                                              COURT OF APPEALS OF VIRGINIA


              Present: Chief Judge Huff, Judges Decker and AtLee
UNPUBLISHED


              Argued by teleconference


              BRANDON DOMINIC WINDER
                                                                               MEMORANDUM OPINION* BY
              v.     Record No. 1813-16-1                                     JUDGE RICHARD Y. ATLEE, JR.
                                                                                   FEBRUARY 6, 2018
              COMMONWEALTH OF VIRGINIA


                                 FROM THE CIRCUIT COURT OF THE CITY OF NORFOLK
                                               Jerrauld C. Jones, Judge

                               Andrew R. Sebok for appellant.

                               Victoria Johnson, Assistant Attorney General (Mark R. Herring,
                               Attorney General, on brief), for appellee.


                     Appellant Brandon Dominic Winder appeals two perjury convictions, assigning the

              following errors:

                               I[.]     The trial court erred in denying [Winder]’s motion to
                                        dismiss wherein [Winder] moved to dismiss the
                                        indictments based upon collateral estoppel.

                               II.      The trial court erred in denying [Winder]’s motion to strike
                                        arguing that the evidence adduced at trial was not sufficient
                                        to prove beyond a reasonable doubt that [Winder] had
                                        violated [Code] Section 18.2-434[.]

                               III[.]   This Honorable Court should apply Rule 5A:18’s ends of
                                        justice exception if it finds that defense counsel below
                                        failed to properly preserve an error assigned in this brief[.]

              (Capitalization and formatting altered) (citations omitted). We affirm.




                     *
                         Pursuant to Code § 17.1-413, this opinion is not designated for publication.
                                        I. BACKGROUND

       “Applying familiar principles of appellate review, we will state the facts in the light most

favorable to the Commonwealth, the prevailing party at trial.” Williams v. Commonwealth, 278

Va. 190, 191, 677 S.E.2d 280, 281 (2009). On February 6, 2013, Winder failed to appear in the

Circuit Court of the City of Norfolk as previously required. Subsequently, Winder gave sworn

testimony on two different occasions in the circuit court regarding his whereabouts on that date.

                                        A. Bond Hearing

       At a bond hearing on July 29, 2013, Winder testified that he was at Sentara Leigh

Hospital on February 6, 2013 because he “got in an accident.” While in the hospital, he received

stitches.1 He explained that he arrived at the hospital at approximately 5:30 a.m. on February 6,

2013 and was discharged early that afternoon. He acknowledged that he knew he had court on

February 6, 2013. At the bond hearing, Winder’s attorney handed the judge a document

purportedly related to Winder’s hospital stay. The document was not entered into evidence,

however, and Winder’s attorney retrieved it from the judge before the end of the hearing.

Ultimately, the circuit court denied Winder’s motion for bond.

                                   B. Failure to Appear Trial

       The Commonwealth subsequently indicted Winder for failing to appear in court, based

upon his absence on February 6, 2013.2 On October 30, 2013, Winder was tried by a judge for


       1
         On direct examination, he testified that he received stitches in “[his] knee and [his]
hand.” He testified on cross-examination that he received stitches in “[his] hand and [his] thigh.”
Under questioning from the judge, Winder offered yet another description of the stitches: “Well,
the hand ones I was getting put in, but the other ones I was getting removed.”
       2
         Although the parties agree that Winder was charged with failure to appear in violation
of Code § 19.2-128, it is unclear from the limited record provided whether this charge was a
misdemeanor or a felony. The degree of a failure to appear charge is determined by the degree
of the charge for which one fails to appear. See Code § 19.2-128(B) and (C). At the bond
hearing, Winder’s attorney stated that Winder “initially had a bond on the possession of cocaine
charge and the trespassing charge and then there was [a failure to appear] in reference to this
                                                -2-
the failure to appear.3 At that trial, Winder testified that he did not appear in court on February

6, 2013 because the night before, he had been in a car accident after leaving a nightclub. He

described his injuries as “[b]ack pains, cut in [his] thigh.” He testified that he received two

stitches, and offered into evidence what he described as “a bill” from Sentara Leigh Hospital.4

This document listed his name and address, as well as an “Account Number,” which consisted of

a nine-digit number followed by a dash and a four-digit number. It listed the “Admit/Visit Date”

and “Discharge Date” as “02/06/2013.”

