PRESENT: Lemons, C.J., Goodwyn, Mims, McClanahan, Powell, and Roush, JJ., and Russell,
S.J.

COMMONWEALTH OF VIRGINIA
                                                              OPINION BY
v. Record No. 141674                               CHIEF JUSTICE DONALD W. LEMONS
                                                             October 29, 2015
RONALD TAFT DAVIS, III


                       FROM THE COURT OF APPEALS OF VIRGINIA

       In this appeal, we consider the preclusive effect of a misdemeanor acquittal on

subsequent felony convictions, when the misdemeanor and felony charges arose from the same

course of conduct and the trier of fact provided specific grounds for dismissal of the

misdemeanor charge.

                                       I. Facts and Proceedings

       The parties agree on the material facts of this case. Ronald Taft Davis, III (“Davis”) was

arrested on November 16, 2008, following a fatal shooting outside a restaurant in Surry County

in which the shooter fired ten or more gunshots into an occupied parked car, killing Keonta

Fountain. Davis was charged with first-degree murder, maliciously shooting into an occupied

vehicle, and use of a firearm in the commission of a felony. He was also charged with a

misdemeanor offense of reckless handling of a firearm under Code § 18.2-56.1.

       On December 16, 2008, Davis appeared in the General District Court of Surry County

(“district court”) for a trial on the misdemeanor charge and a preliminary hearing on the felonies.

Several witness testified at the hearing, and a court reporter was present to transcribe the

proceedings. A deputy sheriff testified that he responded to the Colonial Farmhouse Restaurant

and Tavern shortly after 2 a.m. and found the victim lying face down in a parked car with

gunshot wounds to the head. Joanna Butler (“Butler”), a friend of the victim, testified that she
observed a verbal dispute between several people outside of the restaurant. Butler said that as

she and the victim turned to get into a car, she heard shots, ducked down, and could not see who

was shooting.

       Another restaurant patron, Tim Johnson (“Johnson”), testified that he heard gunshots and

saw someone wearing a black shirt and holding a gun approximately fifteen to twenty feet away

from the vehicle. When asked specifically whether Johnson could identify Davis as the shooter,

Johnson responded that he could not.

                Q: Did you see Ron Davis?

                A: No.

                Q: Did you see who started the shooting?

                A: No.
                                                   ....
                Q: Look over there. Do you know Ron Davis?

                A: Yeah, I know him.

                Q: You can’t say that it was him, but it was someone dressed in
                black; is that correct?

                A: I can’t say. I don’t know if it was him or not.

       Juan Giles (“Giles”), who was riding with Davis after the shooting, testified that Davis

spoke about having “got[ten] rid of a gun,” but Giles did not know what gun Davis was

referencing. On direct examination, Giles disavowed a prior statement to police in which he had

implicated Davis, saying that police threatened him into making his earlier statement. Giles also

testified that Davis wore a shirt which was primarily white, red, and green, with a black

background.

       At the conclusion of the hearing, Davis’ attorney asked the district court to acquit Davis

on the misdemeanor charge and to dismiss the felony charges for lack of probable cause. After



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considering the evidence, the district court dismissed the misdemeanor reckless handling of a

firearm charge and refused to certify Davis’ felony charges to the circuit court for lack of

probable cause. The district court judge made three specific findings:

               On the issue of probable cause, clearly the Commonwealth has met
               its burden as to whether a felony was committed or not.

               On the issue of whether or not you’ve shown it reasonable to
               believe Mr. Davis was the one that fired the weapon, I find that
               you have not met that burden, and I find no probable cause.

               On the misdemeanor charge as to whether or not you’ve proven the
               case beyond a reasonable doubt, I would find that you have not.
               I’m going to find him not guilty of that charge.

The district court judge then signed and placed a checkmark in the printed square on the reverse

side of the warrant designated “not guilty.”

       The Commonwealth subsequently brought the case before a grand jury and obtained

direct indictments charging Davis with first-degree murder and attempted first-degree murder.

