COURT OF APPEALS OF VIRGINIA 

Present: Judges Benton, Elder and Bray 

Argued at Richmond, Virginia 

ZUHAAR JAMAL RAMADAN 

 OPINION BY 

v. Record No. 2109-97-2 JUDGE RICHARD S. BRAY 

 DECEMBER 29, 1998 

COMMONWEALTH OF VIRGINIA 

FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND 

James B. Wilkinson, Judge 

 Craig S. Cooley for appellant. 

 Daniel J. Munroe, Assistant Attorney General 

(Mark L. Earley, Attorney General, on brief), 

for appellee. 

 A jury convicted Zuhaar J. Ramadan (defendant) for 

feloniously driving a motor vehicle after having been adjudicated 

an habitual offender in violation of Code § 46.2-357(B)(2). On 

appeal, defendant complains (1) the trial court erroneously ruled 

that the Commonwealth was not collaterally estopped from 

prosecuting the offense, (2) the indictment did not properly 

allege the crime, and (3) that the evidence was insufficient to 

prove that defendant's driving "endanger[ed] the life, limb, or 

property of another." Finding no error, we affirm the 

conviction. 

 On April 8, 1997, Richmond Police Officer L. Clinton 

Jefferson first observed defendant, then an habitual offender, 

operating a motorcycle at a stoplight on Jefferson Davis (Davis) 

Highway. As Officer Jefferson followed, defendant proceeded 

through the intersection to the corner of Royal Avenue and Davis 
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Highway, again stopped, yielded to oncoming traffic, and turned 

left onto Royal Avenue. Jefferson then "tried to pull 

[defendant] over,"1

 and defendant "looked back," "took off," and 

"accelerated rapidly down Royal." Over a distance of several 

blocks, Jefferson attempted to "catch up to [defendant]," 

traveling "approximately 75 [m.p.h.]" in a 25 m.p.h. speed zone. 

 During the pursuit, defendant "accelerate[d] past" a group of 

children crossing the street "in his . . . path," causing "some 

[to] run[] in each direction . . . trying to get to the 

sidewalk." 

 The chase continued for "about another block" beyond the 

children, ending when defendant "lost control" and "slid into a 

wire fence in front of a residence." Defendant "fell off" the 

motorcycle, "jumped over [the] . . . fence[,] . . . ran to the 

side of the house[,] through the backyard, . . . [and] down the 

alley." He was apprehended shortly thereafter and charged with 

reckless driving, attempting to elude police, and feloniously 

driving while an habitual offender, the instant offense. 

 At trial on May 20, 1997 in the general district court, 

defendant was convicted of attempting to elude police, and the 

felony was certified to the grand jury. However, the reckless 

 1The reasons for the stop were not disclosed to the jury. 

Defendant's counsel vouched the record with Jefferson's testimony 

from an earlier trial, which had ended in a mistrial, that 

detailed defendant's driving from the initial encounter until the 

collision. Counsel represented to the court, without objection, 

that such additional evidence was also before the general 

district court. 
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driving charge was dismissed for reasons explained only by check 

marks at printed squares on the reverse side of the warrant 

designated, "not guilty," and "I ORDER the charge dismissed." 

The signature of the judge of the general district court appears 

on the warrant. 

 Following indictment in the trial court for the subject 

offense, defendant moved the court to dismiss, arguing that the 

general district court had previously "found the evidence . . . 

insufficient to support the allegation of reckless driving," a 

necessary element to the felonious habitual offender offense, 

and, therefore, the Commonwealth was collaterally estopped from 

prosecuting the indictment. However, because the record failed 

to disclose "the reason the judge dismissed" the reckless driving 

charge, the court overruled defendant's motion. Defendant 

subsequently was convicted for the felonious habitual offender 

violation, resulting in this appeal. 

Collateral Estoppel

 Code § 46.2-357(B) provides, in pertinent part, that 

 any person found to be an habitual offender 

. . ., who is thereafter convicted of driving 

a motor vehicle . . . while the revocation 

determination is in effect, shall be punished 

as follows: 

 1. If such driving does not, of itself, 

endanger the life, limb, or property of 

another, such person shall be guilty of a 

misdemeanor . . . . 