       The Commonwealth called Sentara Leigh Hospital’s risk manager as a witness. The risk

manager testified that she searched for records of Winder’s presence at Sentara Leigh Hospital

on February 6, 2013. Her search yielded no such records. On cross-examination, the risk

manager conceded that the letter Winder introduced contained “one of the . . . logos that Sentara

does use” and that the address on the letter appeared to be Sentara’s billing department. The risk

manager was not able to testify that the letter offered by Winder was forged.

       The circuit court dismissed the failure to appear charge. It did not offer a detailed

explanation for the dismissal, other than instructing Winder’s attorney prior to closing argument:

“You don’t need to argue that . . . . I think there’s enough reasonable doubt on that charge.”

                                          C. Perjury Trial

       Eventually, the Commonwealth indicted Winder for two counts of perjury, corresponding

to his testimony at the bond hearing on July 29, 2013, and at the failure to appear trial on



case.” Our inability to determine whether the failure to appear was a felony or a misdemeanor
does not affect our ability to resolve this appeal, however, since the logic we employ applies in
either circumstance.
       3
         Additionally, Winder was tried for possession of cocaine and trespassing. Those
charges are not at issue in this appeal.
       4
         The document is a letter. Although it does contain an account balance, it appears to be a
request for further insurance information rather than a bill.
                                               -3-
October 30, 2013. Prior to the perjury trial, Winder moved to dismiss the charges on collateral

estoppel grounds. The circuit court took the motion under advisement. At the perjury trial, the

Commonwealth offered copies of transcripts of the bond hearing and the failure to appear trial,

which the circuit court admitted without objection from Winder.

        Instead of calling Sentara’s risk manager as a witness, the Commonwealth called

Sentara’s custodian of records. She testified that the account numbers used in connection with

patient visits to Sentara hospitals actually comprise two different numbers with distinct

meanings. The longer number is specific to each patient, and is never reused for a different

patient. Every patient receives such a number, even if they do not receive treatment, and even if

they leave the hospital against medical advice. The shorter number is “encounter specific” and

corresponds to a date.5 The custodian of records testified that the “encounter specific” number

on the letter Winder introduced did correspond to February 6, 2013. As to the patient number on

that letter, although it corresponded to an actual Sentara patient, it was a different patient, not

Winder. The custodian of records searched Sentara’s records for any records related to Winder.

She found that Winder had been to a Sentara Hospital twice. Neither visit was in 2013, and no

record showed that Winder had ever been a patient at Sentara Leigh Hospital. Like the risk

manager, the custodian of records could not say that the letter Winder offered into evidence was

a forgery. She testified that the name at the bottom of the letter was a real employee of Sentara,

as far as she knew, and that the substance of the letter, addressing insurance coverage, was not

irregular.

        The circuit court ultimately denied Winder’s motion to dismiss on collateral estoppel

grounds, and convicted him of both perjury charges. The circuit court sentenced Winder to four



        5
          Although it is not clear from the record which date (arrival or departure) is used when a
patient’s stay spans more than one day, that distinction does not matter for purposes of this case.
                                                 -4-
years in the penitentiary on each charge, for a total of eight years, and suspended all but six

months of each charge. Winder then noted this appeal.

                                           II. ANALYSIS6

                                      A. Collateral Estoppel

       In his first assignment of error, Winder asserts that the circuit court erred in denying his

collateral estoppel motion. We review de novo the applicability of collateral estoppel, though we

remain “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. Ctr. v. Stroube, 50 Va. App. 478, 493, 650

S.E.2d 879, 887 (2007)).

       “The principle of 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 any future lawsuit.’” Id. (quoting Ashe v. Swenson, 397 U.S. 436,

443 (1970)). “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.” Rogers v. Commonwealth, 5 Va. App. 337, 341, 362 S.E.2d 752, 754 (1987). In the

criminal context, “[c]ollateral estoppel only bars the Commonwealth ‘from introducing evidence

to prove an offense for which a defendant has been previously acquitted.’” Painter v.

Commonwealth, 47 Va. App. 225, 236, 623 S.E.2d 408, 413 (2005) (quoting Simon v.

Commonwealth, 220 Va. 412, 417, 258 S.E.2d 567, 571 (1979)). But “[a]n acquittal, ‘standing

alone, does not permit a conclusion with respect’ to a court’s findings or rationale,” Ramadan v.

Commonwealth, 28 Va. App. 708, 714, 508 S.E.2d 357, 360 (1998) (quoting Copeland v.



