COURT OF APPEALS OF VIRGINIA


Present: 	 Judges Annunziata, Clements and McClanahan
Argued by teleconference


JEBRAIL JEFFERSON, S/K/A 
 JIBRIAL LAMONT JEFFERSON
			OPINION BY
v.	Record No. 1367-03-2	JUDGE JEAN HARRISON CLEMENTS
	JUNE 15, 2004
COMMONWEALTH OF VIRGINIA


	FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND
Walter W. Stout, III, Judge

		Todd B. Stone (Stacey T. Davenport; Law Office of Todd B. Stone, 
PLC, on briefs), for appellant.

		Paul C. Galanides, Assistant Attorney General (Jerry W. Kilgore, 
Attorney General, on brief), for appellee.


	Jebrail Jefferson was indicted and subsequently convicted in a bench trial of possession 
of a firearm after having been convicted of a felony, in violation of Code  18.2-308.2.  On 
appeal, Jefferson contends the Circuit Court of the City of Richmond (trial court) erred in ruling 
that his indictment and conviction were not barred by Code  19.2-294 even though he had 
previously been convicted, based upon the same underlying incident, of carrying a concealed 
weapon, in violation of Code  18.2-308.  Finding no error, we affirm Jefferson's conviction.
I.  BACKGROUND
	The relevant facts in this appeal are not in dispute.  On November 3, 2002, Richmond 
City Police Officer Hawkins Kuper observed Jefferson driving a car with a large hole in the 
windshield.  Kuper stopped Jefferson and asked him for his driver's license and registration.  
Jefferson informed Kuper that his driver's license was suspended.  Kuper told Jefferson to step 
out of the car.  After getting out of the car, Jefferson attempted to flee, but Kuper grabbed him 
from behind.  As Jefferson and Kuper struggled, a handgun fell out of Jefferson's waistband onto 
the street.  After other officers assisted in placing Jefferson under arrest, Kuper retrieved the 
fully loaded handgun.
	After his arrest, Jefferson told Officer Kuper that he had just been convicted of 
possession of heroin, a felony, but had not yet begun serving his sentence.  That night, the police 
obtained warrants against Jefferson for several offenses.  However, because Jefferson's criminal 
record at the time did not reflect his previous conviction of possession of heroin, the issuing 
magistrate denied the police's request to charge Jefferson with possession of a firearm after 
having been convicted of a felony.  Instead, Jefferson was charged with carrying a concealed 
weapon.
	On December 20, 2002, the general district court convicted Jefferson on the carrying a 
concealed weapon charge.  Jefferson appealed that conviction to the trial court.
	On February 3, 2003, Jefferson was indicted by the grand jury on the charge of 
possession of a firearm by a convicted felon, in violation of Code  18.2-308.2.  Like Jefferson's 
conviction in the general district court for carrying a concealed weapon, that charge was based 
on the November 3, 2002 incident.
	On February 13, 2003, Jefferson withdrew his appeal to the trial court of his carrying a 
concealed weapon conviction.  The trial court affirmed the general district court conviction.
	Also on February 13, 2003, Jefferson filed a motion to quash his indictment for 
possession of a firearm as a convicted felon under Code  18.2-308.2, arguing that the factual 
basis for the felony prosecution was the "same act" upon which his conviction in the general 
district court of carrying a concealed weapon, in violation of Code  18.2-308, had been based.  
Thus, Jefferson contended the felony prosecution was barred by Code  19.2-294 because he was 
charged in a successive prosecution with committing an act for which he had already been 
