Ellison v. Com.

Present: Hassell, C.J., Lacy, Keenan, Koontz, Kinser, and
Lemons, JJ., and Russell, S.J.

DAX A. ELLISON OPINION BY
SENIOR JUSTICE CHARLES S. RUSSELL
v. Record No. 060482 January 12, 2007

COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF CHESTERFIELD COUNTY
Michael C. Allen, Judge

In a civil proceeding under Code § 37.2-900 et seq., Dax

A. Ellison was found to be a sexually violent predator and was

involuntarily committed to the custody of the Department of

Mental Health, Mental Retardation and Substance Abuse Services

(the Department) for secure inpatient treatment. At his civil

trial and over his objection, the court permitted the

Commonwealth to introduce evidence from an earlier criminal

trial in which Ellison had been tried for rape and acquitted

by a jury. This appeal challenges the correctness of the

trial court’s decision to admit that evidence.

Facts and Proceedings

On August 19, 1998, pursuant to his guilty pleas, Ellison

was convicted by the Circuit Court of Chesterfield County of

abduction and rape of a female victim in that jurisdiction.

He was sentenced to a 50-year term of imprisonment, with 42

years and 7 months suspended.
 On May 9, 2005, the Attorney General filed for the

Commonwealth, in the same court, a petition for the civil

commitment of Ellison as a sexually violent predator pursuant

to the Sexually Violent Predators Act (SVPA), Code § 37.1-70.1

et seq.1 After a hearing, the trial court found probable

cause to believe that Ellison was a sexually violent predator

and ordered the Department of Corrections to retain custody of

him until the final disposition of this case. At a bench

trial on September 21 and 22, 2005, the court heard expert

testimony and received other evidence concerning Ellison’s

conduct dating back to his childhood, including his behavior

while incarcerated. At the conclusion of the trial, the court

found that Ellison was a sexually violent predator. The case

was continued and the Department was directed to file a

written report suggesting possible alternatives to full

commitment.

After consideration of that report and other evidence,

the court found by clear and convincing evidence that no

suitable alternatives to full commitment existed, that Ellison

did not qualify for conditional release, and that he remained

a sexually violent predator. He was committed to the

1
Title 37.1 was repealed by Acts 2005 ch. 716, and was
reenacted as Title 37.2 effective October 1, 2005. The SVPA
now appears as Code § 37.2-900 et seq. That change took
effect while this proceeding was pending in the trial court.

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Department for inpatient hospitalization and the case was

continued for one year for a further hearing to determine

whether he would then remain a sexually violent predator.

In an unrelated case tried in the Circuit Court of the

City of Petersburg in 2002, Ellison had been charged with

statutory burglary, rape, forcible sodomy, and inanimate

object penetration committed against a different female victim

in that city on December 18, 1997. That case went to a jury

trial in which the jury found Ellison not guilty of all

charges.

In the trial of the present case, the Commonwealth sought

to admit the testimony of the Petersburg victim as to

Ellison’s conduct in Petersburg on December 18, 1997.

Ellison, by counsel, filed a motion in limine to exclude any

evidence concerning the Petersburg case on the ground that he

had been acquitted of that charge. The trial court denied the

motion and, in the trial of the present case, the Petersburg

victim testified for the Commonwealth, over Ellison’s

objection, that he had in fact raped her in Petersburg on

December 18, 1997.

We awarded Ellison an appeal.

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 Analysis

Ellison’s appeal is susceptible to an initial impression

impacting cherished principles concerning collateral estoppel

and double jeopardy, both of which he relies on. Closer

examination, however, dispels those concerns. Although the

news media sometimes report that a criminal defendant has been

tried and “found innocent” of the charges against him,

acquittal in a criminal trial does no such thing. Because of

the stringent standard of proof the law imposes upon the

prosecution, juries must acquit unless they find each element

of the crime charged to have been proved beyond a reasonable

doubt.

In a line of cases extending back to Draper v.