       6
       Following oral argument in this case, the panel held its decision in abeyance until the
Supreme Court’s decision in Pijor v. Commonwealth, 294 Va. 502, 808 S.E.2d 408 (2017).
                                             -5-
Commonwealth, 13 Va. App. 450, 453, 412 S.E.2d 468, 470 (1991)), because collateral estoppel

only applies “when the defendant’s prior acquittal necessarily resolved a factual issue that the

Commonwealth seeks to litigate again in a subsequent proceeding,” Commonwealth v. Leonard,

294 Va. 233, 239, 805 S.E.2d 245, 249 (2017). Thus, collateral estoppel “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).

               [T]he rule of collateral estoppel in criminal cases is not to be
               applied with the hypertechnical and archaic approach of a 19th
               century pleading book, but with realism and rationality. Where a
               previous judgment of acquittal was based upon a general verdict,
               as is usually the case, this approach requires a court to “examine
               the record of a prior proceeding, taking into account the pleadings,
               evidence, charge, and other relevant matter . . . .”

Ashe, 397 U.S. at 444 (quoting Daniel K. Mayers & Fletcher L. Yarbrough, Bis Vexari: New

Trials and Successive Prosecutions, 74 Harv. L. Rev. 1, 38 (1960)). In Whitley v.

Commonwealth, 260 Va. 482, 538 S.E.2d 296 (2000), the Supreme Court listed four

requirements for the application of collateral estoppel:

               (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.

Id. at 489, 538 S.E.2d at 299.

       On brief Winder argues that, by dismissing his failure to appear charge, the circuit court

“by definition found that Mr. Winder had not lied regarding his whereabouts on February 6,

2013.” We disagree. “[T]he acquittal of one charged with a crime is no bar to a prosecution for

perjury for testimony given by him at the trial, although a conviction would necessarily import a

                                                -6-
contradiction of the verdict in the former case.” Slayton v. Commonwealth, 185 Va. 371, 382,

38 S.E.2d 485, 491 (1946). Winder’s trial for failure to appear required the circuit court to

decide whether he “willfully fail[ed] to appear before any court as required.” Code

§ 19.2-128(B) and (C). Fundamentally, Code § 19.2-128 does not require the Commonwealth to

prove where someone was, only where someone was not. Willful absence from a required court

appearance is the crime. Although a court dismissing a failure to appear charge is free to

announce a finding that the defendant was present in a certain location instead of in court, it is

not required to make such a finding. Here, the circuit court made no contemporaneous comment

explaining why it dismissed Winder’s failure to appear charge. It simply said “I think there’s

enough reasonable doubt on that charge.”

       Applying the facts of this case to the four conjunctive factors in Whitley, we agree with

Winder that he satisfied the first factor. The parties to the failure to appear trial and the perjury

trial were the same: Winder and the Commonwealth. As to the fourth factor, the result of

Winder’s failure to appear trial was a “valid, final judgment” that Winder was not guilty of

failure to appear. However, Winder has not satisfied the second and third Whitley factors.

       The second factor requires that “the factual issue sought to be litigated must have been

actually litigated in the prior proceeding.” Whitley, 260 Va. at 489, 538 S.E.2d at 299. Here,

“the factual issue sought to be litigated” is the truthfulness of Winder’s statement that he was at

Sentara Leigh Hospital when he was supposed to be in court. Although Winder’s testimony was

one part of the evidence the circuit court had before it, and the circuit court was free to consider

that evidence in deciding whether to convict or acquit, there is no clear indication from the

record that the circuit court used Winder’s testimony to arrive at its decision. Nor is there any

clear indication from the record that the circuit court found that Winder testified truthfully.




                                                 -7-
       The third factor requires that “the factual issue must have been essential to the judgment

rendered in the prior proceeding.” Id. The circuit court did not announce the connection, if any,

between Winder’s testimony and its decision to dismiss the charge. ‘“Collateral estoppel . . .

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.’”” Pijor v.

Commonwealth, 294 Va. 502, 509, 808 S.E.2d 408, 411-12 (2017) (quoting Lee, 219 Va. at

1111, 254 S.E.2d at 127 (quoting Ashe, 397 U.S. at 444)). The circuit court could have

grounded its decision to dismiss the failure to appear charge upon reasons other than the

truthfulness of Winder’s statement.7 On the limited evidence before it that was, as yet, untested