Before trial, Davis moved to dismiss the indictments on collateral estoppel grounds because of

his acquittal on the misdemeanor charge. In his motion, Davis argued that if the facts were

insufficient for the general district court to convict him of recklessly handling “any firearm so as

to endanger the life, limb, or property of any person,” then “[c]learly the evidence was

insufficient to establish” that he was the shooter. The circuit court denied Davis’ motion and the

case proceeded to a jury trial.

       After a two-day trial, the jury convicted Davis of first-degree murder and attempted first-

degree murder. The circuit court sentenced Davis to 60 years’ imprisonment. Davis then

appealed his felony convictions to the Court of Appeals, arguing that the circuit court erred in

denying his pre-trial motion to dismiss on collateral estoppel grounds.




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       A divided three-judge panel of the Court of Appeals reversed Davis’ convictions and

dismissed the indictments. Davis v. Commonwealth, 63 Va. App. 45, 754 S.E.2d 533 (2014).

The panel held that the Commonwealth was collaterally estopped from prosecuting Davis for

murder or attempted murder. Because the district court acquitted Davis of reckless handling of a

firearm, the panel held that Davis could not be subsequently tried on the murder charges. Id. at

51, 754 S.E.2d at 536. The panel concluded that

               the judge’s factual finding, when read in the context of the
               evidence presented by the Commonwealth and the argument of
               counsel, simply does not support a conclusion that the
               misdemeanor acquittal was based on any element of any of the
               offenses under consideration other than the identity of the criminal
               agent.
                                              ....
               Since the district court judge, in acquitting Davis of the
               misdemeanor, held that the Commonwealth had failed to establish
               that Davis was the gunman, the Commonwealth was precluded
               from relitigating that fact in the prosecution of the crimes of
               murder and attempted murder arising out of the same event.

Id. at 55-56, 754 S.E.2d at 539. * The dissent characterized the misdemeanor acquittal as a

general verdict and thus insufficient to trigger collateral estoppel. Id. at 61, 754 S.E.2d at 541.

       The Court of Appeals, sitting en banc, affirmed the panel decision, see Davis v.

Commonwealth, 64 Va. App. 70, 764 S.E.2d 724 (2014), with three judges dissenting. We

granted the Commonwealth’s appeal to this Court on the following assignment of error:

               The Court of Appeals erred in holding that collateral estoppel
               barred prosecution of the defendant for murder and attempted
               murder after the defendant's acquittal in the general district court
               of reckless handling of a firearm.




       *
         The Court of Appeals remanded the case to the circuit court “for the sole purpose of
amending [the circuit court’s] records to show the correct offense description.” 63 Va. App. at
57, 754 S.E.2d at 540.

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                                             II. Analysis

                                         A. Standard of Review

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

Amendment guarantee against double jeopardy.” Rhodes v. Commonwealth, 223 Va. 743, 747,

292 S.E.2d 373, 375 (1982). “Because collateral estoppel involves mixed questions of law and

fact, not pure questions of law, we apply a de novo standard of review as to . . . whether

collateral estoppel is applicable but we are bound by the underlying factual issues as determined

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

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

v. Bogard, 264 Va. 219, 225, 563 S.E.2d 719, 722 (2002) (“We give deference to the trial court's

factual findings and view the facts in the light most favorable to . . . the prevailing parties

below.”). When a defendant seeks to invoke collateral estoppel, he or she 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).

