                    COURT OF APPEALS OF VIRGINIA


Present: Judges Benton, Elder and Bray
Argued at Richmond, Virginia


ZUHAAR JAMAL RAMADAN
                                              OPINION BY
v.         Record No. 2109-97-2          JUDGE RICHARD S. BRAY
                                           DECEMBER 29, 1998
COMMONWEALTH OF VIRGINIA


           FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND
                      James B. Wilkinson, Judge
           Craig S. Cooley for appellant.

           Daniel J. Munroe, Assistant Attorney General
           (Mark L. Earley, Attorney General, on brief),
           for appellee.



     A jury convicted Zuhaar J. Ramadan (defendant) for

feloniously driving a motor vehicle after having been adjudicated

an habitual offender in violation of Code § 46.2-357(B)(2).      On

appeal, defendant complains (1) the trial court erroneously ruled

that the Commonwealth was not collaterally estopped from

prosecuting the offense, (2) the indictment did not properly

allege the crime, and (3) that the evidence was insufficient to

prove that defendant's driving "endanger[ed] the life, limb, or

property of another."   Finding no error, we affirm the

conviction.

     On April 8, 1997, Richmond Police Officer L. Clinton

Jefferson first observed defendant, then an habitual offender,

operating a motorcycle at a stoplight on Jefferson Davis (Davis)

Highway.   As Officer Jefferson followed, defendant proceeded

through the intersection to the corner of Royal Avenue and Davis
Highway, again stopped, yielded to oncoming traffic, and turned

left onto Royal Avenue.   Jefferson then "tried to pull

[defendant] over," 1 and defendant "looked back," "took off," and

"accelerated rapidly down Royal."   Over a distance of several

blocks, Jefferson attempted to "catch up to [defendant],"

traveling "approximately 75 [m.p.h.]" in a 25 m.p.h. speed zone.

 During the pursuit, defendant "accelerate[d] past" a group of

children crossing the street "in his . . . path," causing "some

[to] run[] in each direction . . . trying to get to the

sidewalk."
     The chase continued for "about another block" beyond the

children, ending when defendant "lost control" and "slid into a

wire fence in front of a residence."   Defendant "fell off" the

motorcycle, "jumped over [the] . . . fence[,] . . . ran to the

side of the house[,] through the backyard, . . . [and] down the

alley."   He was apprehended shortly thereafter and charged with

reckless driving, attempting to elude police, and feloniously

driving while an habitual offender, the instant offense.

     At trial on May 20, 1997 in the general district court,

defendant was convicted of attempting to elude police, and the

felony was certified to the grand jury.   However, the reckless
     1
      The reasons for the stop were not disclosed to the jury.
Defendant's counsel vouched the record with Jefferson's testimony
from an earlier trial, which had ended in a mistrial, that
detailed defendant's driving from the initial encounter until the
collision. Counsel represented to the court, without objection,
that such additional evidence was also before the general
district court.




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driving charge was dismissed for reasons explained only by check

marks at printed squares on the reverse side of the warrant

designated, "not guilty," and "I ORDER the charge dismissed."

The signature of the judge of the general district court appears

on the warrant.

     Following indictment in the trial court for the subject

offense, defendant moved the court to dismiss, arguing that the

general district court had previously "found the evidence . . .

insufficient to support the allegation of reckless driving," a

necessary element to the felonious habitual offender offense,

and, therefore, the Commonwealth was collaterally estopped from

prosecuting the indictment.   However, because the record failed

to disclose "the reason the judge dismissed" the reckless driving

charge, the court overruled defendant's motion.   Defendant

subsequently was convicted for the felonious habitual offender

violation, resulting in this appeal.

                       Collateral Estoppel
     Code § 46.2-357(B) provides, in pertinent part, that
          any person found to be an habitual offender
          . . ., who is thereafter convicted of driving
          a motor vehicle . . . while the revocation
          determination is in effect, shall be punished
          as follows:
          1. If such driving does not, of itself,
          endanger the life, limb, or property of
          another, such person shall be guilty of a
          misdemeanor . . . .
          2. If such driving of itself endangers the
          life, limb, or property of another . . .,
          such person shall be guilty of a felony
          . . . .




