Gregory Edward Leonard, II v. Commonwealth of Virginia

COURT OF APPEALS OF VIRGINIA

Present: Judges Decker, Russell and Senior Judge Felton
PUBLISHED

Argued at Norfolk, Virginia

GREGORY EDWARD LEONARD, II
OPINION BY
v. Record No. 0135-15-1 JUDGE WESLEY G. RUSSELL, JR.
APRIL 26, 2016
COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF THE CITY OF VIRGINIA BEACH
H. Thomas Padrick, Jr., Judge

Mykell L. Messman (Messman Law, PLC, on brief), for appellant.

Lauren C. Campbell, Assistant Attorney General (Mark R. Herring,
Attorney General, on brief), for appellee.

On April 22, 2013, appellant was convicted in a bench trial of driving under the influence,

third offense within five years, in violation of Code § 18.2-266 and sentenced in accord with Code

§ 18.2-270.1 On appeal, appellant contends that the evidence was insufficient to support a finding

of driving while under the influence (DUI). He further argues that the trial court erred in allowing a

previous DUI conviction that was based on a reduced charge to be used for enhancement purposes

under Code § 18.2-270. For the following reasons, we affirm his conviction for DUI, but vacate the

sentence imposed under Code § 18.2-270(C)(1) for DUI, third offense, and remand the case to the

trial court for appellant to be sentenced for DUI, second offense.

BACKGROUND

On March 26, 2012, appellant and his wife were having marital problems, including her

concerns regarding his drinking. Appellant had taken up residence in a condominium within fifteen

1
Appellant also was convicted of violating Code § 18.2-272 for driving with a suspended
license, but that conviction is not a subject of this appeal.
minutes of the marital home. Although the parties were separating, appellant spent that weekend in

the marital residence. On March 26, 2012, appellant left the marital home between 6:15 and

6:30 p.m. to return to his condominium. After stopping at a market on the way, he swerved and

drove his vehicle, a BMW, into a mailbox. He then proceeded to his residence. Police located him

and his car in the parking garage associated with his condominium.

At trial, appellant and the Commonwealth stipulated to some of the evidence. The parties

agreed that witnesses would have testified to a crash occurring around 7:10 p.m. on March 26, 2012.

The owner of the mailbox, George Osipov, would have testified that he saw the BMW enter his

front yard and hit the mailbox. Osipov was the first to arrive at the crash site and smelled alcohol.

Monique Neff also would have testified that she saw appellant’s BMW swerve and hit the mailbox.

She further saw appellant wearing a blue baseball cap and noticed an open container of beer in the

car. Kirk Radicon, who saw appellant after he entered the parking garage, observed that appellant

smelled of alcohol, swayed and stumbled, and had bloodshot eyes. Radicon also would have

testified that appellant admitted to him that he had hit something.

The Commonwealth called as a witness Detective Christopher Lazar of the Virginia Beach

Police Department.2 Detective Lazar testified that he arrived at the parking garage around 7:45 p.m.

and found a security guard and appellant with his car. Appellant was drinking a beer and smoking a

cigarette. Detective Lazar also noticed another beer sitting outside the car and one inside the

vehicle. The car engine was warm, and the headlights were on. Detective Lazar noted that there

was damage to the front bumper of the vehicle.

Detective Lazar questioned appellant, who reported that he had been out to dinner with his

family. Detective Lazar testified that appellant told him that he had consumed two or three beers

2
In the transcript, Detective Lazar is referred to as both “Officer Lazar” and “Detective
Lazar.” We refer to him as Detective Lazar throughout the opinion.

-2-
with dinner and then later switched to a glass of wine. He specifically asked whether appellant had

anything to drink after the crash; appellant responded that he drank one and a quarter beers, which

were in the car. He asked whether he had taken any medications; appellant responded that, although

he had a prescription for Xanax, he had not taken any “that day.”

During their conversation, Detective Lazar observed that appellant’s speech was slurred,

almost to the point of incoherence, and that it took a long time to understand what appellant was

saying. Appellant had difficulty standing and walking. Detective Lazar also noticed that

appellant’s face was flushed; his eyes were bloodshot, watery, and glassy; and a strong smell of

alcohol emanated from his person. In addition, appellant’s pants were wet in the genital area. He

asked appellant to perform some field sobriety tests. Detective Lazar performed the horizontal gaze

nystagmus test and observed responses indicative of an elevated blood alcohol concentration. In

response to instructions for the walk-and-turn test and one-leg lift test, appellant stated he could not

perform these tasks “even if he was sober.” Detective Lazar then read appellant his rights for the

preliminary breath test around 8:25 p.m. and offered the test. Appellant refused the breath test and

was placed under arrest around 8:30 p.m.

