COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Elder and Bray
Argued at Richmond, Virginia
ZUHAAR JAMAL RAMADAN
OPINION BY
v. Record No. 2109-97-2 JUDGE RICHARD S. BRAY
DECEMBER 29, 1998
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND
James B. Wilkinson, Judge
Craig S. Cooley for appellant.
Daniel J. Munroe, Assistant Attorney General
(Mark L. Earley, Attorney General, on brief),
for appellee.
A jury convicted Zuhaar J. Ramadan (defendant) for
feloniously driving a motor vehicle after having been adjudicated
an habitual offender in violation of Code § 46.2-357(B)(2). On
appeal, defendant complains (1) the trial court erroneously ruled
that the Commonwealth was not collaterally estopped from
prosecuting the offense, (2) the indictment did not properly
allege the crime, and (3) that the evidence was insufficient to
prove that defendant's driving "endanger[ed] the life, limb, or
property of another." Finding no error, we affirm the
conviction.
On April 8, 1997, Richmond Police Officer L. Clinton
Jefferson first observed defendant, then an habitual offender,
operating a motorcycle at a stoplight on Jefferson Davis (Davis)
Highway. As Officer Jefferson followed, defendant proceeded
through the intersection to the corner of Royal Avenue and Davis
Highway, again stopped, yielded to oncoming traffic, and turned
left onto Royal Avenue. Jefferson then "tried to pull
[defendant] over," 1 and defendant "looked back," "took off," and
"accelerated rapidly down Royal." Over a distance of several
blocks, Jefferson attempted to "catch up to [defendant],"
traveling "approximately 75 [m.p.h.]" in a 25 m.p.h. speed zone.
During the pursuit, defendant "accelerate[d] past" a group of
children crossing the street "in his . . . path," causing "some
[to] run[] in each direction . . . trying to get to the
sidewalk."
The chase continued for "about another block" beyond the
children, ending when defendant "lost control" and "slid into a
wire fence in front of a residence." Defendant "fell off" the
motorcycle, "jumped over [the] . . . fence[,] . . . ran to the
side of the house[,] through the backyard, . . . [and] down the
alley." He was apprehended shortly thereafter and charged with
reckless driving, attempting to elude police, and feloniously
driving while an habitual offender, the instant offense.
At trial on May 20, 1997 in the general district court,
defendant was convicted of attempting to elude police, and the
felony was certified to the grand jury. However, the reckless
1
The reasons for the stop were not disclosed to the jury.
Defendant's counsel vouched the record with Jefferson's testimony
from an earlier trial, which had ended in a mistrial, that
detailed defendant's driving from the initial encounter until the
collision. Counsel represented to the court, without objection,
that such additional evidence was also before the general
district court.
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driving charge was dismissed for reasons explained only by check
marks at printed squares on the reverse side of the warrant
designated, "not guilty," and "I ORDER the charge dismissed."
The signature of the judge of the general district court appears
on the warrant.
Following indictment in the trial court for the subject
offense, defendant moved the court to dismiss, arguing that the
general district court had previously "found the evidence . . .
insufficient to support the allegation of reckless driving," a
necessary element to the felonious habitual offender offense,
and, therefore, the Commonwealth was collaterally estopped from
prosecuting the indictment. However, because the record failed
to disclose "the reason the judge dismissed" the reckless driving
charge, the court overruled defendant's motion. Defendant
subsequently was convicted for the felonious habitual offender
violation, resulting in this appeal.
Collateral Estoppel
Code § 46.2-357(B) provides, in pertinent part, that
any person found to be an habitual offender
. . ., who is thereafter convicted of driving
a motor vehicle . . . while the revocation
determination is in effect, shall be punished
as follows:
1. If such driving does not, of itself,
endanger the life, limb, or property of
another, such person shall be guilty of a
misdemeanor . . . .
2. If such driving of itself endangers the
life, limb, or property of another . . .,
such person shall be guilty of a felony
. . . .
