__________ * Judge Bray participated in the hearing and decision of this case prior to the effective date of his retirement on September 1, 2002 and thereafter by his designation as a senior judge pursuant to Code § 17.1-401. COURT OF APPEALS OF VIRGINIA

Present: Judges Bumgardner, Cl ements and Senior Judge Bray* Argued at Ches apeake, Virginia

BARRY FRANCI S NEFF, JR. OPINION BY v. Record No. 1145-01-1 JU DGE JEAN HARR ISON CLEMENTS SEPTEMBER 10, 2002 COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF THE CITY OF WILLIAMSBURG AND COUNTY OF JAMES CITY Samuel Taylor Po well, III, Judge Deborah M. Wagner (McDermott & Roe, on brief), for appellant. Margaret W. Reed, As sistant Attorn ey General (Jerry W. Kilg ore, Attorney General, on brief), for appellee.

Barry Francis Neff, Jr., was indicted and convic ted in a bench trial of driving under the influe nce, second offense, in violation of Code §§ 18.2-266 and 18.2-2 70. On appeal, he contends the trial cour t erred in denying his motion to quash the indictment because the doctri nes of double jeopardy and res judicata barred the indict ment and its prosec ution. For the reasons that follow, we find no error and affirm Neff's conviction.I. BACKGROUND On October 19, 20 00, Neff was convic ted in the general district court of driv ing under the in fluence (DUI). He noted his appeal to the ci rcuit court that same day. On October 25, 2000, Neff was arrested and charged with DU I, second offe nse. Neff's appeal of the conviction on the first DUI of fense was still pending in the circuit court on November 16, 2000, when the trial on the second DUI of fense was set to comm ence in th e general district court. Thus , when the second DUI case was called for trial in the general di strict court, the Comm onwealth moved for a continuance. Ne ff objected to a cont inuance beca use he had received no prio r notice of the Commonwealth's mo tion and both parties had witnes ses present. Th e general distri ct court judge denied the Commonwealth 's motion for a contin uance, whereupon the Commonwealth moved to nolle prosequi the charge. The judge likewise denied the Commonwealth 's motion to nolle prosequi . Neff then entered a plea of not guilty. The judge asked the Commonwealth to present its case. The Commonwealth declined to present any witnes ses. No witnes ses were sworn. The judge then dismissed the DU I, second offense, charge against Neff. The Commonwealth subsequently directly indicted Neff in the circuit court for DUI, second offense. Neff moved to quash the indictment, arguing, inter alia , that the doctri nes of double jeopardy and res judicata prohibited any furt her prosec ution on the same charge that had been dismissed by the general district

- 2 -court. The circ uit court judge overruled the mo tion and found Neff guilty on his co nditional plea of guilty. This appeal followed. II. ANALYSIS On appeal, Neff cont ends the trial court erred in denying his motion to quas h the indictment becaus e his indict ment and prosecution in the ci rcuit court on the sa me charge that was dismissed by the gene ral district court we re barred under the doctrines of doub le jeopardy and res judicata

