Hudgins v. Commonwealth

577 S.E.2d 505, 40 Va. App. 1, 2003 Va. App. LEXIS 97

Opinions

ELDER, Judge.

Tarik H. Hudgins (appellant) appeals from his bench trial conviction for grand larceny from the person in violation of Code § 18.2-95(i). On appeal, he contends the trial court erroneously ruled that his trial and conviction for grand larceny from the person did not violate double jeopardy principles in light of his previous acquittal on an indictment for robbery arising out of the same theft. Because appellant’s acquittal on the robbery indictment acted as an acquittal on the lesser-included offense of petit larceny, we hold that the collateral estoppel protections of the Double Jeopardy Clause barred the Commonwealth’s subsequent attempt to convict appellant for the grand larceny of that same bicycle from the person of the victim. Thus, we reverse and dismiss.

I.

BACKGROUND

On October 1, 2000, appellant pushed an eleven-year-old boy (the victim) from his bicycle and took the bicycle from him.

On February 28, 2001, the grand jury issued an indictment charging that, “On or about Sunday, October 1, 2000,” appellant “did rob [the victim] of U.S. Currency or other personal property, in violation of Code § 18.2-58.” In a bench trial on March 16, 2001, appellant was tried on the robbery indictment and found not guilty. Before acquitting appellant of robbery, the trial court indicated its belief that the evidence was sufficient to support a conviction for larceny from the person but that it could not convict appellant of larceny from the person on an indictment for robbery because larceny from the person was not a lesser-included offense of robbery.

On March 26, 2001, the grand jury issued a different indictment alleging that “On or about Sunday, October 1, 2000,” appellant “did steal property having a value of five dollars ($5) or more from the person of [the victim], in violation of Code § 18.2-95.”

Appellant moved to dismiss on grounds of former jeopardy. In a memorandum in support of that motion, he conceded the general principle that larceny from the person is not lesser included in the offense of robbery. However, he argued that the Commonwealth impermissibly relied on the same theft to support the second indictment that it had to support the first indictment, on which he was acquitted. The Commonwealth conceded in the trial court that “the ‘same conduct’ by [appellant] resulted in the two indictments, one for Robbery, and one for Grand Larceny from the Person.”

Relying on Graves v. Commonwealth, 21 Va.App. 161, 462 S.E.2d 902 (1995), aff'd on reh’g en banc, 22 Va.App. 262, 468 S.E.2d 710 (1996), the trial court denied the motion, holding that “while the act alleged — the theft of a bicycle — may be the same, robbery and larceny from the person are not identical offenses.”

After hearing evidence on the grand larceny indictment, the trial court convicted appellant, and he noted this appeal.

II.

ANALYSIS

Double jeopardy principles “protect[ ] against prosecution for the same offense after either an acquittal or a conviction of that offense and against multiple punishments for that same offense.” Coleman v. Commonwealth, 261 Va. 196, 199, 539 S.E.2d 732, 733-34 (2001). Under a “same elements” test, sometimes referred to as the Blockburger test, see Blockburger v. United States, 284 U.S. 299, 304, 52 S.Ct. 180, 182, 76 L.Ed. 306 (1932) (holding that to determine whether single act constitutes one offense or two, court must examine “whether each provision requires proof of a fact which the other does not”); see also Brown v. Ohio, 432 U.S. 161, 168-69, 97 S.Ct. 2221, 2226-27, 53 L.Ed.2d 187 (1977) (holding that “[t]he greater offense is ... by definition the ‘same’ for purposes of double jeopardy as any lesser offense included in it” and, thus, that conviction for lesser offense prevented subsequent conviction for greater offense), former jeopardy applies to prevent prosecution under multiple indictments (1) when the two offenses are identical; (2) when the former offense is lesser-included in the subsequent offense; and (3) when the subsequent offense is lesser-included in the former offense. Jones v. Commonwealth, 218 Va. 757, 759, 240 S.E.2d 658, 660 (1978). “The elements of the crimes, their ‘fundamental nature,’ are determinative, not ‘the particular facts of a specific case____’ ” Crump v. Commonwealth, 13 Va.App. 286, 290, 411 S.E.2d 238, 241 (1991) (quoting Taylor v. Commonwealth, 11 Va.App. 649, 652, 400 S.E.2d 794, 795 (1991)), quoted with approval in Graves, 21 Va.App. at 164-65, 462 S.E.2d at 903-04.

Although the United States Supreme Court has abandoned the “same conduct” test of Grady v. Corbin, 495 U.S. 508, 110 S.Ct. 2084, 109 L.Ed.2d 548 (1990), overruled in United States v. Dixon, 509 U.S. 688, 703-12, 113 S.Ct. 2849, 2859-64, 125 (1993), it continues to acknowledge that collateral estoppel is a component of the Fifth Amendment’s protections against double jeopardy, Dixon, 509 U.S. at 691, 704-05, 113 S.Ct. at 2853, 2860. “For whatever else [the Fifth Amendment guarantee against double jeopardy] may embrace, it surely protects a man who has been acquitted from having to ‘run the gantlet’ a second time.” Ashe v. Swenson, 397 U.S. 436, 445-46, 90 S.Ct. 1189, 1195, 25 L.Ed.2d 469 (1970) (citation omitted).