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Thus, "driving of itself" which "endangers the life, limb, or
property of another" is an indispensable element to a felonious
violation of the statute. Code § 46.2-357(B)(2). Relying on the
doctrine of collateral estoppel, defendant reasons that dismissal
of the reckless driving charge by the general district court
constituted a valid, final judgment which favorably resolved the
endangerment element of Code § 46.2-357(B)(2), thereby precluding
further consideration of such conduct in the instant
prosecution. 2
The doctrine of collateral estoppel arises from the Fifth
Amendment protection from double jeopardy and instructs that
"'when an issue of ultimate fact has once been determined by a
valid and final judgment, that issue cannot again be litigated
between the same parties in any future lawsuit.'" Jones v.
Commonwealth, 217 Va. 231, 232, 228 S.E.2d 127, 128 (1976)
(quoting Ashe v. Swenson, 397 U.S. 436, 443 (1970)); Rogers v.
Commonwealth, 5 Va. App. 337, 341, 362 S.E.2d 752, 754 (1987).
However, "[t]he doctrine . . . does not apply if it appears that
the prior judgment could have been grounded 'upon an issue other
than that which the defendant seeks to foreclose from
consideration.'" Lee v. Commonwealth, 219 Va. 1108, 1111, 254
S.E.2d 126, 127 (1979) (quoting Ashe, 397 U.S. at 444). "The
2
Reckless driving contemplated by Code § 46.2-852, the
offense dismissed by the general district court, is defined by
"language virtually identical" to the conduct proscribed by Code
§ 46.2-357(B)(2). Bishop v. Commonwealth, 20 Va. App. 206, 211,
455 S.E.2d 765, 767 (1995).
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party seeking the protection of collateral estoppel carries the
burden of showing that the verdict in the prior action
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necessarily decided the precise issue he now seeks to preclude."
Rogers, 5 Va. App. at 341, 362 S.E.2d at 754 (citation omitted).
Since the principle of collateral estoppel was enunciated in
Ashe, "numerous attempts to invoke the doctrine have met with
little success." Jones, 217 Va. at 233, 227 S.E.2d at 128. An
acquittal, "standing alone, does not permit a conclusion with
respect" to a court's findings or rationale. Copeland v.
Commonwealth, 13 Va. App. 450, 453, 412 S.E.2d 468, 470 (1991).
General "district courts frequently[, as here,] mark misdemeanor
warrants 'dismissed' without assigning specific grounds," acting,
"sometimes . . . not upon an adjudication of substantive issues,
but upon some technical procedural defect or, indeed, upon
nothing more than considerations of leniency." Lee, 219 Va. at
1111, 254 S.E.2d at 128 3 ; see e.g., Clodfelter v. Commonwealth,
218 Va. 98, 107-08, 235 S.E.2d 340, 345-46 (1977) (district court
may have dismissed misdemeanor believing that offense was
"subsumed in . . . felony . . . certified to the grand jury").
Thus, it is "'usually impossible to determine with any precision
upon what basis the [fact finder] reached a verdict in a criminal
case,'" leaving the defense of collateral estoppel available to
an accused only in "'a rare situation.'" Jones, 217 Va. at 233,
3
In Lee, the Court applied the doctrine to estop a
prosecution but, unlike the present record, defendant and the
Commonwealth had stipulated that the earlier dismissal by the
general district court was based upon insufficient evidence.
Lee, 219 Va. at 1111, 254 S.E.2d at 127-28. Thus, the "holding
. . . [was] strictly confined to the facts as detailed in the
stipulation filed in this case." Id.
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228 S.E.2d at 128-29 (quoting United States v. Tramunti, 500 F.2d
1334, 1346, cert. denied, 419 U.S. 1079 (1974)).
Here, the record does not reveal the reason for the
dismissal of the reckless driving charge by the general district
court. Perhaps, the court, as defendant suggests, found the
evidence insufficient or, as likely, considered the misdemeanor
subsumed in the felony or simply decided to favor defendant with
leniency. However, the precise reason for the acquittal, an
indispensable predicate to the defense of collateral estoppel,
cannot rely upon conjecture. Thus, the doctrine did not bar
relitigation of the endangerment element of the instant felony,
and the court properly overruled defendant's motion to dismiss
the indictment.