                                       B. Collateral Estoppel

       In a criminal context, collateral estoppel is the doctrine of issue preclusion based upon

the Fifth Amendment’s protection against double jeopardy, which has been recognized as a

constitutional guarantee applicable to state prosecutions. Ashe v. Swenson, 397 U.S. 436, 445-

46 (1970). In Ashe, a criminal defendant was charged with six counts of armed robbery for

robbing six men at a card game. Id. at 438. The charges were tried separately. Id. At trial for

the first charge, “[t]he proof that an armed robbery had occurred . . . was unassailable,” as four of

the victims testified to substantially the same series of events. Id. However, “the State’s

evidence that [Ashe] had been one of the robbers was weak.” Id. Consequently the jury




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acquitted Ashe of the first charge in a verdict that expressly stated that he was “not guilty due to

insufficient evidence.” Id. at 439. The state proceeded to try Ashe on one of the other charges at

a subsequent trial, over Ashe’s objection. Id. At the second trial, the witnesses’ testimony as to

Ashe’s identity was much stronger, Ashe was convicted, and the court sentenced him to 35

years’ imprisonment. Id. at 440. Ashe sought federal habeas corpus relief and appealed the

denial of his petition for a writ of habeas corpus to the Supreme Court of the United States. Id.

       The Supreme Court granted habeas relief on the grounds that criminal collateral estoppel

applied. The Supreme Court stated:

               “Collateral estoppel” is an awkward phrase, but it stands for an
               extremely important principle in our adversary system of justice.
               It 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. at 443. The Court held that “this established rule of federal law is embodied in the Fifth

Amendment guarantee against double jeopardy.” Id. at 443-45 (citing United States v.

Oppenheimer, 242 U.S. 85 (1916)). In order to determine which specific issues are barred from

relitigation in the usual instance of a “general verdict,” the reviewing court must “examine the

record of [the] prior 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. In

Ashe’s case, “[t]he single rationally conceivable issue in dispute before the jury was whether

[Ashe] had been one of the robbers. And the jury by its verdict found that he had not. The

federal rule of law, therefore, [made] a second prosecution for the robbery of [the second man]

impermissible.” Id. at 445.




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       Nine years after Ashe, we addressed the issue of collateral estoppel in the criminal

context in Lee v. Commonwealth, 219 Va. 1108, 254 S.E.2d 126 (1979), on facts very similar to

those at issue here. In Lee, as in this case, the defendant was charged with multiple felonies and

a related misdemeanor: felony manslaughter, felony hit and run, and misdemeanor driving on a

revoked license, all alleged to have occurred on the same day. Id. at 1109-10, 254 S.E.2d at

126-27. In Lee, as in this case, the preliminary hearings on the felonies and the trial on the

misdemeanor occurred in one proceeding in the general district court, and the defendant was

acquitted of the misdemeanor charge because the evidence was insufficient. Id. at 1110-11, 254

S.E.2d at 127. And in Lee, as in this case, there was evidence in the record of the reason the

district court judge dismissed the misdemeanor charge. Id. In Lee, we reversed the felony

convictions because of the “express language of the stipulation [of proceedings in the district

court],” in which “the district court decided that the evidence was insufficient to prove that [the]

defendant was driving his car on the date charged in the warrant,” which was both “‘an issue of

ultimate fact’ in the misdemeanor prosecution and an element of each of the felonies charged in

the indictments.” Id. at 1111, 254 S.E.2d at 127. On the record this was the “only rational

conclusion” as to the grounds for the dismissal of the misdemeanor charge. Id. Consequently,

we held “that the Commonwealth was estopped to prosecute the felonies.” Id.

       Since Lee, we have continued to apply criminal collateral estoppel in numerous contexts.

In Simon v. Commonwealth, 220 Va. 412, 258 S.E.2d 567 (1979), the defendant was charged

with driving under the influence and involuntary manslaughter. Id. at 413-14, 258 S.E.2d at 568-

69. He initially refused consent to have his blood drawn. Id. Blood was later drawn after he

consented orally but without having been taken before a magistrate as required by statute. Id.

He was tried in the district court on the charge of driving under the influence, successfully




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suppressed the blood-sample intoxication evidence, and was acquitted of the misdemeanor

charge. Id. At his trial in the circuit court for the felony manslaughter charge, the blood-sample

intoxication evidence was admitted over the defendant’s objection, and he was convicted. Id.

