COURT OF APPEALS OF VIRGINIA

Present: Judges Frank, Humphreys and McClanahan Argued at Salem, Virginia

COLLIN ANTHONY RICE OPINION BY v. Record No. 2331-09-3 JUDGE ROBERT P. FRANK JANUARY 11, 2011 COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF THE CITY OF ROANOKE Jonathan M. Apgar, Judge Marta J. Anderson (Law Offices of David J. Damico , on brief), for appellant. Richard B. Smith, Special Assist ant Attorney General (Kenneth T. Cuccinelli, II, Attorney Genera l, on brief), for appellee.

Collin Anthony Rice, appellant, was convicted, in a bench trial, of poss ession of a firearm by a felon, in violation of Code § 18.2-308.2. On appeal, he contends the trial court erred in convicting him of this o ffense after a jury had acqu itted him, in the sa me trial, of re lated offenses. Specifically, he argues collateral estoppel barred this conviction. 1 For the following reasons stated, we affirm the judgment of the trial court.

1 The Commonwealth initially argues that appell ant’s argument is an attempt to approbate and reprobate. We disagree. A party may not approbate and reprobate by taking successive positions in the course of litigation that are eith er inconsistent with each other or mutually contradictory. Nor may he invite error and then attempt to take advantage of the situation created by his own wrong. Rowe v. Commonwealth , 277 Va. 495, 502, 675 S.E.2d 161, 164 (2009). That is not applicable to this appeal. In this case, a jury tried appellant for five of the charges, and a judge heard the si xth. This process could lead to inconsistent verdicts, but appellant’s agreement to that arrangement does not mean he invited error. He assigns error not to the process, but to the trial court’s verdict.- 2 - BACKGROUND

As the facts of this case are not relevant to our analys is on appeal, we recite only the procedural history. As a result of a shooting incident, appellant wa s indicted for: malicious wounding, use of firearm during the malicious woun ding, attempted murder, use of firearm during the attempted murder, discharging a firearm into an occupied ve hicle, and possession of a firearm after having

been convicted of a violent felony, the instant offense. By agreement of the Commonwea lth and appellant, the trial cour t would try appellant on the instant offense and a jury would hear the remaining felonies. The jury found appellant not guilty of malicious wounding , use of a firearm during the malicious wounding, attempted murder, use of a firearm durin g the attempted murder, and discharging a firearm into an occupi ed vehicle. Immediately after di smissing the jury , the trial court heard additional argument regard ing the remaining fi rearm possession in dictment. Upon

consideration of the evid ence, the trial court fo und appellant guilty of the possession offense. Appellant filed a motion fo r reconsideration contending collateral estoppel barred appellant’s conviction of the in stant offense because of the ac quittal of the other felonies. Specifically, he argued that in order for the jury to have found appellant no t guilty of the other felonies, the jury necessa rily found appellant did not possess the firearm. In denying appellant’ s motion, the trial court concluded by virtue of the instant offense being tried by the court, the court made its own findings of credibility, th at the “contemporaneous acquittal” by the jury of th e other felonies did not preclude the conviction of the possession charge,

and that each offense had different elements. This appeal follows.- 3 - ANALYSIS Appellant’s sole argument on ap peal is that the doctr ine of collateral es toppel barred the trial court from convicting him of poss ession of a firearm by a felon. 2 He does not challenge the sufficiency of the evidence. Appellant’s argume nt is premised on his assertion that by findi ng him not guilty of the five other related felonies, the jury necessarily had to find he did no t possess the weapon. In response, the Commonw ealth contends collateral estoppel is not applicable because all of

the felonies were tried simultaneou sly, so the trial of the possessi on charge was not a “subsequent prosecution.” The Commonwea lth also maintains that the jury could have ac quitted appellant of the

other felonies for a number of reasons other than that appellant did not possess the firearm. Collateral estoppel is a doct rine of fact preclusion “embodied in the fifth amendment protection against double jeopardy.” Simon v. Commonwealth , 220 Va. 412, 415, 258 S.E.2d 567, 569 (1979). The doctrine essentially holds “that when an issue of ultimate fact has once been determined by a valid and fi nal judgment, that issue cannot again be litigated between the same parties in any future lawsuit.” Ashe v. Swenson , 397 U.S. 436, 443 (1970). If the previous judgment of acquittal was based upo n a general verdict, the trial court is required to “examine the record of a prior proceeding, taking into ac count the pleadings, evidence, charge, and other relevant matter, and conclude whether a ratio nal jury could have grounded its verdict upon an

2 At oral argument, appellant also argued th e trial court’s verdict was inconsistent with the jury’s verdict. However, a ppellant conceded that the brief di d not contain this argument. Thus, we will not consider it. Rule 5A:20(c) manda tes that this issue is waived, because it is not part of appellant’s assignment of error. See Winston v. Commonwealth , 51 Va. App. 74, 82, 654 S.E.2d 340, 345 (2007) (holding that because an a ppellant did not include an argument in his questions presented (now assignments of error) , the Court would not address it on appeal); see also Buchanan v. Buchanan , 14 Va. App. 53, 56, 415 S.E.2d 237, 239 (1992) (“Statements unsupported by argument, authorit y, or citations to the record do not merit appellate consideration.”).- 4 - issue other than that which the defendant seeks to foreclose from consideration.” Id. at 444. If it appears that the jury could have done so, then collateral est oppel does not apply. Id. The party seeking the protection of collatera l estoppel carries the burden of showing that the verdict in the prior action necessarily decide d the precise issue he seeks to now preclude.