Appellant’s wife testified on his behalf. She said that he left the marital home between

6:00 and 6:30 p.m. She acknowledged that appellant was having drinking issues. She stated that

although there had been wine with dinner earlier in the weekend, appellant had consumed no

alcohol that day and that there had been none in the house. She did not notice any impairment in his

speech, motor skills, or appearance when he left. She did not see him again that evening. She

acknowledged that she did not want appellant to go to jail.

Appellant testified in his own defense. He stated that he left the marital residence around

6:15 p.m. He testified that he had not consumed any alcohol up to that point. He stated that he was

heading to his temporary residence, about fifteen minutes away, and stopped at a market on the

-3-
way, where he purchased a 12-pack of beer and some cigarettes. He admitted that he hit the

mailbox with his BMW on his trip from the market to his condominium. He confirmed the

stipulated witness testimony that he had an open beer container in the car. When asked whether he

had consumed any of the beer, appellant responded, “I may have had a couple of sips, but as I had

said, I had spilled some of it on my lap. So I put it . . . in the cup holder.” He noted that he had an

open bottle of wine in the car. He attributed his swerving and hitting the area around the mailbox to

his reaching to secure items that were falling over from the passenger seat. Appellant testified that,

because it did not appear as though anyone was around to notify of the incident, he returned to his

car after he retrieved a fender that had fallen off of his car. He denied there being any witnesses and

expressly said that Osipov did not approach him at that time.

He said he consumed a Xanax after he had returned to his residence. He stated he drank the

remainder of the wine that had been in the car, about ¾ of a bottle. According to appellant’s

testimony, when he was approached by Detective Lazar, he was in the parking garage to smoke and

to retrieve some items from his car. He asserted that his statements to Detective Lazar about his

beer consumption had been in reference to drinks he had had at the condominium, prior to Detective

Lazar’s arrival, but after he had stopped driving. Appellant testified that he had “chugged” four

bottles of beer and had left an additional two bottles half empty.

As a result of the events of March 26, 2012, appellant was charged with felony DUI, third

offense. To establish the predicate convictions, the Commonwealth relied on two prior DUI

convictions. One was a September 2012 conviction for DUI, first offense, in violation of Code

§ 18.2-266 for driving that occurred on March 16, 2012. This conviction was the result of a plea in

circuit court after the appeal of a May 7, 2012 judgment of the General District Court of the City of

Virginia Beach finding appellant guilty of DUI, first offense, after the general district court struck

the initial charge of DUI, second offense. Other than to note that he was convicted of DUI, first

-4-
offense, for the March 16, 2012 incident, appellant does not take issue with this predicate offense on

appeal.

The other was a June 9, 2010 conviction from the General District Court of the City of

Virginia Beach for DUI, first offense, in violation of Code § 18.2-266 for an offense that occurred

on April 21, 2010. The conviction order, signed by the judge, indicates that appellant was present at

trial, was represented by counsel, and pled guilty to the charge. A blank on the conviction order

where the judge could have checked that the plea was “voluntarily and intelligently entered after the

defendant was apprised of his right against compulsory self-incrimination and his right to confront

witnesses against him . . .” was not checked by the judge. Appellant did not appeal this conviction

nor raise any challenge to the validity of his guilty plea at the time.

At trial, appellant argued that the 2010 conviction could not be used by the Commonwealth

as a predicate offense. Specifically, he argued that, in reducing the March 16, 2012 charge from

DUI in violation of Code § 18.2-266, second offense, to DUI, first offense, the general district court

in 2012 ruled that the 2010 conviction could not serve as a basis for sentence enhancement.

Although the May 7, 2012 conviction order provides no reason as to why the charge was reduced in

the general district court, appellant argued in the trial court that the basis for the reduction in the

charge was the general district court’s determination that the 2010 “guilty plea . . . was in violation

of his constitutional rights because the court in 2010 had not advised [appellant] that before

accepting his guilty plea he was waiving his rights against compulsory self-incrimination; right to

confront and examine his accusers and witnesses; and waiving his right to defend himself.” The

Commonwealth argued that the order did not reveal that was the reason for the reduction in the

offense and objected to the trial court considering “anything that’s not within the court’s record as it

has before it in regard to those orders.” The Commonwealth also argued that the 2010 general

district court proceeding relied upon by appellant was a nullity because appellant had appealed the

-5-
general district court’s judgment to the circuit court, where he eventually pled guilty to DUI in

violation of Code § 18.2-266, first offense.

