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Lash v. County of Henrico10/29/1991
parate act of stabbing inflicted the chest wound. However, while the Court held that Code § 19.2-294 was not applicable because voluntary manslaughter is not a statutory offense, it implicitly acknowledged that the "act" involved was the "single act of stabbing" for purposes of the statutory claim analysis.
In doing so, the Court necessarily focused on the conduct of the accused, at least to the extent it did not rest its resolution of the statutory claim on a conclusion that the infliction of two separate wounds constituted two separate acts.
Our decision in Wade is consistent with the foregoing cases. In upholding the defendant's Code § 19.2-294 claim, we held that the act of firing a shot at a police officer was the same act that formed the basis of his convictions for both obstruction of justice and attempted capital murder. In doing so, we noted that Code § 19.2-294 speaks to the acts of the accused, not to elements of the offenses.
Our decision in Shaw is readily distinguishable from these cases. There, we did not address whether the offense of eluding a police officer and driving under the influence arose from a single act. Rather, we held that Code § 19.2-294.1 was not a bar to both convictions because this statute specifically concerns cases involving reckless driving and driving under the influence arising from one occurrence of driving, and the offense of eluding a police officer, pursuant to Code § 46.2-817, is not reckless driving.
Finally, we turn to Estes which, in our view, is in conflict with Jones and has been overruled, at least implicitly, by Jones and Padgett. In Estes, the Court rejected a Code § 19.2-294 claim based upon the determination that the same evidence was not required to sustain a conviction for driving under the influence and driving on a suspended license. Using this element of the offense analysis, the Court held the defendant had committed different acts arising from the same occurrence of driving. Standing alone, Estes and Padgett arguably can be reconciled on the basis that Estes is based upon a Code § 19.2-294 claim and Padgett is based upon a Code § 19.2-294.1 claim, which is specifically limited to reckless driving and driving under the influences cases. Jones, however, is based upon a Code § 19.2-294 claim, and contrary to the same element of the offense analysis followed in Estes, unequivocally requires an analysis of the act or conduct of the accused consistent with the expressed language of the statute. Because we cannot reconcile Estes and Jones, we believe that Jones, the more recent of the two cases, is controlling.
(3-4) From these cases we are able to summarize the proper analysis to be followed in resolving Code § 19.2-294 claims. Initially,
a court must distinguish those claims from Blockburger double jeopardy claims. In doing so, a court's focus in addressing the statutory claim is on "the act" or conduct of the accused as established by the facts of a particular case, rather than on the elements of the offenses charged against the accused. See Jones, 218 Va. at 760-61, 240 S.E.2d at 661. This approach is necessary because a determination that separate or different facts are required to support convictions of separate statutory offenses does not resolve or conclude a court's analysis of the statutory claim. See, e.g., Wade, 9 Va. App. 359,<
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