                                              COURT OF APPEALS OF VIRGINIA


              Present: Judges Frank, Humphreys and Chafin
UNPUBLISHED


              Argued at Chesapeake, Virginia


              WESLEY DARREN WALKER
                                                                             MEMORANDUM OPINION* BY
              v.      Record No. 1050-13-1                                    JUDGE ROBERT P. FRANK
                                                                                   APRIL 1, 2014
              COMMONWEALTH OF VIRGINIA


                                  FROM THE CIRCUIT COURT OF THE CITY OF NORFOLK
                                               John R. Doyle, III, Judge

                                Amanda E. Burks for appellant.

                                Susan Mozley Harris, Assistant Attorney General (Kenneth T.
                                Cuccinelli, II, Attorney General, on brief), for appellee.


                      Wesley Darren Walker, appellant, was convicted, in a jury trial, of possession of a

              firearm by a non-violent felon in violation of Code § 18.2-308.2. On appeal, he contends that the

              doctrine of collateral estoppel bars his prosecution for this offense when he was previously

              acquitted of murder and use of a firearm in the commission of a felony, all arising out of the

              same incident. Essentially, he contends the acquittal of the earlier firearm charge necessarily

              established he did not possess the firearm. For the reasons stated, we affirm the judgment of the

              trial court.

                                                         BACKGROUND

                      Appellant and Richard Harris were arguing in front of a barbershop. Harris’s girlfriend,

              Mikala Bunch, testified appellant threw a punch at Harris but missed. After an exchange of

              blows, Bunch saw appellant pull a gun from his waistline. Harris ran for cover into the parking



                      *
                          Pursuant to Code § 17.1-413, this opinion is not designated for publication.
lot. Appellant chased Harris until the men stopped behind Bunch’s car and began to struggle.

Bunch saw Harris try to hold appellant’s arm down in order to prevent him from raising it and

shooting. Bunch testified that when Harris backed up and hit appellant’s arm with his hand,

appellant shot Harris.

       Harris then ran into the barbershop, and appellant continued to chase Harris. Bunch

observed that Harris had been shot. Harris identified appellant as the shooter. Harris later died

from the gunshot wound. Bunch testified Harris did not have a gun in his possession when they

drove to the barbershop.

       Appellant testified he and Harris were “fussing” in the barbershop and that when they

went outside, he “wasn’t trying to back down from [Harris].” However, appellant denied pulling

a gun from his waistline, maintaining Harris had reached into his pants and pulled out a gun.

Appellant stated he grabbed the gun from Harris. He admitted he had chased Harris through the

parking lot with the gun, but he said he kept the gun at his side, never pointing it at Harris.

       Appellant further testified Harris demanded that appellant return his gun, but appellant

refused. Another struggle ensued. Appellant testified the gun “went off.” Appellant admitted he

still had possession of the gun when he noticed Bunch and the child standing nearby. He

explained that he had the gun in his hand because he “wasn’t thinking.”

       Warrants for all of the felonies were obtained at the same time.

       Appellant was indicted for three felonies arising from the above incident: first-degree

murder, use of a firearm in the commission of first-degree murder, and possession of a firearm

by a felon.




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       Before the commencement of the trial, the trial court granted appellant’s motion to sever

the felon in possession of a firearm charge from the other two felonies.1

       The jury acquitted appellant of the murder and use of a firearm charges.

       On April 3, 2013, appellant was tried by a jury for possession of a firearm by a convicted

non-violent felon. The jury found appellant guilty.

       This appeal follows.

                                             ANALYSIS

       Appellant’s sole argument on appeal is that collateral estoppel barred his prosecution for

possession of a firearm by a convicted felon. As a corollary, he claims that doctrine also bars the

Commonwealth from adducing evidence already presented in the prior trial for murder and use

of a firearm. We reject both of these contentions.

       In response to this argument, the Commonwealth contends collateral estoppel is not

applicable because all of the felonies were tried simultaneously. Therefore, the trial on the

charge of possession of a firearm by a convicted felon was not a “subsequent prosecution.” The

Commonwealth also maintains that the jury could have acquitted appellant of the other felonies

for a number of reasons other than that appellant did not possess the firearm.

               Collateral estoppel is a doctrine of fact preclusion “embodied in
               the Fifth Amendment protection against double jeopardy.” Simon
               v. Commonwealth, 220 Va. 412, 415, 258 S.E.2d 567, 569 (1979).
               The doctrine essentially holds “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.” Ashe v. Swenson, 397 U.S. 436, 443 (1970). If the
               previous judgment of acquittal was based upon a general verdict,2
               the trial court is required to “examine the record of a prior

       1
         In a jury trial, a trial court abuses its discretion in not severing a possession of a firearm
by a convicted felon charge from other felony charges. Johnson v. Commonwealth, 20 Va. App.
49, 56, 455 S.E.2d 261, 265 (1995).
       2
        A general verdict is one “by which the jury finds in favor of one party or the other, as
opposed to resolving specific fact questions.” Black’s Law Dictionary 1696 (9th ed. 2009).
                                               -3-
                 proceeding, taking into account the pleadings, evidence, charge,
                 and other relevant matter, and conclude whether a rational jury
                 could have grounded its verdict upon an issue other than that
                 which the defendant seeks to foreclose from consideration.” Id. at
                 444. If it appears that the jury could have done so, then collateral
                 estoppel does not apply. Id.

Rice v. Commonwealth, 57 Va. App. 437, 442-43, 703 S.E.2d 254, 257 (2011).