Despite having made these initial objections, the Commonwealth ultimately agreed that

appellant accurately had represented the basis for the general district court’s decision to reduce the

March 16, 2012 charge to DUI, first offense. Specifically, after the trial court invited appellant to

offer testimony as a proffer of the basis of the general district court’s rationale, the Commonwealth

stated:

I’ll stipulate. I – it’s my understanding that that was the reason for
why Judge Hutchens reduced the charges to a DUI first. I don’t
think there’s any evidence before the court. I will make it evidence
now as part of that stipulation that Judge Hutchens reduced that
because she did not find that first prior to be [valid for purposes of
sentence enhancement under Code § 18.2-270].

(Emphasis added).

Having considered all of the evidence and the arguments, the trial court admitted the 2010

conviction order into evidence and considered it a valid conviction for the purposes of Code

§ 18.2-270. Having done so, the trial court found appellant “guilty of . . . driving under the

influence third or subsequent offense . . . .” In reaching this conclusion, the trial court made a

specific finding that appellant was “not credible at all.”

Appellant raises three challenges to his conviction on appeal. He argues that the evidence

regarding the March 26, 2012 incident was insufficient to allow the trial court to find him guilty of

DUI in violation of Code § 18.2-266. He further argues that he could not have been guilty of DUI,

third or subsequent offense, because, even assuming he had been twice convicted of DUI in

violation of Code § 18.2-266, he previously had never been convicted of DUI, second offense. He

also argues that the Commonwealth could not rely on the June 2010 conviction as a predicate

offense under Code § 18.2-270 because that issue had been resolved in his favor in the general

-6-
district court litigation related to the March 16, 2012 incident, and therefore, collateral estoppel

precluded the Commonwealth from relitigating the issue in the instant case.

ANALYSIS

I. The Evidence Was Sufficient to Allow the Trial Court to Find Appellant Guilty of DUI in
Violation of Code § 18.2-266 for the Events of March 26, 2012

Code § 18.2-266 makes it “unlawful for any person to drive or operate any motor vehicle . . .

while such person is under the influence of alcohol.” Appellant argues that the evidence is

insufficient to show that he was driving while under the influence. He avers that his consumption of

alcohol and the resulting intoxication occurred only after he had returned to his residence. He

contends that “it would be reasonable . . . for a rational trier of fact to conclude that [he] was sober

when [he] struck the mailbox, and that it was not until he arrived at the condo” that he began

drinking.

In reviewing the sufficiency of the evidence, we note that we examine a factual finding

“with the highest degree of appellate deference.” Thomas v. Commonwealth, 48 Va. App. 605,

608, 633 S.E.2d 229, 231 (2006). Accordingly, “we consider the evidence presented at trial in the

light most favorable to the Commonwealth, the prevailing party below.” Smallwood v.

Commonwealth, 278 Va. 625, 629, 688 S.E.2d 154, 156 (2009) (quoting Bolden v. Commonwealth,

275 Va. 144, 148, 654 S.E.2d 584, 586 (2008)). This principle requires us to “discard the evidence

of the accused in conflict with that of the Commonwealth, and regard as true all the credible

evidence favorable to the Commonwealth and all fair inferences to be drawn therefrom.” Parks v.

Commonwealth, 221 Va. 492, 498, 270 S.E.2d 755, 759 (1980) (emphasis and internal quotation

marks omitted). This deferential appellate standard “applies not only to the historical facts

themselves, but the inferences from those facts as well.” Clanton v. Commonwealth, 53 Va. App.

561, 566, 673 S.E.2d 904, 907 (2009) (en banc) (internal quotation marks omitted). “Thus, a

factfinder may ‘draw reasonable inferences from basic facts to ultimate facts,’ unless doing so
-7-
would push ‘into the realm of non sequitur.’” Tizon v. Commonwealth, 60 Va. App. 1, 10, 723

S.E.2d 260, 264 (2012) (citations omitted).

So viewed, the evidence was more than sufficient for a reasonable factfinder to conclude

beyond a reasonable doubt that appellant was guilty of DUI in violation of Code § 18.2-266. His

own statements to Detective Lazar establish that appellant had consumed alcohol that evening

before driving. The stipulated testimony of the Commonwealth’s other witnesses establish that

while smelling of alcohol and with an open container of beer in the car, appellant swerved, ran his

vehicle off the road into a front yard, and crashed into a mailbox. Further, the evidence establishes

that, upon arrival at the parking facility for his condominium, appellant exhibited signs of

intoxication, namely bloodshot eyes, an unsteady gait, and had an odor of alcohol about him. At the

parking facility, the crotch of his pants was wet, allowing the inference that he either had spilled

alcohol on himself while driving or had urinated on himself.