       7
          At the perjury trial, the circuit court declared that in trials for failure to appear, judges
have “absolute and total sound discretion to determine whether it will or will not hold a person
accountable, for a good reason or for no reason, for failing to appear in court.” This was so, the
circuit court explained, because Code § 19.2-128 contains language that empowers courts to act
“unless one of the parties can show good cause for excusing the absence, or unless the court, in
its sound discretion, shall determine that neither the interests of justice nor the power of the court
to conduct orderly proceedings will be served by such forfeiture.” The Commonwealth also cites
this language in its brief as justification for the dismissal of the failure to appear charge. This
logic misunderstands Code § 19.2-128.
        Code § 19.2-128 is entitled “Penalties for failure to appear,” and contains three
subsections outlining those penalties. Subsection “B” declares that failure to appear in court for
a felony charge constitutes a felony itself. Similarly, subsection “C” declares that failure to
appear in court for a misdemeanor charge constitutes a misdemeanor itself. In contrast,
subsection “A” does not describe a crime at all; rather, it outlines the procedure for “forfeiture of
any security which may have been given or pledged for [a defendant’s] release,” after he fails to
appear. It is in this subsection that we find the language quoted above, giving courts wide
discretion. In fact, this discretion relates only to a court’s decision to require forfeiture of a
defendant’s security. Subsection (A) explains that anyone who fails to appear in court as
required shall

               incur a forfeiture of any security which may have been given or
               pledged for his release, unless one of the parties can show good
               cause for excusing the absence, or unless the court, in its sound
               discretion, shall determine that neither the interests of justice nor
               the power of the court to conduct orderly proceedings will be
               served by such forfeiture.

This language is not contained in either subsection (B) or (C), thus courts do not have such
latitude in deciding whether to convict a defendant of the crime of failure to appear.
                                               -8-
by the Commonwealth, the circuit court could have found it more likely than not Winder was

untruthful regarding his whereabouts, yet harbored reasonable doubt sufficient to warrant an

acquittal. Alternatively, it could have disbelieved Winder’s explanation of his whereabouts, but

found that the Commonwealth nevertheless failed to meet its burden of proof to as to the

willfulness element.

       “Since it is usually impossible to determine with any precision upon what basis the [fact

finder] 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 v. Commonwealth, 217 Va. 231, 233, 228

S.E.2d 127, 128-29 (1976) (quoting United States v. Tramunti, 500 F.2d 1334, 1346 (2d Cir.

1974)). Winder’s is not one of those rare situations. Accordingly, the doctrine of collateral

estoppel did not bar Winder’s prosecution for perjury.

                                   B. Sufficiency of the Evidence

       We address Winder’s second and third assignments of error together, because they are

intertwined. In his second assignment of error, Winder argues that the evidence was insufficient

to convict him of perjury. Part of his argument on appeal is that perjury requires the testimony

of two corroborating witnesses, and since the Commonwealth did not present two corroborating

witnesses, the evidence was insufficient. The balance of his argument in support of his second

assignment of error addresses the general insufficiency of the evidence. In his third assignment

of error, Winder states that, should this Court find that any error was not adequately preserved in

the circuit court, this Court should invoke the ends of justice exception to the preservation

requirements of Rule 5A:18 to reach the merits of this this portion of his sufficiency assignment

of error. Winder’s third assignment of error is not really an assignment of error at all. Instead, it

is an additional argument in support of addressing the entirety of his second assignment of error.




                                                 -9-
         We find that, as to the portion of his second assignment of error in which Winder argues

that the Commonwealth did not present two corroborating witnesses, Winder failed to preserve

this specific issue in the circuit court, in violation of Rule 5A:18. We do not find that the ends of

justice require our consideration of the merits of this portion of his assignment of error. We do

address the balance of his second assignment of error, contesting the general sufficiency of the

evidence, and we find that the evidence was sufficient.

                                   1. Two Witness Corroboration

         Winder contends the Commonwealth failed to introduce sufficient corroborating

evidence to sustain his perjury convictions. “While the Code has never expressly required

corroboration to sustain a perjury conviction, from an early date, our courts have imposed [such]

a . . . requirement.” Cossitt-Manica v. Commonwealth, 65 Va. App. 394, 400, 778 S.E.2d 513,

516 (2015) (alterations in original) (quoting Keffer v. Commonwealth, 12 Va. App. 545, 547,

404 S.E.2d 745, 746 (1991)). However, the record demonstrates that Winder did not raise this

argument in the circuit court. “No ruling of the trial court . . . will be considered as a basis for

reversal unless an objection was stated with reasonable certainty at the time of the ruling, except

for good cause shown or to enable the Court of Appeals to attain the ends of justice.” Rule

5A:18.

