A defendant’s constitutional right against double jeopardy was not violated by her convictions for both felony murder and felony hit-and-run.
One morning in September 2014, a woman later identified as Defendant Sarah Flanders drove a red Dodge Durango onto a Dominion Power job site. She told a worker that somebody needed to call 911 because there “was a guy laying back there behind the school bleeding from his head.” She told the site supervisor that it “looked like someone had been run over” and “was bleeding to death.” She then drove away.
The supervisor drove to the school, which was adjacent to the job site. He found a man, later identified as Rick Pentz, lying half on and half off the curb of the parking lot. The supervisor recognized Pentz as the person who had walked through the job site about 10 minutes earlier. Pentz was in obvious pain and lost consciousness before rescue workers arrived. He died about four hours later at the hospital from blunt force trauma.
Flanders was convicted of felony murder under Code § 18.2-33 and felony hit-and-run under Code § 46.2-894.
No double jeopardy
Flanders maintains she was convicted twice for the same conduct, implicating her Fifth Amendment right against double jeopardy. But it is clear from the plain language of Code § 18.2-33 and § 46.2-894 that the legislature intended to create two distinct offenses.
In addition, the test established by Blockburger v. United States, 284 U.S. 299 (1932), permits both convictions. Each offense requires proof of a fact that the other does not. Felony murder requires proof that the death occurred during the commission of a felony. Felony hit and run does not require death. It does require proof that Flanders was the driver of a vehicle involved in an accident, that the driver knew or should have known someone was injured in the accident, and that the driver failed to stop and report the accident to the police. Felony murder does not require proof of any of those elements. Each offense contains elements that the other offense does not.
The trial court’s conclusion that the victim’s “death could hardly be categorized as a ‘mere coincidence in time and place’ with [Flanders’s] felony hit and run” is supported by the evidence. Flanders struck the victim with her Dodge Durango and realized that Pentz was severely injured. She specifically said that it looked like the victim “was bleeding to death.” Thus, Pentz’s death cannot be categorized as a “mere coincidence in time and place.” His death was causally related to Flanders’s hitting and injuring him with her vehicle before she left without rendering assistance or providing information to law enforcement authorities.
Sufficiency of evidence
The evidence also was sufficient to prove that Flanders was the driver who struck Pentz. Because no one saw Flanders hit Pentz with her vehicle, the conviction is based on circumstantial evidence. About 10 minutes after Pentz walked through the job site, Flanders drove up in a red Dodge Durango and said that “it looked like someone had been run over” and “was bleeding to death.” Pentz’s blood was found on the Durango’s bumper, and yellow paint from the curb where he lay was on the tires. Flanders admitted she had been driving the vehicle and was identified as the driver.
Flanders and Pentz had known each other for six years, had once lived together, and had an altercation just two days earlier. Pentz’s cell phone showed that he had called Flanders the morning of the accident. From these facts the fact finder could infer reasonably that Flanders struck Pentz with the Durango.
Flanders v. Commonwealth, Record No. 0486-17-1, July 10, 2018. CAV (Bumgardner), from Va. Beach Cir. Ct. (Lewis). Andrew M. Sacks for Appellant; Elizabeth Kiernan Fitzgerald for Appellee. VLW No. 018-7-173, 6 pp.