dissenting.
The Double Jeopardy Clause of the Fifth Amendment commands that no person shall “be twice put in jeopardy of life or limb.” U.S. Const, amend. V. “The Double Jeopardy Clause . . . [,thus,] protects a criminal defendant from repeated prosecutions for the same offense.” Oregon v. Kennedy, 456 U.S. 667, 671 (1982).
In Kennedy, the plurality opinion of the Supreme Court stated that prosecutorial harassment or overreaching sufficient to justify a mistrial bars retrial if the evidence proves that the prosecutor intended to subvert the protections afforded by the Double Jeopardy Clause. Id. at 675-76. The plurality opinion further stated that “where the governmental conduct in question is intended to ‘goad’ the defendant into moving for a mistrial [,] ... a defendant [may] raise the bar of double jeopardy to a second trial after having succeeded in aborting the first on his own motion.” Id. at 676. In addition, the plurality opinion observed that “the existence or nonexistence of intent [must be inferred] from objective facts and circumstances.” Id. at 675. Because I believe that the objective facts compel the conclusion that the Commonwealth’s attorney intended to “goad” the defendant into moving for a mistrial, I dissent.
Although the trial judge found that “it was [not] intentional on [the prosecutor’s] part to get a mistrial,” the objective facts and circumstances do not support that finding. The objective facts and circumstances can be gleaned from the events that occurred during the first trial and from the hearing on remand. As detailed in Robinson v. Commonwealth, 13 Va. App. 574, 576-79, 413 S.E.2d 885, 886-88 (1992), at the first trial, the prosecutor repeatedly interjected evidence of alleged criminal activity unrelated to the offense being tried. The prosecutor alleged that criminal offenses unrelated to the issues then being tried were committed by Robinson, Robinson’s brother, and one of Robinson’s witnesses. Robinson’s counsel objected each time the prosecutor asked a series of improper questions and the trial judge sustained the objections. The record reveals that Robinson’s counsel objected to four such incidents and moved for mistrials. The trial *558judge instructed the jury to disregard the testimony, twice denied Robinson’s motions for a mistrial, and admonished the prosecutor to cease the improper line of questioning. Notwithstanding these events, the prosecutor continued to ask questions framed to elicit the testimony regarding unrelated, alleged criminal activity.
Significantly, on remand at the evidentiary hearing, where the trial judge considered Robinson’s motion to dismiss the charges because of the Double Jeopardy violation, the prosecutor testified concerning the facts surrounding the events that caused this Court on appeal to hold that the trial judge erred in refusing to grant the mistrial. The prosecutor testified that if he had been the defense attorney at the first trial, he “would have done the same thing” — objected and moved for a mistrial. He testified that he was aware that his questions would invite such actions and motions for a mistrial. Thus, unlike Kennedy, where the prosecutor was surprised by the motion for a mistrial, see 456 U.S. at 680 (Powell, J., concurring), in this case the prosecutor acted deliberately with the avowed knowledge that his conduct would cause Robinson’s counsel to move for a mistrial.
At that same evidentiary hearing, evidence was also adduced concerning the prosecutor’s expertise and experience as a litigator. Several witnesses, in addition to the prosecutor himself, testified that the prosecutor was a skilled and experienced trial lawyer. He had formerly been a skilled defense counsel and was highly capable of understanding the rules of practice and the mechanics of a trial. Although the prosecutor claimed he did not subjectively intend to cause a mistrial, he also testified that he knew his questions would elicit an objection and motion for mistrial. When he testified that as a defense attorney he would have made those same motions and objections, he did not indicate that he would have made those motions frivolously. Indeed, counsel with even minimal experience would have known after the first instance, when the trial judge instructed the jury to disregard the testimony, that the inquiry was forbidden. The trial judge, in finding that the prosecutor did not intend to cause a mistrial, erroneously relied upon the prosecutor’s representations about his subjective intent rather than the objective factors that existed at the time of the trial.
The objective facts, manifest on this record, are that the skilled prosecutor repeated the misconduct following continuous objection by defense counsel and rulings by the trial judge sustaining the objec*559tions. He did so with the knowledge that his conduct would provoke objections and motions for mistrials.
On the first appeal, this Court characterized the prosecutor’s repeated conduct to be a “patent effort through innuendo and insinuation to paint the accused and his witness as drug dealers.” Robinson, 13 Va. App. at 579, 413 S.E.2d at 888. The prosecutor’s testimony at the evidentiary hearing that he knew that his conduct would cause defense counsel to move for a mistrial establishes “the circumstances under which ... a defendant may invoke the bar of double jeopardy in a second effort to try him . . . [because this is one] of those cases in which the conduct giving rise to the . . . motion for a mistrial was intended to provoke the defendant into moving for a mistrial.” Kennedy, 456 U.S. at 667.