Collateral estoppel “may bar a later prosecution for a separate offense where the Government has lost an earlier prosecution involving the same facts.” Dixon, 509 U.S. at 705, 113 S.Ct. at 2860.

[W]hen 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. Although first developed in civil litigation, collateral estoppel has been an established rule of federal criminal law ... [for] more than 50 years____

[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, and conclude whether a rational [trier of fact] could have grounded its verdict upon an issue other than that which the defendant seeks to foreclose from consideration.” The inquiry “must be set in a practical frame and viewed with an eye to all the circumstances of the proceedings.” Sealfon v. United States, 332 U.S. 575, 579, 68 S.Ct. 237, 92 L.Ed. 180, 184. Any test more technically restrictive would, of course, amount to a rejection of the rule of collateral estoppel in criminal proceedings, at least in every case where the first judgment was based on a general verdict of acquittal.

Ashe, 397 U.S. at 443-44, 90 S.Ct. at 1194 (footnote omitted).

On appeal, appellant contends that the offense of grand larceny from the person was lesser included in the offense of robbery under the facts of this case. Based on the holding in Graves, we disagree.

Graves involved a robbery indictment which “contained no allegation of the value of the property stolen and no allegation that the property was taken from [the victim’s] person.” 21 Va.App. at 164, 462 S.E.2d at 903. Under those circumstances, we held that “the [robbery] indictment, on its face, failed to specify an accusation of grand larceny from the person.” Id. As a result, we concluded, “grand larceny from the person was not a lesser offense included within the robbery specification of the indictment.” Id. at 166, 462 S.E.2d at 904.

Although Graves involved the trial court’s authority to convict the defendant for grand larceny from the person on an indictment charging robbery arising out the same facts, we believe its holding is equally applicable here. Here, as in Graves, the first indictment, the robbery indictment, “contained no allegation of the value of the property stolen and no allegation that the property was taken from [the victim’s] person.” Id. at 164, 462 S.E.2d at 903. The second indictment, as required to charge grand larceny of the person, alleged that the value of the property stolen was five dollars or more and that the property was taken “from the person of [the victim].” Thus, here, as in Graves, the offense of grand larceny from the person was not lesser included in the offense of robbery. That appellant’s case involved successive indictments while Graves involved a single indictment is not dispositive.

Nevertheless, we conclude appellant’s conviction for grand larceny from the person is barred by collateral estoppel. Although appellant did not denominate it as such at trial or on appeal, a careful review of his argument at both stages indicates Ms contention that the collateral estoppel component of the Double Jeopardy Clause barred his prosecution on the second indictment.

As outlined above, collateral estoppel applies both civilly and criminally to prevent relitigation, in a future lawsuit between the same parties, of “an issue of ultimate fact [that] has once been determined by a valid and final judgment.” Ashe, 397 U.S. at 443, 90 S.Ct. at 1194. Collateral estoppel applies “when the prior acquittal necessarily resolved the issue now in litigation.” Simon v. Commonwealth, 220 Va. 412, 418, 258 S.E.2d 567, 571 (1979). “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, 90 S.Ct. at 1194). “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 now seeks to preclude.” Rogers v. Commonwealth, 5 Va.App. 337, 341, 362 S.E.2d 752, 754 (1987).

Here, the evidence established that appellant previously had been acquitted of robbery of the victim’s bicycle, and the Commonwealth conceded that the subsequent indictment for grand larceny from the person was based on appellant’s alleged theft of the same bicycle from the same victim on the same occasion as charged in the first indictment. Under the indictment charging appellant with robbery, he was subject to conviction not only for that robbery but also for any lesser offenses necessarily included in it, ineludmg petit larceny of the same bicycle. See, e.g., Harrell v. Commonwealth, 11 Va.App. 1, 6, 396 S.E.2d 680, 682 (1990). Appellant’s acquittal on the robbery charge in Ms circmt court bench trial, the only charge arising out of this incident then pending against him, constituted an acquittal for petit larceny of that bicycle. See Myers v. Commonwealth, 148 Va. 725, 729-30, 138 S.E. 483, 484 (1927) (stating principle that acqmttal of greater offense constitutes acquittal of all lesser offenses and bars subsequent prosecution of those lesser offenses). Under the facts of this case, appellant’s acquittal, as a matter of law, operated as a finding that appellant did not commit petit larceny of the victim’s bicycle. Appellant met his “burden of showing that the verdict in the prior action necessarily decided the precise issue he now seeks to preclude,” Rogers, 5 Va.App. at 341, 362 S.E.2d at 754, and the Commonwealth and the court were bound by this finding in the second proceeding.

