                                           COURT OF APPEALS OF VIRGINIA


            Present: Judges Alston, McCullough and Senior Judge Clements
PUBLISHED


            Argued at Richmond, Virginia


            MICHAEL N. CURRIER
                                                                                  OPINION BY
            v.      Record No. 1428-14-2                                 JUDGE STEPHEN R. McCULLOUGH
                                                                               DECEMBER 15, 2015
            COMMONWEALTH OF VIRGINIA


                               FROM THE CIRCUIT COURT OF ALBEMARLE COUNTY
                                            Cheryl V. Higgins, Judge

                            J. Addison Barnhardt (Grisham & Barnhardt, PLLC, on briefs), for
                            appellant.

                            Susan Baumgartner, Assistant Attorney General (Mark R. Herring,
                            Attorney General, on brief), for appellee.


                    Michael N. Currier challenges his conviction for possession of a firearm after having been

            convicted of a violent felony. He argues that the Double Jeopardy Clause, and particularly its

            collateral estoppel protections, bar his conviction. He also contends that the trial court abused its

            discretion in concluding that evidence of appellant’s involvement in a breaking and entering and a

            grand larceny were relevant and not prejudicial to his charge of being a felon in possession of a

            firearm. We disagree and affirm.

                                                       BACKGROUND

                    Paul Garrison, II, returned home from work on March 7, 2012 to find that someone had

            broken into his home. A large gun safe containing cash, personal papers, and 20 guns was gone.

            The safe was later located, partially submerged in the Rockfish River in Nelson County. Police

            recovered it and discovered that the lock mechanism had been destroyed and removed. The

            firearms were badly damaged from the water.
         A neighbor testified that she had noticed a lot of “loud banging” and “loud noises” coming

from the Garrison residence across the street. She looked out from her front porch and observed an

older model white pickup truck with an orange stripe coming out of the Garrisons’ driveway. She

noticed two individuals in the truck and said there may have been a third. There was a safe on the

bed of the pickup truck. She could not identify the driver due to the glare on the windshield.

However, she positively identified appellant as the passenger from a photographic lineup and at

trial.

         Police developed Bradley Wood as a suspect. Wood is Garrison’s nephew, and he had been

to the Garrisons’ house before. Wood implicated appellant in the crime. Wood, a felon with an

extensive criminal record, had entered into a plea agreement with the Commonwealth. He testified

at trial that he had known appellant from prison. Wood thought there would be a large sum of

money in the safe. Wood mentioned this to appellant, who responded that “he was in the red on

child support and he really needed some money.”

         Wood and appellant broke into the Garrisons’ home and initially tried to cut the safe open

with a cutting torch, but failed. They returned with Wood’s truck, loaded the safe onto the truck,

and drove away with it. They were eventually able to open the safe. Appellant took out the guns

and loaded them onto the bed of the truck. They later placed the guns back in the safe and pushed

the safe into the water.

         When police located the truck and processed it for evidence, it appeared as if its bed had

been recently washed. Nevertheless, police found the white insulation from the gun safe that

matched what they found in the Garrisons’ home, metal shavings, and a cigarette butt containing

appellant’s DNA.

         Officer William Underwood testified concerning his efforts to apprehend appellant. He

conducted surveillance on a particular location where appellant was thought to be staying. He

                                                  -2-
turned to the U.S. Marshal Service for assistance in locating appellant, and ultimately arrested him

outside of a motel in Buckingham County. Underwood obtained warrants on March 7, 2012, but

appellant was not arrested until October 18, 2012.

        A single grand jury indicted appellant on the same date for burglary, grand larceny, and

possession of a firearm as a convicted felon. Prior to trial, the defense and the prosecution agreed to

sever the firearm charge from the grand larceny and the breaking and entering charges. The case

proceeded to trial on the burglary and grand larceny charges, and a jury acquitted appellant of

both charges.

        When the Commonwealth sought to try appellant on the remaining charge of felon in

possession of a firearm, appellant objected. He argued that the collateral estoppel protections

embodied in the Double Jeopardy Clause precluded his retrial on the felon in possession of a

firearm charge or, in the alternative, barred the Commonwealth from presenting evidence of his

involvement in the theft and burglary of the Garrisons’ home. The circuit court disagreed. The

court also held that the evidence of his involvement in the burglary and larceny was relevant and

that its relevance outweighed its prejudicial effect. Following a jury trial, appellant was convicted

and sentenced to serve five years in prison. Appellant filed a motion to set aside the jury verdict,

again raising the issue of collateral estoppel. The trial court denied the motion.