 2. If such driving of itself endangers the 

life, limb, or property of another . . ., 

such person shall be guilty of a felony 

. . . . 
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Thus, "driving of itself" which "endangers the life, limb, or 

property of another" is an indispensable element to a felonious 

violation of the statute. Code § 46.2-357(B)(2). Relying on the 

doctrine of collateral estoppel, defendant reasons that dismissal 

of the reckless driving charge by the general district court 

constituted a valid, final judgment which favorably resolved the 

endangerment element of Code § 46.2-357(B)(2), thereby precluding 

further consideration of such conduct in the instant 

prosecution.2

 The doctrine of collateral estoppel arises from the Fifth 

Amendment protection from double jeopardy and instructs 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.'" Jones v. 

Commonwealth, 217 Va. 231, 232, 228 S.E.2d 127, 128 (1976) 

(quoting Ashe v. Swenson, 397 U.S. 436, 443 (1970)); Rogers v. 

Commonwealth, 5 Va. App. 337, 341, 362 S.E.2d 752, 754 (1987). 

However, "[t]he 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). "The 

 

 2Reckless driving contemplated by Code § 46.2-852, the 

offense dismissed by the general district court, is defined by 

"language virtually identical" to the conduct proscribed by Code 

§ 46.2-357(B)(2). Bishop v. Commonwealth, 20 Va. App. 206, 211, 

455 S.E.2d 765, 767 (1995). 
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party seeking the protection of collateral estoppel carries the 

burden of showing that the verdict in the prior action 
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necessarily decided the precise issue he now seeks to preclude." 

Rogers, 5 Va. App. at 341, 362 S.E.2d at 754 (citation omitted). 

 Since the principle of collateral estoppel was enunciated in 

Ashe, "numerous attempts to invoke the doctrine have met with 

little success." Jones, 217 Va. at 233, 227 S.E.2d at 128. An 

acquittal, "standing alone, does not permit a conclusion with 

respect" to a court's findings or rationale. Copeland v. 

Commonwealth, 13 Va. App. 450, 453, 412 S.E.2d 468, 470 (1991). 

General "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." Lee, 219 Va. at 

1111, 254 S.E.2d at 1283; see e.g., Clodfelter v. Commonwealth, 

218 Va. 98, 107-08, 235 S.E.2d 340, 345-46 (1977) (district court 

may have dismissed misdemeanor believing that offense was 

"subsumed in . . . felony . . . certified to the grand jury"). 

Thus, it is "'usually impossible to determine with any precision 

upon what basis the [fact finder] reached a verdict in a criminal 

case,'" leaving the defense of collateral estoppel available to 

an accused only in "'a rare situation.'" Jones, 217 Va. at 233, 

 

 3In Lee, the Court applied the doctrine to estop a 

prosecution but, unlike the present record, defendant and the 

Commonwealth had stipulated that the earlier dismissal by the 

general district court was based upon insufficient evidence. 

Lee, 219 Va. at 1111, 254 S.E.2d at 127-28. Thus, the "holding 

. . . [was] strictly confined to the facts as detailed in the 

stipulation filed in this case." Id.
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228 S.E.2d at 128-29 (quoting United States v. Tramunti, 500 F.2d 

1334, 1346, cert. denied, 419 U.S. 1079 (1974)). 

 Here, the record does not reveal the reason for the 

dismissal of the reckless driving charge by the general district 

court. Perhaps, the court, as defendant suggests, found the 

evidence insufficient or, as likely, considered the misdemeanor 

subsumed in the felony or simply decided to favor defendant with 

leniency. However, the precise reason for the acquittal, an 

indispensable predicate to the defense of collateral estoppel, 

cannot rely upon conjecture. Thus, the doctrine did not bar 

relitigation of the endangerment element of the instant felony, 

and the court properly overruled defendant's motion to dismiss 

the indictment. 