prosecuted and convicted.
	On March 10, 2003, the trial court conducted a hearing on Jefferson's motion and ruled 
that Jefferson's indictment constituted a successive, rather than simultaneous, prosecution.  The 
court concluded, however, that Jefferson was not being prosecuted for the "same act" and denied 
Jefferson's motion to quash.
	Thereafter, Jefferson was tried and convicted of possession of a firearm after having been 
convicted of a felony, and this appeal followed.1
II.  ANALYSIS
	Jefferson contends his indictment and conviction on the felony charge of possession of a 
firearm after having been convicted of a felony was barred by Code  19.2-294 because the basis 
for that successive prosecution was the "same act" upon which his conviction in the general 
district court for carrying a concealed weapon had been based.2  He claims the underlying act for 
both offenses was the same because the only act on his part that the Commonwealth had to prove 
to sustain each conviction was his possession of a concealed firearm.  He concludes, therefore, 
that the trial court erred in denying his motion to quash his indictment for possession of a firearm 
as a convicted felon under Code  18.2-308.2.  We disagree.
	 Code  19.2-294 provides, in pertinent part, that, "[i]f the same act be a violation of two 
or more statutes, . . . conviction under one of such statutes . . . shall be a bar to a prosecution or 
proceeding under the other or others."  The statute "prohibits multiple convictions for separate 
offenses arising out of the same act" where the convictions are obtained in successive, rather 
than simultaneous, prosecutions.  Hall v. Commonwealth, 14 Va. App. 892, 900, 514 S.E.2d 455, 
461 (1992) (en banc); Phillips v. Commonwealth, 257 Va. 548, 551-52, 514 S.E.2d 340, 342 
(1999).
	Here, the trial court determined that Jefferson's indictment for possession of a firearm by 
a convicted felon, following his conviction in the general district court of carrying a concealed 
weapon, was a successive prosecution.  On appeal, the Commonwealth does not challenge this 
ruling.  Therefore, we assume, without deciding, that, for purposes of this appeal, Jefferson's 
prosecution in the instant case constitutes a successive, rather than simultaneous, prosecution.  
See Correll v. Commonwealth, 232 Va. 454, 460 n.1, 352 S.E.2d 352, 355 n.1 (1987) (holding 
that an unchallenged ruling becomes the law of the case by which we are bound).
	The sole issue before us, then, is whether Jefferson's indictment and conviction for 
possession of a firearm by a felon arose from the "same act," within the meaning of Code 
 19.2-294, as his earlier conviction of carrying a concealed weapon.  We conclude that it did 
not.
	"Like the Fifth Amendment bar of former jeopardy, Code  19.2-294 prevents the 
Commonwealth from 'subjecting an accused to the hazards of vexatious, multiple 
prosecutions.'"  Phillips, 257 Va. at 551-52, 514 S.E.2d at 342 (quoting Hall, 14 Va. App. at 899, 
421 S.E.2d at 460).
	However, unlike the Fifth Amendment prohibition against 
double jeopardy, which is dependent on "the identity of the 
offense, and not the act," Epps [v. Commonwealth], 216 Va. [150,] 
153-54, 216 S.E.2d [64,] 68 [(1975)], the prohibition of Code 
 19.2-294 "is dependent upon 'the identity of the act,'" rather than 
the identity of the offense, Lash v. County of Henrico, 14 Va. App. 
926, 930, 421 S.E.2d 851, 853 (1992) (en banc) (quoting Jones v. 
Commonwealth, 218 Va. 757, 760, 240 S.E.2d 658, 661 (1978)).  
In other words, Code  19.2-294 "speaks to 'acts' of the accused, 