We reversed the conviction and held that in subsequent prosecutions, criminal collateral estoppel

bars the Commonwealth “from introducing evidence in order to relitigate an issue already

resolved in a defendant’s favor”—in Simon’s case, the fact of his intoxication. Id. at 417, 258

S.E.2d at 571.

       Our holding in Lee compels our decision here. As the Court of Appeals noted, “the

misdemeanor charge was part and parcel of the same incident as the murder and attempted

murder.” Davis, 63 Va. App. at 54 n.11, 754 S.E.2d at 538 n.11. All three charges stemmed

from the same alleged course of criminal conduct. All three charges required proof of the same

issue of ultimate fact: that Ronald Davis fired a weapon at a vehicle in the parking lot outside the

Colonial Farmhouse Restaurant on the night of November 16, 2008. The district court’s finding

that the evidence was insufficient to prove the identity of the shooter was a determination of that

fact that was applicable to all three charges. Upon the entry of a final judgment of acquittal on

the misdemeanor, the Commonwealth was precluded from trying Davis on any other charge

which required proof of that specific fact as an element of the crime. When the Commonwealth

obtained felony convictions that relied on that specific fact, it put Davis twice in jeopardy for the

same offense and violated his rights under the Fifth Amendment.

       It is important to clarify that our decision is based on the final judgment of acquittal and

not on the district court’s refusal to certify the felony charges. Collateral estoppel only applies

when “the issue was actually and necessarily decided in the defendant’s favor” in the prior

criminal proceeding. Schiro v. Farley, 510 U.S. 222, 236 (1994); see also Rhodes, 223 Va. at




                                                  8
749, 292 S.E.2d at 376. Virginia law is abundantly clear that “a mere dismissal of a felony

warrant at a preliminary hearing . . . cannot operate as an acquittal, or finding of not guilty.”

Moore v. Commonwealth, 218 Va. 388, 393, 237 S.E.2d 187, 191 (1977). The preclusion in this

case was triggered by the misdemeanor acquittal. The specific reasons for that acquittal are

abundantly clear in the record: the Commonwealth failed to prove that Davis was the shooter.

Davis has proven that his subsequent felony convictions were premised on the same issue of

ultimate fact that was actually and necessarily decided in his favor in the misdemeanor trial.

       Our decision today is premised upon the record of the proceedings below. As we

observed in Lee, “district courts frequently mark misdemeanor warrants ‘dismissed’ without

assigning specific grounds.” 219 Va. at 1111, 254 S.E.2d at 128. “When grounds for a dismissal

are not assigned and do not otherwise appear of record, the doctrine of collateral estoppel will

not be applied.” Id. However, even when a charge is dismissed on a general verdict of acquittal,

we “examine the record of [the] prior proceeding, taking into account the pleadings, evidence,

charge, and other relevant matter,” to determine the precise fact on which the acquittal stood.

Ashe, 397 U.S. at 444 (emphasis added). The district court judge’s statements in the present

record are precisely the kind of relevant matter we are required to consider under Ashe. So too

are the arguments of counsel. Both the Commonwealth’s attorney and Davis’ counsel focused

their arguments on the identity of the shooter. Considered in context, the record demonstrates

that Davis’ misdemeanor acquittal and subsequent felony convictions were based on the same

issue of ultimate fact—a result barred by the prohibition of double jeopardy.

                                           III. Conclusion

       For the reasons stated, we will affirm the judgment of the Court of Appeals reversing the

judgments of conviction and dismissing the felony indictments. The case will be remanded to the




                                                  9
Court of Appeals with directions to remand to the Circuit Court of Surry County for the limited

purpose identified in the Court of Appeals’ opinion.

                                                                          Affirmed and remanded.

JUSTICE McCLANAHAN, dissenting.

       I dissent for the reasons stated in the dissenting opinion of the panel decision of the Court

of Appeals, Davis v. Commonwealth, 63 Va. App. 45, 754 S.E.2d 533 (2014) (Beales, J.,

dissenting). Accordingly, I would reverse the judgment of the Court of Appeals and affirm the

circuit court’s judgment of convictions.




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