The Indictment

 Defendant next complains that the indictment failed to 

sufficiently allege a felonious violation of Code 

§ 46.2-357(B)(2). However, it is well established that we will 

not consider an argument on appeal which was not presented to the 

trial court, absent good cause shown or to attain the ends of 

justice. See Rule 5A:18; Snurkowski v. Commonwealth, 2 Va. App. 

532, 536, 348 S.E.2d 1, 3 (1986). Defendant failed to challenge 

the indictment before the trial court and, finding no 

justification to invoke the ends of justice exception, we decline 

to address this issue. 
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Sufficiency of the Evidence

 When the sufficiency of the evidence is challenged on 

appeal, we view the record in the light most favorable to the 

Commonwealth, granting it all reasonable inferences fairly 

deducible therefrom, and the decision will not be disturbed 

unless plainly wrong or without evidence to support it. See Code 

§ 8.01-680; Higginbotham v. Commonwealth, 216 Va. 349, 352, 218 

S.E.2d 534, 537 (1975). 

 Code § 46.2-357(B)(2) criminalizes as a felony driving by an 

habitual offender which, "of itself[,] endangers the life, limb, 

or property of another." Absent such conduct, the offense of 

driving by an habitual offender violates Code § 46.2-357(B)(1), a 

misdemeanor. Thus, "[t]he distinction between negligent driving 

and reckless driving is the critical element in determining 

punishment under Code § 46.2-357." Bishop, 20 Va. App. at 

210-11, 455 S.E.2d at 767. To convict, the Commonwealth must 

prove driving by an accused that, standing alone, was "'"so 

gross, wanton, and culpable as to show a reckless disregard of 

human life."'" Id. at 211, 455 S.E.2d at 767 (citations 

omitted). 

 Here, the evidence disclosed that defendant operated a 

motorcycle at a high rate of speed, in gross violation of posted 

limits, approached a group of children as they crossed the 

roadway, prompting several to "run[] in each direction . . . 

trying to get to the sidewalk" and, moments thereafter, lost 
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control, crashed into a fence and fled. Such evidence clearly 

supports a finding that defendant's driving endangered life, 

limb, or property of others in violation of Code 

§ 46.2-357(B)(2). 

 Accordingly, we affirm the conviction. 

 Affirmed.
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Benton, J., dissenting. 

 The record establishes that Zuhaar Jamal Ramadan was tried 

in the general district court on the charge of reckless driving. 

See Code § 46.2-852. The reckless driving charge was based upon 

conduct that also gave rise to the charge that Ramadan drove 

recklessly after having been declared an habitual offender and 

while his license to drive was still revoked. See Code 

§ 46.2-357. The record proved that at the conclusion of the 

evidence in the general district court, the judge of the general 

district court "FOUND . . . [Ramadan] . . . not guilty" and 

"[o]rder[ed] the charge dismissed." As a proffer of evidence in 

the circuit court, Ramadan offered testimony from a police 

officer that the officer's testimony concerning the events that 

gave rise to the charges was the same in both the general 

district court and the circuit court. The police officer was the 

Commonwealth's only witness both in the general district court 

and in the circuit court. 

 "Collateral estoppel, a doctrine grounded in the Fifth 

Amendment guarantee against double jeopardy and applicable to the 

states under Benton v. Maryland, 395 U.S. 784 (1969), means 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.'" Lee v. 

Commonwealth, 219 Va. 1108, 1110, 254 S.E.2d 126, 127 (1979) 

(quoting Ashe v. Swenson, 397 U.S. 436, 443 (1970)). The Supreme 
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Court of Virginia addressed the applicability of the doctrine of 

collateral estoppel in Lee and Clodfelter v. Commonwealth, 218 

Va. 98, 235 S.E.2d 340 (1977). 

 In Clodfelter, a general district court judge "dismissed" a 

charge that the accused later contended was dispositive of an 

issue in a felony charge that was certified to the circuit court. 