not elements of the offense."  Wade v. Commonwealth, 9 Va. App. 
359, 365, 388 S.E.2d 277, 280 (1990).  

Londono v. Commonwealth, 40 Va. App. 377, 393, 579 S.E.2d 641, 648-49 (2003).
	Because the prohibition of Code  19.2-294 "only 'forbids multiple prosecution of 
offenses springing from the same criminal act,'" if the "statutory violations involve different 
acts, the prohibition is not applicable."  Lash, 14 Va. App. at 930, 421 S.E.2d at 853 (quoting 
Jones, 218 Va. at 761, 240 S.E.2d at 661).  Thus, "a conviction of one statutory offense does not 
bar conviction under another statutory offense if each offense could have been proved without 
the necessity of proving the other."  Fitzgerald v. Commonwealth, 11 Va. App. 625, 628, 401 
S.E.2d 208, 210, aff'd on reh'g en banc, 13 Va. App. 281, 411 S.E.2d 228 (1991).
	"The test of whether there are separate acts sustaining several offenses 'is whether the 
same evidence is required to sustain them.'"  Treu v. Commonwealth, 12 Va. App. 996, 997, 406 
S.E.2d 676, 677 (1991) (quoting Estes v. Commonwealth, 212 Va. 23, 24, 181 S.E.2d 622, 
623-24 (1971)); see also Hundley v. Commonwealth, 193 Va. 449, 451, 69 S.E.2d 336, 337 
(1952) (holding that a "test of the identity of acts or offenses is whether the same evidence is 
required to sustain them; if not, then the fact that several charges relate to and grow out of one 
transaction or occurrence does not make a single act or offense where two separate acts or 
offenses are defined by statute").  "In applying the 'same evidence' test, 'the particular criminal 
transaction must be examined to determine whether the acts are the same in terms of time, situs, 
victim, and the nature of the act itself.'"  Johnson v. Commonwealth, 38 Va. App. 137, 146, 562 
S.E.2d 341, 345 (2002) (quoting Hall, 14 Va. App. at 898, 421 S.E.2d at 459).
The resolution of this case is controlled by our decision in Johnson.  In Johnson, the 
defendant was stopped by the police for having an invalid inspection decal.  Id. at 140, 562 
S.E.2d at 343.  Based on the defendant's statement that his license was suspended, the police 
charged him with driving on a suspended license.  Id.  However, because the police computers 
were inoperable at the time of the traffic stop, the police could not check the defendant's 
criminal record.  Id.  The defendant later pled guilty in general district court to the driving on a 
suspended license charge and was sentenced.  Id. at 141, 562 S.E.2d at 343.  Following that 
conviction, the police discovered the defendant had been "adjudicated an habitual offender 
before the traffic stop."  Id.  The defendant was then indicted for driving after having been 
adjudicated an habitual offender.  Id.  As in this case, the defendant sought dismissal of the 
indictment, arguing that Code  19.2-294 barred his conviction because both prosecutions 
involved the "same act."  Id. at 143, 562 S.E.2d at 344.  The trial court denied the defendant's 
motion to dismiss the indictment.  Id.
In affirming the trial court, we said:
Here, assuming time, situs and victim coincided, the nature of the 
specific act peculiar to each prosecution is distinct.  In the first 
instance defendant admittedly was unlawfully operating a vehicle 
while his privileges were in suspension.  In contrast, the subject 
prosecution resulted from such operation after he had been 
adjudicated an habitual offender.  While driving was conduct 
common and necessary to each offense, the legal disability upon 
defendant that attended and was integral to the respective acts was 
significantly different.  Thus, the "same evidence" would not 
produce a conviction for both offenses.  Accordingly, the disparate 
"nature" of the acts saves the instant prosecution from the reach of 
Code  19.2-294.

Id. at 147, 562 S.E.2d at 346.
	The same rationale applies here.  To sustain Jefferson's earlier conviction of carrying a 
concealed handgun, in violation of Code  18.2-308, the Commonwealth had to prove that 
Jefferson carried a handgun "about his person, hidden from common observation," without legal 
authorization to do so.  Code  18.2-308; see also Main v. Commonwealth, 20 Va. App. 370, 
372, 457 S.E.2d 400, 401 (1995) (en banc).  That conviction did not require proof that Jefferson 
was a convicted felon.  Conversely, to establish Jefferson's guilt in this case of violating Code 
 18.2-308.2, the Commonwealth had to prove that he had previously "been convicted of a 
felony" and that he "knowingly and intentionally possesse[d] or transport[ed] any firearm."  
Code  18.2-308.2.  The Commonwealth was not required to prove that the handgun in 
Jefferson's possession was concealed.  See Jones v. Commonwealth, 16 Va. App. 354, 358, 429 
S.E.2d 615, 617 (noting that Code  18.2-308.2 "is concerned with preventing a person, who is 
known to have committed a serious crime in the past, from becoming dangerously armed, 
regardless of whether that person uses, displays, or conceals the firearm"), aff'd on reh'g en 
banc, 17 Va. App. 233, 436 S.E.2d 192 (1993).  Hence, while possession of the handgun was 
conduct common to the prosecution of both statutory offenses, the attendant acts and legal 
disabilities necessary to sustain the two prosecutions were decidedly different.
	Thus, "the nature of the specific act peculiar to each prosecution" was separate and 
distinct.  Johnson, 38 Va. App. at 147, 562 S.E.2d at 346.  Consequently, "the 'same evidence' 
would not produce a conviction for both offenses."  Id.  Accordingly, the subject statutory 
violations involve separate acts, and Jefferson's indictment and conviction in the instant case are 
not barred by Code  19.2-294.
	For these reasons, we affirm the trial court's denial of Jefferson's motion to quash the 
indictment and affirm Jefferson's conviction.
											        Affirmed.
1 Jefferson was also convicted in the same proceeding of felonious assault and battery on 
a police officer, but that matter is not before us on appeal.
 
2 Jefferson relies exclusively upon the preclusion of Code  19.2-294 to bar his present 
conviction.  He presents no claim invoking the constitutional defense of double jeopardy.
 

 
 



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