment, stating that any person violating this statute
with respect to a Schedule I or II drug shall "be imprisoned for
not less than five nor more than forty years and fined not more
than $500,000." Code § 18.2-248(F) provides for alternate
punishment, stating that any person violating this statute with
respect to a Schedule III, IV, or V drug "shall be guilty of a
Class 1 misdemeanor." Just as in Code § 18.2-328, Code
§ 18.2-248(A) punishes a criminal act, and sections (C) and (F)
provide various degrees of punishment. And just as a defendant
may be charged with multiple violations of Code § 18.2-328, a
defendant may be charged with multiple violations of Code
§ 18.2-248, when the drug transactions occur at separate times.
See, e.g., Able v. Commonwealth, 16 Va. App. 542, 431 S.E.2d 337
(1993)(defendant convicted of two separate counts of cocaine
distribution in violation of Code § 18.2-248, after undercover
officer purchased cocaine from defendant on May 10 and May 14,
1991); Mason v. Commonwealth, 16 Va. App. 260, 430 S.E.2d 543
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(1993)(defendant convicted of two separate counts of cocaine
distribution in violation of Code § 18.2-248, after he sold drugs
on June 6 and June 8, 1991). 2 Similarly, as the Commonwealth
points out, a defendant may be convicted of multiple violations
of Code § 18.2-256, the narcotics conspiracy statute, even where
there was only one agreement to distribute several illegal drugs
over a two year period. Wooten v. Commonwealth, 235 Va. 89, 368
S.E.2d 693 (1988).
"Concededly, because [Code § 18.2-328] is penal in nature,
it must be strictly construed, and any ambiguity or reasonable
doubt as to its meaning must be resolved in [appellant's] favor."
Mason, 16 Va. App. at 262, 430 S.E.2d at 543. "This does not
mean, however, that [appellant] is entitled to a favorable result
based upon an unreasonably restrictive interpretation of the
2
In Mason, the defendant received an enhanced punishment,
pursuant to Code § 18.2-248(C) on his second offense, which had
been committed two days after the first offense. Appellant
contended that he was not subject to enhanced punishment because
he had not been convicted previously of a drug offense before he
was tried for the second offense. We rejected this argument and
said:
To construe the statute as Mason suggests
would enable an offender to engage in a spree
of drug sales over an extended period of time
prior to his apprehension and to receive the
status of a first offender as to each
violation. Such an interpretation would be
contrary to the clear legislative intent and
unreasonably restrictive.
Mason, 16 Va. App. at 263, 430 S.E.2d at 544 (citation omitted).
We believe that the same logic holds in this case.
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statute." Id. at 262, 430 S.E.2d at 544 (quotation and citation
omitted). The trial court, therefore, did not err in denying
appellant's motion to set aside the challenged convictions as
violative of the double jeopardy prohibition.
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III.
INTRODUCTION OF OUT-OF-STATE CONVICTIONS
Following appellant's convictions during the bifurcated
trial's guilt phase, the trial court commenced a "separate
proceeding limited to the ascertainment of punishment" in
accordance with Code § 19.2-295.1. "Code § 19.2-295.1 provides,
in pertinent part, that 'the Commonwealth shall present' to the
jury during the sentencing phase of a bifurcated trial 'the
defendant's prior criminal convictions by certified, attested or
exemplified copies of the record of conviction.'" Gilliam v.
Commonwealth, 21 Va. App. 519, 521, 465 S.E.2d 592, 593 (1995).
During the sentencing phase in this case, the Commonwealth
introduced two certified conviction orders from the Criminal
Court of Sullivan County, Tennessee. Each order stated that
appellant had been convicted of "attempt to commit felony of
kidnapping" on September 30, 1987. Each order also stated that
the Clerk of the Court "certif[ies] that the above and foregoing
one page contains a full, true and correct copy of the judgment
of Court rendered in the above case, on the day stated, as the
same appears of record in my office." The signature of the
criminal court's deputy clerk appeared in the signature block
beneath this statement on each order.
We hold that the trial court properly admitted these copies
of appellant's conviction records pursuant to Code § 19.2-295.1.
Under prior decisions of this Court, the two orders were
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properly "certified" within the meaning of Code § 19.2-295.1.
For example, in Carroll v. Commonwealth, 10 Va. App. 686, 396
S.E.2d 137 (1990), we held that the Commonwealth did not prove
that a prior habitual offender order was properly "certified" or
"authenticated" where the order did not establish in what
capacity a certain "Peggy B. Elmore" signed the order. Here,
this problem did not present itself; the orders were signed on
behalf of the Clerk of the Criminal Court of Sullivan County by a
"Kathleen Holt," Deputy Clerk. See Durrette v. County of
Spotsylvania, 22 Va. App. 122, 468 S.E.2d 128 (1996)(discussing
attestation requirements); Anderson v. Commonwealth, 13 Va. App.
506, 413 S.E.2d 75 (1992)(discussing authentication
requirements); Owens v. Commonwealth, 10 Va. App. 309, 391 S.E.2d
605 (1990)(holding that a conviction order was properly certified
and attested where it was stamped "A COPY, TESTE: WILLIAM T.