 The general district court judge had "dismissed" a misdemeanor 

charge of possession of marijuana and had certified to the 

circuit court companion felony charges. A circuit court judge 

later convicted the defendant of the felony of possessing a 

controlled substance that was "found at the same place in the 

same container" as the marijuana. 218 Va. at 107, 235 S.E.2d at 

346. The Supreme Court rejected Clodfelter's contention that the 

dismissal of the marijuana possession charge collaterally 

estopped the Commonwealth from litigating the factual issue of 

Clodfelter's possession of the controlled substance. The Court 

noted the following: 

 It is not unreasonable or irrational to 

conclude from the record that the General 

District Court's dismissal . . . of the 

misdemeanor charge of possession of marijuana 

was grounded, not upon the lack of the 

evidence of possession, but upon the court's 

belief that this offense was subsumed in the 

more serious felony charge, possession of 

marijuana with intent to distribute, which 

the court had just certified to the grand 

jury. 

Id. at 108, 235 S.E.2d at 346 (emphasis added). 

 In Lee, the Supreme Court upheld a claim of collateral 
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estoppel where a judge of the general district court "dismissed" 

a misdemeanor charge that was dispositive of an element of 

felonies for which the defendant was convicted in the circuit 

court. 219 Va. at 1111, 254 S.E.2d at 127. The Court referred 

to its earlier ruling in Clodfelter and stated that "[w]hen 

grounds for a dismissal are not assigned and do not otherwise 

appear of record, the doctrine of collateral estoppel will not be 

applied since the defendant bears the 'burden of proving that the 

precise issue or question he seeks to preclude was raised and 

determined in the first action.'" Lee, 219 Va. at 1111-12, 254 

S.E.2d at 128 (quoting Clodfelter, 218 Va. at 106, 235 S.E.2d at 

345) (emphasis added). Significantly, the Court in Lee held as 

follows: 

 [I]t appears from the express language of the 

stipulation [in the record] that the judgment 

of dismissal . . . was based on insufficiency 

of the evidence, the particular ground 

assigned by defendant in his motion to 

dismiss. The only rational conclusion the 

stipulation permits is that, in sustaining 

the motion and dismissing the misdemeanor 

warrant, the district court decided that the 

evidence was insufficient to prove that 

defendant was driving his car on the date 

charged in the warrant. Whether defendant 

was driving his car on that date was "an 

issue of ultimate fact" in the misdemeanor 

prosecution and an element of each of the 

felonies charged in the indictments. Under 

the rule in Ashe, we must hold that the 

Commonwealth was estopped to prosecute the 

felonies. 

219 Va. at 1111, 254 S.E.2d at 127. 

 As in Lee, the record in Ramadan's case contains more than 
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the general district court judge's order reciting merely that the 

misdemeanor prosecution was "dismissed." The record in this case 

clearly establishes that the general district court judge's order 

"dismissed" the warrant because the judge found Ramadan "not 

guilty." That ruling determined the "issue of ultimate fact 

. . . by a valid and final judgment." Ashe, 397 U.S. at 443. It 

was a finding that the evidence was insufficient to prove 

reckless driving, the issue of ultimate fact which was an element 

of the prosecution of Ramadan in the circuit court for violation 

of Code § 46.2-357(B)(2). See Bishop v. Commonwealth, 20 Va. 

App. 206, 211, 455 S.E.2d 765, 767 (1995) ("In defining the 

conduct that gives rise to felony punishment under Code 

§ 46.2-357(B)(2), the legislature used the phrase, 'driving 

[that] . . . endanger[s] the life, limb, or property of another,' 

language virtually identical to that found in the statute 

defining reckless driving."). 

 As the Supreme Court observed in Lee, this case again 

"illustrates the need for the Commonwealth to assess the evidence 

carefully and exercise selective discretion in the prosecution of 

multiple offenses arising from the same transaction." 219 Va. at 

1111, 254 S.E.2d at 127. For these reasons, I would hold that 

the Commonwealth was estopped to prosecute Ramadan in the circuit 

court for a violation of Code § 46.2-357.