No double jeopardy violation with single punishment

Where appellant was convicted of both felony murder and elder abuse or neglect resulting in death, any double jeopardy issue was resolved when the two convictions were merged for sentencing purposes.

Overview

Eileen Myers was appellant’s mother. Appellant was responsible for her care. Myers was admitted to the hospital. “She was emaciated, non-ambulatory, and suffering from starvation. The hospital contacted Adult Protective Services.

“Myers was treated at the hospital until May 8 and then transferred to Riverside Rehabilitation, where she ultimately received hospice care. Her condition was ‘incurable’ and ‘terminal,’ and she died on July 16, 2020. An autopsy listed her cause of death as bacteremia, dehydration, and chronic malnutrition.”

A grand jury indicted appellant on felony murder and elder abuse or neglect resulting in death. Before trial, appellant argued that a prosecution for both charges would be a double jeopardy violation. The trial court denied her motion. The jury convicted appellant of both offenses.

The commonwealth then moved to have the two convictions merged for sentencing purposes. The court imposed the jury’s recommended sentence of 30 years.

No multiple punishments

“The Double Jeopardy Clause of the United States Constitution ‘guarantees protection against (1) a second prosecution for the same offense after acquittal; (2) a second prosecution for the same offense after conviction; and (3) multiple punishments for the same offense.’ …

“The present case involves the third double jeopardy protection because appellant’s convictions resulted from a single trial. …

“[B]ecause the facts fit within the proscriptions of both statutes, the Commonwealth could, and did, seek indictments against appellant for both felony murder and elder abuse or neglect. Thus, the prosecution’s election to indict appellant for both offenses was appropriate, and the trial court did not err in denying appellant’s pre-trial motion to dismiss the felony murder indictment.

“After obtaining convictions under both statutes, the Commonwealth asked that the elder abuse or neglect charge be merged with the felony murder conviction for purposes of sentencing.

“The trial court granted that motion, and the jury imposed a sentence of thirty years for felony murder. Appellant was not punished for violating Code § 18.2-369(B).

“Thus, appellant failed to show that her right to be free from double jeopardy was violated because she was not sentenced for more than one offense.”

Affirmed.

Tipton v. Commonwealth, Record No. 0673-21-3, May 24, 2022. CAV (per curiam) From the Circuit Court of Pittsylvania County (Moreau). Michael A. Nicholas for appellant. Victoria Johnson for appellee. VLW 022-7-163, 6 pp. Unpublished opinion.