Commonwealth, 132 Va. 648, 664-65, 111 S.E. 471, 476 (1922),

instructions were given in Virginia which told the jury, in

varying language, that it was not sufficient that they believe

the guilt of the defendant to be probable, or even more

probable than his innocence, but that the jury must find the

evidence sufficient to exclude every reasonable hypothesis of

his innocence before they might find him guilty.2 Thus, the

2
See M. Ray Doubles, Emanuel Emroch, & Robert R. Merhige,
Jr., Virginia Jury Instructions §§ 100.13-.14 at 529-32
(1964). An instruction using a variant of this language was
approved in Smith v Commonwealth, 136 Va. 677, 682, 116 S.E.
246, 248 (1923), but later criticized in Carson v.
Commonwealth, 188 Va. 398, 411-12, 49 S.E.2d 704, 710 (1948).

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only conclusion that can be drawn from a jury’s verdict of

“not guilty” is that the jury did not find the evidence

sufficient to prove each essential element of the charged

offense beyond a reasonable doubt. The jury might well have

found the defendant’s guilt probable, even more probable than

his innocence, and still have quite properly acquitted him.

With that background, we now turn to the specific arguments

Ellison makes on appeal.

Collateral Estoppel

Ellison argues that the Commonwealth, having suffered an

adverse final judgment in the Petersburg case, was

collaterally estopped from attempting to prove, in the present

case, that he had raped the Petersburg victim on December 18,

1997. The doctrine of collateral estoppel precludes the same

parties to a prior proceeding from litigating in a later

proceeding any issue of fact that actually was litigated and

was essential to the final judgment in the first proceeding.

Whitley v. Commonwealth, 260 Va. 482, 489, 538 S.E.2d 296, 299

(2000). Before the doctrine may be applied, four elements

It was still in use in 2001. Black v. Commonwealth, 262 Va.
764, 795, 553 S.E.2d 738, 756 (2001) (Hassell, J.,
dissenting). Although its precise language no longer appears
in Virginia Model Jury Instructions, the current language
expresses the same principle: “[S]uspicion or probability of
guilt is not enough for a conviction.” 1 Virginia Model Jury
Instructions – Criminal, No. 2.100 (repl. ed. 2006).

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must be met: (1) the parties to the two proceedings must be

the same; (2) the factual issue sought to be litigated in the

second proceeding must have actually been litigated in the

first; (3) that factual issue must have been actually decided

and essential to the judgment in the prior proceeding; and (4)

the prior proceeding must have resulted in a valid, final

judgment against the party to whom the doctrine is sought to

be applied. Id.

We do not agree with Ellison’s contention that all four

of the foregoing elements are present here. As noted above,

the acquittal in the Petersburg case was not a finding that

Ellison did not engage in the attack on that victim; the jury

in that case may well have found that it was more likely than

not that the conduct occurred. The issue specifically

resolved in the Petersburg case was whether the evidence

proved beyond a reasonable doubt that Ellison had raped that

victim. A finding that he did not rape that victim was not an

actual and necessary part of the disposition of that criminal

case. Thus, the second and third elements prerequisite to the

application of the doctrine of collateral estoppel are absent

here.3

3
The Commonwealth argues on appeal that the first element
is also lacking, contending that the parties to the two
proceedings are not the same: The Commonwealth was the moving
party in the Petersburg case, represented by the Commonwealth

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 Double Jeopardy

Ellison argues that, because the trial court’s finding in

the present case operates to deprive him of his liberty, the

admission of the Petersburg victim's testimony offends the

Double Jeopardy Clauses of both the Constitution of the United

States and the Constitution of Virginia. Both constitutions,

in very similar language, afford protection against a second

criminal prosecution for the same offense after an acquittal.

Compare U.S. Const. amend. V and Va. Const. art. I, § 8.

“Jeopardy,” as used in these constitutional provisions, means

“the danger of conviction.” Greenwalt v. Commonwealth, 224

Va. 498, 500, 297 S.E.2d 709, 710 (1982).