The trial court’s statement in the first proceeding that it believed the evidence was insufficient to prove robbery but sufficient to prove larceny from the person does not support a different result. The trial court’s apparent belief that the evidence was sufficient to prove petit larceny is insufficient to contravene its acquittal of appellant for petit larceny, by operation of law, as a lesser-included offense of the robbery for which appellant was acquitted. Myers, 148 Va. at 729-30, 138 S.E. at 484; see McBride v. Commonwealth, 24 Va.App. 30, 35, 480 S.E.2d 126, 128 (1997) (holding that “[a] court speaks through its orders and those orders are presumed to accurately reflect what transpired”); see also Stamper v. Commonwealth, 220 Va. 260, 280-81, 257 S.E.2d 808, 822 (1979) (noting that .presumption ordinarily applies where order conflicts with transcript of related proceedings). When the trial court voiced its opinion that the evidence was insufficient to prove robbery but sufficient to prove larceny from the person, the Commonwealth should have asked the court to convict appellant of petit larceny in order to avoid the issue preclusion which bars appellant’s conviction on the second indictment. See Johnson v. Commonwealth, 221 Va. 736, 743, 273 S.E.2d 784, 789 (1981) (citing United States v. Scott, 437 U.S. 82, 98 S.Ct. 2187, 57 L.Ed.2d 65 (1978), for the proposition that “a defendant is acquitted for double jeopardy purposes where the ruling of the trial judge represents a resolution in the defendant’s favor, correct or not, of some or all of the factual elements of the offenses charged”). To hold otherwise would contravene the core protections of the Double Jeopardy Clause.

Finally, we conclude our holding in Ramadan v. Commonwealth, 28 Va.App. 708, 508 S.E.2d 357 (1998), also does not require a different result. Ramadan involved a district court proceeding in which the court acquitted the defendant of reckless driving and simultaneously certified to the grand jury a charge of feloniously driving a motor vehicle after having been adjudicated an habitual offender. Id. at 712, 508 S.E.2d at 359. Both acts arose out of the same conduct. Id. The felony charge required proof of “ ‘driving of itself which ‘endangers the life, limb, or property of another,’ ” id. at 713, 508 S.E.2d at 359 (quoting Code § 46.2-357(B)(2)), an act of driving which we noted was defined by “ ‘language virtually identical’ ” to the language defining the reckless driving offense dismissed by the district court, id. at 713 & n. 2, 359-60 & n. 2 (quoting Bishop v. Commonwealth, 20 Va.App. 206, 211, 455 S.E.2d 765, 767 (1995)).

Although we noted in Ramadan that “[a]n acquittal, ‘standing alone, does not permit a conclusion with respect’ to a court’s findings or rationale,” id. at 714, 508 S.E.2d at 360 (quoting Copeland v. Commonwealth, 13 Va.App. 450, 453, 412 S.E.2d 468, 470 (1991)), we did so in the context of courts not of record, noting “[gjeneral ‘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,’ ” id. (quoting Lee, 219 Va. at 1111, 254 S.E.2d at 128). We noted as an additional example the case of Clodfelter v. Commonwealth, 218 Va. 98, 107-08, 235 S.E.2d 340, 345-46 (1977), in which the Court held the district court may have dismissed the misdemeanor on the belief that it was “subsumed in the ... felony charge ... certified to the grand jury.” Ramadan, 28 Va.App. at 714, 508 S.E.2d at 360.

Thus, Ramadan involved the preclusive effect of a district court’s misdemeanor acquittal on a related felony charge simultaneously certified by that court to the grand jury. Under those circumstances, we declined the defendant’s invitation to hold the acquittal of the misdemeanor on unspecified grounds compelled a finding that the evidence was insufficient to prove the certified felony offense.

In appellant’s case, by contrast, the challenged proceedings were successive rather than concurrent and involved circuit court rather than district court proceedings. The trial court’s acquittal of appellant in the first proceeding stood alone and constituted an acquittal of appellant for petit larceny as a matter of law. Although the basis for a court’s decision is often hard to prove for the purpose of invoking collateral estoppel in a criminal trial, the United States Supreme Court noted in Ashe that a test which is too “technically restrictive would, of course, simply amount to a rejection of the rule of collateral estoppel in criminal proceedings, at least in every case where the first judgment was based on a general verdict of acquittal.” Ashe, 397 U.S. at 444, 90 S.Ct. at 1194.

For these reasons, we hold that the Commonwealth was collaterally estopped from attempting to prove in appellant’s second prosecution the underlying petit larceny for which he was acquitted in the first prosecution. Thus, the trial court erroneously denied his motion to dismiss and erroneously convicted him of grand larceny from the person. Accordingly, we reverse and dismiss appellant’s conviction.

Reversed and dismissed.