RYAN, CLERK" and undersigned by the deputy clerk). We find
unpersuasive appellant's argument that the trial court should
have applied the more stringent certification requirements of
Code § 8.01-389(A1), a statutory section contained in the "Civil
Remedies and Procedures" title of the Code when a specific
statute, Code § 19.2-295.1, merely requires that the order be
3
"certified, attested or exemplified."
3
At the time of trial, Code § 8.01-389(A1) required that
records of other states must be certified by the judge in
addition to the clerk to be admissible. Since that time, the
statute has been amended to eliminate the requirement that the
judge certify the order.
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Based on the foregoing, we affirm appellant's convictions.
Affirmed.
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Coleman, J., concurring in part, dissenting in part.
I concur in Part II of the majority decision. However, in
my opinion, the trial court erred during the sentencing phase of
the bifurcated trial by admitting two documents which purported
to be conviction orders from the Criminal Court of Sullivan
County, Tennessee. These orders had not been properly
authenticated as required by Code § 8.01-389(A1), as it read at
the time of trial. Therefore, I dissent from the holding in Part
III of the majority's opinion and would remand the case for
resentencing by another jury in accordance with the provisions of
Code § 19.2-295.1. 4
A written order or record of a judicial proceeding from
another court that is offered to prove the content of the
document is hearsay and is inadmissible evidence unless
authorized by statute or by a recognized exception to the hearsay
rule. See Owens v. Commonwealth, 10 Va. App. 309, 311, 391
S.E.2d 605, 607 (1990)("'[t]he underlying rationale which
justifies admitting facts contained in official records as an
exception to the hearsay rule is that the concern for reliability
is largely obviated because the nature and source of the evidence
enhance the prospect of its trustworthiness.'" (quoting Ingram
4
In 1996 Code § 8.01-389(A1) was amended. Under the revised
statute, the Tennessee orders with only a single certification
would be admissible. Thus, although the orders would now be
admissible on remand, they were inadmissible at the time of
trial, in my opinion.
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v. Commonwealth, 1 Va. App. 335, 338, 338 S.E.2d 657, 658-89
(1986))). Code § 8.01-389 provides that a properly authenticated
and certified record of a court or judicial proceeding "shall be
received as prima facie evidence" of the record. Thus, this
statute codifies as part of the official records exception to the
hearsay rule judicial "records" which are properly authenticated,
Owens, 10 Va. App. at 311, 391 S.E.2d at 607; and, it also
provides how records from courts of the Commonwealth and foreign
jurisdictions are to be authenticated and certified; and it
further codifies the legislature's recognition of the
constitutional requirement that Virginia courts shall give full
faith and credit to the judgments of the courts of a sister
state. Moreover, Code § 8.01-389(A1) provides that an official
record of a court of another state shall be "authenticated by the
clerk of the court where preserved to be a true record, and
similarly certified by a judge of that court." (Emphasis added).
Where, as here, the required certification by a judge of the
Criminal Court of Sullivan County, Tennessee was missing, the
order was not properly authenticated as required by Code
§ 8.01-389(A1) and it should not have been admitted into
evidence. See Carroll v. Commonwealth, 10 Va. App. 686, 396
S.E.2d 137 (1990).
The majority concludes that the more stringent double
authentication or exemplification requirements of Code
§ 8.01-389(A1), as it read at the time of appellant's trial, did
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not control in this case because Code § 19.2-295.1, which is a
specific statute, requires only that the order be "certified,
attested or exemplified." (Emphasis added). The majority
concludes that Code § 19.2-295.1 permits the admission of an
order from any jurisdiction that has been certified or attested
without the required double certification necessary to exemplify
a foreign judgment order. The majority reasons that Code
§ 19.2-295.1, which contains no requirement for double
certification, is the statute that specifically deals with the
admission of judgment orders in sentencing proceedings,
therefore, it controls over Code § 8.01-389(A1), the general
statute controlling the certification, attestation, and
exemplification of orders.
This is not a situation, however, in which two statutes deal
with the same subject matter and, therefore, the principles of
statutory construction require that the specific statute controls
over the general statute. Code § 19.2-295.1 does not address and
does not govern how judicial records are to be certified,
authenticated, or exemplified--authentication being the necessary
requirement to establish trustworthiness of a document in order
to qualify it under the official records hearsay exception.
Instead, Code § 19.2-295.1 merely specifies that a defendant's
prior criminal convictions are admissible in the bifurcated
sentencing procedure and shall be proven by certified, attested
or exemplified copies of the record of conviction; this statute
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does not undertake to define how records are to be "certified,
attested or exemplified." Code § 8.01-389 is the only statute
that controls how judicial records are to be "certified, attested
or exemplified" in order to be admissible. In order for a
judicial record to be "certified, attested or exemplified" so as
to be admissible the proponent of the evidence must comply with
the requirements of Code § 8.01-389, which the Commonwealth
failed to do in this case.
Accordingly, I would hold that error occurred during the
sentencing phase of the trial, which error was not harmless, and
I would remand this case to the trial court for resentencing by a
jury empaneled in accordance with Code § 19.2-295.1.
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