                               - 3 -
Thus, "driving of itself" which "endangers the life, limb, or

property of another" is an indispensable element to a felonious

violation of the statute.   Code § 46.2-357(B)(2).   Relying on the

doctrine of collateral estoppel, defendant reasons that dismissal

of the reckless driving charge by the general district court

constituted a valid, final judgment which favorably resolved the

endangerment element of Code § 46.2-357(B)(2), thereby precluding

further consideration of such conduct in the instant

prosecution. 2

     The doctrine of collateral estoppel arises from the Fifth

Amendment protection from double jeopardy and instructs that

"'when an issue of ultimate fact has once been determined by a

valid and final judgment, that issue cannot again be litigated

between the same parties in any future lawsuit.'"    Jones v.

Commonwealth, 217 Va. 231, 232, 228 S.E.2d 127, 128 (1976)

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

Commonwealth, 5 Va. App. 337, 341, 362 S.E.2d 752, 754 (1987).

However, "[t]he doctrine . . . does not apply if it appears that

the prior judgment could have been grounded 'upon an issue other

than that which the defendant seeks to foreclose from

consideration.'"   Lee v. Commonwealth, 219 Va. 1108, 1111, 254

S.E.2d 126, 127 (1979) (quoting Ashe, 397 U.S. at 444).    "The
     2
      Reckless driving contemplated by Code § 46.2-852, the
offense dismissed by the general district court, is defined by
"language virtually identical" to the conduct proscribed by Code
§ 46.2-357(B)(2). Bishop v. Commonwealth, 20 Va. App. 206, 211,
455 S.E.2d 765, 767 (1995).




                               - 4 -
party seeking the protection of collateral estoppel carries the

burden of showing that the verdict in the prior action




                              - 5 -
necessarily decided the precise issue he now seeks to preclude."

 Rogers, 5 Va. App. at 341, 362 S.E.2d at 754 (citation omitted).

     Since the principle of collateral estoppel was enunciated in

Ashe, "numerous attempts to invoke the doctrine have met with

little success."   Jones, 217 Va. at 233, 227 S.E.2d at 128.    An

acquittal, "standing alone, does not permit a conclusion with

respect" to a court's findings or rationale.     Copeland v.

Commonwealth, 13 Va. App. 450, 453, 412 S.E.2d 468, 470 (1991).

General "district courts frequently[, as here,] mark misdemeanor

warrants 'dismissed' without assigning specific grounds," acting,

"sometimes . . . not upon an adjudication of substantive issues,

but upon some technical procedural defect or, indeed, upon

nothing more than considerations of leniency."     Lee, 219 Va. at

1111, 254 S.E.2d at 128 3 ; see e.g., Clodfelter v. Commonwealth,

218 Va. 98, 107-08, 235 S.E.2d 340, 345-46 (1977) (district court

may have dismissed misdemeanor believing that offense was

"subsumed in . . . felony . . . certified to the grand jury").

Thus, it is "'usually impossible to determine with any precision

upon what basis the [fact finder] reached a verdict in a criminal

case,'" leaving the defense of collateral estoppel available to

an accused only in "'a rare situation.'"   Jones, 217 Va. at 233,
     3
      In Lee, the Court applied the doctrine to estop a
prosecution but, unlike the present record, defendant and the
Commonwealth had stipulated that the earlier dismissal by the
general district court was based upon insufficient evidence.
Lee, 219 Va. at 1111, 254 S.E.2d at 127-28. Thus, the "holding
. . . [was] strictly confined to the facts as detailed in the
stipulation filed in this case." Id.



                               - 6 -
228 S.E.2d at 128-29 (quoting United States v. Tramunti, 500 F.2d

1334, 1346, cert. denied, 419 U.S. 1079 (1974)).