                                             ANALYSIS

        I. THE DOUBLE JEOPARDY CLAUSE DOES NOT BAR A SECOND TRIAL.

        Appellant argues that his acquittal in the prior trial means that the jury in that proceeding

resolved the factual issues in his favor. Therefore, he contends, he cannot be tried anew on the

firearm charge in a separate trial. The Commonwealth responds, among other arguments, that

we need not even undertake the collateral estoppel analysis because of the posture of this case.

Specifically, the Commonwealth notes that in this instance, all the charges were brought by a

                                                 -3-
single grand jury, and would have been heard in a single proceeding, but the cases were severed

to avoid any undue prejudice to the defendant that would stem from a single trial. In other

words, this scenario does not bring into play the concern that lies at the core of the Double

Jeopardy Clause: the avoidance of prosecutorial oppression and overreaching through

successive trials. We agree with the Commonwealth.

          “Whether there has been a double jeopardy violation presents a question of law requiring

a de novo review.” Fullwood v. Commonwealth, 279 Va. 531, 539, 689 S.E.2d 742, 747 (2010).

          The Double Jeopardy Clause provides that no person shall “be subject for the same offense

to be twice put in jeopardy of life or limb.” U.S. Const. amend. V. “Although the documentary

history of the Double Jeopardy clause is scanty, the available evidence suggests that the

draftsmen of the Bill of Rights intended to import into the Constitution the common law

protections much as they were described by Blackstone.” United States v. Jenkins, 490 F.2d

868, 873 (2d Cir. 1973) (Friendly, J.) (tracing the history of the Clause), aff’d, 420 U.S. 358

(1975).

          As a textual matter, the crime of possessing a firearm as a convicted felon is not the

“same offense” as burglary or larceny. Therefore, a plain language reading of the clause would

lead to the conclusion that appellant could be tried on the firearm charge after acquittal on the

other charges. The Supreme Court, however, has interpreted the Double Jeopardy Clause

according to the purposes it is designed to serve rather than according to its literal language.

Thus, for example, the Supreme Court made clear at an early date that the protections of the

clause are not limited to crimes where “life and limb” are at stake. Instead, its protections extend

to all criminal offenses. Ex Parte Lange, 85 U.S. (18 Wall.) 163, 173 (1874).

          One of the purposes of the clause is to protect final judgments. Crist v. Bretz, 437 U.S.

28, 33 (1978). To this end, the clause “protects against a second prosecution for the same

                                                  -4-
offense after acquittal. It protects against a second prosecution for the same offense after

conviction. And it protects against multiple punishments for the same offense.” North Carolina

v. Pearce, 395 U.S. 711, 717 (1969). The clause, however, is not “simply res judicata dressed in

prison grey.” Notes & Comments, Twice In Jeopardy, 75 Yale L.J. 263, 267 (1965). Its aim is

to prevent “oppressive practices” by the prosecution. Wade v. Hunter, 336 U.S. 684, 689 (1949).

       Appellant invokes the collateral estoppel protection component of the clause.

               “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.

Ashe v. Swenson, 397 U.S. 436, 443 (1970). Preventing prosecutorial abuse and overreaching

lies at the root of the constitutionalization of the collateral estoppel doctrine. Although not part

of the original conception of the clause, the Court observed that

               at common law, and under early federal criminal statutes, offense
               categories were relatively few and distinct. A single course of
               criminal conduct was likely to yield but a single offense. In more
               recent times, with the advent of specificity in draftsmanship and
               the extraordinary proliferation of overlapping and related statutory
               offenses, it became possible for prosecutors to spin out a startlingly
               numerous series of offenses from a single alleged criminal
               transaction. As the number of statutory offenses multiplied, the
               potential for unfair and abusive reprosecutions became far more
               pronounced. The federal courts soon recognized the need to
               prevent such abuses through the doctrine of collateral
               estoppel . . . .