The Supreme Court of the United States considered the

question now before us in Dowling v. United States, 493 U.S.

342, 348 (1990). The Supreme Court there refused to extend

the collateral estoppel component of the Double Jeopardy

Clause to exclude relevant and probative evidence “simply

because it relates to alleged criminal conduct for which a

defendant has been acquitted.” Id. The Court noted that its

decision was consistent with prior cases in which it had held

that an acquittal in a criminal case did not preclude the

Attorney; the Attorney General, acting under statutory
authority granted by Code § 37.2-915 is the moving party in
this SVPA case. We consider that to be a distinction without

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Government from relitigating an issue when it was presented in

a subsequent case governed by a lower standard of proof. Id.

at 349 (citing United States v. One Assortment of 89 Firearms,

465 U.S. 354 (1984)).

In Shivaee v. Commonwealth, 270 Va. 112, 128, 613 S.E.2d

570, 579 (2005), we held that Virginia’s SVPA survived

constitutional due process scrutiny and did not offend either

state or federal double jeopardy protections. We came to that

conclusion for reasons similar to those articulated by the

Supreme Court in Kansas v. Hendricks, 521 U.S. 346 (1997),

wherein that Court upheld the constitutionality of Kansas

statutes very similar to Virginia’s SVPA. The determinative

factor avoiding the impact of the Double Jeopardy Clauses was

that Kansas' SVPA was a civil enactment and was “non-

punitive.” It was not adopted to punish an offender or to

deter crime, but was instead a “ 'civil commitment scheme

designed to protect the public from harm.' ” Shivaee, 270 Va.

at 125-26, 613 S.E.2d at 577-78 (quoting Hendricks, 521 U.S.

at 361).

The standard of proof adopted by the SVPA is proof by

clear and convincing evidence. Code § 37.2-908(C). We have

held that standard to meet the demands of due process.

difference and do not agree with the Commonwealth in that
regard.

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Shivaee, 270 Va. at 126, 613 S.E.2d at 578. There, we noted

that the Supreme Court, in Addington v. Texas, 441 U.S. 418,

432-33 (1979), approved that standard with respect to civil

commitment cases, and left to the states the decision whether

to adopt it or the more stringent standard of proof beyond a

reasonable doubt. Shivaee, 270 Va. at 126, 613 S.E.2d at 578.

Because the lesser standard is applied in Virginia SVPA cases,

and because such cases are civil and not punitive in nature,

the introduction, in such a case, of factual evidence

presented in a prior criminal case, even one that resulted in

an acquittal, does not offend the double jeopardy protections

of either the federal or Virginia constitutions. See Dowling,

493 U.S. at 348-49; Shivaee, 270 Va. at 125-26, 613 S.E.2d at

578.

Evidentiary Issue

The trial court also admitted a copy of the transcript of

the testimony of the victim at the Petersburg trial, which was

consistent with her testimony in the present case, although

somewhat more detailed. Ellison objected to its admission,

and assigns error to the trial court’s ruling admitting it, on

the ground that it came as a surprise and that the

Commonwealth had violated a discovery order directing

disclosure of all documents “referred to, relied upon, or

reviewed . . . by any expert for the Commonwealth.” We find

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no merit in that assignment because Ellison makes no

contention that the Commonwealth’s expert witness ever saw or

otherwise relied on the transcript. The discovery order did

not require the Commonwealth to produce all documents it

intended to offer in evidence. The transcript was equally

available to the Commonwealth and to Ellison. Ellison could

have contacted the court reporter, at any time, to request

preparation of a copy of the transcript, and could have sought

an order requiring the Commonwealth to pay the court reporter

for Ellison's copy of the transcript.

Conclusion

For the reasons stated, we hold that the evidence

objected to was barred neither by the doctrine of collateral

estoppel nor by the constitutional protections against double

jeopardy. Accordingly, we will affirm the judgment of the

trial court.

Affirmed.

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