     Here, the record does not reveal the reason for the

dismissal of the reckless driving charge by the general district

court.   Perhaps, the court, as defendant suggests, found the

evidence insufficient or, as likely, considered the misdemeanor

subsumed in the felony or simply decided to favor defendant with

leniency.   However, the precise reason for the acquittal, an

indispensable predicate to the defense of collateral estoppel,

cannot rely upon conjecture.   Thus, the doctrine did not bar

relitigation of the endangerment element of the instant felony,

and the court properly overruled defendant's motion to dismiss

the indictment.
                           The Indictment

     Defendant next complains that the indictment failed to

sufficiently allege a felonious violation of Code

§ 46.2-357(B)(2).   However, it is well established that we will

not consider an argument on appeal which was not presented to the

trial court, absent good cause shown or to attain the ends of

justice.    See Rule 5A:18; Snurkowski v. Commonwealth, 2 Va. App.

532, 536, 348 S.E.2d 1, 3 (1986).   Defendant failed to challenge

the indictment before the trial court and, finding no

justification to invoke the ends of justice exception, we decline

to address this issue.




                                - 7 -
                    Sufficiency of the Evidence

     When the sufficiency of the evidence is challenged on

appeal, we view the record in the light most favorable to the

Commonwealth, granting it all reasonable inferences fairly

deducible therefrom, and the decision will not be disturbed

unless plainly wrong or without evidence to support it.     See Code

§ 8.01-680; Higginbotham v. Commonwealth, 216 Va. 349, 352, 218

S.E.2d 534, 537 (1975).
     Code § 46.2-357(B)(2) criminalizes as a felony driving by an

habitual offender which, "of itself[,] endangers the life, limb,

or property of another."   Absent such conduct, the offense of

driving by an habitual offender violates Code § 46.2-357(B)(1), a

misdemeanor.   Thus, "[t]he distinction between negligent driving

and reckless driving is the critical element in determining

punishment under Code § 46.2-357."     Bishop, 20 Va. App. at

210-11, 455 S.E.2d at 767.   To convict, the Commonwealth must

prove driving by an accused that, standing alone, was "'"so

gross, wanton, and culpable as to show a reckless disregard of

human life."'"   Id. at 211, 455 S.E.2d at 767 (citations

omitted).

     Here, the evidence disclosed that defendant operated a

motorcycle at a high rate of speed, in gross violation of posted

limits, approached a group of children as they crossed the

roadway, prompting several to "run[] in each direction . . .

trying to get to the sidewalk" and, moments thereafter, lost




                               - 8 -
control, crashed into a fence and fled.   Such evidence clearly

supports a finding that defendant's driving endangered life,

limb, or property of others in violation of Code

§ 46.2-357(B)(2).

     Accordingly, we affirm the conviction.

                                                   Affirmed.




                              - 9 -
Benton, J., dissenting.

     The record establishes that Zuhaar Jamal Ramadan was tried

in the general district court on the charge of reckless driving.

 See Code § 46.2-852.     The reckless driving charge was based upon

conduct that also gave rise to the charge that Ramadan drove

recklessly after having been declared an habitual offender and

while his license to drive was still revoked.      See Code

§ 46.2-357.   The record proved that at the conclusion of the

evidence in the general district court, the judge of the general

district court "FOUND . . . [Ramadan] . . . not guilty" and

"[o]rder[ed] the charge dismissed."      As a proffer of evidence in

the circuit court, Ramadan offered testimony from a police

officer that the officer's testimony concerning the events that

gave rise to the charges was the same in both the general

district court and the circuit court.     The police officer was the

Commonwealth's only witness both in the general district court

and in the circuit court.
     "Collateral estoppel, a doctrine grounded in the Fifth

Amendment guarantee against double jeopardy and applicable to the

states under Benton v. Maryland, 395 U.S. 784 (1969), means that
'when an issue of ultimate fact has once been determined by a

valid and final judgment, that issue cannot again be litigated

between the same parties in any future lawsuit.'"      Lee v.

Commonwealth, 219 Va. 1108, 1110, 254 S.E.2d 126, 127 (1979)

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




                                - 10 -
Court of Virginia addressed the applicability of the doctrine of

collateral estoppel in Lee and Clodfelter v. Commonwealth, 218

Va. 98, 235 S.E.2d 340 (1977).

