__________ 

 * 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, Clements and Senior Judge Bray* 

Argued at Chesapeake, Virginia 

BARRY FRANCIS NEFF, JR. 

 OPINION BY 

v. Record No. 1145-01-1 JUDGE JEAN HARRISON CLEMENTS 

 SEPTEMBER 10, 2002 

COMMONWEALTH OF VIRGINIA 

 FROM THE CIRCUIT COURT OF THE CITY OF WILLIAMSBURG 

 AND COUNTY OF JAMES CITY 

Samuel Taylor Powell, III, Judge 

 Deborah M. Wagner (McDermott & Roe, on 

brief), for appellant. 

 Margaret W. Reed, Assistant Attorney General 

(Jerry W. Kilgore, Attorney General, on 

brief), for appellee. 

 Barry Francis Neff, Jr., was indicted and convicted in a 

bench trial of driving under the influence, second offense, in 

violation of Code §§ 18.2-266 and 18.2-270. On appeal, he 

contends the trial court erred in denying his motion to quash the 

indictment because the doctrines of double jeopardy and res

judicata barred the indictment and its prosecution. For the 

reasons that follow, we find no error and affirm Neff's 

conviction. 
I. BACKGROUND 

 On October 19, 2000, Neff was convicted in the general 

district court of driving under the influence (DUI). He noted his 

appeal to the circuit court that same day. On October 25, 2000, 

Neff was arrested and charged with DUI, second offense. Neff's 

appeal of the conviction on the first DUI offense was still 

pending in the circuit court on November 16, 2000, when the trial 

on the second DUI offense was set to commence in the general 

district court. Thus, when the second DUI case was called for 

trial in the general district court, the Commonwealth moved for a 

continuance. Neff objected to a continuance because he had 

received no prior notice of the Commonwealth's motion and both 

parties had witnesses present. The general district court judge 

denied the Commonwealth's motion for a continuance, 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 witnesses. No witnesses were sworn. The judge then 

dismissed the DUI, 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 doctrines of double 

jeopardy and res judicata prohibited any further prosecution on 

the same charge that had been dismissed by the general district 

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court. The circuit court judge overruled the motion and found 

Neff guilty on his conditional plea of guilty. This appeal 

followed. 

II. ANALYSIS 

 On appeal, Neff contends the trial court erred in denying his 

motion to quash the indictment because his indictment and 

prosecution in the circuit court on the same charge that was 

dismissed by the general district court were barred under the 

doctrines of double 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 Commonwealth's refusal to present 

evidence in the general district court trial amounted to the 

"presentation of evidence" and, thus, jeopardy attached. 

Therefore, he concludes, the dismissal of the charge constituted 

an acquittal that barred his subsequent indictment and prosecution 

of the same offense in the circuit court. We disagree. 

 The double jeopardy provisions of the United States and 

Virginia Constitutions protect a criminal defendant from being 

prosecuted a second time for the same offense following an 

acquittal. Turner v. Commonwealth, 221 Va. 513, 529, 273 S.E.2d 

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36, 46 (1980), cert. denied, 451 U.S. 1011 (1981). A dismissal 

qualifies as an acquittal for double jeopardy purposes when it is 

granted pursuant to a factual, as opposed to a legal, defense. 

Johnson v. Commonwealth, 221 Va. 736, 743-44, 273 S.E.2d 784, 789 

(1981). Furthermore, "[i]n a trial before a court without a jury 

the danger of conviction or jeopardy of an accused begins when the 

trial has reached the stage where the Commonwealth 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. Thus, as the Supreme Court noted in Martin v. 

Commonwealth, 242 Va. 1, 8, 406 S.E.2d 15, 18 (1991), "jeopardy 

attaches only after . . . the first witness is sworn in a bench 

trial." 

 In this case, Neff entered a plea of not guilty, and the 

general district court judge called for the Commonwealth to 

present its evidence. No witnesses, however, were sworn, and the 

Commonwealth presented no evidence prior to the dismissal of the 

charge by the judge. Accordingly, we hold that jeopardy had not 

yet attached when the charge was dismissed. Thus, Neff's 

indictment and subsequent prosecution in the circuit court on the 

same charge was not barred by the doctrine of double jeopardy. 

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B. Res Judicata

 Neff also argues that the general district court's dismissal 

of the charge constituted a decision on the merits. Therefore, he 

concludes, his subsequent indictment and prosecution on the 

identical charge in the circuit court 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. 614, 617-18, 376 

S.E.2d 787, 788 (1989). We have held that the doctrine of res

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judicata applies in a criminal case. Highsmith v. Commonwealth, 

25 Va. App. 434, 442, 489 S.E.2d 239, 243 (1997). 

 "One who asserts the defense of res judicata has the burden 

of proving by a preponderance 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) the cause of action; (3) the parties; and (4) 

the quality of the persons 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 must also establish that "'the judgment in the 

former action [was] rendered on the merits by a court of competent 

jurisdiction." Id. (alteration in original) (emphasis added) 

(quoting Simmons v. Commonwealth, 252 Va. 118, 120, 475 S.E.2d 

806, 807 (1996)). 

 In Highsmith, we stated that a judgment "upon the merits" 

occurs when 

"the status of the suit was such that the 

parties might have had their suit disposed of 

on its merits if they had presented all their 

evidence and the court had properly 

understood the facts and correctly 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 

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action may constitute a judgment on the merits depending upon the 

grounds upon which such dismissal is based. A judgment of 

dismissal which is intended to be and is a disposition on the 

merits of a claim 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 dismissal[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, 745 (4th Cir. 1990) 

(holding that the doctrine of res judicata "is implicated by the 

pretrial disposition of a prior case if an ultimate issue in the 

second prosecution was conclusively litigated and necessarily 

determined as part of the judgment entered in the first case")).

 The question before us, then, is whether the general district 

court's dismissal of the charge of DUI, second offense, before the 

presentation of any evidence, was a judgment on the merits. The 

trial court ruled that the lower court's dismissal 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 general district court judge 

denied the motion to nolle prosequi, took Neff's plea of not 

guilty, and called for the Commonwealth to present its case. 

Notwithstanding the court's directive, the Commonwealth refused to 

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go forward with its evidence. The court, having full authority to 

hear the evidence and convict or acquit Neff of the Class 1 

misdemeanor charged in the warrant, dismissed the charge without 

swearing any witnesses or hearing any evidence. Had the court 

called and sworn a witness, Neff would have been subjected either 

to the danger of conviction 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 Cir. 1982). Here, 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 whatever of the cause upon its merits. It was the 

equivalent of a nolle prosequi—nothing more—and could not" 

actually or constructively establish the guilt 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, 373 S.E.2d 328, 334 (1988) (holding that a 

nolle prosequi entered before jeopardy attaches neither functions 

as an acquittal nor bars further prosecution on the same charge). 

 We hold, therefore, that, because no witnesses were sworn or 

evidence taken, the general district court's dismissal of the DUI, 

second offense, charge against Neff, following the Commonwealth's 

refusal to present any evidence, did not constitute a final 

judgment on the merits. Consequently, Neff's subsequent 

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indictment and prosecution in the circuit court on the same charge 

were not barred by the doctrine of res judicata. 

 Hence, we conclude the trial court did not err in denying 

Neff's motion to quash the indictment. Accordingly, we affirm 

Neff's conviction. 

 Affirmed.

 A Copy, 

 Teste: 

 Cynthia L. McCoy, Clerk 

 By: 

 Deputy Clerk 

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