       The party seeking the protection of collateral estoppel carries the burden of showing that

the verdict in the prior action necessarily decided the precise issue he seeks to now preclude.

Rhodes v. Commonwealth, 223 Va. 743, 749, 292 S.E.2d 373, 376 (1982).

       However, before the doctrine of collateral estoppel may be applied, four requirements

must be met: (1) the parties to the two proceedings must be the same; (2) the factual issue

sought to be litigated must have been actually 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. Glasco v. Ballard, 249 Va. 61, 64, 452 S.E.2d 854, 855 (1995); see also

Bates v. Devers, 214 Va. 667, 671, 202 S.E.2d 917, 921 (1974).3

       The Supreme Court of Virginia has noted the difficulty of meeting these requirements,

stating that since the principle of collateral estoppel was first enunciated (by the United States

Supreme Court, in Ashe v. Swenson, 397 U.S. 436 (1970)), “numerous attempts to invoke the

doctrine have met with little success.” Jones v. Commonwealth, 217 Va. 231, 233, 228 S.E.2d

127, 128 (1976). This was no surprise, as Ashe “was the rare case where it was possible to

determine with certainty what the jury in the earlier prosecution had decided.” Id. (quoting

United States v. Cioffi, 487 F.2d 492, 498 (1973), cert. denied, 416 U.S. 995 (1974)).




       3
           The only requirements at issue on appeal are (2) and (3).

                                                 -4-
       “An acquittal, ‘standing alone, does not permit a conclusion with respect’ to a court’s

findings or rationale.” Rice, 57 Va. App. at 433, 703 S.E.2d at 257 (quoting Copeland v.

Commonwealth, 13 Va. App. 450, 453, 412 S.E.2d 468, 470 (1991)). “‘Since it is usually

impossible to determine with any precision upon what basis the jury reached a verdict in a

criminal case, it is a rare situation in which the collateral estoppel defense will be available to a

defendant.’” Jones, 217 Va. at 233, 228 S.E.2d at 128-29 (quoting United States v. Tramunti,

500 F.2d 1334, 1346, cert. denied, 419 U.S. 1079 (1974)).

       When grounds for a dismissal are not assigned and do not otherwise appear of record, the

doctrine of collateral estoppel will not be applied, because the defendant, “the party seeking the

protection of collateral estoppel[,] bears the burden of proving that the precise issue or question

he seeks to preclude was raised and determined in the first action.” Clodfelter v.

Commonwealth, 218 Va. 98, 106, 235 S.E.2d 340, 345 (1977). “The 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). “Collateral estoppel

becomes applicable only when the prior acquittal necessarily resolved the issue now in

litigation.” Simon, 220 Va. at 418, 258 S.E.2d at 571.

       Thus, for collateral estoppel to bar prosecution in the instant case, appellant must prove

that his acquittal on the use of a firearm charge was premised on a specific finding that appellant

did not possess the weapon. Appellant failed to do so.

       There are a number of possible reasons for appellant’s acquittal. In order for appellant to

have been convicted of use of firearm in the commission of a felony, the Commonwealth was

required to prove appellant was guilty of murder. See Code § 18.2-53.1. “‘[A] violation [of

Code § 18.2-53.1] occurs only when a firearm is used with respect to the [statutorily] specified

                                                 -5-
felonies.’” Johnson v. Commonwealth, 20 Va. App. 547, 554, 458 S.E.2d 599, 602 (1995)

(quoting Bundy v. Commonwealth, 220 Va. 485, 488, 259 S.E.2d 826, 828 (1979)). However,

there was conflicting testimony about the incident. If the jury believed appellant’s testimony, it

could have concluded appellant shot Harris accidentally.4 By acquitting appellant of first-degree

murder, they necessarily had to acquit appellant of the firearm charge, without ever determining

whether appellant possessed the firearm. See Code § 18.2-53.1.

       We conclude appellant failed to prove that the exact issue he now seeks to preclude was

decided in the murder trial. We can conclude from the record of the prior trial that, in the

language of Ashe, “a rational jury could have grounded its verdict upon an issue other than that

which the defendant seeks to foreclose from consideration.” 397 U.S. at 444. Accordingly, we

reject appellant’s allegation that the doctrine of collateral estoppel prevented the Commonwealth

from showing in the present case that appellant possessed the firearm. See Jones, 217 Va. at

237, 228 S.E.2d at 131.

       Appellant next argues that collateral estoppel bars not only the prosecution of the felon in

possession of a firearm charge, but also the testimony of Ms. Bunch, Harris’s girlfriend.

Appellant contends the doctrine should have prevented the Commonwealth “from introducing

evidence to prove an offense for which a defendant has been previously acquitted.” Simon, 220

Va. at 417, 258 S.E.2d at 571. For the reasons already stated above, this argument also fails.

Therefore, we reject appellant’s contention that collateral estoppel bars the testimony of Bunch.5




       4
         The jury was instructed on accidental killing. They were also given the option to
convict appellant of first-degree murder, second-degree murder, or voluntary manslaughter.
       5
         Because we find that appellant failed to show that the jury necessarily found he did not
possess a firearm, thus not proving collateral estoppel, we need not address whether his trial on
the charge of possession of a firearm by a convicted felon is a subsequent prosecution.
                                                -6-
                                          CONCLUSION

       We conclude appellant cannot prevail in his collateral estoppel argument, because he

failed to meet his burden to prove that the jury in the prior trial necessarily found he did not

possess the firearm. Therefore, appellant’s trial and conviction for the possession of a firearm by

a non-violent felon charge were not barred by collateral estoppel.

                                                                                           Affirmed.




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