The Indictment
Defendant next complains that the indictment failed to
sufficiently allege a felonious violation of Code
§ 46.2-357(B)(2). However, it is well established that we will
not consider an argument on appeal which was not presented to the
trial court, absent good cause shown or to attain the ends of
justice. See Rule 5A:18; Snurkowski v. Commonwealth, 2 Va. App.
532, 536, 348 S.E.2d 1, 3 (1986). Defendant failed to challenge
the indictment before the trial court and, finding no
justification to invoke the ends of justice exception, we decline
to address this issue.
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Sufficiency of the Evidence
When the sufficiency of the evidence is challenged on
appeal, we view the record in the light most favorable to the
Commonwealth, granting it all reasonable inferences fairly
deducible therefrom, and the decision will not be disturbed
unless plainly wrong or without evidence to support it. See Code
§ 8.01-680; Higginbotham v. Commonwealth, 216 Va. 349, 352, 218
S.E.2d 534, 537 (1975).
Code § 46.2-357(B)(2) criminalizes as a felony driving by an
habitual offender which, "of itself[,] endangers the life, limb,
or property of another." Absent such conduct, the offense of
driving by an habitual offender violates Code § 46.2-357(B)(1), a
misdemeanor. Thus, "[t]he distinction between negligent driving
and reckless driving is the critical element in determining
punishment under Code § 46.2-357." Bishop, 20 Va. App. at
210-11, 455 S.E.2d at 767. To convict, the Commonwealth must
prove driving by an accused that, standing alone, was "'"so
gross, wanton, and culpable as to show a reckless disregard of
human life."'" Id. at 211, 455 S.E.2d at 767 (citations
omitted).
Here, the evidence disclosed that defendant operated a
motorcycle at a high rate of speed, in gross violation of posted
limits, approached a group of children as they crossed the
roadway, prompting several to "run[] in each direction . . .
trying to get to the sidewalk" and, moments thereafter, lost
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control, crashed into a fence and fled. Such evidence clearly
supports a finding that defendant's driving endangered life,
limb, or property of others in violation of Code
§ 46.2-357(B)(2).
Accordingly, we affirm the conviction.
Affirmed.
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Benton, J., dissenting.
The record establishes that Zuhaar Jamal Ramadan was tried
in the general district court on the charge of reckless driving.
See Code § 46.2-852. The reckless driving charge was based upon
conduct that also gave rise to the charge that Ramadan drove
recklessly after having been declared an habitual offender and
while his license to drive was still revoked. See Code
§ 46.2-357. The record proved that at the conclusion of the
evidence in the general district court, the judge of the general
district court "FOUND . . . [Ramadan] . . . not guilty" and
"[o]rder[ed] the charge dismissed." As a proffer of evidence in
the circuit court, Ramadan offered testimony from a police
officer that the officer's testimony concerning the events that
gave rise to the charges was the same in both the general
district court and the circuit court. The police officer was the
Commonwealth's only witness both in the general district court
and in the circuit court.
"Collateral estoppel, a doctrine grounded in the Fifth
Amendment guarantee against double jeopardy and applicable to the
states under Benton v. Maryland, 395 U.S. 784 (1969), means that
'when an issue of ultimate fact has once been determined by a
valid and final judgment, that issue cannot again be litigated
between the same parties in any future lawsuit.'" Lee v.
Commonwealth, 219 Va. 1108, 1110, 254 S.E.2d 126, 127 (1979)
(quoting Ashe v. Swenson, 397 U.S. 436, 443 (1970)). The Supreme
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Court of Virginia addressed the applicability of the doctrine of
collateral estoppel in Lee and Clodfelter v. Commonwealth, 218
Va. 98, 235 S.E.2d 340 (1977).