         Winder claims that, although he did not raise this issue in the circuit court, this Court

should apply the ends of justice exception to Rule 5A:18. “In order to avail oneself of the

exception, a defendant must affirmatively show that a miscarriage of justice has occurred, not

that a miscarriage might have occurred.” Redman v. Commonwealth, 25 Va. App. 215, 221, 487

S.E.2d 269, 272 (1997). “As our Supreme Court has stated, application of the ends of justice

exception ‘requires a determination not only that there was error . . . but also that application of

the exception is necessary to avoid a grave injustice.’” Lacey v. Commonwealth, 54 Va. App.

                                                 - 10 -
32, 46, 675 S.E.2d 846, 853 (2009) (alteration in original) (quoting Charles v. Commonwealth,

270 Va. 14, 20, 613 S.E.2d 432, 434 (2005)). Such occasions arise “only in ‘rare instances.’”

Id. (quoting Ball v. Commonwealth, 221 Va. 754, 758, 273 S.E.2d 790, 793 (1981)). We do not

find any risk of a grave injustice here, thus this is not one of the rare instances in which we

invoke the ends of justice exception to Rule 5A:18. As such, Rule 5A:18 bars our consideration

of the merits of Winder’s claim that the evidence of perjury was insufficiently corroborated.

                                       2. General Sufficiency

       Winder also challenges the general sufficiency of the evidence to support his convictions

for perjury. “As the trier of fact, the trial court was charged with determining the credibility of

the[] witnesses and the weight of the evidence.” Wetlands Am. Tr., Inc. v. White Cloud Nine

Ventures, L.P., 291 Va. 153, 173-74, 782 S.E.2d 131, 143 (2016). When we, as an appellate

court, “consider[] on appeal the sufficiency of the evidence presented below, we ‘presume the

judgment of the trial court to be correct’ and reverse only if the trial court’s decision is ‘plainly

wrong or without evidence to support it.’” Kelly v. Commonwealth, 41 Va. App. 250, 257, 584

S.E.2d 444, 447 (2003) (en banc) (quoting Davis v. Commonwealth, 39 Va. App. 96, 99, 570

S.E.2d 875, 876-77 (2002)). Furthermore, “we will consider the evidence in the light most

favorable to the Commonwealth, as it prevailed in the trial court.” Whitehurst v.

Commonwealth, 63 Va. App. 132, 133, 754 S.E.2d 910, 910 (2014).

       Virginia’s perjury statute, Code § 18.2-434, states: “If any person to whom an oath is

lawfully administered on any occasion willfully swears falsely on such occasion touching any

material matter or thing . . . , he is guilty of perjury, punishable as a Class 5 felony.” There was

no question that Winder had testified twice previously that he was at Sentara Leigh Hospital on

the date in question. The issue at trial was the truthfulness of those statements.




                                                - 11 -
        At the perjury trial, the circuit court had before it transcripts of Winder’s two statements.

The circuit court also assessed the testimony of the custodian of the records, who testified at the

perjury trial. Finally, the circuit court examined the letter Winder offered into evidence at his

trial for failure to appear. As to the letter, the circuit court conceded that “[t]his is not a forgery

charge,” and it could not say that Winder forged the letter. However, the circuit court stated,

“I’m not sure this is genuine. This is a copy, maybe a copy of a copy, and there’s this line that

goes across here. I’m able to look at this and examine it for what it is . . . .” The circuit court’s

uncertainty about the validity of the letter stood in contrast to its acceptance of the testimony of

Sentara’s custodian of records. The circuit court pointed out that “hospitals have a huge

incentive to be correct on this because it’s all about billing.” The circuit court stated: “[T]o me

it is clear from the evidence that he was not a patient at Sentara Hospital system, more

specifically Sentara Leigh . . . . There’s no evidence that that is true . . . .” Viewing the evidence

in the light most favorable to the Commonwealth, and deferring to the circuit court’s findings as

to the weight of the evidence, we do not find that the circuit court’s conclusions were plainly

wrong or without supporting evidence. As such, we find that the evidence proved beyond a

reasonable doubt that Winder perjured himself on the two dates charged.

                                           III. CONCLUSION

        For the foregoing reasons, we hold the circuit court did not err when it found that

collateral estoppel did not require dismissal of Winder’s perjury charges. We decline to address

Winder’s argument that the Commonwealth failed to corroborate its allegations of perjury with

two witnesses, finding such argument unpreserved, in violation of Rule 5A:18. Finally, as to the

balance of Winder’s argument that the evidence was insufficient, we disagree, and find the

evidence sufficient to support his convictions.

                                                                                              Affirmed.

                                                  - 12 -