Id. at 446 n.10 (citations omitted and emphasis added). The risk of unfair and abusive

prosecutions was on full display in Ashe. The appellant was tried for robbing one of six

participants in a poker game and was acquitted. Id. at 437-39. The prosecution then turned

around and tried appellant for robbing a different participant. Id. at 439-40. He was convicted in

this second trial. Id. at 440. The Court noted with dismay that “the State in its brief has frankly

conceded that following the petitioner’s acquittal, it treated the first trial as no more than a dry
                                                 -5-
run for the second prosecution.” Id. at 447. The Court concluded that such a practice “is

precisely what the constitutional guarantee forbids.” Id. Ashe did not involve a situation where

a charge was severed from a group of charges brought on the same date by the same grand jury,

with one charge being severed for the benefit of the defendant and with his consent.

        Every retrial or separate prosecution subjects the defendant to “embarrassment, expense,

and ordeal and compel[s] him to live in a continuing state of anxiety and insecurity.” Green v.

United States, 355 U.S. 184, 187 (1957). The function of the Double Jeopardy Clause, however,

is not to bar retrials or separate trials across the board. Rather, it bars a certain “type of ‘multiple

prosecution,’” where “prosecutorial overreaching” is present. Ohio v. Johnson, 467 U.S. 493,

494, 501 (1984) (emphasis added). See also Burks v. United States, 437 U.S. 1, 11 (1978) (“The

Double Jeopardy Clause forbids a second trial for the purpose of affording the prosecution

another opportunity to supply evidence which it failed to muster in the first proceeding.”). Thus,

for example, the clause does not bar a second trial for a defendant “who has succeeded in getting

his first conviction set aside.” Pearce, 395 U.S. at 720. Similarly, if the defendant pleads guilty

to lesser charges over the objection of the prosecution, the Double Jeopardy Clause does not bar

a trial on the more serious charges. Johnson, 467 U.S. at 494. The Court explained that in such

a situation, “[t]here simply has been none of the governmental overreaching that double jeopardy

is supposed to prevent.” Id. at 502. The Supreme Court has refused to allow the defendant “to

use the Double Jeopardy Clause as a sword to prevent the State from completing its prosecution

on the remaining charges.” Id.

        Appellant’s firearm charge was severed by agreement between the defense and the

prosecution, pursuant to our decision in Hackney v. Commonwealth, 28 Va. App. 288, 295, 504

S.E.2d 385, 389 (1998). In Hackney, we held that “a trial court must sever a charge of possession

of a firearm by a convicted felon from other charges that do not require proof of a prior

                                                  -6-
conviction.” Id. at 295, 504 S.E.2d at 389. The point of separate trials here was to benefit the

defendant by avoiding the undue prejudice that would occur upon mention of the defendant’s

felonious past to a jury. See id. at 293, 504 S.E.2d at 388. The purpose of the Bill of Rights as a

whole is to protect the citizenry from abusive practices by the government. The specific abuse

the Double Jeopardy Clause aims to prevent – including its collateral estoppel facet – is the

practice of “unfair and abusive reprosecutions.” Ashe, 397 U.S. at 446 n.10. That concern is not

present when a trial proceeds on a charge that was severed from a combined original group of

charges and the charge was severed with the defendant’s consent and for his benefit.

Accordingly, we decline to extend Ashe and we conclude that the trial court correctly found that

collateral estoppel principles do not apply in this situation.1

         Finally, Yeager v. United States, 557 U.S. 110 (2009), cited by appellant, does not

compel a different outcome. The issue before the Court in that case was whether the prosecution

could proceed with a new trial when a jury had acquitted the defendant on some charges but

hung on others. Id. at 112. Holding that the counts on which the jury hung played no role in the

collateral estoppel analysis, the Court concluded that appellant’s retrial was barred by the

collateral estoppel aspect of the Double Jeopardy Clause. Id. at 122-23. The Court in Yeager

simply did not address the question before us today: whether collateral estoppel forecloses a

second trial when the original proceeding was severed for appellant’s benefit and with his

consent.2 We decline appellant’s invitation to extend the holding in Yeager to these distinct

facts.


         1
          In light of our holding, we need not address the Commonwealth’s additional arguments
for affirmance.
         2
          Courts are divided with regard to whether collateral estoppel can bar a retrial when the
defendant has obtained severance of the charges against him and the first trial results in an
acquittal. Compare United States v. Blyden, 964 F.2d 1375, 1379 (3d Cir. 1992) (agreeing that
“where the defendants’ choice and not government oppression caused the successive
                                               -7-
       II. THE EVIDENCE OF APPELLANT’S INVOLVEMENT IN THE BURGLARY AND LARCENY WAS
           RELEVANT AND THE TRIAL COURT DID NOT ABUSE ITS DISCRETION IN WEIGHING ITS
           PROBATIVE VALUE AGAINST ITS PREJUDICIAL EFFECT.