. "In determining whether the trial court made an error of law, 'we review the trial court' s . . . legal conclusions de novo .'" Rollins v. Commonwealth , 37 Va. App. 73, 79 , 554 S.E.2d 99, 102 (2001) (quoting Timbers v. Commonwealth , 28 Va. App. 187, 193, 503 S.E.2d 233, 236 (1998)). A. Double Jeopardy Neff argues that the Commonweal th's refusal to present evidence in the general district court trial am ounted to the "presentation of evidence" and, thus, jeopardy attached. Therefore, he co ncludes, the dismissal of the charge constituted an acquittal that barred his subsequent indi ctment and prosecution of the same offense in the ci rcuit court. We disagree. The double jeopardy provisions of the United States and Virginia Constitution s protect a crim inal defendant from being prosecuted a second time for the same offens e following an acquittal. Turner v. Commonwealth , 221 Va. 513, 52 9, 273 S.E.2d - 3 -36, 46 (1980), cert. denied , 451 U.S. 1011 (1 981). A dismissal qualifies as an ac quittal for double jeopardy purpos es when it is granted pursuant to a factual, as opposed to a le gal, defense. Johnson v. Commonwealth , 221 Va. 736, 743-44, 273 S.E.2d 784, 789 (1981). Furthermore, "[i]n a trial be fore a court without a jury the danger of conv iction or jeopardy of an accused begins when the trial has reache d the stage wher e the Commonweal th begins to introduce its testimony." Rosser v. Commonwealth , 159 Va. 1028, 1036, 167 S.E. 257, 259 (1933). In other words, "jeopardy begins after the accused has been indicted, arraigned and has pleaded, and the court has begun to hear the evidence." Id. at 1037, 167 S.E. at 259. Th us, as the Suprem e Court noted in Martin v. Commonwealth , 242 Va. 1, 8, 40 6 S.E.2d 15, 18 (1991), "j eopardy attaches only af ter . . . the firs t witness is sw orn in a bench trial." In this case, Neff entered a plea of not guilty, and the general district court judge ca lled for the Co mmonwealth to present its eviden ce. No witnesse s, however, were sworn, and the Commonwealth presented no evidence prior to the dismissa l of the charge by the judg e. Accordingly, we hold that jeopardy had not yet attached when th e charge was dismisse d. Thus , Neff's indictment and subseque nt prosecution in the circuit cour t on the same charge was not ba rred by the do ctrine of doub le jeopardy.

- 4 -B. Res Judicata Neff also argues th at the general distri ct court's dismissal of the charge constitute d a decision on the merits. Therefore, he concludes, his subsequent indi ctment and pros ecution on the identical charge in the circuit co urt were barred by the doctrine of res judicata . Again, we disagree.

Res judicata is a judicially created doctrine founded upon the "considerations of public policy which favor certainty in the establishment of legal relations, demand an end to litigation, and seek to prevent harassment of parties." Bates v. Devers , 214 Va. 667, 670, 202 S.E.2d 917, 920 (1974) (citation omitted). Res judicata literally means a "matter adjudged," Black's Law Dictionary 1174 (5th ed. 1979), and it precludes relitigation of a claim or issue once a final determination on the merits has been reached by a court of competent jurisdiction. It rests upon the principle that a person should not be required to relitigate the same matter a second time "with the same person or another so identified in interest with such person that he represents the same legal right, precisely the same question, particular controversy, or issue, which has been necessarily tried and fully determined, upon the merits, by a court of competent jurisdiction . . . ." Patterson v. Saunders , 194 Va. 607, 614, 74 S.E.2d 204, 209, cert. denied , 354 U.S. 998 (1953). In short, once a matter or issue has been adjudicated, it may be relied upon as conclusive between the parties, or their privies, in any subsequent suit. Commonwealth ex rel. Gray v. Johnson , 7 Va. App. 61 4, 617-18, 376 S.E.2d 787, 788 (1989). We have held that the doctrine of res

- 5 -judicata applies in a cr iminal case. Highsmith v. Commonwealth , 25 Va. App. 434, 442, 48 9 S.E.2d 239, 243 (1997). "One who assert s the defense of res judicata has the burden of proving by a prepon derance of the evidence that an issue was previously raised and decided by a tribunal in a prior cause of action." Fodi's v. Rutherford , 26 Va. App. 446, 449, 495 S.E.2d 503, 505 (1998). That party must prove the identity of: "(1) the remedies sought; (2) th e cause of action; (3) the parties; and (4) the quality of the person s for or against whom the claim is made." Highsmith , 25 Va. App. at 440, 489 S. E.2d at 241. The proponent of the defense mu st also establis h that "'the ju dgment in the former action [was] rendered on the merits by a court of competent jurisdiction." Id. (alteration in origin al) (emphasi s added) (quoting Simmons v. Commonwealth , 252 Va. 118, 12 0, 475 S.E.2d 806, 807 (1996)).