       In Clodfelter, a general district court judge "dismissed" a

charge that the accused later contended was dispositive of an

issue in a felony charge that was certified to the circuit court.

The general district court judge had "dismissed" a misdemeanor

charge of possession of marijuana and had certified to the

circuit court companion felony charges.   A circuit court judge

later convicted the defendant of the felony of possessing a

controlled substance that was "found at the same place in the

same container" as the marijuana.   218 Va. at 107, 235 S.E.2d at

346.   The Supreme Court rejected Clodfelter's contention that the

dismissal of the marijuana possession charge collaterally

estopped the Commonwealth from litigating the factual issue of

Clodfelter's possession of the controlled substance.   The Court

noted the following:
          It is not unreasonable or irrational to
          conclude from the record that the General
          District Court's dismissal . . . of the
          misdemeanor charge of possession of marijuana
          was grounded, not upon the lack of the
          evidence of possession, but upon the court's
          belief that this offense was subsumed in the
          more serious felony charge, possession of
          marijuana with intent to distribute, which
          the court had just certified to the grand
          jury.


Id. at 108, 235 S.E.2d at 346 (emphasis added).

       In Lee, the Supreme Court upheld a claim of collateral



                               - 11 -
estoppel where a judge of the general district court "dismissed"

a misdemeanor charge that was dispositive of an element of

felonies for which the defendant was convicted in the circuit

court.   219 Va. at 1111, 254 S.E.2d at 127.   The Court referred

to its earlier ruling in Clodfelter and stated that "[w]hen

grounds for a dismissal are not assigned and do not otherwise

appear of record, the doctrine of collateral estoppel will not be

applied since the defendant bears the 'burden of proving that the

precise issue or question he seeks to preclude was raised and

determined in the first action.'"     Lee, 219 Va. at 1111-12, 254

S.E.2d at 128 (quoting Clodfelter, 218 Va. at 106, 235 S.E.2d at

345) (emphasis added).   Significantly, the Court in Lee held as

follows:
           [I]t appears from the express language of the
           stipulation [in the record] that the judgment
           of dismissal . . . was based on insufficiency
           of the evidence, the particular ground
           assigned by defendant in his motion to
           dismiss. The only rational conclusion the
           stipulation permits is that, in sustaining
           the motion and dismissing the misdemeanor
           warrant, the district court decided that the
           evidence was insufficient to prove that
           defendant was driving his car on the date
           charged in the warrant. Whether defendant
           was driving his car on that date was "an
           issue of ultimate fact" in the misdemeanor
           prosecution and an element of each of the
           felonies charged in the indictments. Under
           the rule in Ashe, we must hold that the
           Commonwealth was estopped to prosecute the
           felonies.


219 Va. at 1111, 254 S.E.2d at 127.

     As in Lee, the record in Ramadan's case contains more than




                              - 12 -
the general district court judge's order reciting merely that the

misdemeanor prosecution was "dismissed."    The record in this case

clearly establishes that the general district court judge's order

"dismissed" the warrant because the judge found Ramadan "not

guilty."   That ruling determined the "issue of ultimate fact

. . . by a valid and final judgment."    Ashe, 397 U.S. at 443.    It

was a finding that the evidence was insufficient to prove

reckless driving, the issue of ultimate fact which was an element

of the prosecution of Ramadan in the circuit court for violation

of Code § 46.2-357(B)(2).    See Bishop v. Commonwealth, 20 Va.

App. 206, 211, 455 S.E.2d 765, 767 (1995) ("In defining the

conduct that gives rise to felony punishment under Code

§ 46.2-357(B)(2), the legislature used the phrase, 'driving

[that] . . . endanger[s] the life, limb, or property of another,'

language virtually identical to that found in the statute

defining reckless driving.").

     As the Supreme Court observed in Lee, this case again

"illustrates the need for the Commonwealth to assess the evidence

carefully and exercise selective discretion in the prosecution of

multiple offenses arising from the same transaction."   219 Va. at

1111, 254 S.E.2d at 127.    For these reasons, I would hold that

the Commonwealth was estopped to prosecute Ramadan in the circuit

court for a violation of Code § 46.2-357.




                                - 13 -