Although lacking the precision of a breathalyzer test, these circumstances, taken together,

sufficiently support the factfinder’s conclusion that appellant had driven his car while drunk.

“[C]ircumstantial evidence is as competent and is entitled to as much weight as direct evidence,

provided it is sufficiently convincing to exclude every reasonable hypothesis except that of guilt.”

Simon v. Commonwealth, 58 Va. App. 194, 206, 708 S.E.2d 245, 251 (2011) (quoting Coleman v.

Commonwealth, 226 Va. 31, 53, 307 S.E.2d 864, 876 (1983)). Circumstantial evidence “is not

viewed in isolation.” Muhammad v. Commonwealth, 269 Va. 451, 479, 619 S.E.2d 16, 32 (2005),

cert. denied, 547 U.S. 1136 (2006). “While no single piece of evidence may be sufficient, the

combined force of many concurrent and related circumstances, each insufficient in itself, may lead a

reasonable mind irresistibly to a conclusion.” Id. (citation omitted). Moreover, factfinders in DUI

cases are expressly directed to “determine the innocence or guilt of the defendant from all the

-8-
evidence concerning his condition at the time of the alleged offense.” Code § 18.2-268.10(D)

(emphasis added).

Appellant contends that his version of events, that he had nothing to drink until after he

reached the condominium, provides a reasonable hypothesis of innocence that requires his acquittal.

This misunderstands both the reasonable-hypothesis principle and the importance of the

factfinder. As the Virginia Supreme Court recently recognized, under the reasonable-hypothesis

principle

a factfinder cannot “arbitrarily” choose, as between two equally
plausible interpretations of a fact, one that incriminates the
defendant. The choice becomes arbitrary, however, only when no
rational factfinder could believe the incriminating interpretation of
the evidence and disbelieve the exculpatory one. When examining
an alternate hypothesis of innocence, the question is not whether
“some evidence” supports the hypothesis, but whether a rational
factfinder could have found that the incriminating evidence
renders the hypothesis of innocence unreasonable.

Vasquez v. Commonwealth, ___ Va. ___, ___, 781 S.E.2d 920, 930 (2016) (emphasis added)

(internal quotation marks, citations and footnote omitted).

Appellant’s account, which the factfinder expressly found to be incredible, would require a

factfinder to believe that appellant consumed and absorbed ¾ of a bottle of wine, four full beers, and

an additional two half-bottles of beer in twenty-five to thirty minutes.3 Furthermore, to believe

appellant’s version of events, the factfinder necessarily would have been required to reject the

evidence offered by Detective Lazar and the other witness accounts. Considering all of the

evidence, we cannot say that the factfinder’s rejection of appellant’s story was arbitrary.

3
Sufficient reasons exist for the factfinder to reject the testimony of Mrs. Leonard. First,
her account was contradicted by the other evidence, including appellant’s own statements to
Detective Lazar. Further, the factfinder reasonably could conclude that her admission that she
did not want appellant to go to jail called her version of events into question.

-9-
 “[W]e will reverse a judgment of the circuit court only upon a showing that it is plainly

wrong or without evidence to support it.” Singleton v. Commonwealth, 278 Va. 542, 548, 685

S.E.2d 668, 671 (2009). Here, based on the totality of the evidence, we cannot say that it was

unreasonable for the trial court to conclude that appellant was driving while under the influence of

alcohol in violation of Code § 18.2-266 on March 26, 2012, and therefore, we affirm its finding.

II. Code § 18.2-270(C) Does Not Require that a Person Be Convicted of DUI, Second
Offense, Before Being Convicted of DUI, Third or Subsequent Offense

Citing to Code § 18.2-270(C), appellant argues that before he could be found “guilty of DUI

3rd offense . . . a court of competent jurisdiction must have previously convicted him of DUI 2nd

offense.” As such, appellant raises a question of statutory interpretation, which we review de novo.

Va. Empl. Comm’n v. Cmty. Alternatives, Inc., 57 Va. App. 700, 708, 705 S.E.2d 530, 534

(2011).