In Highsmith , we stated that a judg ment "upon the merits" occurs when "the status of the su it was such that the parties might have had their suit disposed of on its merits if they had pres ented all their evidence and the court had properly understood the facts and correctl y applied the law to the facts. It is therefore sufficient if the merits are actually or constructively determined." Id. at 440, 489 S.E.2d at 241-42 (emphasis omitted) (quoting 8B Michie's Jurisprudence, Former Adjudication or Res Judicata § 12 (1996)). We further stated that "'[a] dismissal of a cause of

- 6 -action may constitute a judgment on the merits depending upon the grounds upon which su ch dismissal is base d. A judgment of dismissal which is intended to be and is a disposit ion on the merits of a cl aim is a final judgment on the merits.'" Id. at 440-41, 489 S.E.2d at 242 (emphasis omitted) (quoting Michie's Jurisprudence, supra ). We also noted in Highsmith that "the doctrine of res judicata . . . applie[s] to . . . pretrial di smissal[s] on the merits." Id. at 441-42, 489 S.E. 2d at 242 (citing, inter alia , United States v. Blackwell , 900 F.2d 742, 74 5 (4th Cir. 1990) (holding that th e doctrine of res judicata "is implicat ed by the pretrial disposition of a prior case if an ultimate issue in the second prosecution wa s conclusively litiga ted and ne cessarily determined as pa rt of the judgme nt entered in th e first case")). The question before us, then, is whether the general district court's dismissa l of the charge of DUI, second offe nse, before the presentation of any evidence, was a judgment on th e merits. The trial court ruled that the lower court's di smissal of the charge was not a judgment on the merits. We agree with the trial court. On the day of Neff's trial in the general district court, the Commonwealth, having failed to obtain a continuance, moved to nolle prosequi the charge. The genera l district court judge denied the motion to nolle prosequi , took Neff's plea of not guilty, and called for the Common wealth to pres ent its case. Notwithstandin g the court's directive, the Common wealth refused to

- 7 -go forward with its evidence. The court, havi ng full authority to hear the evidence an d convict or acquit Neff of th e Class 1 misdemeanor ch arged in the warrant, dism issed the charge without swearing any witnesse s or hearing any evid ence. Had the court called and sworn a witn ess, Neff woul d have been su bjected either to the danger of conv iction or the benefit of acquittal. A subsequent dismissal for lack of evidence would have then constituted a judgment on the merits. See Goolsby v. Hutto , 691 F.2d 199, 202 (4th Ci r. 1982). He re, however, the dismissal of the charge against Neff "amounted to no more than the assent of the [judge] to a cessation of the proceedings, without any examination wh atever of the ca use upon its meri ts. It was the equivalent of a nolle prosequi —nothing more—a nd could not" actually or cons tructively establish the gu ilt or innocence of the accused. Ward v. Reasor , 98 Va. 399, 403, 36 S.E. 470, 471 (1900), overruled on other grounds by Graves v. Scott , 104 Va. 372, 51 S.E. 821 (1905); see also Cantrell v. Commonwealth , 7 Va. App. 269, 281, 37 3 S.E.2d 328, 334 (198 8) (holding that a nolle prosequi entered before jeopardy attaches neither functions as an acquittal nor bars further prosecution on th e same charge). We hold, therefore, that, because no witnesses were sworn or evidence taken, the ge neral district court's dismissal of the DUI, second offense, charge against Neff, following the Co mmonwealth's refusal to present an y evidence, did not constitu te a final judgment on th e merits. Consequently , Neff's subsequent - 8 -indictment and prosecut ion in the circuit cour t on the same charge were not barred by the doctrine of res judicata

. Hence, we conclude the tria l court did not err in denying Neff's motion to quas h the indictment . Accordingly, we affirm Neff's conviction. Affirmed.

A Copy, Teste: Cynthia L. McCoy, Clerk By: Deputy Clerk

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