Rhodes v. Commonwealth , 223 Va. 743, 749, 292 S.E.2d 373, 376 (1982). However, before the doctrine of collateral estoppel may be applied, four requirements must be met: (1) the parties to the two proceedings must be the same; (2) the factual issue sought to be litigated must have been actually litigated in the prior proceeding; (3) the factual issue must have been essential to the judgment re ndered in the prior proceeding; and (4) the prior proceeding must have resulted in a valid, final ju dgment against the party to whom the doctrine is sought to be applied. Glasco v. Ballard , 249 Va. 61, 64, 452 S.E.2d 854, 855 (1995); Bates v.

Devers , 214 Va. 667, 671, 202 S.E.2d 917, 921 (1974). Since the principle of collateral estoppel was enunciated in Ashe , “numerous attempts to

invoke the doctrine have met with little success.” Jones v. Commonwealth , 217 Va. 231, 233, 228 S.E.2d 127, 128 (1976). This wa s a predictabl e result, as Ashe ‘“was the rare case where it was possible to determine with certainty what the jury in the earlier prosecution had decided.’”

Id. (quoting United States v. Cioffi , 487 F.2d 492, 498 (1973), cert. denied , 416 U.S. 995 (1974)). An acquittal, “standing alone, does not permit a conclusi on with respect” to a court’s findings or rationale. Copeland v. Commonwealth , 13 Va. App. 450, 453, 412 S.E.2d 468, 470 (1991). The doctrine of collateral estoppel is no t often available to an accused, because it is “‘usually impossible to determine with any prec ision upon what basis the [fact finder] reached a verdict in a criminal case,’” l eaving the defense of collateral estoppel available to an accused only in “‘a rare situation.’” Jones , 217 Va. at 233, 228 S.E.2d at 128-29 (quoting United States

v. Tramunti , 500 F.2d 1334, 1346, cert

. denied , 419 U.S. 1079 (1974)).- 5 - Our threshold inquiry is whet her collateral est oppel applies to a situation where the evidence of all six felonies (including the instant offense) was heard in the same proceeding. See Phillips v. Commonwealth , 27 Va. App. 674, 680, 500 S.E.2d 848, 851 (1998) (explaining that a “significant and compelling f actor [in determining if convictions were prosecuted simultaneously] is whether the offenses were pr osecuted in a single, concurrent evidentiary hearing”). Under the doctrine of collateral estoppel, when an ultimate issue of fact has been litigated and determined by a valid, final judgment, the issue cannot be litigated again by the same litigants in a future lawsuit. Ashe , 397 U.S. at 443. Collateral estoppel, the species of res judicata applicable in this case, “precludes relitig ation of issues actually litigated and determined in [a] prior suit, regardless of whether it was based on the same cause of action as the second

suit.” Lawlor v. National Screen Service Corp. , 349 U.S. 322, 326 (1955). Unlike the doctrine of res judicata, the doc trine of collateral est oppel does not turn upon the issue whether a cause of action in a prior pr oceeding is the same as a cause of action brought in a later proceeding. See Bates , 214 Va. at 670-71, 202 S.E.2d at 920-21. The doctrine of collateral estoppel precludes the same parties to a prior proceeding from litigating in a later proceeding any issue of fact that actually wa s litigated and was essential to the final judgment in the first proceeding. Glasco , 249 Va. at 64, 452 S.E.2d at 855. The four elements required to establish collateral estoppel presuppose a prior action. Thus, it is clear that collateral estoppel does not apply to simultaneous prosecutions, as is the case here. The case law speaks of “prior actions ,” “first proceeding,” “future law suit,” and “prior suit.” Indeed, the se minal case on collateral estoppel, Ashe , involved a subsequent prosecution. Here, appellant’s charges were brought simultaneously, although they were heard by separate fact finders.- 6 - In Wolfe v. Commonwealth , 6 Va. App. 640, 371 S.E.2d 314 (1988), 3 the accused was charged with murder and use of a firearm dur ing the commission of mu rder. The jury found Wolfe guilty of voluntary manslaughter and the firearm charge in a single proceeding. In addressing inconsistent ve rdicts, we held that [t]he doctrine of collateral est oppel has not been held, and we believe properly so, to be applicab le where two charges are tried in a single criminal jury trial. The statement of the doctrine itself contemplates a second trial in th at an “issue cannot again be litigated between the same parties in any future law suit.” Id. at 646, 371 S.E.2d at 317 (quoting Ashe , 397 U.S. at 443).

While Wolfe involved a jury trying all of the indi ctments, we see no principled reason why the same principles should not apply where, in a single tria l, a jury decides some of the charges and the court decides others. The rationale of Wolfe applies to this case because there was a single proceeding, with the jury hearing fi ve counts and the court hearing one immediately after dismissing the jury. See Nesbitt v. Warden , 86 F.3d 118 (8th Cir. 1996) (the criminal rule of collateral estoppel found in Ashe does not apply to verdicts of guilt and innocence rendered in a single trial). Therefore, appellant cannot rely on the doctrine of collateral estoppel, because he was convicted in a simultaneous prosecuti on, so collateral estoppel does not apply.

CONCLUSION The doctrine of collateral estoppel does not ap ply in cases such as this one, where the offenses were all part of a simultaneous pros ecution. We therefore a ffirm the trial court.

Affirmed.

3 While neither party argued Wolfe in their briefs, the Court, prior to oral argument, requested counsel to argu e the applicability of Wolfe . They did so at oral argument.