In resolving questions of statutory interpretation, we adhere to the principle “that courts

will give statutory language its plain meaning.” Davenport v. Little-Bowser, 269 Va. 546, 555,

611 S.E.2d 366, 371 (2005) (citing Jackson v. Fidelity & Deposit Co., 269 Va. 303, 313, 608

S.E.2d 901, 904 (2005)). Furthermore, “[w]e ‘assume that the legislature chose, with care, the

words it used when it enacted the relevant statute.’” Alger v. Commonwealth, 267 Va. 255, 261,

590 S.E.2d 563, 566 (2004) (quoting Barr v. Town & Country Props., Inc., 240 Va. 292, 295,

396 S.E.2d 672, 674 (1990)). Finally, we are prohibited from “adding language to or deleting

language from a statute . . .” in the guise of interpreting that statute. Appalachian Power Co. v.

State Corp. Comm’n, 284 Va. 695, 706, 733 S.E.2d 250, 256 (2012) (citing BBF, Inc. v. Alstom

Power, Inc., 274 Va. 326, 331, 645 S.E.2d 467, 469 (2007)).

Code § 18.2-270(C)(1) provides:

Any person convicted of three offenses of § 18.2-266 committed
within a 10-year period shall upon conviction of the third offense
be guilty of a Class 6 felony. The sentence of any person convicted
- 10 -
 of three offenses of § 18.2-266 committed within a 10-year period
shall include a mandatory minimum sentence of 90 days, unless
the three offenses were committed within a five-year period, in
which case the sentence shall include a mandatory minimum
sentence of confinement for six months. In addition, such person
shall be fined a mandatory minimum fine of $1,000.

The terms of the statutory provision are clear and unambiguous: to receive the enhanced

punishment provided for in Code § 18.2-270(C)(1) a person must have been convicted of three

violations of Code § 18.2-266 that occurred within a ten-year period. There is no mention of

DUI, second offense, in either Code § 18.2-270(C)(1) or in Code § 18.2-266, and thus, such a

charge is not a predicate for imposition of the enhanced penalties found in Code

§ 18.2-270(C)(1).4 Because the express text of Code § 18.2-270(C)(1) does not require that a

person have been charged and convicted of DUI, second offense, before he can receive the

enhanced punishments provided for in Code § 18.2-270(C)(1), we reject appellant’s contention

to the contrary.

III. Collateral Estoppel and the May 7, 2012 Decision of the General District Court

Having concluded that the lack of a conviction for DUI, second offense, was not an

impediment to charging appellant with DUI, third offense, we turn to the question of whether the

Commonwealth’s evidence was sufficient to support his conviction for DUI, third offense.

Appellant argues that the evidence was insufficient to support his conviction because the

Commonwealth was barred by the doctrine of collateral estoppel from relying upon the June 2010

conviction. He asserts that, in its May 7, 2012 decision, the general district court definitely and

4
DUI, second offense, is addressed in Code § 18.2-270(B), which provides enhanced
penalties for a second conviction of DUI under certain parameters. Nothing in Code
§ 18.2-270(B) or anywhere else in Code § 18.2-270 suggests that the prior imposition of
punishment under Code § 18.2-270(B) is required before a defendant can be punished under
Code § 18.2-270(C)(1). Although that may be the “normal” progression of events, Code
§ 18.2-270(C)(1) only requires that there have been two previous convictions for DUI in
violation of Code § 18.2-266. If the General Assembly had intended to adopt appellant’s
position, it would have done so expressly.
- 11 -
necessarily found that the conviction was invalid, and therefore, the doctrine of collateral estoppel

prohibited the Commonwealth from utilizing the June 2010 conviction as a predicate offense in this

case.

“[C]ollateral estoppel involves mixed questions of law and fact [to which] we apply a de

novo standard of review . . . [; however,] we are bound by the underlying factual issues as

determined by the fact finder unless they are plainly wrong or unsupported by the evidence.”

Commonwealth v. Davis, 290 Va. 362, 368-69, 777 S.E.2d 555, 558 (2015) (quoting Loudoun

Hosp. Center v. Stroube, 50 Va. App. 478, 493, 650 S.E.2d 879, 886-87 (2007)).

A. The May 7, 2012 General District Court Proceeding

At the outset, it is important to note that, to the extent that appellant’s assertions about the

May 7, 2012 general district court ruling are correct, the general district court committed error.

Specifically, appellant contends that the general district court concluded that the June 2010 DUI

conviction was somehow invalid. Assuming the general district court did this, its actions were

an impermissible collateral review of a valid conviction.