In Clodfelter, a general district court judge "dismissed" a
charge that the accused later contended was dispositive of an
issue in a felony charge that was certified to the circuit court.
The general district court judge had "dismissed" a misdemeanor
charge of possession of marijuana and had certified to the
circuit court companion felony charges. A circuit court judge
later convicted the defendant of the felony of possessing a
controlled substance that was "found at the same place in the
same container" as the marijuana. 218 Va. at 107, 235 S.E.2d at
346. The Supreme Court rejected Clodfelter's contention that the
dismissal of the marijuana possession charge collaterally
estopped the Commonwealth from litigating the factual issue of
Clodfelter's possession of the controlled substance. The Court
noted the following:
It is not unreasonable or irrational to
conclude from the record that the General
District Court's dismissal . . . of the
misdemeanor charge of possession of marijuana
was grounded, not upon the lack of the
evidence of possession, but upon the court's
belief that this offense was subsumed in the
more serious felony charge, possession of
marijuana with intent to distribute, which
the court had just certified to the grand
jury.
Id. at 108, 235 S.E.2d at 346 (emphasis added).
In Lee, the Supreme Court upheld a claim of collateral
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estoppel where a judge of the general district court "dismissed"
a misdemeanor charge that was dispositive of an element of
felonies for which the defendant was convicted in the circuit
court. 219 Va. at 1111, 254 S.E.2d at 127. The Court referred
to its earlier ruling in Clodfelter and stated that "[w]hen
grounds for a dismissal are not assigned and do not otherwise
appear of record, the doctrine of collateral estoppel will not be
applied since the defendant bears the 'burden of proving that the
precise issue or question he seeks to preclude was raised and
determined in the first action.'" Lee, 219 Va. at 1111-12, 254
S.E.2d at 128 (quoting Clodfelter, 218 Va. at 106, 235 S.E.2d at
345) (emphasis added). Significantly, the Court in Lee held as
follows:
[I]t appears from the express language of the
stipulation [in the record] that the judgment
of dismissal . . . was based on insufficiency
of the evidence, the particular ground
assigned by defendant in his motion to
dismiss. The only rational conclusion the
stipulation permits is that, in sustaining
the motion and dismissing the misdemeanor
warrant, the district court decided that the
evidence was insufficient to prove that
defendant was driving his car on the date
charged in the warrant. Whether defendant
was driving his car on that date was "an
issue of ultimate fact" in the misdemeanor
prosecution and an element of each of the
felonies charged in the indictments. Under
the rule in Ashe, we must hold that the
Commonwealth was estopped to prosecute the
felonies.
219 Va. at 1111, 254 S.E.2d at 127.
As in Lee, the record in Ramadan's case contains more than
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the general district court judge's order reciting merely that the
misdemeanor prosecution was "dismissed." The record in this case
clearly establishes that the general district court judge's order
"dismissed" the warrant because the judge found Ramadan "not
guilty." That ruling determined the "issue of ultimate fact
. . . by a valid and final judgment." Ashe, 397 U.S. at 443. It
was a finding that the evidence was insufficient to prove
reckless driving, the issue of ultimate fact which was an element
of the prosecution of Ramadan in the circuit court for violation
of Code § 46.2-357(B)(2). See Bishop v. Commonwealth, 20 Va.
App. 206, 211, 455 S.E.2d 765, 767 (1995) ("In defining the
conduct that gives rise to felony punishment under Code
§ 46.2-357(B)(2), the legislature used the phrase, 'driving
[that] . . . endanger[s] the life, limb, or property of another,'
language virtually identical to that found in the statute
defining reckless driving.").
As the Supreme Court observed in Lee, this case again
"illustrates the need for the Commonwealth to assess the evidence
carefully and exercise selective discretion in the prosecution of
multiple offenses arising from the same transaction." 219 Va. at
1111, 254 S.E.2d at 127. For these reasons, I would hold that
the Commonwealth was estopped to prosecute Ramadan in the circuit
court for a violation of Code § 46.2-357.
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