       Appellant argues that even if the trial could proceed, the trial court abused its discretion in

admitting testimony from the Garrisons and testimony from the police about tracking down

appellant. He contends that the prejudicial effect of this evidence outweighed its probative value.

He argues that the crime of possession of a firearm by a felon is a “victimless crime” and that this

evidence served only to inflame the emotion of the jury.

       “In order for evidence that the accused has committed other crimes to be admissible, it

need only be relevant to prove a material fact or issue, and its relevance must outweigh the

prejudice inherent in proving that an accused has committed other crimes.” Wilson v.

Commonwealth, 16 Va. App. 213, 220, 429 S.E.2d 229, 234, aff’d on reh’g en banc, 17 Va. App.

248, 436 S.E.2d 193 (1993). “Such weighing is left to the discretion of the trial court and will not

be disturbed on appeal, absent an abuse of discretion.” Teleguz v. Commonwealth, 273 Va. 458,

482, 643 S.E.2d 708, 723 (2007).



prosecutions, the defendants may not assert collateral estoppel as a bar against the government
any more than they may plead double jeopardy” (citation and internal quotation marks omitted)),
United States v. Ashley Transfer & Storage Co., 858 F.2d 221, 225-27 (4th Cir. 1988) (“Where,
as in this case, the defendants’ choice and not government oppression caused the successive
prosecutions, the defendants may not assert collateral estoppel as a bar against the government
any more than they may plead double jeopardy.”), and State v. Chenique-Puey, 678 A.2d 694,
698-99 (N.J. 1996) (“A defendant who moves to sever the trial of a charge of contempt of a
domestic violence restraining order from the trial of an underlying offense should be precluded
from then asserting double jeopardy or collateral estoppel bars to the subsequent prosecution.”),
with United States v. Aguilar-Aranceta, 957 F.2d 18, 22-23 (1st Cir. 1992) (concluding that the
defendant had waived any double jeopardy claim through her consent to a mistrial, but going on
to consider whether acquittal on one charge had a collateral estoppel effect on the retrial of the
mistried charge), Joya v. United States, 53 A.3d 309, 315-19 (D.C. 2012) (holding that collateral
estoppel may bar a retrial even where charges were severed at the defendant’s request), Gragg v.
State, 429 So. 2d 1204, 1208 (Fla. 1983) (finding that a defendant’s severance motion does not
waive his right to assert the bar of collateral estoppel), and State v. Butler, 505 N.W.2d 806,
807-10 (Iowa 1993) (applying collateral estoppel to bar a separate trial that the defendant had
moved to sever).

                                                 -8-
        The felon in possession of a firearm charge would have made no sense isolated from its

context: that appellant, in association with at least one other confederate, stole a safe in the hopes of

recovering money, and there were some firearms inside the safe, which appellant briefly possessed.

The evidence of the other crimes was thus necessary to explain how appellant came to possess the

firearm.

                          Where a course of criminal conduct is continuous and
                interwoven, consisting of a series of related crimes, the perpetrator
                has no right to have the evidence “sanitized” so as to deny the jury
                knowledge of all but the immediate crime for which he is on trial.
                The fact-finder is entitled to all of the relevant and connected facts,
                including those which followed the commission of the crime on
                trial, as well as those which preceded it; even though they may
                show the defendant guilty of other offenses.

Scott v. Commonwealth, 228 Va. 519, 526-27, 323 S.E.2d 572, 577 (1984). The evidence

established that the cigarette butt with appellant’s DNA was found in a truck bed that had metal

shavings and insulation consistent with what was found in the Garrisons’ home.

        “Flight by a defendant after the commission of a crime is probative evidence of guilt of

that crime.” Lovitt v. Commonwealth, 260 Va. 497, 512, 537 S.E.2d 866, 876 (2000). The same

is true of evidence that appellant was seeking to avoid contact with law enforcement officers

after the commission of the crime. Id. at 513, 537 S.E.2d at 876. The evidence of the extensive

efforts needed to track down appellant was, therefore, relevant.

        Finally, we find no abuse of discretion by the trial court in finding that the probative

value of the evidence outweighed its prejudicial effect.

                                           CONCLUSION

        We affirm the judgment of the trial court.

                                                                                              Affirmed.




                                                  -9-