From the face of the June 2010 warrant/conviction order, it is clear that appellant

appeared in court, where he was represented by counsel, and was convicted of DUI in violation

of Code § 18.2-266. He did not challenge that conviction by way of direct appeal or other

post-conviction proceeding. Accordingly, the June 2010 conviction was not subject to a

collateral attack during the May 7, 2012 proceeding in the general district court.5 Vester v.

Commonwealth, 42 Va. App. 592, 597, 593 S.E.2d 551, 553 (2004).

5
Even appellant appreciates the irony of his position. He argues that collateral attacks
between the same parties are not allowed, and therefore, it is impermissible for the
Commonwealth to collaterally attack what he alleges was the general district court’s May 7,
2012 ruling, which was itself a result of appellant’s impermissible collateral attack on the June
2010 conviction.
- 12 -
 Vester also involved a defendant’s attempt to collaterally attack prior DUI convictions

that were used to trigger the enhanced penalty provisions of Code § 18.2-270. Id. at 595, 593

S.E.2d at 552. Relying upon decisions of the United States Supreme Court regarding the finality

of prior convictions in recidivism schemes, we held that “the right to collaterally attack a prior

criminal conviction in a subsequent proceeding for enhancement purposes is limited to the actual

denial of counsel.” Id. at 597, 593 S.E.2d at 553 (citations omitted). Because it is clear that

appellant was represented by counsel in the June 2010 proceeding, it was error for the general

district court even to entertain a collateral attack on the validity of that conviction in 2012.

This, however, does not end our inquiry. If appellant can satisfy the elements for the

application of the doctrine of collateral estoppel, it does not matter that the underlying decision

was erroneous. The prior court decision is still entitled to preclusive effect. Highsmith v.

Commonwealth, 25 Va. App. 434, 443, 489 S.E.2d 239, 243 (1997) (“Although the district

court’s dismissal was based on a principle of law that was later determined to be erroneous, its

dismissal was nevertheless a final ruling on the merits of the case . . . ,” and thus, could serve as

the basis for the preclusive effect of collateral estoppel.).

B. The Doctrine of Collateral Estoppel

“In criminal cases, collateral estoppel is a legal doctrine grounded in the Fifth

Amendment guarantee against double jeopardy.” Davis, 290 Va. at 368, 777 S.E.2d at 558

(internal quotation marks and citation omitted). In this context, collateral estoppel “means

simply 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” a future proceeding.

Ashe v. Swenson, 397 U.S. 436, 443 (1970).

For the doctrine to apply,

(1) the parties to the two proceedings must be the same; (2) the
factual issue sought to be litigated must have been actually
- 13 -
 litigated in the prior proceeding; (3) the factual issue must have
been essential to the judgment rendered 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.

Rice v. Commonwealth, 57 Va. App. 437, 443, 703 S.E.2d 254, 257 (2011). The party seeking the

benefit of the doctrine bears the burden of establishing that all of the elements necessary for the

doctrine to apply are present. Wright v. Eckhardt, 267 Va. 24, 26-27, 591 S.E.2d 668, 670

(2004).

The Commonwealth contends that appellant has not established all four elements.

Specifically, the Commonwealth argues that appellant failed to demonstrate that the factual issue

sought to be litigated was actually litigated in the 2012 general district court proceeding or that

the general district court proceeding “resulted in a valid, final judgment against” the

Commonwealth. We address each of these contentions in turn.

C. The Validity of the 2010 DUI Conviction Was Actually Litigated in the 2012 General
District Court Proceeding

In convicting appellant of DUI, third offense, the trial court concluded that appellant had not

demonstrated the basis for the general district court’s 2012 ruling. During one of the many

colloquies regarding the argument, the trial court stated, “how would this court know . . . why [the

general district court] changed it from [DUI] second to [DUI] first? . . . I mean, as [the

Commonwealth] points out . . . the court does speak through its orders . . .” and the warrant is

silent as to a reasoning or rationale. Although generally correct, such a position is not supported

by the evidence in the record.

In general, a party seeking to utilize a general district court warrant for collateral estoppel

purposes will be unsuccessful. This stems from the fact that the form warrant/conviction order

utilized in the general district courts, by its nature, usually results in a series of checked boxes and

filled in blanks that indicate what result obtained in the general district court but rarely why it
- 14 -
happened. In short, the form warrant provides the result, but rarely provides the general district

court’s rationale.