Moreover, unlike Kennedy, where only one question constituted overreaching, see 456 U.S. at 680 (Powell, J., concurring), the objective facts proved that the prosecutor employed in this case a “sequence of overreaching” conduct after adverse rulings and warnings. See id. The cases that the majority opinion relies upon to deny a bar to retrial are all cases, similar to Kennedy, in which prosecutors engaged in a single, unrepeated instance of misconduct. The objective facts in this case demonstrate, however, that the prosecutor’s comment was not a singular instance of improper conduct. “[E]mphasiz[ing] that a court - in considering a double jeopardy motion - should rely primarily upon the objective facts and circumstances of the particular case,” Justice Powell, who cast the deciding vote in Kennedy, noted in his concurring opinion that the facts in Kennedy “would have been a close case ... if there had been substantial factual evidence of intent beyond the [one improper] question itself.” 456 U.S. at 679-80 (Powell, J., concurring).
In applying Kennedy, other courts have held that a prosecutor’s deliberate violation of a court’s ruling barring other crimes evidence was intentional conduct that barred a retrial because it provoked a motion for mistrial. See Beck v. State, 412 S.E.2d 530 (Ga. 1992); State v. Laster, 724 P.2d 721 (Mont. 1986). Both of those cases involved persistent, improper prosecutorial conduct. The record in this case proved that the prosecutor engaged in a sequence of improper and overreaching conduct more egregious than in those cases.
The trial judge ignored these objective indicia of the prosecutor’s intent and relied, instead, solely upon the prosecutor’s after-the-fact *560expression of his subjective state of mind. The inferences that flow from the objective facts and circumstances in the record are strong and unambiguous. The prosecutor’s continued improper questioning and lack of surprise at Robinson’s counsel’s motion for a mistrial lead unerringly to the conclusion that the prosecutor in this case intended to “goad” the defendant into moving for a mistrial. Kennedy, 456 U.S. at 673. Moreover, in view of the several objections made by Robinson’s counsel and the trial judge’s rulings upholding those objections, neither the trial court nor this Court should credit the prosecutor’s assertion on remand that he did not subjectively intend to cause a mistrial.
As an explanation for injecting improper issues at the trial, the prosecutor offered his belief that for impeachment purposes, the jury should have been informed of Robinson’s alleged “reputation for trafficking narcotics.” The issue before the trial judge was the prosecutor’s intent, not the prosecutor’s motive. Significantly, however, nothing in the record justifies an inference that after the trial judge ruled that the line of questioning was improper, the prosecutor had some proper purpose in mind for continuing the improper questioning. The prosecutor failed to provide an explanation for continuing to inject that matter into the evidence after the trial judge ruled it inadmissible and cautioned the jury not to consider it. Moreover, the trial judge made no findings that addressed the prosecutor’s persistent disregard for the trial judge’s rulings upholding the objections to the prosecutor’s improper questions. These circumstances manifestly compel the use of the “maxim of the law ‘that a [person] is taken to intend that which he does, or which is the natural and necessary consequence of his own act.’ ” Jones v. Commonwealth, 141 Va. 471, 479, 126 S.E. 74, 77 (1925). Indeed, the prosecutor can scarcely claim that, although he knew his actions would have a specific consequence, he did not intend that consequence to arise from his action.
In light of the prosecutor’s experience and persistent inappropriate conduct, the trial judge’s decision was plainly wrong. I would hold that the objective facts and circumstances sufficiently established under the Kennedy standard that the prosecutor intended to goad Robinson’s counsel to move for a mistrial.
I would also hold that the repeated improper conduct that the prosecutor continued to engage in despite the trial judge’s rulings was conduct that bars retrial because of violation of the provision of the Constitution of Virginia that prohibits putting an accused twice in *561jeopardy for the same offense. Va. Const, art. I, § 8. On remand from the Supreme Court’s decision in Kennedy, the Supreme Court of Oregon held that the double jeopardy clause of the Oregon Constitution was violated:
when improper official conduct is so prejudicial to the defendant that it cannot be cured by means short of a mistrial, and if the official knows that the conduct is improper and prejudicial and either intends or is indifferent to the [danger of] resulting mistrial or reversal. When this occurs, it is clear that the burden of a second trial is not attributable to the defendant’s preference for a new trial over completing the trial infected by an error. Rather, it results from the state’s readiness, though perhaps not calculated intent, to force the defendant to such a choice.
State v. Kennedy, 666 P.2d 1316, 1326 (Or. 1983). This standard is different than the standard announced by the Kennedy plurality opinion and better protects the right to be free from multiple trials when the record contains proof of improper prosecutorial misconduct. See also Pool v. Superior Court, 677 P.2d 261, 271-72 (Ariz. 1984) (Arizona constitutional test different than Kennedy).
For these reasons, I respectfully dissent.