The lack of factual findings or the court’s rationale on the face of a warrant is generally fatal

to a claim of collateral estoppel. In Lee v. Commonwealth, 219 Va. 1108, 1111-12, 254 S.E.2d

126, 128 (1979), the Virginia Supreme Court addressed the limitations on collateral estoppel

created by the use of form warrants in the general district courts, noting that

[w]hile a more definitive practice might be preferable, district
courts frequently mark misdemeanor warrants “dismissed” without
assigning specific grounds. We recognize that dismissal may
sometimes be based, not upon an adjudication of substantive
issues, but upon some technical procedural defect or, indeed, upon
nothing more than considerations of leniency. When 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.

(Some internal quotation marks and citations omitted). Thus, had the only evidence of the basis

for the general district court’s 2012 ruling been the warrant/conviction order, appellant’s

invocation of collateral estoppel would fail.

Unlike the typical case, however, there was undisputed evidence as to the basis of the

general district court’s ruling in 2012. Prior to the Commonwealth’s stipulation, there was no

evidence as to the basis of the general district court’s ruling. The Commonwealth stipulated that

the general district court reduced the charge from DUI, second offense, to DUI, first offense, in

2012 because it found that the 2010 conviction was invalid for sentencing enhancement under

Code § 18.2-270. The Commonwealth expressly stated that the stipulation was intended to

“make it evidence now . . . .”

Admittedly, the Commonwealth’s statement was not as precise as it could have been and

actually ended with the attorney for the Commonwealth noting that “I wasn’t there” in regards to

- 15 -
the 2012 proceeding in the general district court.6 Nevertheless, reading the entire colloquy

between the parties’ counsel and the court along with the fact that appellant did not continue with

the proffer the trial court had invited him to make, the only fair reading of the exchange is that

the Commonwealth stipulated that appellant had correctly summarized the general district

court’s rationale for reducing the charge and that the trial court accepted the stipulation.

Stipulations of fact, such as this, are binding. Fountain v. Commonwealth, 64 Va. App.

51, 58, 764 S.E.2d 293, 296 (2014) (“Parties are bound by their factual stipulations.” (citing

Barrick v. Bd. of Supers., 239 Va. 628, 631, 391 S.E.2d 318, 320 (1990))). As such, stipulations

can provide the necessary evidence for determining the basis for a general district court’s ruling.

As the Virginia Supreme Court held in Lee, in the face of a form warrant with no express

statement of the general district court’s findings of fact or rationale, but a stipulation providing

such a basis,

[t]he 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. For the same reasons, we find that the stipulation in this

case established the basis for the general district court’s 2012 ruling, and therefore, appellant

sufficiently demonstrated that the fact was actually litigated and resolved in his favor in the prior

proceeding.

6
The imprecision underscores that it is the far better practice to reduce a stipulation to
writing.
- 16 -
 D. Constitutional Protections Against Double Jeopardy Necessitate Concluding that the
General District Court’s 2012 Ruling Regarding the Validity of the 2010 Conviction
is a Final Judgment

The Commonwealth argues that even if appellant did demonstrate that the fact of the

invalidity of the 2010 DUI conviction was fully litigated and determined in the 2012 general

district court proceeding, such a determination did not constitute a final judgment because

appellant appealed it. Accordingly, citing both cases from this Court and the Virginia Supreme

Court, the Commonwealth reasons that any ruling of the general district court “was annulled by

his appeal of that judgment.”

The Commonwealth correctly sets forth the general rule that proceedings in the general

district court are rendered nullities when a party files an appeal to the circuit court. As we

observed in Turner v. Commonwealth, 49 Va. App. 381, 641 S.E.2d 771 (2007),

in a trial de novo the circuit court disregards the judgment of the
district court, hears the evidence anew and may consider new
evidence, and makes final disposition of the case as if the case had
not proceeded to judgment in the district court. Once the trial de
novo commences in the circuit court, the district court judgment is
annulled, and is not thereafter available for any purpose.

Id. at 386, 641 S.E.2d at 773 (internal quotation marks and citations omitted); see also Code

§ 16.1-136 (providing that criminal appeals from a general district court “shall be heard de novo”

in the circuit court). If there were no exception to the seemingly absolute language we restated

in Turner, the Commonwealth’s position would be well-taken. However, as we recognized in

Turner, there is an exception to this general rule that is grounded in constitutional protections

against double jeopardy.

In Turner, the defendant was charged in the general district court with DUI, second

offense. 49 Va. App. at 383, 641 S.E.2d at 772. The general district court did not convict him of

that offense, but rather, he was convicted of “DUI[,] first offense[,] . . . [and] appealed that

conviction to the circuit court for a trial de novo.” Id. at 384, 641 S.E.2d at 772. Despite the
- 17 -
implicit acquittal of DUI, second offense, inherent in the general district court’s decision to convict

him of DUI, first offense, the circuit court allowed the Commonwealth to amend the charge in the

circuit court proceeding to DUI, second offense. Id. at 383, 641 S.E.2d at 772. Having allowed the

charge to be amended, the circuit court found him guilty of DUI, second offense. Id. at 385, 641

S.E.2d at 772.

Despite recognizing the general rule that an appeal of a general district court’s judgment to a

circuit court renders the general district court proceedings a nullity, we reversed Turner’s conviction

for DUI, second offense. Specifically, we noted that

long-established double jeopardy principles mandate that there
cannot be a trial de novo, or otherwise for the same offense after an
acquittal by a court having authority and jurisdiction to try the
offense. Here, the Commonwealth was limited by appellant’s
district court acquittal of DUI second offense, and could prosecute
appellant for no greater charge than the conviction appealed - DUI
first offense. To hold otherwise would permit the Commonwealth
on de novo appeal by a person convicted of a lesser-included
offense to be re-prosecuted for the greater offense after acquittal in
the district court.

Id. at 386-87, 641 S.E.2d at 773 (internal quotation marks and citations omitted).

Accordingly, at least as it involves a general district court’s judgment acquitting a defendant

of a particular offense, constitutional prohibitions against double jeopardy prevent an appeal from

rendering a general district court proceeding a complete nullity. Because the same prohibitions on

double jeopardy underpin the application of the doctrine of collateral estoppel in criminal cases, see

Davis, 290 Va. at 368, 777 S.E.2d at 558, we conclude that the general district court’s finding

that the 2010 conviction was invalid and required appellant’s acquittal of DUI, second offense, is

- 18 -
similarly not nullified by the appeal of the general district court judgment.7 Accordingly, in light

of the Commonwealth’s stipulation, appellant was entitled to rely on that ruling for the purposes

of collateral estoppel, and therefore, the Commonwealth could not use the 2010 conviction as a

predicate offense for the enhanced penalty provisions of Code § 18.2-270(C)(1).8

E. Remedy

Having found that, as a result of appellant’s successful invocation of collateral estoppel,

the evidence was insufficient to support appellant’s conviction for DUI, third offense, the

question becomes one of remedy. Normally, when an appellant successfully challenges the

admission of evidence that was necessary to support his conviction, we remand the case “for a

new trial if the Commonwealth elects to have a new trial.” Code § 19.2-324.1. In this case,

however, appellant and the Commonwealth have agreed that, given our rulings above, the

appropriate resolution is to remand the case to the trial court to allow appellant to be sentenced

on the lesser-included offense of DUI, second offense. Accordingly, we remand the case for that

purpose. Commonwealth v. South, 272 Va. 1, 1, 630 S.E.2d 318, 319 (2006) (holding that, in

7
We recognize that the Commonwealth was, because of the constitutional prohibitions
on double jeopardy, precluded from appealing the general district court’s 2012 decision and that
we previously have recognized that, in general, the inability of a party to seek appellate review of
an initial judgment will preclude the application of collateral estoppel against that party. AKAK,
Corp. v. Commonwealth, 38 Va. App. 634, 639, 567 S.E.2d 589, 591 (2002). However, given
the double jeopardy concerns that inform the application of collateral estoppel in criminal cases,
see Davis, 290 Va. at 368, 777 S.E.2d at 558, the collateral estoppel bar may be asserted against
the Commonwealth regarding the factual issue necessarily determined by the general district
court in its implicit acquittal of appellant for DUI, second offense.
8
We note that such a result is limited to situations where, as here, the lower court ruled
that the acquittal was based on the prior conviction being invalid and, therefore, the conviction
could never be used for enhancement purposes. An acquittal of DUI, second offense, based on a
simple failure to adduce sufficient evidence of the prior conviction (e.g., the Commonwealth
failing to offer the prior conviction order in evidence) does not give rise to similar preclusion
issues.

- 19 -
cases where the evidence is insufficient to support conviction of a greater offense, remand for

sentencing on a lesser offense is appropriate if the parties consent).

CONCLUSION

For the reasons stated above, we affirm his conviction for DUI, but vacate the sentence

imposed under Code § 18.2-270(C)(1) for DUI, third offense, and remand the case to the trial court

for appellant to be sentenced for DUI, second offense.

Affirmed in part, and
vacated and remanded in part.

- 20 -